THIRD INCREMENTAL TERM B FACILITY AMENDMENT AND AMENDMENT NO. 6 TO THE FIRST LIEN CREDIT AGREEMENT
THIRD
INCREMENTAL TERM B FACILITY AMENDMENT AND
AMENDMENT
NO. 6 TO THE FIRST LIEN CREDIT AGREEMENT
This
THIRD INCREMENTAL TERM B FACILITY AMENDMENT AND AMENDMENT NO. 6 TO THE FIRST
LIEN CREDIT AGREEMENT (this "Amendment") dated as of July 16, 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, the Third Incremental Term B Lenders (as such term is defined
below), 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"), and the Lenders party hereto.
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) As
provided in Section 2.18 of the First Lien Credit Agreement, Borrower has
requested, and the Third Incremental Term B Lenders have agreed to provide, an
Incremental Term B Facility (the "Third Incremental Term B Facility") on the
terms, and subject to the conditions, contained herein;
(3) In
connection with the Third Incremental Term B Facility, Borrower, the Third
Incremental Term B Lenders, 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 Third Incremental Term B Facility shall be implemented, and the First Lien
Credit Agreement shall be amended, as follows:
Section
1. Third Incremental Term B
Facility.
(a) Pursuant
to Section 2.18 of the First Lien Credit Agreement, on the date hereof, each of
the lenders listed under the heading "Third Incremental Term B Lenders" on the
signature pages hereof (the "Third Incremental Term B Lenders") agrees to commit
an amount equal to the amount set forth opposite the name of such Third
Incremental Term B Lender listed on Schedule I hereto (each, a "Third
Incremental Term B Commitment"). On the date hereof, $15,000,000 of
the Third Incremental Term B Facility (the "Initial Third Incremental Term B
Advance") shall be funded by the Third Incremental Term B Lenders, ratably in
accordance with their respective Third Incremental Term B
Commitments. Within five (5) Business Days after the Borrower's
delivery of a Notice of Borrowing pursuant to Section 2.02 of the First Lien
Credit Agreement, which Notice of Borrowing must be delivered on or after the
date of delivery of Borrower's financial statements pursuant to Section 5.03(c)
of the First Lien Credit Agreement for Borrower's fiscal quarter ended October
2, 2010 and on or before November 16, 2010, $5,000,000 of the Third Incremental
Term B Facility (the "Subsequent Third Incremental Term B Advance") shall be
funded by the Third Incremental Term B Lenders, ratably in accordance with their
respective Third Incremental Term B Commitments, provided that (i) the
conditions precedent set forth in Section 3.02 of the First Lien Credit
Agreement have been satisfied as of such date, (ii) Borrower shall pay a fee to
the Administrative Agent, for the account of each Third Incremental Term B
Lender, in an amount equal to 1.00% of such Third Incremental Term B Lender's
ratable share of the Subsequent Third Incremental Term B Advance (in accordance
with its Third Incremental Term B Commitment), which fee shall be fully earned,
non-refundable and due and payable in full on such date, (iii) after giving
effect to the proposed funding on such date, Borrower is in pro forma compliance
with all financial covenants set forth in Section 5.04 of the First Lien Credit
Agreement and (iv) Borrower has delivered evidence reasonably acceptable to the
Third Incremental Term B Lenders that EBITDA (as hereinafter defined) of
Borrower and its Subsidiaries for the trailing twelve month period ending
October 2, 2010 (the "Test Period") is greater than $28,500,000. If
the Subsequent Third Incremental Term B Advance is not made, the Third
Incremental Term B Commitment of each Third Incremental Term B Lender shall be
permanently reduced by its ratable share of $5,000,000.
For
purpose of this Section, "EBITDA" shall mean, for the Test Period, the sum of
(without duplication) (a) net income (or net loss), plus (b) the following to
the extent deducted in calculating such net income (or net loss): (i)
interest expense, (ii) income tax expense, (iii) depreciation expense and (iv)
amortization expense, in each case determined in accordance with GAAP, plus (c)
to the extent deducted in calculating such net income (or net
loss): (i) any extraordinary, unusual or nonrecurring gains or losses
incurred on or prior to December 31, 2009, (ii) any non-cash gains or losses
from Hedging Agreements permitted by Section 5.02(b) of the First Lien Credit
Agreement, (iii) transaction fees and expenses related to completed acquisitions
that, as of the Amendment No. 3 (First Lien Credit Agreement) Effective Date,
cannot be capitalized as of January 1, 2009 pursuant to Financial Accounting
Standard 141R, (iv) management and consulting fees relating to the A&M
Communications acquisition paid in lieu of purchase price prior to December 31,
2009 in an aggregate amount not to exceed $2,000,000, (v) expenses and fees
incurred in connection with, and within 6 months following the date of, any
Permitted Acquisition, whether or not consummated, in an aggregate amount for
all such expenses and fees not to exceed $500,000 for the Test Period, (vi) pro
forma adjustments related to Permitted Acquisitions under the Existing Loan
Agreement, (vii) HSP project start-up expenses incurred within 6 months
following such start-up in an amount equal to the difference between actual
gross margin for such HSP project and a base gross margin of 14%, up to a
maximum amount for all such expenses not to exceed $250,000 for such HSP
project, (viii) accrual of non-cash management fees payable to Sponsor and (ix)
non-cash stock based compensation expense.
(b) Each
Term B Incremental Lender hereby acknowledges that it has made the Third
Incremental Term B Commitment set forth opposite such Third Incremental Term B
Lender's name on Schedule I to this Amendment. Each of the Borrower, each Third
Incremental Term B Lender and each Lender party hereto hereby agrees that from
and after the date hereof, such Third Incremental Term B Lender shall be a "Term
B Lender" and a "Lender" for all purposes under the First Lien Credit Agreement,
and the advances made pursuant to paragraph (a) above shall be treated in all
respects as Term B Advances. Each party hereto hereby consents to the
transactions contemplated hereby and agrees to the consummation thereof
notwithstanding that certain of the provisions and conditions set forth in
Section 2.18 of the First Lien Credit Agreement (including clauses (a)(iii) and
(a)(iv) thereof) may not have been satisfied.
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(c) The
proceeds of the advances under the Third Incremental Term B Facility shall be
applied first to prepay Revolving Credit Advances and Incremental Revolving
Credit Advances then outstanding until such Advances are paid in full and to pay
fees, costs and expenses incurred in connection with this Amendment and,
thereafter, consistent with the terms and conditions of the First Lien Credit
Agreement, for the Borrower's lawful and permitted purposes.
(d) The
Borrower shall repay to the Administrative Agent for the ratable account of the
Third Incremental Term B Lenders the aggregate outstanding principal amount of
the advances under the Third Incremental Term B Facility in quarterly
installments payable on the last Business Day of each March, June, September and
December in an amount equal to 0.75% of the original principal amount of such
advances in accordance with Section 2.04(a)(i) of the First Lien Credit
Agreement.
(e) Borrower
hereby agrees to pay a deferred fee (the "Deferred Fee") to the Administrative
Agent, for the account of each Third Incremental Term B Lender in accordance
with its ratable share of the Third Incremental Term B Commitment, in a maximum
aggregate amount of $3,500,000, (x) $750,000 of which shall be earned on the
date hereof, (y) $250,000 of which shall be earned on the date of funding (if
any) of the Subsequent Third Incremental Term B Advance and (z) the remainder of
which shall be earned in accordance with the following schedule:
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If Subsequent Third
Incremental Term B Advance
has not been made
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If Subsequent Third
Incremental Term B Advance
has been made
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July
16, 2011
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$ | 750,000 | $ | 1,000,000 | ||||
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January
16, 2012
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$ | 750,000 | $ | 1,000,000 | ||||
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July
16, 2012
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$ | 375,000 | $ | 500,000 | ||||
The
Deferred Fee (to the extent earned) shall be payable on the earliest to occur of
(i) the repayment or refinancing of the Debt under the First Lien Credit
Agreement, (ii) the Scheduled Termination Date, (iii) the date the Obligations
are accelerated pursuant to Section 6.01 of the First Lien Credit Agreement and
(iv) March 26, 2013 (the earliest of such dates, the "Deferred Fee Maturity
Date"). The Deferred Fee payable on the Deferred Fee Maturity Date
shall be reduced on the Deferred Fee Maturity Date by (x) any aggregate amounts
realized by any Third Incremental Term B Lender or any Affiliate thereof upon
the sale to a non-Affiliate of such Third Incremental Term B Lender or such
Affiliate of the shares of common stock issued upon the exercise of any Warrants
(as hereinafter defined) by such Third Incremental Term B Lender or such
Affiliate prior to the Deferred Fee Maturity Date, and (y) the number of shares
of common stock issued upon the exercise of any Warrants then held by such Third
Incremental Term B Lender or such Affiliate multiplied by 1.16666 (such amount
to be subject to adjustment upon the occurrence of any event described in
Section 3 or Section 4 of the Warrants). On the Deferred Fee Maturity
Date, each Third Incremental Term B Lender shall have the right, in its sole
discretion, to retain the Warrants issued to such Third Incremental Term B
Lender in lieu of the Deferred Fee owed to such Third Incremental Term B
Lender. If any Third Incremental Term B Lender receives payment of
the Deferred Fee on the Deferred Fee Maturity Date, any unexercised Warrants
issued to such Third Incremental Term B Lender shall terminate. The
parties hereto hereby agree that the Deferred Fee shall be paid last in relation
to all other amounts payable under clause (ix) of Section 2.12(f) of the First
Lien Credit Agreement.
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Section
2. Amendments to First Lien
Credit Agreement.
(a) The
last paragraph of the definition of "Base Rate" set forth in Section 1.01 of the
First Lien Credit Agreement is amended and restated in its entirety as
follows:
Notwithstanding
the calculation of the Base Rate set forth above, for purposes of Advances, the
applicable Base Rate shall be no less than 3.50% per annum.
(b) The
defined term "Secured Obligations" set forth in Section 1.01 of the First Lien
Credit Agreement is amended and restated in its entirety as
follows:
"Secured Obligations" means
the "Secured Obligations" (as defined in Section 2 of the Security Agreement)
owing to the Secured Parties.
(c) The
defined term "Term B Commitment" set forth in Section 1.01 of the First Lien
Credit Agreement is amended and restated in its entirety as
follows:
"Term B Commitment" means,
with respect to any Term B Lender at any time, the amount set forth opposite
such Lender's name on Schedule I hereto under the caption "Term B Commitment"
or, if such Lender has entered into one or more Assignment and Acceptance, the
amount set forth for such Lender in the Register maintained by the
Administrative Agent pursuant to Section 9.07(d) as
such Lender's "Term B Commitment" or in connection with any Incremental Term B
Facility as set forth in any Incremental Facility Amendment.
(d) Schedule
I of the First Lien Credit Agreement is deemed amended to reflect the Third
Incremental Term B Commitment.
Section
3. Conditions Precedent to
Effectiveness. This Amendment shall become effective as of the
date hereof if, and only if:
(a) the
following statements shall be true and the Administrative Agent shall have
received a Notice of Borrowing 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, attaching a flow of funds for the proceeds of the
Initial Third Incremental Term B Advance and 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;
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(b) after
giving pro forma effect to the incurrence of the Third Incremental Term B
Facility, the Borrower shall be in compliance with all financial covenants set
forth in Section 5.04 of the First Lien Credit Agreement;
(c) on
or prior to such date the Administrative Agent shall have received counterparts
of this Amendment executed by the Loan Parties, the Third Incremental Term B
Lenders and the Required Lenders;
(d) the
Third Incremental Term B Lenders shall have received from the
Borrower:
(i) certified
by a Responsible Officer of the Borrower (A) copies of the resolutions of the
board of directors of the Borrower, (B) true and correct certified copies of the
bylaws (or other applicable formation documents) of the Borrower and (C) the
names and true signatures of the officers of the Borrower authorized to sign
each Loan Document to which it is or is to be a party and the other documents
delivered hereunder and thereunder; and
(ii) a
copy of a certificate of the Secretary of State of Delaware certifying (A) as to
a true and correct copy of the charter of the Borrower and each amendment
thereto on file with the office of the Secretary of State of Delaware and (B)
that (1) such amendments are the only amendments to the Borrower's charter on
file with the office of the Secretary of State of Delaware, (2) the Borrower has
paid all franchise taxes to the date of such certificate and (3) the Borrower is
duly incorporated and in good standing under the laws of the State of
Delaware;
(e) the
Administrative Agent shall have received payment of the Third Incremental Term B
Facility Closing Fee (as hereinafter defined) and the Lender Fee (as hereinafter
defined);
(f) Dymas
Funding Company, LLC, as arranger of the Third Incremental Term B Facility (the
"Arranger"), and Greenstar Capital Finance LLC shall have received payment of
the fees described in the separate fee letter dated as of the date hereof among
Borrower, the Arranger and Greenstar Capital Finance LLC; and
(g) Each
Third Incremental Term B Lender shall have received its ratable share in
accordance with its Third Incremental Term B Commitment of warrants for
3,000,000 shares of common stock of UniTek Global Services, Inc. ("Unitek
Global") with an exercise price of $0.01 per share (the "Warrants") in the form
attached hereto as Exhibit A, as well as
a joinder and amendment to the Registration Rights Agreement among Unitek Global
and certain of Unitek Global's stockholders, each in form and substance
reasonably satisfactory to the Third Incremental Term B Lenders.
Section
4. Third Incremental Term B
Facility Closing Fee. Borrower hereby agrees to pay to the
Administrative Agent, for the account of each Third Incremental Term B Lender, a
closing fee (the "Third Incremental Term B Facility Closing Fee") in an amount
equal to 1.00% of such Third Incremental Term B Lender's ratable share of the
Initial Third Incremental Term B Advance (in accordance with its Third
Incremental Term B Commitment), which Third Incremental Term B Facility Closing
Fee shall be fully earned, non-refundable and due and payable in full on the
date hereof. The Third Incremental Term B Facility Closing 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.
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Section
5. Lender
Fee. Borrower hereby agrees to pay to the Administrative
Agent, for the account of each Lender that executes and delivers this Amendment
prior to 5:00 P.M. (Eastern time) on July 13, 2010, a fee (the
"Lender Fee") in an amount equal to 0.25% of such Lender's Revolving Credit
Commitment, Swingline Commitment, Letter of Credit Commitment, Incremental
Commitment and the outstanding principal amount of its Term B Advances, which
Lender Fee shall be fully earned, non-refundable and due and payable in full on
the date hereof. 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
6. Term C
Advances. Borrower and the Administrative Agent confirm that
the definition of "Secured Obligations" in the Second Lien Term Loan Agreement
includes Obligations in respect of the Term C Advances.
Section
7. 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.
Section
8. 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.
-6-
(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
9. 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
10. 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.
(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
11. 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
12. 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.
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UNITEK ACQUISITION,
INC., as Borrower
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UNITEK MIDCO, INC., as
Parent
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UNITEK USA, LLC, as a
Guarantor
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ADVANCED COMMUNICATIONS USA,
LLC, as a Guarantor
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DIRECTSAT USA, LLC, as a
Guarantor
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FTS USA, LLC, as a
Guarantor
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WTW USA, LLC, as a
Guarantor
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BCI COMMUNICATIONS,
INC., as a Guarantor
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By:
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Name:
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Title:
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Signature
Page to Amendment
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ROYAL BANK OF CANADA, as
Administrative Agent
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By:
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Name:
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Title:
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Signature
Page to Amendment
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Third Incremental Term B
Lenders
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GREENSTAR
CAPITAL FINANCE LLC
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By:
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Name:
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Title:
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Signature
Page to Amendment
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ALADDIN
FLEXIBLE INVESTMENT FUND SPC,
SERIES
2007-1
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By:
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Name:
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Title:
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ALADDIN
FLEXIBLE INVESTMENT FUND SPC,
SERIES
2008-1
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By:
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Name:
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Title:
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ALADDIN
FLEXIBLE INVESTMENT FUND SPC,
SERIES
2008-2
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By:
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Name:
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Title:
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Signature
Page to Amendment
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Required Lenders
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ROYAL
BANK OF CANADA
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By:
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Name:
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Title:
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Signature
Page to Amendment
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LANDMARK
III CDO, LIMITED
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LANDMARK
IV CDO, LIMITED
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LANDMARK
V CDO, LIMITED
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LANDMARK
VI CDO, LIMITED
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LANDMARK
VII CDO, LIMITED
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LANDMARK
VIII CLO, LIMITED
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LANDMARK
IX CDO, LIMITED
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GREYROCK
CDO, LIMITED
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By: Aladdin
Capital Management LLC
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By:
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Name:
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Title:
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Signature
Page to Amendment
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ABLECO
FINANCE LLC
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By:
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Name:
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Title:
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A4
FUNDING LP
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By: A4
Fund Management, Inc.
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Its: General
Partner
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By:
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Name:
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Title:
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A5
FUNDING L.P.
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By: A5
Fund Management LLC
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Its: General
Partner
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By:
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Name:
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Title:
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Signature
Page to Amendment
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EMPORIA
PREFERRED FUNDING I, LTD.
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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.
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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.
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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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Signature
Page to Amendment
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FIRSTRUST
BANK
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By:
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Name:
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Title:
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Signature
Page to Amendment
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MARRET
ASSET MANAGEMENT INC.
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By:
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Name:
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Title:
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On
behalf of:
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DYNAMIC
HIGH YIELD BOND FUND
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DYNAMIC
VALUE BALANCED CLASS
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DYNAMIC
VALUE BALANCED
FUND
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Signature
Page to Amendment
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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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Signature
Page to Amendment
SCHEDULE
I
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Third Incremental Term B Lender
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Amount of Third Incremental
Term B Commitment
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Greenstar
Capital Finance LLC
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$ | 18,000,000 | ||
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Aladdin
Flexible Investment Fund SPC, Series 2007-1
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$ | 500,000 | ||
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Aladdin
Flexible Investment Fund SPC, Series 2008-1
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$ | 1,000,000 | ||
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Aladdin
Flexible Investment Fund SPC, Series 2008-2
|
$ | 500,000 | ||
|
Total
|
$ | 20,000,000 | ||
EXHIBIT
A
Form of
Warrant
See Exhibit 99.2
