AMENDMENT NO. 7 TO THE FIRST LIEN CREDIT AGREEMENT
EXECUTION
COPY
AMENDMENT
NO. 7 TO THE FIRST LIEN CREDIT AGREEMENT
This
AMENDMENT NO. 7 TO THE FIRST LIEN CREDIT AGREEMENT (this "Amendment") dated as
of September 20, 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.
“IPO” means
the public offering of the common stock of UniTek Global Services,
Inc.
“Permitted
Purposes” means in the event the IPO is for $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 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. 7 to First Lien Credit Agreement
(b) The
definition of “Excluded
Issuance” is amended and restated in its entirety to read as
follows:
“Excluded
Issuance” means (a) an issuance and sale of common Equity Interests of
the Parent (i) to the Equity Investors (including any Equity Interests issued
upon exercise of any warrant or option) or (ii) to the extent the proceeds of
which are used to implement Investments permitted by this Agreement or fees or
expenses incurred in connection therewith, (b) any contribution by the Equity
Investors to the capital of the Parent in respect of its Equity Interests and
(c) the IPO and any contribution of the proceeds therefrom, directly or
indirectly, to the Borrower. In the case of each of (a) and (b), to
the extent such Equity Interests are contributed to the Borrower. In
the case of (c), to the extent that the proceeds are applied for Permitted
Purposes under the First Lien Credit Agreement.
(c) Section
5.01 is hereby amended by adding a new subsection (p) thereto to read as
follows:
“(p) Use
the proceeds from the IPO solely for Permitted Purposes.”
(d) Section
5.02(j) is amended and restated in its entirety to read as follows:
“(j) Prepayments, Etc., of
Certain Debt. Prepay, redeem, purchase, defease or otherwise
satisfy prior to the scheduled maturity thereof in any manner, or make any
payment in violation of any subordination terms of, any Subordinated Debt or
Debt under the Second Lien Term Loan Agreement (including with respect to the
Term C Advances) prior to the Termination Date, except (i) regularly
scheduled interest or required repayments or principal payments as and when due
of such Debt, (ii) all prepayments, redemptions, purchases, defeasances or
satisfactions of Debt required or necessary on the Effective Date to consummate
the Transaction (iii) any Permitted Refinancing thereof, or permit any of its
Subsidiaries to do any of the foregoing and (iv) prepayments of Debt under the
Second Lien Term Loan Agreement made with proceeds from the IPO to the extent
such prepayments constitute a Permitted Purpose.”
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; and
(b) no
Default has occurred and is continuing, or would result from the IPO or from the
application of the proceeds therefrom;
Amendment
No. 7 to First Lien Credit Agreement
(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;
(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. 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 (iii) of the definition of “Permitted
Purposes” for the account of each Lender that executes and delivers this
Amendment prior to 5:00 P.M. (Eastern time) on September 20, 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 shall be fully earned,
non-refundable and due and payable concurrently with such prepayment of the
Second Lien Term Loan. 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.
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.
Amendment
No. 7 to First Lien Credit Agreement
(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.
(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. 7 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/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||
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Name:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||
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Title:
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Chief Financial Officer | ||
Amendment
No. 7 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/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ | ||
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Name:
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▇▇▇▇▇ ▇▇▇▇▇▇▇ | ||
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Title:
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Manager, Agency | ||
Amendment
No. 7 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/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||
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Name:
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||
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Title:
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Authorized Signatory | ||
Amendment
No. 7 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/ ▇▇▇▇▇ ▇▇▇▇-▇▇▇▇▇▇ | ||
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Name:
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▇▇▇▇▇ ▇▇▇▇-▇▇▇▇▇▇ | ||
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Title:
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Authorized Signatory | ||
Amendment
No. 7 to First Lien Credit Agreement
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ABLECO
FINANCE LLC
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By:
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/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ | ||
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Name:
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▇▇▇▇▇▇ ▇. ▇▇▇▇ | ||
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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/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ | ||
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Name:
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▇▇▇▇▇▇ ▇. ▇▇▇▇ | ||
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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/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ | ||
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Name:
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▇▇▇▇▇▇ ▇. ▇▇▇▇ | ||
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Title:
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Vice President | ||
Amendment
No. 7 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. 7 to First Lien Credit Agreement
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FIRSTRUST
BANK
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By:
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/s/ ▇▇▇▇▇ ▇▇▇▇▇ | ||
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Name:
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▇▇▇▇▇ ▇▇▇▇▇ | ||
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Title:
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Vice President | ||
Amendment
No. 7 to First Lien Credit Agreement
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MARRET
ASSET MANAGEMENT INC.
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By:
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/s/ ▇▇▇▇▇▇ Prenc | ||
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Name:
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▇▇▇▇▇▇ Prenc | ||
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Title:
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▇▇ ▇▇▇▇▇▇ 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. 7 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. 7 to First Lien Credit Agreement
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GREENSTAR
CAPITAL FINANCE LLC
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By:
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/s/ ▇▇▇▇ ▇▇▇▇ | ||
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Name:
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▇▇▇▇ ▇▇▇▇ | ||
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Title:
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Managing Director | ||
Amendment
No. 7 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/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||
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Name:
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▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||
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Title:
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Managing Partner | ||
Amendment
No. 7 to First Lien Credit Agreement