Execution Version
Exhibit 10.1
NINTH AMENDMENT TO CREDIT AGREEMENT
AND FIRST AMENDMENT TO GUARANTEE AND COLLATERAL AGREEMENT
THIS NINTH AMENDMENT TO CREDIT AGREEMENT AND FIRST AMENDMENT TO GUARANTEE AND COLLATERAL AGREEMENT, dated as of December 14, 2022 (this “Amendment”), is made by and among Starry, Inc., a Delaware corporation (the “Company” or “Borrower Representative”), the other Borrowers, the Initial Tranche D Lenders (as defined below), the Delayed Draw Tranche D Lenders (as defined below), the other lenders listed on the signature pages hereto and ARROWMARK AGENCY SERVICES LLC, a Delaware limited liability company, in its capacity as Administrative Agent. Capitalized terms used and not otherwise defined herein shall have the meanings assigned to them in the Amended Credit Agreement (as defined below).
STATEMENT OF PURPOSE:
WHEREAS, the Company, each Subsidiary of the Company listed as a “Borrower” on the signature pages thereto, the Administrative Agent and the financial institutions listed on the signature pages thereto as Lenders (the “Lenders”) are party to that certain Amended and Restated Credit Agreement, dated as of December 13, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Ninth Amendment Effective Date (as defined below), the “Credit Agreement”);
WHEREAS, the Company, each Subsidiary of the Company listed as a “Grantor” on the signature pages thereto and the Administrative Agent are party to that certain Guarantee and Collateral Agreement, dated as of February 14, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the Ninth Amendment Effective Date, the “Collateral Agreement”);
WHEREAS, the Borrower Representative has informed the Administrative Agent that Events of Default have occurred and are continuing under Sections 5.01(b), (c) and (d), 5.15 and 7.01(d) of the Credit Agreement (the “Specified Events of Default”);
WHEREAS, the Borrower Representative has requested that the Initial Tranche D Lenders extend additional term loans to the Borrowers on the Ninth Amendment Effective Date in an aggregate principal amount of $6,200,000 and the Delayed Draw Tranche D Lenders extend additional term loans to the Borrowers on or after December 14, 2022 and prior to the Delayed Draw Tranche D Commitment Termination Date (as defined in the Amended Credit Agreement (as defined below)) in an aggregate principal amount of $5,000,000, on the terms set forth herein;
WHEREAS, (x) certain Lenders listed on the signature pages hereto (in such capacity, each an “Initial Tranche D Lender” and collectively the “Initial Tranche D Lenders”) have agreed to provide the Initial Tranche D Commitments and to make the Initial Tranche D Loans
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on the terms set forth herein and (y) certain Lenders listed on the signature pages hereto (in such capacity, each a “Delayed Draw Tranche D Lender” and collectively the “Delayed Draw Tranche D Lenders”) have agreed to provide the Delayed Draw Tranche D Commitments and to make the Delayed Draw Tranche D Loans on the terms set forth herein (collectively, the “Tranche D Transactions”);
WHEREAS, the Borrower Representative, on behalf of itself and the other Borrowers, has requested that the Administrative Agent and the Lenders (determined immediately prior to giving effect to the Tranche D Transactions) waive the Specified Events of Default and amend certain provisions of the Credit Agreement and the Collateral Agreement, respectively;
WHEREAS, pursuant to Section 9.02 thereof, (i) the Specified Events of Default may be amended with the consent of the Borrower Representative, on behalf of itself and the other Borrowers, the Required Lenders and the Administrative Agent and (ii) the Credit Agreement may be amended with the consent of the Borrower Representative, on behalf of itself and the other Borrowers, each of the Lenders and the Administrative Agent; and
WHEREAS, pursuant to Section 7.02(b) thereof, the Collateral Agreement may be amended with the consent of the Administrative Agent and the Loan Parties with respect to which such waiver, amendment or modification is to apply;
WHEREAS, the Administrative Agent, the Initial Tranche D Lenders, the Delayed Draw Tranche D Lenders and the other Lenders party hereto, who collectively constitute all of the Lenders as of the date hereof immediately prior to giving effect to the Tranche D Transactions, are willing to waive the Specified Events of Default and amend certain provisions of the Credit Agreement and the Collateral Agreement, respectively, in accordance with the terms and provisions of this Amendment.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereto agree as follows:
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“SECTION 5.02. Application of Proceeds. The Administrative Agent shall apply the proceeds of any collection, sale, foreclosure or other realization upon any Collateral, including any Collateral consisting of cash, as follows:
FIRST, to the payment of all costs, expenses, indemnities and other obligations (other than principal and interest) incurred by the Administrative Agent in connection with such collection, sale, foreclosure or realization or otherwise in connection with this Agreement, any other Loan Document or any of the Secured Obligations, including all court costs and the fees and expenses of its agents, advisors (including financial advisors) and legal counsel, the repayment of all advances made by the Administrative Agent hereunder or under any other Loan Document on behalf of any Grantor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any other Loan Document;
SECOND, to the payment of all costs, expenses, indemnities and other obligations (other than principal and interest) incurred by the Secured Parties and payable or reimbursable by the Grantors in connection with this Agreement, any other Loan Document or any of the Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of such costs, expenses indemnities and other
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obligations (other than principal and interest) incurred by them as of the date of any such distribution);
THIRD, to the payment of accrued and unpaid interest on the Initial Tranche D Loans, the Delayed Draw Tranche D Loans and, if any, Tranche D Incremental Loans (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amount of such interest owed to them on the date of any such distribution) (for the avoidance of doubt, excluding the payment of the Initial Facility Fee (as defined in the Ninth Amendment Fee Letter) and the Delayed Draw Facility Fee (as defined in the Ninth Amendment Fee Letter));
FOURTH, to the payment of the outstanding principal balance on the Initial Tranche D Loans, the Delayed Draw Tranche D Loans and, if any, Tranche D Incremental Loans (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amount of such principal owed to them on the date of any such distribution) (for the avoidance of doubt, excluding the payment of the Initial Facility Fee (as defined in the Ninth Amendment Fee Letter) and the Delayed Draw Facility Fee (as defined in the Ninth Amendment Fee Letter));
FIFTH, to the payment in full of all remaining Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of such remaining Secured Obligations owed to them on the date of any such distribution) (for the avoidance of doubt, including the payment of the Initial Facility Fee (as defined in the Ninth Amendment Fee Letter) and the Delayed Draw Facility Fee (as defined in the Ninth Amendment Fee Letter)); and
SIXTH, to the Grantors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct.
The Administrative Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Administrative Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Administrative Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Administrative Agent or such officer or be answerable in any way for the misapplication thereof. The Grantors shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all Secured Obligations, including any attorneys’ fees and other expenses incurred by Administrative Agent or any Lender to collect such deficiency. Notwithstanding the foregoing, the proceeds of any collection, sale, foreclosure or realization upon any Collateral of any Grantor, including any collateral consisting of cash, shall not be applied to any Excluded Swap Obligation of such Grantor and shall instead be applied to other secured obligations.”
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[Signature Pages Follow]
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Execution Version
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the date first above written.
STARRY, INC., as the Borrower Representative
/s/ Chaitanya Kanojia __
By: Chaitanya Kanojia
Title: President
STARRY SPECTRUM HOLDINGS LLC, as a Borrower
By: Starry, Inc. its Sole Member
/s/ Chaitanya Kanojia __
By: Chaitanya Kanojia
Title: President
Starry (MA), Inc., as a Borrower
/s/ Chaitanya Kanojia __
By: Chaitanya Kanojia
Title: President
STARRY SPECTRUM LLC, as a Borrower
By: Starry, Inc., its Sole Member
/s/ Chaitanya Kanojia __
By: Chaitanya Kanojia
Title: President
[Starry – Signature Page to Ninth Amendment]
TESTCO LLC, as a Borrower
By Starry, Inc., its Sole Member
/s/ Chaitanya Kanojia __
By: Chaitanya Kanojia
Title: President
WIDMO HOLDINGS LLC, as a Borrower
By Starry, Inc., its Sole Member
/s/ Chaitanya Kanojia __
By: Chaitanya Kanojia
Title: President
VIBRANT COMPOSITES INC., as a Borrower
/s/ William Lundregan _____
By: William Lundregan
Title: President
STARRY INSTALLATION CORP., as a Borrower
/s/ William Lundregan _____
By: William Lundregan
Title: President
[Starry – Signature Page to Ninth Amendment]
Execution Version
ARROWMARK AGENCY SERVICES LLC, as the Administrative Agent
/s/ Blake Rice
By: Blake Rice
Title: Authorized Signatory
[Starry – Signature Page to Ninth Amendment]
Execution Version
“Lenders”
ARROWMARK FUNDAMENTAL OPPORTUNITY FUND, L.P.
By: its General Partner,
ArrowMark GP, LLC
/s/ Blake Rice _____
By: Blake Rice
Title: Authorized Signatory
ARROWMARK INCOME OPPORTUNITY FUND, LP
By: its General Partner,
ArrowMark Partners GP3, LLC
/s/ Blake Rice _____
By: Blake Rice
Title: Authorized Signatory
ARROWMARK INCOME OPPORTUNITY FUND QP, LP
By: its General Partner,
ArrowMark Partners GP5, LLC
/s/ Blake Rice _____
By: Blake Rice
Title: Authorized Signatory
IRON HORSE INVESTMENTS LLC
By: its Investment Advisor,
ArrowMark Colorado Holdings LLC
/s/ Blake Rice _____
By: Blake Rice
Title: Authorized Signatory
[Starry – Signature Page to Ninth Amendment]
ARROWMARK SPECIALTY FINANCE LLC
By: its Managing Member,
ArrowMark Specialty Finance MM LLC
/s/ Blake Rice _____
By: Blake Rice
Title: Authorized Signatory
ARROWMARK EQUITY OPPORTUNITY FUND
By: its Investment Advisor,
ArrowMark Colorado Holdings LLC
/s/ Blake Rice _____
By: Blake Rice
Title: Authorized Signatory
CF ASCENT, LLC
By: its Investment Advisor,
ArrowMark Colorado Holdings LLC
/s/ Blake Rice _____
By: Blake Rice
Title: Authorized Signatory
CHARLES URSCHEL TRUST
By: its Investment Advisor,
ArrowMark Colorado Holdings LLC
/s/ Blake Rice _____
By: Blake Rice
Title: Authorized Signatory
[Starry – Signature Page to Ninth Amendment]
CORKINS FAMILY FOUNDATION
By: its Investment Advisor,
ArrowMark Colorado Holdings LLC
/s/ Blake Rice _____
By: Blake Rice
Title: Authorized Signatory
INTREPID PRODUCTION CORPORATION
By: its Investment Advisor,
ArrowMark Colorado Holdings LLC
/s/ Blake Rice _____
By: Blake Rice
Title: Authorized Signatory
KATHLEEN KAY CORKINS 2013 REVOCABLE TRUST
By: its Investment Advisor,
ArrowMark Colorado Holdings LLC
/s/ Blake Rice _____
By: Blake Rice
Title: Authorized Signatory
KATHLEEN KAY CORKINS 2014 IRREVOCABLE TRUST
By: its Investment Advisor,
ArrowMark Colorado Holdings LLC
/s/ Blake Rice _____
By: Blake Rice
Title: Authorized Signatory
[Starry – Signature Page to Ninth Amendment]
Execution Version
LARSEN FAMILY, L.P.
By: its Investment Advisor,
ArrowMark Colorado Holdings LLC
/s/ Blake Rice _____
By: Blake Rice
Title: Authorized Signatory
LOOKFAR INVESTMENTS, LLC
By: its Investment Advisor,
ArrowMark Colorado Holdings LLC
/s/ Blake Rice _____
By: Blake Rice
Title: Authorized Signatory
MICHAEL E. HERMAN REVOCABLE TRUST
By: its Investment Advisor,
ArrowMark Colorado Holdings LLC
/s/ Blake Rice _____
By: Blake Rice
Title: Authorized Signatory
THB IRON ROSE LLC
By: its Investment Advisor,
ArrowMark Colorado Holdings LLC
/s/ Blake Rice _____
By: Blake Rice
Title: Authorized Signatory
[Starry – Signature Page to Ninth Amendment]
THB IRON ROSE LLC – CAPITAL SOLUTIONS
By: its Investment Advisor,
ArrowMark Colorado Holdings LLC
/s/ Blake Rice _____
By: Blake Rice
Title: Authorized Signatory
1992 LARSEN GRANDCHILDREN’S TRUST
By: its Investment Advisor,
ArrowMark Colorado Holdings LLC
/s/ Blake Rice _____
By: Blake Rice
Title: Authorized Signatory
THE 2008 MIRANDA BAILEY IRREVOCABLE TRUST FBO MIRANDA BAILEY UTA DATED 12-08-2008
By: its Investment Advisor,
ArrowMark Colorado Holdings LLC
/s/ Blake Rice _____
By: Blake Rice
Title: Authorized Signatory
[Starry – Signature Page to Ninth Amendment]
THE 2008 RYAN TANNER BAILEY IRREVOCABLE TRUST FBO RYAN TANNER BAILEY UTA DATED 12-08-2008
By: its Investment Advisor,
ArrowMark Colorado Holdings LLC
/s/ Blake Rice _____
By: Blake Rice
Title: Authorized Signatory
THE MICHAEL STOPLER LIVING TRUST #2
By: its Investment Advisor,
ArrowMark Colorado Holdings LLC
/s/ Blake Rice _____
By: Blake Rice
Title: Authorized Signatory
THE STOPLER FAMILY TRUST, UAD 06/03/88
By: its Investment Advisor,
ArrowMark Colorado Holdings LLC
/s/ Blake Rice _____
By: Blake Rice
Title: Authorized Signatory
[Starry – Signature Page to Ninth Amendment]
BIRCH GROVE CREDIT STRATEGIES MASTER FUND LP
/s/ Todd A. Berry
By: Todd A. Berry
Title: Chief Operating Officer
AS BIRCH GROVE INVESTMENTS, LLC
/s/ Rodd D. Evonsky
By: Rodd D. Evonsky
Title: Chief Financial Officer
/s/ Todd A. Berry
By: Todd A. Berry
Title: Chief Operating Officer
SWISS CAPITAL BG OL PRIVATE DEBT FUND LP
/s/ Todd A. Berry
By: Todd A. Berry
Title: Chief Operating Officer
SWISS CAPITAL BG OL PRIVATE DEBT OFFSHORE SPC
/s/ Todd A. Berry
By: Todd A. Berry
Title: Chief Operating Officer
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BIRCH GROVE PRIVATE CREDIT OPPORTUNITIES MASTER FUND III LP
/s/ Todd A. Berry
By: Todd A. Berry
Title: Chief Operating Officer
SG-STARRY, LLC
By: Alder Companies, LLC (f/k/a Sturm Group, LLC), its Manager
/s/ Stephen F. Sturm
By: Stephen F. Sturm
Title: President & CEO
HUNT RE INVESTMENTS, LLC
By: Hunt ELP, Ltd., a Texas limited partnership, its sole Member
/s/ Ryan McCrory
By: Ryan McCrory
Title: Executive Vice President
CP ORION HOLDINGS LLC
By: Cloverlay Investment Management, LLC, its Manager
By: Cloverlay Partners Management Company, LLC, its Manager
/s/ Jeffrey Collins
By: Jeffrey Collins
Title: Managing Principal
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