SECOND INCREMENTAL TERM C FACILITY AMENDMENT
EXECUTION
COPY
SECOND
INCREMENTAL TERM C FACILITY AMENDMENT
Dated as
of September 30, 2008
SECOND INCREMENTAL TERM C FACILITY
AMENDMENT (this “Amendment”) among
UNITEK ACQUISITION, INC., a Delaware corporation (the “Borrower”), the
Second Incremental Term C Lenders (as such term is defined below), and ROYAL
BANK OF CANADA, as administrative agent (in such capacity, the “Administrative
Agent”) for the financial institutions and other lenders parties to the
First Lien Credit Agreement referred to below (collectively, the “Lenders”).
PRELIMINARY
STATEMENTS:
(1) The
Borrower, Lenders and the Administrative Agent have entered into a First Lien
Credit Agreement dated as of September 27, 2007 (such First Lien Credit
Agreement, as otherwise amended, supplemented or modified prior to the date
hereof, the “First
Lien Credit Agreement”). Capitalized terms not otherwise
defined in this Amendment have the same meanings as specified in the First Lien
Credit Agreement.
(2) The
Borrower, the financial institutions and other lenders party to the Second Lien
Term Loan Agreement and the Administrative Agent have entered into a Second Lien
Term Loan Agreement dated as of September 27, 2007 (such Second Lien Term Loan
Agreement, as otherwise amended, supplemented or modified prior to the date
hereof, the “Second
Lien Term Loan Agreement”).
(3) As
provided in Section
2.18 of the First Lien Credit Agreement, the Borrower and the
Administrative Agent hereby agree to make certain technical amendments to the
First Lien Credit Agreement in respect of the Second Incremental Term C Facility
thereto, as hereinafter set forth.
(4) Accordingly,
the Second Incremental Term C Facility shall be implemented as
follows:
SECTION
1. Second Incremental Term C
Facility. Pursuant to Section 2.18 of the
First Lien Credit Agreement, the lender listed under the heading “Second
Incremental Term C Lender” on the signature pages hereof (the “Second Incremental Term C
Lender”) agrees to commit an amount equal to the amount set forth
opposite the name of such Second Incremental Term C Lender listed on Schedule I
hereto (the “Second
Incremental Term C Commitment”), each Second Incremental Term C
Commitment to be effective as of September 30, 2008.
SECTION
2. Second Incremental Term C
Commitment. The Term C Incremental Lender hereby acknowledges that it has
made the Second Incremental Term C Commitment set forth opposite its Second
Incremental Term C Lender’s name on Schedule I to this
Amendment. Each of the Borrower and the Second Incremental Term C
Lender hereby agrees that from and after September 30, 2008, such Second
Incremental Term C Lender shall be a “Term C Lender” for
all purposes under the First Lien Credit Agreement.
SECTION
3. Interest. The
Borrower shall pay interest on the unpaid principal amount of all Term C
Advances made by the Incremental Term C Lender from the date of such Advance
until such principal amount shall be paid in full, at a rate equal to 14.5% per
annum, payable in arrears quarterly on the last Business Day of each March,
June, September and December.
SECTION
4. Conditions Precedent to
Effectiveness. This Amendment shall become effective as of
September 30, 2008 if, and only if:
(a) on
the date of Borrowing under the Second Incremental Term C Facility, the
following statements shall be true and the Administrative Agent shall have
received for the account of the Second Incremental Term C Lender, a Borrowing
Notice delivered pursuant to Section 2.02 of the
First Lien Credit Agreement, signed by a Responsible Officer of the Borrower,
dated the date of such Borrowing, stating that:
(i) the
representations and warranties contained in each Loan Document are true and
correct in all material respects on and as of such date, before and after giving
effect to such Borrowing and to the application of the proceeds therefrom, as
though made on and as of such date, other than any such representations or
warranties that, by their terms, refer to a specific date other than the date of
such Borrowing, in which case as of such specific date; and
(ii)
no Default has occurred and is continuing, or would result from such Borrowing
or from the application of the proceeds therefrom.
(b) after
giving pro forma effect to the incurrence of the Second Incremental Term C
Facility, the Borrower shall be in compliance with all financial covenants set
forth in Section
5.04 of the Credit Agreement;
(c) after
giving pro forma effect to the incurrence of the Second Incremental Term C
Facility, the Total Leverage Ratio shall not be higher than that immediately
prior to the application of the proceeds of the Second Incremental Term C
Facility;
(d) on
or prior to such date the Administrative Agent shall have received counterparts
of this Amendment executed by the Borrower and the Second Incremental Term C
Lenders; and
(e) the
Borrower has paid to ELB Capital Management LLC a closing fee of $200,000 in
cash.
SECTION
5. Reference to and Effect on
the Credit Agreement and other Loan Documents.(a) On and after
the effectiveness of this Amendment, each reference in the Credit Agreement to
“this Agreement”, “the Credit Agreement”, “hereunder”, “hereof”, “thereunder”,
“thereof” or words of like import referring to the First Lien Credit Agreement
shall mean and be a reference to the First Lien Credit Agreement, as amended by
this Amendment.
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(b) The
First Lien Credit Agreement, as specifically amended by this Amendment, and each
of the other Loan Documents are and shall continue to be in full force and
effect and are hereby in all respects ratified and confirmed.
(c) The
execution, delivery and effectiveness of this Amendment shall not operate as a
waiver of any right, power or remedy of any Lender or the Administrative Agent
under any of the Loan Documents, nor constitute a waiver of any provision of any
of the Loan Documents.
SECTION
6. Execution in
Counterparts. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute but one and the same agreement. Delivery of
an executed counterpart of a signature page to this Amendment by facsimile or
other electronic transmission shall be effective as delivery of a manually
executed counterpart of this Amendment.
SECTION
7. Governing
Law. This Amendment shall be governed by, and construed in
accordance with, the laws of the State of New York.
[SIGNATURE
PAGES IMMEDIATELY FOLLOW]
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IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by
their respective officers thereunto duly authorized, as of the date first above
written.
UNITEK ACQUISITION,
INC., as Borrower
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By:
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/s/ X. X. Xxxxx
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Name:
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X.
X. Xxxxx
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Title:
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Vice
President and
Secretary
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ACKNOWLEDGED
AND AGREED
as of the
date first written above by the
undersigned
Guarantors:
UNITEK
MIDCO, INC.
UNITEK
USA, LLC
ADVANCED
COMMUNICATIONS USA, LLC
DIRECTSAT
USA, LLC
FTS
USA, LLC
WTW
USA, LLC
By:
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/s/ X. X. Xxxxx
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Name:
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X. X. Xxxxx
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Title:
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CEO
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Unitek
Second Incremental Term C Amendment
ROYAL BANK OF CANADA, as
Administrative Agent
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By:
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/s/ Xxxxx Xxxxxxx
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Name:
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Xxxxx
Xxxxxxx
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Title:
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Manager,
Agency
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Unitek
Second Incremental Term C Amendment
Second Incremental Term C
Lender
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UNINV
II, L.P.
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By:
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UNINV
II GP, LLC, its general partner
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By:
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ELB
Capital Management LLC, its sole member
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By:
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/s/ Xxxx X. Xxxx
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Name:
Xxxx X. Xxxx
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Title:
Chairman
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Unitek
Second Incremental Term C Amendment
SCHEDULE
I
Second Incremental Term C
Lender
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Amount of Second Incremental Term C
Commitment
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UNINV
II, L.P.
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$ | 8,000,000 |
Unitek
Second Incremental Term C Amendment