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.
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 | |||
| By: | /s/ Ronald J. Lejman | ||
| Name: | Ronald J. Lejman | ||
| Title: | Chief Financial Officer | ||
Amendment No. 7 to First Lien Credit Agreement
ROYAL BANK OF CANADA, as Administrative Agent | |||
| By: | /s/ Susan Khokher | ||
| Name: | Susan Khokher | ||
| Title: | Manager, Agency | ||
Amendment No. 7 to First Lien Credit Agreement
Required Lenders ROYAL BANK OF CANADA | |||
| By: | /s/ Mark S. Gronich | ||
| Name: | Mark S. Gronich | ||
| Title: | Authorized Signatory | ||
Amendment No. 7 to First Lien Credit Agreement
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 | |||
| By: | /s/ Pallo Blum-Tucker | ||
| Name: | Pallo Blum-Tucker | ||
| Title: | Authorized Signatory | ||
Amendment No. 7 to First Lien Credit Agreement
| ABLECO FINANCE LLC | |||
| By: | /s/ Daniel E. Wolf | ||
| Name: | Daniel E. Wolf | ||
| Title: | President | ||
A4 FUNDING LP By: A4 Fund Management, Inc. Its: General Partner | |||
| By: | /s/ Daniel E. Wolf | ||
| Name: | Daniel E. Wolf | ||
| Title: | Vice President | ||
A5 FUNDING L.P. By: A5 Fund Management LLC Its: General Partner | |||
| By: | /s/ Daniel E. Wolf | ||
| Name: | Daniel E. Wolf | ||
| Title: | Vice President | ||
Amendment No. 7 to First Lien Credit Agreement
EMPORIA PREFERRED FUNDING I, LTD. By: A.C. Corporation, its Collateral Manager | |||
| By: | |||
| Name: | |||
| Title: | |||
EMPORIA PREFERRED FUNDING II, LTD. By: A.C. Corporation, its Collateral Manager | |||
| By: | |||
| Name: | |||
| Title: | |||
EMPORIA PREFERRED FUNDING III, LTD. By: A.C. Corporation, its Collateral Manager | |||
| By: | |||
| Name: | |||
| Title: | |||
Amendment No. 7 to First Lien Credit Agreement
FIRSTRUST BANK | |||
| By: | /s/ Ellen Frank | ||
| Name: | Ellen Frank | ||
| Title: | Vice President | ||
Amendment No. 7 to First Lien Credit Agreement
MARRET ASSET MANAGEMENT INC. | |||
| By: | /s/ Adrian Prenc | ||
| Name: | Adrian Prenc | ||
| Title: | VP Marret Asset Management Inc. | ||
On behalf of: DYNAMIC HIGH YIELD BOND FUND DYNAMIC VALUE BALANCED CLASS DYNAMIC VALUE BALANCED FUND |
Amendment No. 7 to First Lien Credit Agreement
TRISTATE CAPITAL BANK | |||
| By: | |||
| Name: | |||
| Title: | |||
Amendment No. 7 to First Lien Credit Agreement
GREENSTAR CAPITAL FINANCE LLC | |||
| By: | /s/ Seth Fink | ||
| Name: | Seth Fink | ||
| Title: | Managing Director | ||
Amendment No. 7 to First Lien Credit Agreement
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.) | |||
| By: | /s/ Johnny Ciampi | ||
| Name: | Johnny Ciampi | ||
| Title: | Managing Partner | ||
Amendment No. 7 to First Lien Credit Agreement