AMENDMENT NO. 8
Exhibit 10.2
AMENDMENT
XX. 0
XXXXXXXXX
XX. 0 dated as of August 3, 2006 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., 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, JPMCB, as Collateral Agent (in such capacity, the
“Collateral
Agent”),
and
JPMCB, 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. 8 and not otherwise defined are
used herein as defined in the Credit Agreement (as amended hereby).
Section
2. Amendments.
Effective as provided in Section 5 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.
Section 1.01 of the Credit Agreement is hereby amended by amending the following
definition to read in its entirety as follows:
“Capital
Expenditures”
means,
for any period, expenditures (including the aggregate amount of Capital Lease
Obligations incurred during such period but excluding the interest component
thereof) made by the Restricted Parties during such period to acquire or
construct fixed assets, plant and equipment (including renewals, improvements
and replacements, but excluding normal replacements and maintenance which are
properly charged to current operations) that is required to be capitalized
for
financial reporting purposes in accordance with U.S. GAAP,
provided
that
Capital Expenditures shall not include (a) for any period, Capital Expenditures
(in an aggregate amount not to exceed U.S. $2,000,000 for any fiscal year)
required to be reported on the statement of cash flows of MDC Partners in
accordance with U.S. GAAP to the extent such Capital Expenditures have been
funded during such period by a landlord of MDC Partners or any of its
Subsidiaries (including the Minority-Owned Obligors) with respect to any
improvements to property leased from such landlord by MDC Partners or any of
its
Subsidiaries (including the Minority-Owned Obligors) and (b) solely for the
purposes of calculating the Fixed Charges Ratio as of any Test Period ending
on
or, as applicable, after September 30, 2006, Capital Expenditures made by Accent
Marketing Services, L.L.C. and its Subsidiaries.”
2.03
Section 7.06(p) of the Credit Agreement is hereby amended in its entirety to
read as follows:
“(p) Investments
(in addition to Investments permitted under any of the foregoing clauses of
this
Section 7.06) in an aggregate amount not exceeding (i) at any time prior to
the
date of the Disposition in whole or in part of the Secure Products Business,
U.S. $4,100,000 and (ii) at any time thereafter, U.S. $5,100,000.”
2.04
Section 8.06 of the Credit Agreement is hereby amended in its entirety to read
as follows:
“SECTION
8.06. Capital
Expenditures. (a)
MDC
Partners will not permit the aggregate amount of Capital Expenditures by the
Restricted Parties in respect of the Marketing Communications Business and
the
Secure Products Business to exceed the following respective amounts with respect
to such business for any fiscal year ending on the dates set forth
below:
| Fiscal Year Ending | Amount (U.S. $) | |
|
Marketing
Communications
|
Secure
Products
|
|
| December 31, 2004 |
10,000,000
|
8,000,000
|
| December 31, 2005 |
10,000,000
|
3,500,000
|
| December 31, 2006 |
25,000,000
|
3,500,000
|
| December 31, 2007 |
10,000,000
|
3,500,000
|
If
the
aggregate amount of Capital Expenditures with respect to any such business
for
any period set forth in the schedule above shall be less than the amount with
respect to such business set forth opposite such period in the schedule above,
then 100% of such shortfall shall be added to the amount of Capital Expenditures
with respect to such business permitted for the immediately succeeding (but
not
any other) period and, for purposes hereof, the amount of Capital Expenditures
made during any period shall be deemed to have been made first from the
permitted amount for such period set forth in the schedule above and last from
the amount of any carryover from any previous period. Notwithstanding the
preceding sentence, if the aggregate amount of Capital Expenditures with respect
to the Marketing Communications Business for the fiscal year ending on December
31, 2006 shall exceed $10,000,000, then no such shortfall shall be added to
the
amount of Capital Expenditures permitted for the immediately succeeding
period.
If
during
any fiscal year specified in the table above (commencing with the fiscal year
ending December 31, 2005) any Restricted Party shall consummate an acquisition
of more than 50% of the Capital Stock of a Person principally and directly
engaged in the Marketing Communications Business, the permitted amount of
Capital Expenditures for “Marketing Communications” specified in such table for
the current fiscal year and each successive fiscal year shall be increased
by an
amount equal to 10% of the “EBITDA” of such Person (calculated on the same basis
as set forth in the definition of “EBITDA”) for the most recently completed
fiscal year of such Person (which amount shall be determined in good faith
by
MDC Partners and certified to the Administrative Agent, based upon the audited
financial statements (or, to the extent audited financial statements are not
available, unaudited financial statements) of such Person for such fiscal year
as furnished with such certification to the Administrative Agent).”
Section
3. Representations
and Warranties.
Each
Borrower represents and warrants (as to itself and each of its Subsidiaries)
to
the Agents and Lenders that (a) the representations and warranties set forth
in
Article V of the Credit Agreement, as amended hereby, and in each of the other
Loan Documents are complete and correct on the date hereof as if made on and
as
of such date and as if each reference in said Article V to “this Agreement”
included reference to this Amendment No. 8 and (b) no Default shall have
occurred and be continuing under the Credit Agreement, as amended
hereby.
2
Section
4. Confirmation
of Security Documents.
Each of
the Borrowers hereby confirms and ratifies all of its obligations under the
Loan
Documents to which it is a party, including its obligations as a guarantor
under
Article III of the Credit Agreement as amended hereby. By its execution on
the respective signature lines provided below, each of the Guarantors hereby
confirms and ratifies all of its obligations and the Liens granted by it under
the Security Documents to which it is a party, represents
and warrants that the representations
and warranties set forth in such Security Documents are complete and correct
on
the date hereof as if made on and as of such date and confirms
that all references in such Security Documents to the “Credit Agreement” (or
words of similar import) refer to the Credit Agreement as amended hereby without
impairing any such obligations or Liens in any respect.
Section
5. Conditions
Precedent to Effectiveness.
The
amendments set forth in Section 2 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. 8 executed by the Obligors and the Required
Lenders.
Section
6. Miscellaneous.
Except
as herein provided, the Credit Agreement shall remain unchanged and in full
force and effect. This Amendment No. 8 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. 8 by
signing any such counterpart. This Amendment No. 7 shall be governed by, and
construed in accordance with, the law of the State of New York.
3
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment No. 8 to be
duly
executed and delivered as of the day and year first above written.
By:________________________________
Name:
Title:
Authorized Signatory
By:________________________________
Name:
Title:
Authorized Signatory
MAXXCOM
INC., an Ontario corporation
By:________________________________
Name:
Title:
Authorized Signatory
By:________________________________
Name:
Title:
Authorized Signatory
MAXXCOM
INC., a Delaware corporation
By:________________________________
Name:
Title:
Authorized Signatory
By:________________________________
Name:
Title:
Authorized Signatory
4
Agreed
as set forth in Section 4 above:
GUARANTORS
|
Signed
sealed and delivered by the attorney of Placard
Pty Ltd
ACN 074 646 343 under power of attorney and who has received no notice
of
the revocation of the power, in the presence of:
|
|
| ____________________________ | ______________________________ |
|
Signature
of witness
|
Signature
of attorney
|
|
Name
of witness: Xxx Xxxxxxx
|
Name
of attorney: Xxxxxx Xxxxxxxx
|
5
1208075
ONTARIO LIMITED
1220777
ONTARIO LIMITED
1385544
ONTARIO LIMITED
2026646
ONTARIO LIMITED
656712
ONTARIO LIMITED
XXXXXXX
XXXX XXXXXX XXXXXXX INC.
XXXXXX
XXXXXX CANADA INC.
XXXXXX-XXXXXX
CANADA LTD.
XXXXX
XXX
DESIGN INC.
XXXXX
XXX
HOLDINGS LTD.
XXXXXXXX
+ PARTNERS COMMUNICATIONS LTD.
COMPUTER
COMPOSITION OF CANADA INC.
XXXXXXXXX
BAS
MAXXCOM
(NOVA SCOTIA) CORP.
MAXXCOM
INTERACTIVE INC.
METACA
CORPORATION
STUDIOTYPE
INC.
TREE
CITY
INC.
By:
________________________________
Name:
Title:
Authorized Signatory
By:
________________________________
Name:
|
Title:
Authorized Signatory
|
6
ACCENT
ACQUISITION CO.
ACCENT
INTERNATIONAL, INC.
ACCENT
MARKETING SERVICES, L.L.C.
XXXXXX-XXXXXX
(USA) LTD.
BRATSKEIR
& COMPANY, INC.
XXXXXXXX
DIRECT, INC.
CMS
U.S.
HOLDCO, INC.
COLLE
& XXXXX, INC.
CPB
ACQUISITION INC.
XXXXXXX
XXXXXX & BOGUSKY LLC
DOTGLU
LLC
XXXXXXXX
XXXXXX LLC
FMA
ACQUISITION CO.
HELLO
ACQUISITION INC.
KBP
HOLDINGS LLC
XXXXXXXXXXX
BOND & PARTNERS LLC
XXXXXXXXXXX
BOND & PARTNERS WEST LLC
LAFAYETTE
PRODUCTIONS LLC
MACKENZIE
MARKETING, INC.
MARGEOTES/XXXXXXXX
+ PARTNERS LLC
MAXXCOM
(USA) FINANCE COMPANY
MAXXCOM
(USA) HOLDINGS INC.
MDC
USA
HOLDINGS INC.
MDC/KBP
ACQUISITION INC.
MF+P
ACQUISITION CO.
MONO
ADVERTISING, LLC
PRO-IMAGE
CORPORATION
SABLE
ADVERTISING SYSTEMS, INC.
SMI
ACQUISITION CO.
SOURCE
MARKETING LLC
TARGETCOM
LLC
VITROROBERTSON
LLC
ZG
ACQUISITION INC.
ZYMAN
GROUP, LLC
By:
________________________________
Name:
Title:
Authorized Signatory
By:
________________________________
Name:
Title:
Authorized Signatory
7
LENDERS
JPMORGAN
CHASE BANK, N.A.
By:________________________________
Name:
Title:
JPMORGAN
CHASE BANK, N.A., TORONTO
BRANCH
By:________________________________
Name:
Title:
0
XXXX
XX
XXXXXXXX (XXXXXXX XXXXXX)
By:________________________________
Name:
Title:
BANK
OF
MONTREAL
By:________________________________
Name:
Title:
0
XXX
XXXX
XX XXXX XXXXXX, by its Atlanta Agency
By:________________________________
Name:
Title:
THE
BANK
OF NOVA SCOTIA
By:________________________________
Name:
Title:
By:________________________________
Name:
Title:
00
XXXXXXX
XXXXXXXX (XXXXX) INC.
By:________________________________
Name:
Title:
THE
TORONTO-DOMINION BANK
By:________________________________
Name:
Title:
11
CIBC
INC.
By:________________________________
Name:
Title:
CANADIAN
IMPERIAL BANK OF COMMERCE
By:________________________________
Name:
Title:
By:________________________________
Name:
Title:
12
