Exhibit 10.1
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EXECUTION COPY
AMENDMENT XX. 0
XXXXXXXXX XX. 0 dated as of November 19, 2004 to the Credit Agreement
referred to below, between MDC Partners Inc., a Canadian corporation ("MDC
Partners"), Maxxcom Inc., an Ontario corporation ("Maxxcom Canada"), Maxxcom
Inc., a Delaware corporation ("Maxxcom U.S." and together with MDC Partners and
Maxxcom Canada, the "Borrowers"), each of the Lenders identified under the
caption "LENDERS" on the signature pages hereto and JPMorgan Chase Bank, N.A.
(formerly known as JPMorgan Chase Bank), as U.S. administrative agent for the
Lenders (in such capacity, the "U.S. Administrative Agent").
The Borrowers, the Lenders party thereto (individually, a "Lender"
and, collectively, the "Lenders"), the U.S. Administrative Agent, JPMorgan
Chase Bank, as Collateral Agent (in such capacity, the "Collateral Agent"), and
JPMorgan Chase Bank, Toronto Branch, as Canadian Administrative Agent (in such
capacity, the "Canadian Administrative Agent" and together with the U.S.
Administrative Agent, the "Administrative Agents") are parties to a Credit
Agreement dated as of September 22, 2004 (as amended, the "Credit Agreement").
The Borrowers and the Required Lenders wish to amend the Credit Agreement in
certain respects, and accordingly, the parties hereto hereby agree as follows:
Section 1. Definitions. Capitalized terms used in this Amendment No. 1
and not otherwise defined are used herein as defined in the Credit Agreement.
Section 2. Amendments. Subject to the satisfaction of the conditions
precedent specified in Section 5 hereof, but effective as of the date hereof,
the Credit Agreement shall be amended as follows:
2.01. References in the Credit Agreement (including references to the
Credit Agreement as amended hereby) to "this Agreement" (and indirect
references such as "hereunder", "hereby", "herein" and "hereof") shall be
deemed to be references to the Credit Agreement as amended hereby.
2.02. Clause (x) of Section 7.07(v) of the Credit Agreement is hereby
amended in its entirety to read as follows:
"(x) the payment of management fees by any Restricted Party
in compliance with any applicable Restricted Party Shareholder
Agreement and the payment of management fees by any Wholly Owned
Subsidiary of the Borrowers to any of the Borrowers or any other
Wholly Owned Subsidiary of the Borrowers which is an Obligor;".
Section 3. Waivers. Subject to the satisfaction of the conditions
precedent specified in Section 5 hereof, but with effect on and after the date
hereof, the Required Lenders hereby agree that any Default that may have
occurred and be continuing on the date hereof or may hereafter arise solely as
a result of any of the following is hereby waived:
(a) the inaccuracy of the Borrowers' previously made
representations and warranties set forth under Sections 5.05(a) and
5.10(a) of the Credit Agreement with respect to any financial
statements referred to therein that shall be required to be restated
as a result of the current review thereof by the Borrowers' auditors
(the "Restated Financial Statements"), provided that (i) the Borrowers
shall deliver to the Administrative Agents and the Lenders the
Restated Financial Statements by not later than December 22, 2004 and
(ii) upon such delivery of the Restated Financial Statements, the
Borrowers shall make (and shall be deemed to have made) the
representations and warranties set forth under Sections 5.05(a) and
5.10(a) of the Credit Agreement with respect to the Restated Financial
Statements (and the Restated Financial Statements shall be deemed to
replace the references therein to the respective financial statements
that have been restated);
(b) the inability of the Borrowers to make the
representations and warranties set forth under Sections 5.05(a) and
5.10(a) of the Credit Agreement in connection with any subsequent
extensions of credit under the Credit Agreement (as required under
Section 4.02(a) of the Credit Agreement) until delivery of the
Restated Financial Statements to the Administrative Agents and the
Lenders;
(c) the Borrowers' failure to comply with the requirements of
Sections 6.09(a), (b) and (d) of the Credit Agreement with respect to
delivery of the financial statements for the fiscal quarter ended
September 30, 2004 (and the related compliance certificate) (the
"3Q'04 Financial Statements"), provided that the Borrowers shall
deliver to the Administrative Agents and the Lenders (i) the 3Q'04
Financial Statements (without the related compliance certificate) by
not later than December 22, 2004, (ii) the related compliance
certificate by not later than December 31, 2004 and (iii) an updated
compliance certificate with respect to the computations used by MDC
Partners in determining compliance with the relevant financial
covenants contained in Article VIII of the Credit Agreement as of the
Effective Date to reflect the Restated Financial Statements.
(d) the Borrowers' failure to comply with the requirements of
Sections 8.01, 8.02 and 8.03 of the Credit Agreement prior to delivery
of the Restated Financial Statements and the 3Q'04 Financial
Statements to the Administrative Agents and the Lenders (and such
financial covenants shall, for the purpose of determining compliance
with any relevant Test Period, be based on the relevant Restated
Financial Statements and 3Q'04 Financial Statements).
Notwithstanding anything herein to the contrary, the Borrowers'
failure to deliver to the Administrative Agents and the Lenders the Restated
Financial Statements or the 3Q'04 Financial Statements prior to December 22,
2004 shall constitute an Event of Default under the Credit Agreement, and upon
such failure the waivers under this Section 3 shall cease to be in effect.
Section 4. Representations and Warranties. The Borrowers represent
and warrant to the Lenders, after giving effect to the waivers set forth in
Section 3 hereof, that (a) the representations and warranties set forth in
Article V of the Credit Agreement are true and
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complete on the date hereof as if made on and as of the date hereof and as if
each reference in said Article V to "this Agreement" included reference to
this Amendment No. 1 and (b) no Default shall have occurred and be continuing.
Section 5. Conditions Precedent to Effectiveness. The amendments set
forth in Section 2 hereof and the waivers set forth in Section 3 hereof shall
become effective, as of the date hereof, upon receipt by the U.S.
Administrative Agent of one or more counterparts of this Amendment No. 1
executed by the Borrowers and the Required Lenders.
Section 6. Miscellaneous. Except as herein provided, the Credit
Agreement shall remain unchanged and in full force and effect, provided that
except as expressly provided in Section 3 hereof, nothing herein shall
constitute a waiver of, or any agreement to provide a waiver of, any existing
or future Default. This Amendment No. 1 may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
agreement and any of the parties hereto may execute this Amendment No. 1 by
signing any such counterpart. This Amendment No. 1 shall be governed by, and
construed in accordance with, the law of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No.
1 to be duly executed and delivered as of the day and year first above written.
MDC PARTNERS INC.
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: Authorized Signatory
By: /s/ Xxxxxxxx Xxxxxx
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Name: Xxxxxxxx Xxxxxx
Title: Authorized Signatory
MAXXCOM INC., an Ontario corporation
By: /s/ Xxx Xxxxxxx
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Name: Xxx Xxxxxxx
Title: Authorized Signatory
By: /s/ Xxxxxx Xxxxxxxxx
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Name: Xxxxxx Xxxxxxxxx
Title: Authorized Signatory
MAXXCOM INC., a Delaware corporation
By: /s/ Xxx Xxxxxxx
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Name: Xxx Xxxxxxx
Title: Authorized Signatory
By: /s/ Xxxxxx Xxxxxxxxx
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Name: Xxxxxx Xxxxxxxxx
Title: Authorized Signatory
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LENDERS
JPMORGAN CHASE BANK, N.A.
(formerly known as JPMorgan Chase Bank)
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: Vice President
XXXXXXXX XXXXX XXXX, XXXXXXX
BRANCH
By: /s/ Xxxxxxxxx Xxxx
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Name: Xxxxxxxxx Xxxx
Title: Vice President
BANK OF MONTREAL (CHICAGO BRANCH)
By: /s/ Xxxxx Xxx
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Name: Xxxxx Xxx
Title: Vice President
BANK OF MONTREAL
By: /s/ Xxxxx Xxx
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Name: Xxxxx Xxx
Title: Vice President
THE BANK OF NOVA SCOTIA, by its Atlanta
Agency
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
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XXX XXXX XX XXXX XXXXXX
By: /s/ Xxxxx Xxxx
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Name: Xxxxx Xxxx
Title: Director
By: /s/ Xxxxxxxxx Xxxxxxxx
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Name: Xxxxxxxxx Xxxxxxxx
Title: Associate Director
TORONTO DOMINION (TEXAS) LLC
By: /s/ Xxx Xxxxxxxx
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Name: Xxx Xxxxxxxx
Title: Authorized Signatory
THE TORONTO-DOMINION BANK
By: /s/ Xxx Xxxxxxxxxx
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Name: Xxx Xxxxxxxxxx
Title: VP Credit Management
CIBC INC.
By: /s/ Xxxxxxxxx Xxxx
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Name: Xxxxxxxxx Xxxx
Title: Executive Director, CIBC
World Markets Corp.,
as Agent
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CANADIAN IMPERIAL BANK OF COMMERCE
By:
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Name:
Title:
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