CREDIT SUPPORT AGREEMENT
This
CREDIT SUPPORT
AGREEMENT, dated as of January 27, 2010 (the “Effective
Date”) (as amended, amended and restated, renewed, extended, supplemented
or otherwise modified from time to time in accordance with the terms hereof,
this “Agreement”),
is entered into by and among Sector Performance Fund, LP, a Delaware limited
partnership (“Sector
Fund”), SPF SBS LP, a Delaware limited partnership (“Sector
SBS”; and together with Sector Fund, the “Credit Support
Parties”), Unitek Holdings, Inc., a Delaware corporation (“Unitek”),
and Berliner Communications, Inc., a Delaware corporation (“Berliner”;
together with Unitek, the “Obligors”).
RECITALS
WHEREAS,
Unitek and BMO Capital Markets Financing, Inc. (the “Lender”)
have entered into that certain Loan Authorization Agreement dated as of
September 25, 2007 (as amended, amended and restated, or otherwise modified from
time to time, including pursuant to that certain First Amendment to Loan
Authorization Agreement and that certain Second Amendment to Loan Authorization
Agreement, the “BMO Loan
Agreement”), pursuant to which the Lender agreed to extend loans and
other financial accommodations to Unitek in a principal amount of up to
$35,000,000; and
WHEREAS,
Unitek has executed and delivered to the Lender that certain Replacement Demand
Note dated September 15, 2009 (the “BMO Note”)
in a principal amount of up to $35,000,000, and loans equal to $35,000,000 have
been advanced by the Lender to Unitek (the “BMO
Loan”); and
WHEREAS,
in connection with the BMO Loan Agreement and the BMO Note, Sector Fund and
Sector SBS executed and delivered that certain Guaranty dated September 25, 2007
(as amended, amended and restated, or otherwise modified from time to time, the
“Guaranty”),
pursuant to which each of Sector Fund and Sector SBS guaranteed the performance
of Unitek’s obligations under the BMO Loan Agreement and the BMO Note (such
guarantee being referred to as the “Credit
Support”); and
WHEREAS, Berliner,
BCI East, Inc., a Delaware corporation and wholly-owned subsidiary of Berliner
(“Merger
Sub”), and Unitek have entered into that certain Agreement and Plan of
Merger, dated as of the date hereof (the “Merger
Agreement”), pursuant to which, among other things, Merger Sub has merged
with and into Unitek (the “Merger”)
with Unitek continuing as the surviving corporation and as a wholly-owned
subsidiary of Berliner; and
WHEREAS,
in connection with the consummation of the transactions contemplated by the
Merger Agreement, including the Merger, and as additional consideration for the
Credit Support Parties agreeing to continue to provide the Credit Support for
the BMO Loan following the Merger, the Obligors have agreed, jointly and
severally, to pay the Credit Support Parties a Credit Support Fee (as defined
below), as more particularly set out in Section 2.01 (Credit Support Fee) below;
and
WHEREAS,
in the event the Credit Support Parties are required to fund their obligations
under the Guaranty, Unitek and Berliner have agreed that they will enter into a
loan facility with the Credit Support Parties with substantially the same terms
and conditions as set forth in the
BMO Loan and with a principal amount equal to the amount so funded by the Credit
Support Parties, as more particularly set forth in Section 2.02 (Replacement Loan Facility)
below.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements set forth in
this Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties to this Agreement
hereby agree as follows:
ARTICLE
I
INTERPRETATION.
Section 1.01. Definitions. In this
Agreement, the following terms have the meanings given to them in this Section
1.01.
“Agreement”
shall have the meaning set forth in the introductory paragraph.
“Berliner”
shall have the meaning set forth in the introductory paragraph.
“Berliner Series B
Preferred Stock” means the Series B Preferred Stock, par value $0.00002
per share, of Berliner.
“BMO Loan”
shall have the meaning set forth in the second recital.
“BMO Loan
Agreement” shall have the meaning set forth in the first
recital.
“BMO Note”
shall have the meaning set forth in the second recital.
“Business
Day” means any day other than a Saturday, Sunday or other day on which
banks in the City of New York are permitted or required to close.
“Charter
Amendment” shall have the meaning set forth in the Merger
Agreement.
“Closing” means
the closing of the transactions contemplated by the Merger
Agreement.
“Constitutional
Documents” means, in the case of any Person, its certificate of
incorporation, bylaws, or analogous documents.
“Credit
Support” shall have the meaning set forth in the third
recital.
“Credit Support
Fee” shall have the meaning set forth in Section 2.01(a) (Credit Support Fee)
below.
“Credit Support
Parties” shall have the meaning set forth in the introductory
paragraph.
“Credit Support
Rate” means the lesser of (x) six percent (6.0%) per annum or (y) the Maximum
Lawful Rate.
“Effective
Date” shall have the meaning set forth in the introductory
paragraph.
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“Governmental
Body” means any foreign, federal, state, municipal or other government,
or any department, commission, board, bureau, agency, public authority or
instrumentality thereof or any court or arbitrator.
“Guaranty”
shall have the meaning set forth in the third recital.
“Lender”
shall have the meaning set forth in the first recital.
“Merger
Agreement” shall have the meaning set forth in the fourth
recital.
“Merger
Sub” shall have the meaning set forth in the introductory
paragraph.
“Maximum Lawful
Rate” means the maximum nonusurious rate of interest permitted by the
laws of the United States or the laws of any Relevant Jurisdiction, whichever
laws allow the greater rate of interest, as such laws now exist or may be
changed or amended or come into effect in the future, as more particularly
described in Section 2.01(c) (Maximum Interest)
below.
“Obligors”
shall have the meaning set forth in the introductory paragraph.
“Original Purchase
Price” means $50.00 per share (as adjusted for any stock splits, stock
dividends, combinations and the like).
“Person”
means any individual, firm, corporation, limited liability company, business
enterprise, trust, association, joint venture, partnership, Governmental Body or
other entity, whether acting in an individual, fiduciary or other
capacity.
“Relevant
Jurisdiction” means, in relation to any Person, its jurisdiction of
incorporation or organization or any jurisdiction where it conducts its
business.
“Sector Additional
Rate” means the lesser of (x) eight percent (8.0%) per annum or (y) the Maximum
Lawful Rate.
“Sector
Fund” shall have the meaning set forth in the introductory
paragraph.
“Sector
Loan” shall have the meaning set forth in Section
2.02(a) (Replacement Loan
Facility) below.
“Sector Loan
Facility” shall have the meaning set forth in Section
2.02(a) (Replacement Loan
Facility) below.
“Sector Loan
Permitted Repayment Period” shall have the meaning set forth
in Section 2.02(b) (Repayment)
below.
“Sector
SBS” shall have the meaning set forth in the introductory
paragraph.
“Special
Committee” shall have the meaning set forth in the Merger
Agreement.
“Unitek Credit
Agreements” shall have the meaning set forth in the Merger
Agreement.
Section
1.02. Interpretation.
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(a) a
Section, Clause, or Subclause is a reference to a section, clause or subclause
of this Agreement;
(b) a
time of day is a reference to New York time;
(c) the
headings in this Agreement do not affect its interpretation;
(d) the
definitions of terms in this Agreement shall apply equally to the singular and
plural forms of the terms defined. Whenever the context may require,
any pronoun shall include the corresponding masculine, feminine and neuter
forms. The words “include,” “includes” and “including” shall be
deemed to be followed by the phrase “without limitation.” The word
“will” shall be construed to have the same meaning and effect as the word
“shall”;
(e) any
definition of or reference to any agreement, instrument or other document herein
shall be construed as referring to such agreement, instrument or other document
as from time to time amended, restated, supplemented, modified, renewed or
extended;
(f) any
reference herein to any Person shall be construed to include such Person’s
successors and permitted assigns; and
(g) the
words “herein,” “hereof” and “hereunder,” and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular
provision hereof.
ARTICLE
II
THE
CREDIT SUPPORT.
Section
2.01. Credit
Support Fee.
(a) Calculation
of Credit Support Fee. As consideration for
continuing to provide the Credit Support for the BMO Loan following the Merger
and solely to the extent that the Guaranty remains in effect, Unitek and
Berliner agree, jointly and severally, to pay or cause to be paid to the Credit
Support Parties (or their designees) a credit support fee (the “Credit Support
Fee”) equal to the Credit Support Rate on the aggregate of:
(i) the
outstanding principal amount from time to time of the BMO Loan; plus
(ii) the
amount of interest payable from time to time on the BMO Loan.
(b) Payment
of Credit Support Fee. The Credit
Support Fee shall be payable in cash or, at the option of the Obligors (and
until such time as the Special Committee ceases to exist in accordance with the
terms of the Charter Amendment, with the prior approval of the Special
Committee), in shares of Berliner Series B Preferred Stock calculated on the
basis of the Original Purchase Price; provided, that if any of the Unitek
Credit Agreements do not permit the borrowers thereunder to make dividends to
the Obligors to pay such Credit Support Fee in cash, then the Credit Support Fee
shall be paid in shares of Berliner Series B Preferred Stock. The
Credit Support Fee shall be payable quarterly in arrears; provided
that to the extent the Credit Support Fee is paid by the issuance of shares of
Berliner Series B Preferred Stock, such shares shall be issued quarterly; provided,
further,
that if the prior approval of the Special Committee is required to determine
whether
the Credit Support Fee is to be paid in cash or in shares of Berliner Series B
Preferred Stock and the Special Committee has not made a determination as to
such payment before it is due, the Credit Support Fee shall be paid in shares of
Berliner Series B Preferred Stock.
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(c) Maximum
Interest. Notwithstanding
any provision to the contrary herein contained, the Credit Support Parties shall
not collect a rate of interest (including the Credit Support Fee) on any
obligation or liability due and owing by any Obligor to the Credit Support
Parties in excess of the maximum contract rate of interest permitted by
applicable law (the “Maximum Lawful
Rate”). The Credit Support Parties and the Obligors have
agreed that the interest laws of the State of New York shall govern the
relationship among them, but in the event of a final adjudication to the
contrary, nunc pro
tunc, the Obligors shall be obligated to pay to the Credit Support
Parties only such interest as then shall be permitted by the laws of the state
found to govern the contract relationship among the Credit Support Parties and
the Obligors. It is the intent of the Credit Support Parties and the
Obligors in the execution of this Agreement to contract in strict compliance
with applicable usury laws. In furtherance thereof, the Obligors and
the Credit Support Parties stipulate and agree that none of the terms and
provisions contained in or pertaining to this Agreement shall ever constitute or
be construed to create (a) a contract to pay, for the use, forbearance or
detention of money, interest at a rate or in an amount in excess of the maximum
rate of interest permitted by applicable law or (b) a charging of interest at a
rate or in an amount in excess of the maximum rate of interest permitted by
applicable law. Neither the Obligors nor the Credit Support Parties,
nor any other obligor under this Agreement or any other agreements among the
parties hereto or any of them shall ever be required to pay interest with
respect to this Agreement at a rate in excess of the Maximum Lawful Rate, and
the provisions of this paragraph shall control over all other provisions of this
Agreement or any other agreements among the parties hereto or any of them which
may be in apparent conflict herewith. The Credit Support Parties
expressly disavow any intention to charge or collect excessive unearned interest
or finance charges in the event the maturity of this Agreement or any of the
other obligations are accelerated. If the maturity of this Agreement
or any of the other obligations shall be accelerated for any reason or if the
principal amount owing hereunder or any of the other obligations is paid prior
to the end of the term of such obligations and as a result thereof the interest
received for the actual period of existence of such obligations exceeds the
applicable Maximum Lawful Rate, the Credit Support Parties shall, at their
option, either refund the amount of such excess or credit the amount of such
excess against the principal balance of the obligations outstanding and thereby
shall render inapplicable any and all penalties of any kind provided by
applicable law as a result of such excess interest. If due to any
circumstance whatsoever, fulfillment of any of the provisions of this Agreement
at the time performance of such provision shall be due shall exceed the Maximum
Lawful Rate, then, automatically, the obligation to be fulfilled shall be
modified, reduced or eliminated to the extent necessary to limit such interest
to the Maximum Lawful Rate, and if from any such circumstance the Credit Support
Parties should ever receive anything of value deemed interest by applicable law
which would exceed the Maximum Lawful Rate, such excessive interest shall be
applied to the reduction of the principal amount then outstanding of the
obligations and not to the payment of interest, or if such excessive interest
exceeds the unpaid principal balance then outstanding hereunder, such excess
shall be refunded to the Obligors or the agreement creating such excess interest
shall be cancelled, in which event any and all penalties of any kind under
applicable law as a result of such excess interest shall be
inapplicable. By execution of this Agreement, the Obligors and the
Credit Support Parties each acknowledge that they believe this Agreement to be
non-usurious and agree that if, at any time, the Obligors should have reason to
believe that this Agreement is in fact usurious, the Obligors shall give the
Credit Support Parties notice of such condition and the Obligors agree that the
Credit Support Parties shall have ninety (90) days after such notice in which to
make appropriate refund or other adjustment in order to correct such condition
if in fact
such exists. All amounts paid or agreed to be paid in connection with
the obligations which would under any law in effect and applicable to the
Obligors be deemed “interest” shall, to the extent permitted by such applicable
law, be amortized, prorated, allocated and spread throughout the full term of
the obligations and this Agreement. Any and all notices, pleadings or
other communications (whether oral or written) from the Credit Support Parties
and/or any agent, attorney or affiliate of the Credit Support Parties to the
Obligors or any agent, attorney or affiliate of the Obligors shall be
conclusively deemed, without the necessity of referencing this Agreement and/or
this section, to incorporate, for all purposes, the terms and provisions of this
Section . The term “applicable law” as used in this Section shall
mean the laws of the United States or any Relevant Jurisdiction, whichever laws
allow the greater rate of interest, as such laws now exist or may be changed or
amended or come into effect in the future.
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Section
2.02. Replacement Loan
Facility.
(a) Sector
Loan Facility. If the Credit Support Parties (or either of
them) are required to perform their obligations under the Guaranty for the BMO
Loan, the Obligors agree that they will enter into a loan facility with the
Credit Support Parties on substantially the same terms and subject to
substantially the same conditions as set forth in the BMO Loan, except that,
subject to Section 2.01(c) above, the interest rate shall be the sum
of (x) the interest rate provided for under the BMO Loan plus
(y) the Sector Additional Rate, and in a principal amount equal to the
amount of the Guaranty so funded by such Credit Support Parties (the “Sector Loan
Facility”; any loans made thereunder being referred to as the “Sector
Loans”) and use the proceeds of such loans to fully repay the BMO Loan;
provided
that the portion of the accrued interest constituting the Sector Additional Rate
may, at the option of Berliner (and until such time as the Special Committee
ceases to exist in accordance with the terms of the Charter Amendment, with the
prior approval of the Special Committee), be paid in shares of Berliner Series B
Preferred Stock, calculated on the basis of the Original Purchase Price; provided, further,
that if any of the Unitek Credit Agreements do not permit the borrowers
thereunder to make dividends to the Obligors to pay the portion of the accrued
interest constituting the Sector Additional Rate in cash, then the portion of
the accrued interest constituting the Sector Additional Rate shall be paid in
shares of Berliner Series B Preferred Stock. Accrued interest shall
be payable quarterly in arrears; provided
that to the extent the portion of the accrued interest constituting the Sector
Additional Rate is paid by the issuance of shares of Berliner Series B Preferred
Stock, such shares shall be issued quarterly; provided,
further,
that if the prior approval of the Special Committee is required to determine
whether the portion of the accrued interest constituting the Sector Additional
Rate is to be paid in cash or in shares of Berliner Series B Preferred Stock and
the Special Committee has not made a determination as to such payment before it
is due, then the portion of the accrued interest constituting the Sector
Additional Rate shall be paid in shares of Berliner Series B Preferred
Stock.
(b) Repayment. At
the time the Sector Loan Facility is established and during the nine-month
period thereafter (the “Sector Loan
Permitted Repayment Period”), Berliner shall use its commercially
reasonable efforts to repay the principal amount of, and all accrued but unpaid
interest on, such Sector Loan. Any principal amount of, and all
accrued but unpaid interest on, such Sector Loan Facility not repaid on or
before the end of the Sector Loan Permitted Repayment Period pursuant to the
preceding sentence shall automatically convert into shares of Berliner Series B
Preferred Stock, with such conversion based on the Original Purchase Price, on
the last day of the Sector Loan Permitted Repayment Period.
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(c) Reserved
Shares. Following the
date that the Charter Amendment has been filed with the Secretary of State of
Delaware and becomes effective, Berliner shall at all times hold in reserve an
adequate number of shares of Berliner Series B Preferred Stock (and common stock
issuable upon conversion thereof) necessary for Berliner or Unitek to comply
with is obligations under this Article II.
ARTICLE
III
OBLIGOR
REPRESENTATIONS AND WARRANTIES.
In order
to induce the parties hereto to enter into this Agreement, and for the Credit
Support Parties to continue to provide the Credit Support, each of the Obligors
makes the following representations, warranties and agreements to the Credit
Support Parties, all of which shall survive the execution and delivery of this
Agreement.
Section 3.01. Corporate
Existence and Power. It is a
corporation, duly incorporated or established and validly existing and in good
standing under the laws of its jurisdiction of incorporation and has the power
to own its assets and carry on its business as it is being and will be
conducted.
Section 3.02. Powers
and Authority. It has the power
to enter into and perform, and has taken all necessary action to authorize the
entry into and performance of, this Agreement and each of the transactions
contemplated by this Agreement.
Section 3.03. Legal
Validity. This Agreement
constitutes its valid and legally binding obligation, enforceable against it in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors’ rights generally and by equitable
principles (whether or not any action to enforce such document is brought at law
or in equity).
Section 3.04. Non-Conflict. The entry into
and performance by it of, and the transactions contemplated by, this Agreement
do not and will not conflict with any law or regulation applicable to it in any
material respect, conflict with its Constitutional Documents or conflict with
any document which is binding upon it or any of its assets or constitute a
default or termination event (however described) under any such
document.
Section 3.05. Authorizations. All
authorizations required by it:
(a) in
connection with the entry into, performance, validity and enforceability of, and
the transactions contemplated by, this Agreement have been (or will at Closing
be) obtained or effected (as appropriate) and are (or will at Closing be) in
full force and effect; and
(b) to
carry on its business in the ordinary course and in all material respects as it
is proposed to be conducted following the Closing have been obtained or effected
(as appropriate) and are in full force and effect.
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ARTICLE
IV
CREDIT
PARTIES REPRESENTATIONS AND WARRANTIES.
In order
to induce the parties hereto to enter into this Agreement, each of the Credit
Support Parties makes the following representations, warranties and agreements
as of the date hereof (except for the representations and warranties set forth
in Section 4.04, which shall be as of the date hereof and as of the date of any
issuance of Berliner Series B Preferred Stock to the Credit Support Parties) to
the Obligors, all of which shall survive the execution and delivery of this
Agreement.
Section 4.01. Existence
and Power. It is a limited
partnership, duly established and validly existing under the laws of its
jurisdiction of formation and has the power to own its assets and carry on its
business as it is being and will be conducted.
Section 4.02. Powers
and Authority. It has the power
to enter into and perform, and has taken all necessary action to authorize the
entry into and performance of, this Agreement and each of the transactions
contemplated by this Agreement.
Section 4.03. Legal
Validity. This Agreement
constitutes its valid and legally binding obligation, enforceable against it in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors’ rights generally and by equitable
principles (whether or not any action to enforce such document is brought at law
or in equity).
Section
4.04. Accredited
Investor.
(a) It
is an “accredited investor” within the meaning of Rule 501(a) under Regulation D
of the Securities Act of 1933, as amended, and has such knowledge and experience
in financial and business matters so as to be capable of evaluating the merits
and risks of any investments in capital stock or other securities of Berliner,
and is capable of bearing the economic risks of such investments and is able to
bear the complete loss of any such investment;
(b) It
is acquiring capital stock or other securities of Berliner for its own account
with the present intention of holding such securities for purposes of
investment, and that it has no intention of selling such securities in a public
distribution in violation of the federal securities laws or any applicable state
securities laws;
(c) It
has had an opportunity to consult with independent legal counsel regarding its
rights and obligations under this Agreement, and it fully understands the terms
and conditions contained herein;
(d) It
is not relying on Berliner or any of its employees or agents with respect to the
legal, tax, economic and related considerations of an investment in the shares
of capital stock or other securities of Berliner, and it has relied on the
advice of, or has consulted with, only its own advisers with respect to such
matters;
(e) It
understands that in the future the capital stock or other securities of Berliner
may significantly increase or decrease in value, and Berliner has not made any
representation to the undersigned about the potential future value of the shares
of its stock; and
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(f) It
is able to bear the economic risks of an investment in the shares of capital
stock or other securities of Berliner and could afford a complete loss of such
investment.
ARTICLE
V
GENERAL
PROVISIONS.
Section
5.01. Covenant
of the Credit Support Parties.
(a) From
and after the Closing and for so long as the BMO Loan is outstanding, neither
Credit Support Party will cause or permit its Guaranty of the BMO Loan to be
withdrawn, cancelled, terminated or modified in any manner that would have the
effect of reducing the amount of the obligations guaranteed by the Guaranty
(other than as a result of any repayment of the BMO Loan in accordance with its
terms).
(b) The
Credit Support Parties shall promptly notify the Obligors of any notice received
by the Credit Support Parties of Lender’s intention to modify or terminate the
BMO Loan, and Berliner shall reasonably promptly notify the Special Committee
following receipt of such notification.
Section 5.02. Indemnification;
Subrogation. If either Credit Support
Party is made a party to any litigation concerning this Agreement or any
interest herein, then the Obligors shall, jointly and severally, indemnify,
defend and hold the Credit Support Parties harmless from all liability by reason
of said litigation including reasonable attorneys’ fees and expenses incurred by
the Credit Support Parties as a result of any such litigation, whether or not
any such litigation is prosecuted to judgment. The Credit Support
Parties may employ an attorney or attorneys to protect their rights hereunder,
and in the event of such employment following any breach by either Obligor, the
Obligors shall pay the reasonable attorneys’ fees and expenses incurred by the
Credit Support Parties, whether or not an action is actually commenced against
the Obligors by reason of a breach.
Section 5.03. Attorney’s
Fees and Other Expenses. The Obligors
agree, jointly and severally, to pay to the Credit Support Parties on demand all
attorneys’ fees and expenses or other cost or expenses incurred by the Credit
Support Parties in connection with the enforcement or collection against the
Obligors of any provision of this Agreement, whether or not suit is instituted,
including, but not limited to, such costs or expenses arising from the
enforcement or collection against the Obligors of any provision of this
Agreement in any bankruptcy or reorganization proceeding.
Section 5.04. Waiver of
Offset; Bankruptcy Proceedings. All sums payable
pursuant to this Agreement shall be paid without notice, demand, counterclaim,
setoff, deduction or defense and without abatement, suspension, deferment,
diminution or reduction, and the obligations and liabilities under this
Agreement shall in no way be released, discharged or otherwise affected (except
as expressly provided therein) by reason of any bankruptcy, insolvency,
reorganization, composition, adjustment, dissolution, liquidation or other like
proceeding relating to the Credit Support Parties, or any action taken with
respect to the obligations hereunder by any trustee or receiver of the Credit
Support Parties, or by any court, in any such proceeding, any claim which the
Obligors have or might have against the Credit Support Parties or any default or
failure on the part of the Credit Support Parties to perform or comply with any
of the terms hereof or of any other agreement with the Obligors.
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Section 5.05. Conflicts
and Construction. The parties
acknowledge and agree that (a) each party and its counsel have reviewed and
revised this Agreement and negotiated the terms and provisions thereof, and this
Agreement shall be construed without the aid of any canon or rule of law
requiring interpretation against the party drafting or causing the drafting of
an agreement or portions of an agreement in question, (b) neither Obligor has
received from the Credit Support Parties, and the Credit Support Parties have
not received from the Obligors, any accounting, tax, legal, financial or other
advice, and (c) each party has relied solely upon the advice of its own
accounting, tax, legal, financial and other advisors. The
benefits, rights and remedies of the Credit Support Parties are
cumulative.
ARTICLE
VI
MISCELLANEOUS.
Section 6.01. Notices. All notices and
communications under this Agreement shall be in writing and shall be (i)
delivered in person, (ii) sent by telecopy or telegraph, or (iii) mailed,
postage prepaid, either by registered or certified mail, return receipt
requested, or (iv) delivered by nationally recognized overnight express carrier,
addressed in each case as follows:
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To
Berliner:
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Berliner
Communications, Inc.
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00-00
Xxxxxxx Xxxxx
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Xxxx
Xxxx, Xxx Xxxxxx 00000
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Attention: General
Counsel
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Telecopy
Number: (000) 000-0000
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To
Unitek:
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Unitek
Holdings, Inc.
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c/o
Unitek USA, LLC
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0000
Xxxxxx Xxxxxxx Xxxx
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Xxxxxxx
Xxxx, Xxxxx 000
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Xxxx
Xxxx, Xxxxxxxxxxxx 00000
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Attention: Xxxxx
Xxxxxxxxx
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Telecopy
Number: (000) 000-0000
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To
the Credit Support Parties:
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Sector
Performance Fund, LP
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c/o
HM Capital Partners LLC
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000
Xxxxxxxx Xxxxx, Xxxxx 0000
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Xxxxxx,
Xxxxx 00000
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Attention:
Xxxxx X. Xxxxxxx
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Telecopy
Number: (000) 000-0000
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or to
such other address or telecopy number, as to any of the parties hereto, as such
party shall designate in a written notice to the other parties
hereto. All notices sent pursuant to the terms of this Section
6.01 shall be deemed received (i) if sent by telecopy or telegraph, on the
day sent if a Business Day, or if such day is not a Business Day, then on the
next Business Day, (ii) if sent by overnight, express carrier, on the next
Business Day immediately following the day sent, or (iii) if sent by registered
or certified mail, on the third Business Day following the day
sent.
Section 6.02. Survival
of Indemnity. The obligations
of the Obligors to indemnify the Credit Support Parties with respect to the
expenses, damages, losses, costs and liabilities described
in Section 5.02 (Indemnification; Subrogation)
and Section 5.03 (Attorney’s
Fees and Other Expenses) shall survive the repayment of all amounts due
under this Agreement and the release and/or cancellation of this
Agreement.
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Section 6.03. Further
Assurances. From time to
time, the Obligors shall execute and deliver to the Credit Support Parties such
additional documents as the Credit Support Parties may require to carry out the
purposes of this Agreement and to protect the Credit Support Parties’ rights
hereunder.
Section 6.04. Severability. In the event that
any provision of this Agreement is deemed to be invalid by reason of the
operation of any law, this Agreement shall be construed as not containing such
provision and the invalidity of such provision shall not affect the validity of
any other provisions hereof, and any and all other provisions hereof which
otherwise are lawful and valid shall remain in full force and
effect.
Section 6.05. Waiver. No delay on the
part of any party hereto in exercising any right, power or privilege hereunder
shall operate as a waiver thereof, and no single or partial exercise of any
right, power or privilege hereunder shall preclude other or further exercise
thereof, or be deemed to establish a custom or course of dealing or performance
among the parties hereto, or preclude the exercise of any other right, power or
privilege. Any failure by any party hereto to insist upon strict
compliance with any of the terms or conditions of this Agreement shall not be
deemed a waiver of the same or any other term or condition of this Agreement,
and any party hereto may at any time thereafter insist upon compliance with any
and all such terms and conditions. No delay or omission in the
exercise of any right or remedy of any party hereto as a result of a default by
any other party hereto under this Agreement shall be deemed a waiver of any such
right or remedy as a result of the same default or subsequent defaults, nor
shall any single or partial exercise thereof preclude any other further exercise
thereof or the exercise of any other right or be deemed to establish a custom or
course of dealing or performance among the parties hereto, or preclude the
exercise of any other right, power or privilege. Any waiver of rights
and remedies of any party hereto or duties and obligations of any other party
hereto under this Agreement shall be effective only if made in writing and duly
executed and delivered by the party waiving such right or remedy (and until such
time as the Special Committee ceases to exist in accordance with the terms of
the Charter Amendment, with the prior approval of the Special Committee), if the
waiving party is either Obligor shall only be effective if the Special Committee
has provided its prior approval). No notice or demand given in any
case shall constitute a waiver of the right to take other action in the same,
similar or other instances without such notice or demand.
Section 6.06. Entire
Agreement; Modification. This Agreement
constitutes the entire agreement of the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements with respect to such
subject matter, written or oral. No modification, amendment or waiver
of any provision of this Agreement, or consent to any departure by any party
hereto therefrom, shall be effective unless the same shall be in writing (and
until such time as the Special Committee ceases to exist in accordance with the
terms of the Charter Amendment, if the waiving party is either Obligor shall
only be effective if the Special Committee has provided its prior approval), and
then such waiver or consent shall be effective only in the specific instance and
for the purpose for which given. No notice to or demand on the
Obligors in any case shall entitle the Obligors to any other or further notice
or demand in the same, similar or other circumstances.
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Section 6.07. Counterparts. This Agreement
may be executed in counterparts (and by different parties hereto in different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. Delivery of an
executed counterpart of a signature page of this Agreement or any document or
instrument delivered in connection herewith by facsimile transmission or
electronic transmission (in pdf format) shall be effective as delivery of a
manually executed counterpart of this Agreement or such other document or
instrument, as applicable.
Section 6.08. Assignments. No Obligor may
assign or transfer any of its rights or obligations under this Agreement without
the prior written consent of the Credit Support Parties. No Credit
Support Party may assign or transfer any of its obligations under this Agreement
without the prior written consent of the Obligors. This Agreement
shall be binding upon and inure to the benefit of and be enforceable by the
respective successors and assigns of the parties hereto.
Section 6.09. Remedies
Cumulative. All rights and
remedies of the Credit Support Parties pursuant to this Agreement or otherwise
shall be cumulative and non-exclusive, and may be exercised singularly or
concurrently. The Credit Support Parties shall not be required to
prosecute collection, enforcement or other remedies against any Obligor before
proceeding against the other Obligor. One or more successive actions
may be brought against any or all of the Obligors, either in the same action or
in separate actions, as often as the Credit Support Parties deem advisable,
until all of the obligations are performed in full.
Section 6.10. Survival
of Representations and Warranties. The
representations and warranties contained in this Agreement shall survive
termination, cancellation, expiration and completion of this Agreement and shall
survive any transfer or assignment hereof.
Section
6.11. SUBMISSION
TO JURISDICTION; WAIVERS.
(a) ALL
JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY PARTY ARISING OUT OF OR RELATING HERETO
MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN XXX
XXXXX, XXXXXX XXX XXXX XX XXX XXXX. BY EXECUTING AND DELIVERING THIS
AGREEMENT, EACH PARTY, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES,
IRREVOCABLY:
(i) ACCEPTS
GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH
COURTS;
(ii) WAIVES
ANY DEFENSE OF FORUM NON CONVENIENS;
(iii) AGREES
THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE
BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, AT ITS ADDRESS
PROVIDED IN ACCORDANCE WITH SECTION 6.01;
(iv) AGREES
THAT SERVICE AS PROVIDED IN CLAUSE (iii) ABOVE IS SUFFICIENT TO CONFER PERSONAL
JURISDICTION OVER SUCH PARTY IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND
OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT;
AND
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(v) AGREES
THAT EACH PARTY HERETO RETAINS THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST ANY PARTY IN THE COURTS OF ANY
OTHER JURISDICTION.
(b) EACH
OF THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY
TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR ANY
DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT OR THE
INTENTS AND PURPOSES HEREOF. THE SCOPE OF THIS WAIVER IS INTENDED TO
BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND
THAT RELATE TO THE SUBJECT MATTER HEREOF, INCLUDING CONTRACT CLAIMS, TORT
CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY
CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL
INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP THAT EACH PARTY HERETO HAS
ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH
PARTY HERETO WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE
DEALINGS. EACH PARTY HERETO FURTHER WARRANTS AND REPRESENTS THAT IT
HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND
VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL
COUNSEL. THIS WAIVER IS IRREVOCABLE; MEANING THAT IT MAY NOT BE
MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER
SPECIFICALLY REFERRING TO THIS SECTION 6.11(B) AND EXECUTED BY EACH OF
THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO. IN THE EVENT OF
LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE
COURT.
Section 6.12. APPLICABLE
LAW. THIS AGREEMENT,
AND ANY CLAIM OR CONTROVERSY RELATING TO THE SUBJECT MATTER HEREOF WHETHER
SOUNDING IN CONTRACT LAW OR TORT LAW, SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF THAT WOULD REQUIRE THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
Section 6.13. Third
Party Beneficiaries. The Special Committee is hereby expressly
made a third party beneficiary of Section 2.01(b), Section 2.02(a), Section 6.05
and Section 6.06 above and shall be entitled to enforce the right to
approve the actions requiring the consent of the Special Committee as set forth
therein. In addition, the Special Committee is hereby expressly made
a third party beneficiary of Section 5.01 above and shall be entitled to enforce
the rights of the Obligors with respect to the covenants of the Credit Support
Parties set forth therein.
[The
Remainder of this Page is Intentionally Blank]
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IN WITNESS WHEREOF, the parties
have executed this Agreement the day and year first above written.
SIGNATORIES
|
THE
CREDIT SUPPORT PARTIES
|
|
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Signed
by
|
)
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|
for
and on behalf of
|
)
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SECTOR
PERFORMANCE FUND, LP
|
)
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By: Sector
Performance GP, LP, its general partner
|
|
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By: Sector
Performance LLC, its general partner
|
|
|
By:
/s/ Xxxxx X.
Xxxxxxx
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Name: Xxxxx
X. Xxxxxxx
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|
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Title:
Vice President and Chief Financial Officer
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|
|
Signed
by
|
)
|
|
for
and on behalf of
|
)
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|
SPF
SBS LP
|
)
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|
By: Sector
Performance LLC, its general partner
|
|
|
By:
/s/ Xxxxx X.
Xxxxxxx
|
|
|
Name: Xxxxx
X. Xxxxxxx
|
|
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Title:
Vice President and Chief Financial Officer
|
|
[Signature
Page to Credit Support Agreement]
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THE
OBLIGORS
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Signed
by
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)
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|
for
and on behalf of
|
)
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UNITEK
HOLDINGS, INC.
|
)
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By:
/s/ Xxxxx X.
Xxxxxxx
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Name:
Xxxxx X. Xxxxxxx
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|
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Title:
Vice President and Secretary
|
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Signed
by
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)
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for
and on behalf of
|
)
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|
BERLINER
COMMUNICATIONS, INC.
|
)
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By:
/s/ Xxxxx X.
Xxxxxxx
|
|
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Name: Xxxx
Xxxxxxxx
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|
|
Title: President
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|
