AMENDMENT NO. 8 TO THE FIRST LIEN CREDIT AGREEMENT
EXECUTION
COPY
AMENDMENT
NO. 8 TO THE FIRST LIEN CREDIT AGREEMENT
This
AMENDMENT NO. 8 TO THE FIRST LIEN CREDIT AGREEMENT (this "Amendment") dated as
of September 29, 2010 among UNITEK ACQUISITION, INC., a Delaware corporation
(the "Borrower"), UNITEK MIDCO, INC., a Delaware corporation (the "Parent"), the
Guarantors listed on the signature page hereof, 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, the Parent, the Guarantors party thereto, 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) UniTek
Global Services, Inc., an indirect parent of the Borrower, has filed an S-1
Registration Statement with the Securities and Exchange Commission for the
offering of its common stock (the “IPO”). The proceeds from the
offering will be, in part, contributed, directly or indirectly, to the Borrower
and used to prepay the Term B Advances and for other Permitted
Purposes;
(3) In
connection with the IPO, the Borrower, the Lenders party hereto and the
Administrative Agent have agreed to make certain amendments to the First Lien
Credit Agreement, as hereinafter set forth; and
(4) Accordingly,
the First Lien Credit Agreement shall be amended, as follows:
Section
1. Amendments to First Lien
Credit Agreement.
(a) Section
1.01 of the First Lien Credit Agreement is amended by adding in the appropriate
alphabetical order the following new definition.
“Permitted
Purposes” means
(A) in
the event the IPO is for less than $75,000,000, in each case to occur
substantially simultaneously, (i) the prepayment of the then outstanding loans
made pursuant to the BMO Facility, (ii) the payment of fees and expenses in
connection with the IPO and the use of the proceeds therefrom, (iii) any other
purposes specifically set forth in the S-1 Registration Statement for the IPO,
(iv) the prepayment of the Term B Advances in accordance with Section 2.06(a) of
the Credit Agreement in a minimum aggregate amount of $4,000,000 and (v) the
contribution of the remaining amount of proceeds from the IPO on the balance
sheet of the Company and its Subsidiaries reflected either in unrestricted and
available cash or Cash Equivalents or prepayment of Revolving Credit Advances;
or
(B) in
the event the IPO is $75,000,000 or more, in each case to occur substantially
simultaneously, (i) the prepayment of the then outstanding loans made pursuant
to the BMO Facility, (ii) the prepayment of the Term B Advances in accordance
with Section 2.06(a) of the Credit Agreement in a minimum aggregate amount of
$10,000,000, (iii) subject to the prior or substantially concurrent contribution
of proceeds pursuant to clause (v) below, the prepayment of advances under the
Second Lien Term Loan Agreement (other than the Term C Advances) in an aggregate
amount of up to $10,000,000, (iv) prepayment of the Revolving Credit Advances,
(v) the contribution of a minimum of $15,000,000 on the balance sheet of the
Company and its Subsidiaries reflected either in unrestricted and available cash
or Cash Equivalents or prepayment of Revolving Credit Advances, (vi) the payment
of fees and expenses in connection with the IPO and the use of the proceeds
therefrom, and (vii) any other purposes specifically set forth in the S-1
Registration Statement for the IPO; provided that in the event
the IPO is for more than $75,000,000 and for such amounts in excess of
$75,000,000 (the “IPO Excess
Amount”), “Permitted Purposes” shall include the prepayment of the Term B
Advances in accordance with Section 2.06(a) of the Credit Agreement in a minimum
aggregate amount of 25% of the IPO Excess Amount and, at the discretion of the
Borrower, any other purposes, including, but not limited to, the prepayment of
any Debt of any Loan Party and the contribution of additional amounts in
unrestricted and available cash or Cash Equivalents on the balance sheet of the
Company and its Subsidiaries.
Amendment
No. 8 to First Lien Credit Agreement
(b) The
definition of “Debt for Borrowed
Money” is amended and restated in its entirety to read as
follows:
“Debt for Borrowed
Money” of any Person means, at any date of determination, the sum of,
without duplication, the principal amount of (including the capitalized portion
of any interest), (a) Debt of the types referred to in clauses (a), (c), (e) and
(f) (but excluding undrawn amounts under Letters of Credit) of the definition
thereof, plus (b) all
Synthetic Debt of such Person at such date, minus (c) any unrestricted
and available cash or Cash Equivalents of such Person in an aggregate amount not
to exceed $10,000,000 to the extent that such amounts are held in Pledged
Deposit Accounts and subject to a control agreement in favor of the
Administrative Agent.
Section
2. Conditions Precedent to
Effectiveness. This Amendment shall become effective as of the
date hereof if, and only if:
(a) 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 the IPO 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 the IPO,
in which case as of such specific date;
(b) no
Default has occurred and is continuing, or would result from the IPO or from the
application of the proceeds therefrom;
(c) after
giving pro forma effect to the IPO, the Borrower shall be in compliance with all
financial covenants set forth in Section 5.04 of the First Lien Credit
Agreement; and
(d) on or
prior to such date the Administrative Agent shall have received counterparts of
this Amendment executed by the Loan Parties and the Required
Lenders.
Section
3. Lender
Fee.
Amendment No. 8 to First Lien Credit Agreement
(a) In the
event the IPO is for less than $75,000,000, the Borrower hereby agrees to pay to
the Administrative Agent, a fee (the “Lender Fee”) in an amount equal to
(a) the amount set forth in Column B of the table below opposite the
aggregate amount of debt in Column A of the table below that is actually prepaid
pursuant to subsection (A)(iv) of the definition of “Permitted Purposes”, for
the account of each Lender that executes and delivers a counterpart of this
Amendment prior to 4:00 P.M. (Eastern time) on September 29, 2010 (each a
“Consenting Lender”) multiplied by (b) (without duplication) the percentage
of such Consenting Lender’s Revolving Credit Commitment, Swingline Commitment,
Letter of Credit Commitment, Incremental Commitment, unfunded Incremental Term B
Commitments and the outstanding principal amount of its Term B Advances to
(without duplication) the sum of total outstanding Revolving Credit Commitments,
Swingline Commitments, Letter of Credit Commitments, Incremental Commitments,
the outstanding principal amount of all Term B Advances, and unfunded
Incremental Term B Commitments.
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Column A - Aggregate amount of Term B
Advances prepaid in subsection (A)(iv) of the definition of “Permitted
Purposes”
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Column B – Amount of Lender
Fee
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$4,000,000
- $5,499,999
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$200,000.00
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$5,500,000
- $6,999,999
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$150,000.00
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$7,000,000
- $8,499,999
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$100,000.00
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$8,500,000
- $9,999,999
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$50,000.00
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$10,000,000
or greater
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$0.00
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(b) In the
event the IPO is for more than $75,000,000, the Borrower hereby agrees to pay to
the Administrative Agent, a fee (the “Lender Fee”) in an amount equal 1.50% of
the aggregate amount of debt prepaid as described in subsection B(iii) of the
definition of “Permitted Purposes” for the account of each Lender that executes
and delivers this Amendment prior to 4:00 P.M. (Eastern time) on September 29,
2010 (each a “Consenting Lender”) multiplied by (without duplication) the
percentage of such Consenting Lender’s Revolving Credit Commitment, Swingline
Commitment, Letter of Credit Commitment, Incremental Commitment, unfunded
Incremental Term B Commitments and the outstanding principal amount of its Term
B Advances to (without duplication) all Consenting Lenders’ Revolving Credit
Commitments, Swingline Commitments, Letter of Credit Commitments, Incremental
Commitments, the outstanding principal amount of all Term B Advances, and
unfunded Incremental Term B Commitments.
The
Lender Fee (if any) shall be fully earned, non-refundable and due and payable
concurrently with the making of such prepayment of the relevant Term B
Advances. The Lender Fee constitutes Obligations and is in addition
to any other fees payable by Borrower under the First Lien Credit Agreement or
any other Loan Document.
Section
4. Reaffirmation and
Confirmation. Each Loan Party hereby ratifies, affirms,
acknowledges and agrees that the First Lien Credit Agreement and the other Loan
Documents to which it is a party represent the valid, enforceable and
collectible obligations of such Loan Party, and further acknowledges that there
are no existing claims, defenses, personal or otherwise, or rights of setoff
whatsoever with respect to the First Lien Credit Agreement or any other Loan
Document. Each Loan Party hereby agrees that this Amendment in no way
acts as a release or relinquishment of the Liens and rights securing payments of
the Obligations. The Liens and rights securing payment of the
Obligations are hereby ratified and confirmed by each Loan Party in all
respects. The Third Incremental Term B Facility and all interest,
fees and other amounts pertaining thereto constitute Obligations and are secured
ratably by all of the Collateral.
Amendment No. 8 to First Lien Credit Agreement
Section
5. Reference to and Effect on
the First Lien Credit Agreement and other Loan Documents.
(a) On and
after the effectiveness of this Amendment, each reference in the Loan Documents
to "this Agreement", "the Credit Agreement", "the First Lien 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.
(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.
(d) This
Amendment shall be binding upon the parties hereto and their respective
successors and assigns and shall inure to the benefit of the parties hereto and
the successors and assigns of the Administrative Agent, each of the Lenders and
each of the Loan Parties.
(e) In case
any provision herein or obligation hereunder shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and enforceability of
the remaining provisions or obligations, or of such provision or obligation in
any other jurisdiction, shall not in any way be affected or impaired
thereby.
(f) Section
headings herein are included herein for convenience of reference only and shall
not constitute a part hereof for any other purpose or be given any substantive
effect.
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. Jurisdiction, Etc.
(a) Each of the parties hereto hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of any
New York State court or Federal court of the United States of America sitting in
New York City, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Amendment and each of the parties
hereto hereby irrevocably and unconditionally agrees that all claims in respect
of any such action or proceeding may be heard and determined in any such New
York State court or, to the fullest extent permitted by law, in such Federal
court. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by
law. Nothing in this Amendment shall affect any right that any party
may otherwise have to bring any action or proceeding relating to this Amendment
in the courts of any jurisdiction.
Amendment No. 8 to First Lien Credit Agreement
(b) Each
of the parties hereto irrevocably and unconditionally waives, to the fullest
extent it may legally and effectively do so, any objection that it may now or
hereafter have to the laying of venue of any suit, action or proceeding arising
out of or relating to this Amendment or any of the other Loan Documents to which
it is a party in any New York State or Federal court. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
Section
8. WAIVER OF JURY
TRIAL. EACH OF THE
PARTIES HERETO IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO ANY THIS AMENDMENT OR THE ACTIONS OF ANY AGENT OR
ANY LENDER PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT
HEREOF.
Section
9. 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]
Amendment No.
8 to First Lien Credit Agreement
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.
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UNITEK ACQUISITION,
INC., as Borrower
UNITEK MIDCO, INC., as
Parent
UNITEK USA, LLC, as a
Guarantor
ADVANCED COMMUNICATIONS USA,
LLC, as a Guarantor
DIRECTSAT USA, LLC, as a
Guarantor
FTS USA, LLC, as a
Guarantor
WTW USA, LLC, as a
Guarantor
BCI COMMUNICATIONS,
INC., as a Guarantor
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By:
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/s/
Xxxxxx X. Xxxxxx
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Name:
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Xxxxxx
X. Xxxxxx
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Title:
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CFO
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Amendment No.
8 to First Lien Credit Agreement
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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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Amendment No.
8 to First Lien Credit Agreement
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Required Lenders
ROYAL
BANK OF CANADA
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By:
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/s/ Xxxx
X. Xxxxxxx
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Name:
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Xxxx
X. Xxxxxxx
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Title:
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Authorized
Signatory
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Amendment No.
8 to First Lien Credit Agreement
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LANDMARK
III CDO, LIMITED
LANDMARK
IV CDO, LIMITED
LANDMARK
V CDO, LIMITED
LANDMARK
VI CDO, LIMITED
LANDMARK
VII CDO, LIMITED
LANDMARK
VIII CLO, LIMITED
LANDMARK
IX CDO, LIMITED
GREYROCK
CDO, LIMITED
By: Aladdin
Capital Management LLC
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By:
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/s/ Xxxxx
Xxxx-Xxxxxx
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Name:
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Xxxxx
Xxxx-Xxxxxx
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Title:
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Authorized
Signatory
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Amendment No. 8 to First Lien Credit Agreement
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ABLECO
FINANCE LLC
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By:
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/s/ Xxxxxx
X. Xxxx
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Name:
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Xxxxxx
X. Xxxx
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Title:
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President
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A4
FUNDING LP
By: A4
Fund Management, Inc.
Its: General
Partner
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By:
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/s/ Xxxxxx
X. Xxxx
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Name:
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Xxxxxx
X. Xxxx
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Title:
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Vice
President
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A5
FUNDING L.P.
By: A5
Fund Management LLC
Its: General
Partner
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By:
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/s/ Xxxxxx
X. Xxxx
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Name:
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Xxxxxx
X. Xxxx
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Title:
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Vice
President
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Amendment No.
8 to First Lien Credit Agreement
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EMPORIA
PREFERRED FUNDING I, LTD.
By: A.C.
Corporation, its Collateral Manager
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By:
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Name:
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Title:
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EMPORIA
PREFERRED FUNDING II, LTD.
By: A.C.
Corporation, its Collateral Manager
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By:
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Name:
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Title:
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EMPORIA
PREFERRED FUNDING III, LTD.
By: A.C.
Corporation, its Collateral Manager
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By:
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Name:
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Title:
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Amendment No.
8 to First Lien Credit Agreement
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FIRSTRUST
BANK
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By:
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/s/
Xxxxx Xxxxx
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Name:
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Xxxxx
Xxxxx
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Title:
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Vice
President
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Amendment No.
8 to First Lien Credit Agreement
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MARRET
ASSET MANAGEMENT INC.
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By:
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/s/
Xxxxxx Prenc
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Name:
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Xxxxxx
Prenc
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Title:
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XX
Xxxxxx Asset Management Inc.
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On
behalf of:
DYNAMIC
HIGH YIELD BOND FUND
DYNAMIC
VALUE BALANCED CLASS
DYNAMIC
VALUE BALANCED FUND
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Amendment No.
8 to First Lien Credit Agreement
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TRISTATE
CAPITAL BANK
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By:
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Name:
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Title:
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Amendment No.
8 to First Lien Credit Agreement
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GREENSTAR
CAPITAL FINANCE LLC
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By:
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/s/
Xxxx Xxxx
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Name:
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Xxxx
Xxxx
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Title:
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Managing
Director
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Amendment No.
8 to First Lien Credit Agreement
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MAXAM
OPPORTUNITIES FUND LP (by its General Partner: Maxam Opportunities GP
Ltd)
MAXAM
OPPORTUNITIES FUND (INTERNATIONAL) LP (by its General Partner: Maxam
Opportunities (International) GP Ltd)
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By:
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/s/
Xxxxxx Xxxxxx
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Name:
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Xxxxxx
Xxxxxx
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Title:
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Managing
Partner
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Amendment No. 8 to First Lien Credit
Agreement
