AMENDMENT NO. 1 TO THE FIRST LIEN CREDIT AGREEMENT
EXECUTION
VERSION
AMENDMENT
NO. 1 TO THE FIRST LIEN CREDIT AGREEMENT
Dated as
of December 5, 2007
AMENDMENT NO. 1 TO THE FIRST LIEN
CREDIT AGREEMENT (this “Amendment”) among
UNITEK ACQUISITION, INC., a Delaware corporation (the “Borrower”), the
financial institutions and other lenders parties to the First Lien Credit
Agreement referred to below (collectively, the “Lenders”) and ROYAL
BANK OF CANADA, as administrative agent (in such capacity, the “Administrative
Agent”) for the Lenders.
PRELIMINARY
STATEMENTS:
(1) The
Borrower, the 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 Credit
Agreement.
(2) The
Borrower, the financial institutions and other lenders party to the Second Lien
Term Loan Agreement 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) The
Borrower and the Lenders have agreed to amend the First Lien Credit Agreement,
but only on the terms and conditions hereinafter set forth.
(4) Accordingly,
the First Lien Credit Agreement is hereby amended as follows:
SECTION
1. Amendment to First Lien
Credit Agreement.
(a) Section 1.01 of the
First Lien Credit Agreement is hereby amended, to add the following
definitions:
“Incremental Term
C Facility” has the meaning specified in Section
2.18(a).
(b) Section 1.01 of the
First Lien Credit Agreement is hereby amended by amending and restating clause
(b) of the definition of “Applicable Margin” in its entirety to read as
follows:
|
(b)
|
in
respect of the Term C Facility, at the rate per annum set forth in
Section 2.07 of the
Second Lien Term Loan Agreement (as in effect on the date hereof) or, in
the case of any Incremental Term C Facility, the rates set forth in the
relevant Incremental Facility
Amendment,
|
(c) Section 1.01 of the
First Lien Credit Agreement is hereby amended by amending and restating the
proviso in the definition of “Eligible Assignee” in its entirety to read as
follows:
Unitek
Amendment No. 1 to First Lien Credit Agreement
provided, however, that,
except with respect to any Incremental Term C Facility, neither any Loan Party
nor any Affiliate of a Loan Party shall qualify as an Eligible Assignee under
this definition.
(d) Section 1.01 of the
First Lien Credit Agreement is hereby amended by amending and restating the
definition of “Term C Advance” in its entirety to read as follows:
“Term C
Advance” has the meaning specified in Section 2.01(a)(ii)
and shall include any advance made under an Incremental Term C
Facility.
(e) Section 1.01 of the
First Lien Credit Agreement is hereby amended by amending and restating the
definition of “Term C Borrowing” in its entirety to read as
follows:
“Term C
Borrowing” means a borrowing consisting of simultaneous Term C Advances
of the same Type made by the relevant Term C Lenders.
(f) Section 1.01 of the
First Lien Credit Agreement is hereby amended by amending and restating the
definition of “Term C Commitment” in its entirety to read as
follows:
“Term C
Commitment” means, with respect to any Term C Lender at any time, the
amount set forth opposite such Lender’s name on Schedule I hereto under the
caption “Term C Commitment” or, if such Lender has entered into one or more
Assignment and Acceptance Agreements, 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 C Commitment” or in connection with any Incremental Term C
Facility as set forth in any Incremental Facility Amendment.
(g) Section 2.06 is
hereby amended as follows:
|
(i)
|
Section
2.06(a)(ii) is hereby amended by inserting the text, “or as
otherwise provided in any Incremental Facility Amendment (with respect to
an Incremental Term B Facility, an Incremental Term C Facility or an
Incremental Revolving Credit Facility), so long as the terms in such
Incremental Facility Amendment are no less favorable to the Loan Parties
than such terms applicable to the original Term B Facility, Term C
Facility or Revolving Credit Facility, as applicable” at the end
thereof.
|
|
(ii)
|
Section 2.06(b)
is hereby amended by inserting the text, “or as otherwise provided in any
Incremental Facility Amendment (with respect to an Incremental Term B
Facility, an Incremental Term C Facility or an Incremental Revolving
Credit Facility) , so long as the terms in such Incremental Facility
Amendment are no less favorable to the Loan Parties than such terms
applicable to the original Term B Facility, Term C Facility or Revolving
Credit Facility, as applicable” immediately following the text “(as in
effect on the date hereof)” in the third line
thereof.
|
(h) Section 2.07 is
hereby amended by inserting the text “or as otherwise provided in any
Incremental Facility Amendment” immediately following the text “as in effect on
the date hereof)” in the third line thereof.
(i)
Section 2.12(g)
is hereby amended and restated in its entirety to read as follows:
Unitek
Amendment No. 1 to First Lien Credit Agreement
2
|
(g)
|
Notwithstanding
the foregoing, this Section 2.12
shall not apply to the Term C Lender or the Obligations in respect of the
Term C Advances, which will instead receive applications and payments when
the same are made in respect of the Debt under the Second Lien Term Loan
Agreement (such applications and payments to be governed by Section 2.12 of
the Second Lien Term Loan Agreement or as otherwise provided in any
Incremental Facility Amendment, so long as such terms are no less
favorable to the Loan Parties or the holders of the Term B Facility than
those terms applicable to the original Term C
Facility).
|
(j) Section 2.14 is
hereby amended by inserting the text “or as otherwise provided in any
Incremental Facility Amendment, so long as such terms are no less favorable to
the Loan Parties or the holders of the Term B Facility than those terms
applicable to the original Facility, as applicable” at the end of the last
sentence thereof.
(k) Section
2.18(a) of the
First Lien Credit Agreement is hereby amended, as follows, to allow for
an incremental facility under the Term C Facility:
Section
2.18 Increase in the Aggregate
Commitments (a) The Borrower may, at any time and from time to time after
the Effective Date and prior to the earlier of the Termination Date and the
Scheduled Termination Date (or, in the case of any Incremental Term C Facility
(as defined below), the Scheduled Termination Date (as defined in the
Second Lien Term Loan Agreement)) so long as no Event of Default has occurred
and is continuing, by notice to the Administrative Agent, request (x) the
addition of one or more new term loan facilities, an increase in the Term B
Commitments or an increase in the Term C Commitments (each of such commitment
increases and any such new term loan facility being an “Incremental Term
B Facility” or an “Incremental Term
C Facility,” as applicable) or (y) an increase in the Revolving Credit
Commitments (each of such commitment increases being an “Incremental
Revolving Credit Facility”), any Incremental Revolving Credit Facilities
together with any Incremental Term B Facilities or Incremental Term C Facilities
(each an “Incremental
Facility” and the commitment of any lender with respect to any
Incremental Facility being an “Incremental
Commitment”) to be effective as of a date (the “Increase
Date”) specified in the related notice to the Administrative Agent; provided, however, that:
(i) Aggregate Incremental
Commitments - in no event shall the aggregate amount of all Incremental
Commitments exceed the Maximum Incremental Facility Amount;
(ii) Minimum Amount of Incremental
Facilities – (A) each Incremental Term B Facility shall be in an amount
not less than $5,000,000; (B) each Incremental Term C Facility shall be in an
amount not less than $1,000,000; and (C) each Incremental Revolving Credit
Facility shall be in an amount of not less than $5,000,000;
(iii) Maximum Requests - no more
than four such requests may be made pursuant to this Section
2.18;
Unitek
Amendment No. 1 to First Lien Credit Agreement
3
(iv) Conditions Precedent and
Compliance – (A) on the date of any request by the Borrower for an
Incremental Commitment and on the related Increase Date, the applicable
conditions set forth in Section 3.02 and
in clause (d) of this Section 2.18
shall be satisfied; (B) after giving effect to the incurrence of any
Incremental Facility, the Borrower shall be in pro forma compliance with all
financial covenants set forth in Section 5.04 of
the First Lien Credit Agreement; (C) after giving pro forma effect to the
incurrence of any Incremental Facility, the Total Leverage Ratio shall not be
higher than that immediately prior to the application of the proceeds of the
Incremental Facility; (D) the terms of any Incremental Revolving Credit
Facility shall be the same as the terms of the Revolving Credit Facility and
such Incremental Revolving Credit Facility shall form part of the Revolving
Credit Facility for all purposes;
(v) Maturity Dates - (A) any
Incremental Term B Facility shall have a final maturity date no earlier than the
Scheduled Termination Date and the weighted average life thereof shall not be
less than the weighted average life of the outstanding Term B Advances; (B) any
Incremental Term C Facility shall have a final maturity date no earlier than the
Scheduled Termination Date (as such term is defined in the Second Lien Term Loan
Agreement) and the weighted average life thereof shall not be less than the
weighted average life of the outstanding Term C Advances;
(vi) Prepayments/Repayments -
(A) any advances under any Incremental Term B Facility shall not be
entitled to receive optional or mandatory prepayments unless the existing Term B
Advances are entitled simultaneously to receive prepayments ratably; (B) any
advances under any Incremental Term B Facility shall not be required to be
repaid unless the existing Term B Advances are required to be repaid ratably;
(C) any advances under any Incremental Term C Facility shall not be entitled to
receive optional or mandatory prepayments unless the existing Term C Advances
are entitled simultaneously to receive prepayments at least ratably; (D) any
advances under any Incremental Term C Facility shall not be required to be
repaid unless the existing Term C Advances are required to be repaid at least
ratably;
(vii) General - (A) except as
otherwise set forth herein, any Incremental Term B Facility or Incremental Term
C Facility shall be documented on terms no less favorable to the Loan Parties
than those applicable to the Term B Facility or Term C Facility and on other
terms and conditions that are reasonably satisfactory to the Administrative
Agent; (B) the Term B Lenders and the Term C Lenders shall initially have
the right, but not the obligation, to commit up to their pro rata portion of any
Incremental Term B Facility or Incremental Term C Facility, as applicable; (C)
the Revolving Credit Lenders shall initially have the right, but not the
obligation, to commit up to their pro rata portion of any Incremental Revolving
Credit Facility; (D) notwithstanding anything to the contrary
contained in this
Agreement, the Sponsor may provide all or any portion of the Incremental Term C Facility provided that the Sponsor shall only have voting
rights with respect to such debt in respect of matters set forth in clauses
(a) and (b) of Section
9.01 and solely with respect to such Incremental
Term C Facility; and (E) the Loan
Documents may be amended by the Administrative Agent and the Loan Parties, if
necessary, to provide for terms applicable to each Incremental Commitment
consistent with the terms hereof (any such amendment, an “Incremental
Facility Amendment”).
(l)
Section
2.18(b) is hereby amended by (i) inserting the text “, the Term C Lender”
immediately after the text “the Term B Lenders” in the first line thereof and
(ii) inserting the text “, any Incremental Term C Facility” immediately after
the text “an Incremental Term B Facility” in the second line
thereof.
Unitek
Amendment No. 1 to First Lien Credit Agreement
4
(m) Section 5.02(b)(ii)
of the First Lien Credit Agreement is hereby amended, as follows, to
read:
“(ii) the
Term C Advances and Debt under the Second Lien Term Loan Agreement in an
aggregate principal amount not to exceed $30,000,000, plus any accrued interest
(including pay-in-kind interest) thereunder (less the amount of all principal
payments thereof), plus any advances pursuant to any Term C Incremental Facility
permitted hereunder and any accrued interest (including pay-in-kind interest)
thereon;”
SECTION
2. Conditions Precedent to
Effectiveness. This Amendment shall become effective as of
December 5, 2007 if, and only if, on or prior to such date the Administrative
Agent shall have received counterparts of this Amendment executed by the
Borrower and the Required Lenders, the calculation of which shall include, for
greater certainty, the Term C Lender.
SECTION
3. Consent under the
Intercreditor Agreement. Each of the Administrative Agent and
the Required Lenders hereby consent, notwithstanding the provisions of Section 6.02(b)(i) of
the Intercreditor Agreement to the contrary, to the increase of the maximum
principal amount of the Second Lien Obligations (as defined in the Intercreditor
Agreement) as a result of any of the transactions contemplated by this
Amendment).
SECTION
4. 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, the
Notes, “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.
(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
5. 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
6. 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]
Unitek
Amendment No. 1 to First Lien Credit Agreement
5
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
|
|
|
By:
|
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
|
|
Name: ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
|
|
|
Title:
Vice President and Secretary
|
|
Unitek
Amendment No. 1 to First Lien Credit Agreement
6
|
ROYAL
BANK OF CANADA, as Administrative Agent
|
|
|
By:
|
/s/ Renuka Gnanaswaran
|
|
Name: Renuka
Gnanaswaran
|
|
|
Title:
Manager, Agency
|
|
Unitek
Amendment No. 1 to First Lien Credit Agreement
▇
|
▇▇▇▇▇▇▇
|
|
|
▇▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇
|
|
|
By:
|
/s/
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
|
|
Name: ▇▇▇▇
▇. ▇▇▇▇▇▇▇
|
|
|
Title:
Authorized
Signatory
|
|
Unitek
Amendment No. 1 to First Lien Credit Agreement
8
|
By:
|
|
|
Name:
|
|
|
Title:
|
Unitek
Amendment No. 1 to First Lien Credit Agreement
9