Exhibit 10.2.4
THIS THIRD AMENDMENT AGREEMENT is made as of the 28th day of October, 2002.
B E T W E E N:
MAXXCOM INC.
a corporation incorporated under the
laws of the Province of Ontario
("Maxxcom")
- and -
MAXXCOM INC.
a corporation incorporated under the
- AND -
MAXXCOM (NOVA SCOTIA) CORP.
MAXXCOM (USA) FINANCE COMPANY
MAXXCOM (USA) HOLDINGS INC.
1220777 ONTARIO LIMITED
1385544 ONTARIO LIMITED
MAXXCOM INTERACTIVE INC.
MACKENZIE MARKETING, INC.
MF+P ACQUISITION CO.
SMI ACQUISITION CO.
ACCENT ACQUISITION CO.
FMA ACQUISITION CO.
TC ACQUISITION INC.
ET ACQUISITION INC.
BZ ACQUISITION INC.
XXXXXXXX DIRECT, INC.
BRATSKEIR & COMPANY, INC.
CPB ACQUISITION INC.
CORMARK COMMUNICATIONS INC.
XXXXXXXX & PARTNERS COMMUNICATIONS LTD.
XXXXXXX XXXX XXXXXX XXXXXXX INC.
STUDIOTYPE INC.
AS GUARANTORS
-AND-
THE BANK OF NOVA SCOTIA
a bank to which the Bank Act (Canada) applies,
in its capacity as administrative agent hereunder
AS ADMINISTRATIVE AGENT
-AND-
THE BANK OF NOVA SCOTIA
a bank to which the Bank Act (Canada) applies,
in its capacity as a lender hereunder
- and -
CANADIAN IMPERIAL BANK OF COMMERCE
a bank to which the Bank Act (Canada) applies,
in its capacity as a lender hereunder
- and -
BANK OF MONTREAL
a bank to which the Bank Act (Canada) applies,
in its capacity as a lender hereunder
- and -
THE TORONTO-DOMINION BANK
a bank to which the Bank Act (Canada) applies,
in its capacity as a lender hereunder
- and -
ROYAL BANK OF CANADA
a bank to which the Bank Act (Canada) applies,
in its capacity as a lender hereunder
- and -
THE BANK OF NOVA SCOTIA
by its Atlanta Agency,
in its capacity as a lender hereunder
- and -
CIBC INC.
a financial institution incorporated under the laws of the State of Delaware,
in its capacity as a lender hereunder
- and -
BANK OF MONTREAL
by its Chicago branch,
in its capacity as a lender hereunder
- and -
TORONTO DOMINION (TEXAS), INC.
a corporation incorporated under the laws of Delaware,
in its capacity as a lender hereunder
- and -
ROYAL BANK OF CANADA
by its Grand Cayman (North America No. 1) Branch,
in its capacity as a lender hereunder
AS LENDERS
RECITALS:
A. The Borrowers, certain of the Guarantors, the Agent and the Lenders
are parties to a Second Amended and Restated Credit Agreement dated
as of 11 July 2001, as amended by a first amendment agreement made as
of 31 March 2002 and as further amended by a second amendment
agreement made as of 30 June 2002 (the "Credit Agreement").
B. Maxxcom has requested that the Lenders:
(a) amend the financial covenants in the Credit Agreement
relating to the Senior Debt Ratio and the Total Debt
Ratio from and after the fiscal quarter ending 31
December 2002;
(b) amend certain provisions of the Credit Agreement to
exclude the effect of certain one-time restructuring
costs incurred in 2002 relating to Maxxcom's
restructuring plan from and after the fiscal quarter
ending 31 December 2002;
(c) exclude the results of operations for Cormark
Communications Inc. for the purpose of calculating the
financial covenants in the Credit Agreement from and
after the fiscal quarter ending 31 December 2002;
(d) permit the funding of Minority Acquisitions under the
Credit Agreement of up to Cdn. $5,000,000 annually and to
include the EBITDA or Qualifying Income resulting from
such Minority Acquisitions on a pro forma basis for the
purpose of calculating the financial covenants in the
Credit Agreement, from and after the fiscal quarter
ending 31 December 2002; and
(e) amend certain provisions of the Credit Agreement to
exclude the effect of certain one-time restructuring
costs incurred in 2003 relating to the implementation of
Maxxcom's restructuring plan.
C. The Lenders have agreed to such requests on the terms and conditions
set forth herein and the parties are entering into this Third
Amendment Agreement to give effect thereto and to make the other
changes to the Credit Agreement reflected herein.
NOW THEREFORE in consideration of these premises and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged and intending to be legally bound hereby, the parties agree as
follows:
Section 1 - New Definition
Section 1.1 of the Credit Agreement is amended by adding the
following definitions:
1.1.35.1 "Xxxxxxxx Transactions" means:
(a) the redemption by Xxxxxxxx Direct, LLC of
its membership interests held by each of
Margeotes/Ferititta + Partners LLC and
Gruppo Xxxxxxxx, Inc. in Xxxxxxxx Direct,
LLC for U.S. $1;
(b) the transfer of all of the assets of
Xxxxxxxx Direct, LLC, valued at
approximately U.S. $900,000, to CDI
Acquisition Co. in consideration of the
assumption by CDI Acquisition Co. of all
liabilities of Xxxxxxxx Direct, LLC;
(c) the change of name of CDI Acquisition Co.
to "Xxxxxxxx Direct, Inc."; and
(d) the dissolution of Xxxxxxxx Direct, LLC
pursuant to the General Corporation Law of
the State of Delaware.
1.1.63.1 "e-Source Transactions" means:
(a) the transfer of all of the assets of
e-Source Drive to Web Marketing LLC to
Source Marketing LLC in consideration of
the assumption by Source Marketing LLC of
all liabilities of e-Source Drive to Web
Marketing LLC; and
(b) the dissolution of e-Source Drive to Web
Marketing LLC pursuant to the General
Corporation Law of the State of Delaware.
1.1.88.1 "Interfocus Transactions" means:
(a) the share exchange transaction to be
entered into between Interfocus Group
Limited and Xx. Xxxxxxxxxxx Zandonati by
which Interfocus Group Limited will
acquire all of the issued and outstanding
shares of Interfocus Technology Group
Limited not currently owned by it from Mr.
Zandonati in exchange for the issuance of
approximately 7,452 of its shares and the
payment to Mr. Zandonati of (pound)7,000;
(b) the transfer of all of the assets of
Interfocus Network Limited to Interfocus
Technology Limited in consideration of the
assumption by Interfocus Technology
Limited of all of the liabilities of
Interfocus Network Limited and a
promissory note made by Interfocus
Technology Limited to Interfocus Network
Limited for the balance which is estimated
to be approximately (pound)190,000 (the
"ITL Promissory Note");
(c) Interfocus Network Limited maintaining its
existence under the Companies Act 1985
(United Kingdom), but owning no assets
(other than the ITL Promissory Note) and
carrying on no business whatsoever;
(d) the transfer of all of the issued and
outstanding shares of Interfocus
Technology Limited from Interfocus
Technology Group Limited to Interfocus
Group Limited in consideration of a
promissory note made by Interfocus Group
Limited to Interfocus Technology Group
Limited in the amount of approximately
(pound)900,000;
(e) the change of name of Interfocus
Technology Limited to "Interfocus Networks
Limited"; and
(f) the change of name of Interfocus Network
Limited to "Interfocus Technology
Limited".
1.1.176.1 "Third Amendment Agreement" means the Third
Amendment Agreement to this Agreement made as of 28
October 2002.
Section 2 - Amended Definitions
Section 1.1.1 of the Credit Agreement is deleted and replaced with
the following provision:
1.1.1 "Acquirecos" means MF + P Acquisition Co. (a
Delaware corporation), SMI Acquisition Co. (a
Delaware corporation), Accent Acquisition Co. (a
Delaware corporation), FMA Acquisition Co. (a
Delaware corporation), TC Acquisition Inc. (a
Delaware corporation), ET Acquisition Inc. (a
Delaware corporation), BZ Acquisition Inc. (a
Delaware corporation), CPB Acquisition Inc. (a
Delaware corporation) and each other direct or
indirect Wholly-Owned Subsidiary of Maxxcom which
is not an Opco and which controls or acquires an
Opco from time to time and "Acquireco" means any
one of them.
Section 1.1.59 of the Credit Agreement is deleted and replaced with
the following provision:
1.1.59 "EBITDA" means, with respect to any fiscal period
and any Person, the net income of such Person
determined in accordance with GAAP for such fiscal
period plus or minus, to the extent deducted or
added in determining such net income, without
duplication:
(a) income taxes paid or payable or refunds
received or receivable in respect of income
taxes;
(b) interest paid or payable or received or
receivable;
(c) extraordinary gains or losses;
(d) amortization, depreciation and other
non-cash expenses; and
(e) goodwill charges net of income taxes.
For greater certainty, when calculating EBITDA:
(f) for the purposes of determining the Total
Debt Ratio and the Senior Debt Ratio only:
(i) the amount of income received or
receivable from Non-wholly-owned
Subsidiaries shall be excluded,
other than Qualifying Income,
which Qualifying Income shall have
the effect of increasing EBITDA,
if a positive number, and to the
extent that Qualifying Income is a
negative number, EBITDA shall be
decreased by such amount;
(ii) from and after the fiscal quarter
ending 31 December 2002 in
relation to any permitted Minority
Acquisition completed after 30
September 2002:
(A) where such permitted
Minority Acquisition
does not result in the
relevant Restricted
Party becoming a
Wholly-Owned Subsidiary
of Maxxcom, the amount
of Qualifying Income
attributable to such
Minority Acquisition to
the extent actually
received by the prior
holder of the Capital
Stock subject to such
Minority Acquisition,
shall be added to
EBITDA, if a positive
number, and be
subtracted from EBITDA,
if a negative number,
on a pro forma basis
commencing with the
three full fiscal
quarters completed
prior to the date of
the completion of such
Minority Acquisition;
and
(B) where such permitted
Minority Acquisition
results in the relevant
Restricted Party
becoming a Wholly-Owned
Subsidiary of Maxxcom
and such Restricted
Party (and all other
Restricted Parties)
have delivered security
and guarantees
analogous to the
Security required under
Section 3.1 in relation
to such newly
wholly-owned Restricted
Party, the amount of
EBITDA attributable to
such Restricted Party
shall be added to
EBITDA, if a positive
number, and be
subtracted from EBITDA,
if a negative number,
on a pro forma basis
commencing with the
three full fiscal
quarters completed
prior to the date of
the completion of such
Minority Acquisition by
which the relevant
Restricted Party became
a Wholly-Owned
Subsidiary of Maxxcom.
(g) for the purposes of determining the Total
Debt Ratio, the Senior Debt Ratio and the
Interest Coverage Ratio, there shall be
excluded:
(i) the EBITDA which would otherwise
be attributable to Accent
Marketing Services, L.L.C.;
(ii) the EBITDA which would otherwise
be attributable to any Restricted
Party which has incurred
Refinanced Intercorporate Debt;
(iii) the EBITDA which would otherwise
be attributable to 656712 Ontario
Limited after 31 March 2001 until
the time that its indebtedness to
The Toronto-Dominion Bank is
replaced with Permitted
Intercorporate Debt; and
(iv) the EBITDA which would otherwise
be attributable to Cormark
Communication Inc. (on a pro forma
twelve month basis) from and after
31 December 2002;
(h) for the purposes of determining the Total
Debt Ratio, the Senior Debt Ratio and the
Interest Coverage Ratio as at 31 March 2002,
30 June 2002, 30 September 2002 and 31
December 2002, the financial results of the
Discontinued Operations shall be excluded
from the calculation of EBITDA;
(i) for the purposes of determining the Total
Debt Ratio, the Senior Debt Ratio and the
Interest Coverage Ratio as at 31 March 2002,
30 June 2002 and 30 September 2002, the
Restructuring Charges, to the extent
deducted in determining net income in the
calculation of EBITDA, shall be added to
EBITDA;
(j) for the purposes of determining the Total
Debt Ratio, the Senior Debt Ratio and the
Interest Coverage Ratio as at 31 December
2002, 31 March 2003, 30 June 2003 and 30
September 2003, that amount actually
incurred by Maxxcom on a consolidated basis
for fees, costs, expenses and charges
relating to the rationalization of Maxxcom
and the other Restricted Parties incurred
between 1 January 2002 and 31 December 2002
not in excess of Cdn. $700,000 to the extent
deducted in determining net income in the
calculation of EBITDA for such period, shall
be added to EBITDA; and
(k) for the purposes of determining the Total
Debt Ratio, the Senior Debt Ratio and the
Interest Coverage Ratio for each fiscal
quarter of Maxxcom ending after 31 December
2002, there shall be added back to EBITDA
for the relevant 12-month period ending on
such fiscal quarter end that amount actually
incurred by Maxxcom on a consolidated basis
in such 12-month period, for fees, costs,
expenses and charges relating (not in
excess, in the aggregate for all relevant
periods, of Cdn. $500,000) to the
negotiation of the deferral of Earnout
Payments required to be paid during the
period from 1 January 2003 to 31 December
2003, to the extent such fees, costs,
expenses and charges were deducted in
determining net income in the calculation of
EBITDA for such 12-month period.
Section 1.1.74 of the Credit Agreement is deleted and replaced with
the following provision:
1.1.74 "Foreign Opcos" means Interfocus Group Limited,
Interfocus Direct Limited, Interfocus Network
Limited, Interfocus Technology Group Limited
(formerly known as Grange Advertising Limited),
Interfocus Technology Limited (formerly known as
Grange Advertising and Marketing Communications
Limited) and Grange USA, Inc. and each other Person
in which a Controlling Interest is directly
acquired by Maxxcom from time to time or is
indirectly acquired by Maxxcom from time to time in
accordance with Section 1.1.126(f), none of which
is an Acquireco, a CanSubco, a Xxxxx or an Opco and
"Foreign Opco" means any one of them.
Section 1.1.79 of the Credit Agreement is deleted and replaced with
the following provision:
1.1.79.1 "Guarantors" means Maxxcom US, Maxxcom (Nova
Scotia) Corp., Maxxcom (USA) Finance Company,
Maxxcom (USA) Holdings Inc., 1220777 Ontario
Limited, 1385544 Ontario Limited, Maxxcom
Interactive Inc., Mackenzie Marketing, Inc., MF + P
Acquisition Co., SMI Acquisition Co., Accent
Acquisition Co., FMA Acquisition Co., TC
Acquisition Inc., ET Acquisition Inc., BZ
Acquisition Inc., Xxxxxxxx Direct, Inc., Bratskeir
& Company, Inc., CPB Acquisition Inc., Cormark
Communications Inc., Xxxxxxxx & Partners
Communications Ltd., Xxxxxxx Xxxx Xxxxxx Xxxxxxx
Inc., Studiotype Inc. and each other Wholly-Owned
Subsidiary of Maxxcom from time to time and
"Guarantor" means any one of them.
Section 1.1.118 of the Credit Agreement is deleted and replaced with
the following provision:
1.1.118 "Opcos" means Mackenzie Marketing, Inc. (a Delaware
corporation), Colle & XxXxx, Inc. (a Minnesota
corporation), Margeotes/Ferititta + Partners LLC (a
Delaware corporation), Source Marketing LLC (a New
York corporation), Accent Marketing Services,
L.L.C. (a Delaware corporation), Xxxxxxxx Xxxxxx
Xxxxx LLC (a Delaware corporation), Targetcom LLC
(a Delaware corporation), E-Telligence LLC (a
Delaware corporation), Bang!Zoom LLC (a Delaware
corporation), Bratskeir & Company, Inc. (a Delaware
corporation), Xxxxxxxx Direct, Inc. (a Delaware
corporation), Xxxxxxx Xxxxxx & Bogusky LLC (a
Delaware corporation), Xxxxxxx Xxxxxx & Bogusky
L.A., LLC (a Delaware corporation) and each other
Person in which a Controlling Interest is directly
or indirectly acquired by Maxxcom US from time to
time which is not an Acquireco and "Opco" means any
one of them.
Section 3 - Amendment to the Credit Limit
Section 2.1(a) of the Credit Agreement is deleted and replaced with
the following provision:
2.1 (a) Upon and subject to the terms and conditions of this
Agreement, the Lenders agree to continue to provide a
revolving term credit for the use of the Borrowers in the
amount of up to Cdn. $60,000,000 or the equivalent thereof
in U.S. Dollars (as reduced from time to time in accordance
with this Agreement, the "Credit Limit"). The principal
amount of any Advance under the Credit which is repaid may
be reborrowed from time to time, subject to the terms of
this Agreement.
Section 4 - Amendment to Credit Limit Repayment
Section 2.7(a) of the Credit Agreement is deleted and replaced with
the following provision:
2.7 (a) The Credit Limit shall be permanently reduced on the
last day of each fiscal quarter of Maxxcom occurring after
30 June 2002 (each a "Mandatory Reduction Date") by the
applicable amounts specified below:
Mandatory Reduction Dates
Occurring from and including Amount of Reduction
--------------------------------------------------------------------------------
30 September 2002 to 30 June 2003 NIL
30 September 2003 Cdn. $1,900,000
31 December 2003 to 31 March 2005 Cdn. $7,000,000
Section 5 - Amendment to Financial Covenants
(a) Section 7.2(b) of the Credit Agreement is deleted and replaced with the
following provision:
7.2 (b) For each time period set forth below, Maxxcom
on a consolidated basis shall maintain a Senior
Debt Ratio of not more than the ratios set forth
below:
Period Ratio
------ -----
From 1 October 2002 to 30 September 2003 3.25 to 1.0
From 1 October 2003 to 31 December 2003 3.00 to 1.0
From 1 January 2004 to 31 March 2004 2.25 to 1.0
Thereafter 2.00 to 1.0
(b) Section 7.2(c) of the Credit Agreement is deleted and replaced with the
following provision:
7.2 (c) For each time period set forth below, Maxxcom
on a consolidated basis shall maintain a Total Debt
Ratio of not more than the ratios set forth below:
Period Ratio
------ -----
From 1 October 2002 to 30 September 2003 6.25 to 1.0
From 1 October 2003 to 31 December 2003 6.00 to 1.0
From 1 January 2004 to 31 March 2004 4.50 to 1.0
From 1 April 2004 to 30 June 2004 4.25 to 1.0
From 1 July 2004 to 30 September 2004 3.75 to 1.0
From 1 October 2004 to 31 December 2004 3.50 to 1.0
Thereafter 3.00 to 1.0
Section 6 - Amendments to Positive Covenants
(a) The following provision is added as Section 7.1(hh) of the Credit
Agreement:
7.1 (hh) use best efforts to obtain agreement to the
deferral of Earnout Payments required to be made by
Maxxcom in respect of its fiscal year ending 31
December 2002 on account of any Earnout Amount
under Restricted Party Purchase Agreements in order
to permit compliance with the financial covenants
set forth in Sections 7.2(b) and 7.2(c), as such
covenants are amended by the Third Amendment
Agreement, and provide to the Agent on a quarterly
basis a report of the initiatives undertaken in
this regard, the results thereof and, forthwith
after conclusion thereof, any agreements reached in
that connection;
(b) The following provision is added as Section 7.1(ii) of the Credit
Agreement:
7.1 (ii) cause Maxxcom to immediately issue a notice in
writing in accordance with Section 2.1.3 of the
Mezz Debenture (a copy of which notice must be
provided to the Agent as soon as possible
thereafter) to elect to defer payment of the
interest otherwise due and payable on the Mezz
Obligations from and after the fiscal quarter
ending 31 December 2002 to the end of the fiscal
quarter ending 31 December 2003 and to add the
applicable PIK Interest (as such term is defined in
the Mezz Debenture) to the Mezz Obligations on the
Interest Payment Date (as such term is defined in
the Mezz Debenture) for each applicable Interest
Period (as such term is defined in the Mezz
Debenture);
Section 7 - Amendment to Negative Covenant
Section 7.4(d) of the Credit Agreement is deleted and replaced with
the following provision:
7.4 (d) make any Investment in or acquisition of a
Person other than a Permitted Acquisition or an
acquisition of Capital Stock of Restricted Party
from a Minority Shareholder pursuant to the
applicable Restricted Party Shareholder Agreement
(herein, a "Minority Acquisition") or make a
Permitted Acquisition or a Minority Acquisition at
any time:
(i) when there has occurred an Event of
Default or Pending Event of Default which
is continuing;
(ii) unless the Senior Debt Ratio has, at such
time, been less than 2.25 to 1 for at
least two consecutive fiscal quarters,
except (i) where a Permitted Acquisition
or a Minority Acquisition is funded solely
from the proceeds of an issuance of equity
of Maxxcom, or (ii) for Minority
Acquisitions, the aggregate cash cost of
which is less than Cdn. $5,000,000 in each
fiscal year of Maxxcom;
(iii) when it has not provided an Acquisition
Certificate to the Agent at least 5 days
prior to entering into a definitive
purchase agreement (or other legally
binding purchase obligation) in respect
thereof, provided that no Acquisition
Certificate shall be required in the case
of a Permitted Acquisition (A) under
paragraphs (d) and (g) of the definition
thereof, and (B) which are Permitted
Non-Conforming Acquisitions described in
Section 1.1.131(a);
(iv) when (if obligated to do so hereunder) it
has not executed and delivered the
Acquisition Security or demonstrated to
the reasonable satisfaction of the Agent
that the Acquisition Security is available
to be provided concurrent with or
immediately following completion of the
proposed Permitted Acquisition and, if
applicable, that any Follow-Up Merger can
be successfully completed;
(v) when it has not obtained the consent of
the Majority Lenders (such consent not to
be unreasonably withheld) to the proposed
Permitted Acquisition if the consideration
payable in satisfaction of the purchase
price for such acquisition (other than
consideration consisting of shares of
Maxxcom or any acquired entity issued on
the closing of the transaction) exceeds
10% of the book value of the total
consolidated assets of Maxxcom as at the
date of Maxxcom's most recently completed
fiscal quarter;
(vi) when the Investment or acquisition would
not otherwise be permitted to be made
under the Mezz Debenture; or
(vii) if, in the case of the acquisition of an
American Entity, such entity would not be
Solvent after giving effect to the
acquisition and all related transactions;
Section 8 - Consents
Subject to the terms and conditions hereof, the Lenders hereby
consent:
(a) for the purposes of Section 7.4(ll) of the Credit Agreement,
to the amendments to the Mezz Debenture effected by the
Second Amendment to Subordinated Debenture made as of 28
October 2002 between Maxxcom and the Mezz Agent;
(b) for the purposes of Sections 7.4(i) and 7.4(j) of the Credit
Agreement, to the e-Source Transactions;
(c) for the purposes of Sections 7.4(b), 7.4(g), 7.4(i) and
7.4(n) of the Credit Agreement, to the Interfocus
Transactions, subject to Section 10 of this Third Amendment
Agreement; and
(d) for the purposes of Section 7.4(g), (i), (j) and (n) of the
Credit Agreement, to the Xxxxxxxx Transactions.
Section 9 - Conditions Precedent to Effectiveness of this Third Amendment
Agreement
This Third Amendment Agreement shall become binding on the Lenders
only upon satisfaction of the following conditions precedent:
(a) execution and delivery of this Third Amendment Agreement by
each of the Borrowers and the Guarantors;
(b) execution and delivery of this Third Amendment Agreement by
the Lenders in accordance with Section 9.9 of the Credit
Agreement;
(c) no Event of Default or Pending Event of Default having
occurred and being continuing as at the date of satisfaction
of all of the foregoing conditions precedent;
(d) the Agent having received, for the account of each of the
consenting Lenders, an amendment fee equal to 1% of their
respective Proportionate Shares after the Credit Limit has
been reduced pursuant to this Third Amendment Agreement;
(e) the Agent having received evidence, reasonably satisfactory
to it, that the Mezz Agent and the Mezz Holders have, for
the purposes of the Mezz Debenture, consented to each of the
matters set forth in this Third Amendment Agreement or that
such consent is not required under the Mezz Debenture and
the Agent being satisfied with the other amendments to the
Mezz Credit Documents made in that connection;
(f) the Agent having received a copy of the notice required to
be delivered under Section 7.1(ii) of the Credit Agreement
(as amended by this Agreement);
(g) the Agent having received the favourable opinion of Fogler,
Xxxxxxxx LLP, Ontario counsel to Maxxcom, in relation to the
enforceability of this Third Amendment Agreement; and
(a) such corporate resolutions, incumbency and other
certificates of each of the Borrowers, the Guarantors and
the other Restricted Parties as the Agent may reasonably
request in connection with this Third Amendment Agreement
and the transactions contemplated hereby.
Section 10 - Covenants regarding the e-Source Transactions and the Interfocus
Transactions
The Credit Agreement is amended by adding the following provision as
Section 7.1.1:
7.1.1 Each of the Restricted Parties, as applicable, shall:
(a) in relation to the e-Source Transactions, deliver to the
Agent:
(i) executed copies of the documentation by which the
assets of e-Source Drive to Web Marketing LLC were
transferred to Source Marketing LLC and by which
Source Marketing LLC assumed of all liabilities of
e-Source Drive to Web Marketing LLC; and
(ii) documentation evidencing the dissolution of
e-Source Drive to Web Marketing LLC pursuant to the
General Corporation Law of the State of Delaware;
(b) in relation to the Interfocus Transactions, deliver
to the Agent:
(i) such acknowledgments and other documentation by the
Restricted Parties as the Agent may reasonably
require in order to ensure the continued validity
and effectiveness of the Security following the
implementation of the Interfocus Transactions;
(ii) all such documents and material as the Agent may
require to satisfy itself that the Interfocus
Transactions do not materially differ from the
transactions approved under the Third Amendment
Agreement;
(iii) written confirmation of legal counsel in the United
Kingdom as to the effect of the Interfocus
Transactions on any existing Security of any
applicable Restricted Party together with such
other Security as the Lenders may reasonably
require in relation thereto;
(iv) completion, to the satisfaction of the Agent, of
all public filings and registrations necessary to
preserve, perfect or protect the Security, the
enforceability thereof, the priority thereof or any
filings or registrations relating thereto;
(v) copies of all material agreements entered into and
delivered in connection with the transactions
contemplated by the Interfocus Transactions;
(vi) receipt of the favourable opinion of legal counsel
in the United Kingdom to the Restricted Parties, in
form and substance satisfactory to the Agent, in
relation to the enforceability of any new
documentation, if any, which constitutes Security
delivered in connection with the Interfocus
Transactions; and
(vii) such corporate resolutions, incumbency and other
certificates of each of the Restricted Parties as
the Agent may require, in form and substance
satisfactory to the Agent, in connection with the
transactions contemplated by the Interfocus
Transactions.
Section 11 - Authorization of amendment to the Mezz Inter-Creditor Agreement
Each of the Lenders hereby authorizes and directs the Agent to
execute and deliver the First Amendment to Mezz Inter-Creditor Agreement dated
on or about the date hereof on its behalf and agrees that the Mezz
Inter-Creditor Agreement, as so amended, shall be binding on it as if it was a
party thereto. Each of the Lenders hereby acknowledges receipt of the First
Amendment to Mezz Inter-Creditor Agreement dated on or about the date hereof.
Section 12 - Continuing Effect of Credit Agreement
Except as amended by this Third Amendment Agreement, the Credit
Agreement shall remain in full force and effect, without amendment, and is
hereby ratified and confirmed. Each of the Borrowers and the Guarantors
confirms that the guarantees and Security made or granted by it pursuant to
the Credit Agreement remains in full force and effect notwithstanding the
amendments and supplements to the Credit Agreement contained herein.
Section 13 - Counterparts and Facsimile
This Third Amendment Agreement may be executed in any number of
counterparts, each of which when executed and delivered shall be deemed to be
an original and such counterparts together shall constitute one and the same
agreement. For the purposes of this Section, the delivery of a facsimile copy
of an executed counterpart of this Third Amendment Agreement shall be deemed
to be valid execution and delivery thereof.
Section 14 - Governing Law
The parties agree that this Third Amendment Agreement shall be
conclusively deemed to be a contract made under, and shall for all purposes be
governed by and construed in accordance with the laws of the Province of
Ontario and the laws of Canada applicable in the Province of Ontario.
Section 15 - Interpretation
Capitalized terms used herein, unless otherwise defined or indicated
herein, have the respective meanings ascribed thereto in the Credit Agreement.
This Third Amendment Agreement and the Credit Agreement shall be read together
and have effect so far as practicable as though the provisions thereof and the
relevant provisions hereof are contained in one document.
[Execution Pages Follow]
IN WITNESS OF WHICH, the parties have executed this Agreement.
THE LENDERS
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The Bank of Nova Scotia THE BANK OF NOVA SCOTIA
Scotia Capital
Corporate Banking-Industrial Products By:
62nd Floor -------------------------
Scotia Plaza Name:
00 Xxxx Xxxxxx Xxxx Title:
Xxxxxxx, Xxxxxxx
X0X 0X0
By:
-------------------------
Attention: Managing Director Name:
Telecopier No. (000) 000-0000 Title:
Canadian Imperial Bank of Commerce CANADIAN IMPERIAL BANK OF COMMERCE
Canadian Credit Capital Markets
BCE Place, 0xx Xxxxx
000 Xxx Xxxxxx By:
Xxxxxxx, Xxxxxxx -------------------------
X0X 0X0 Name:
Title
By:
-------------------------
Attention: Managing Director Name:
Telecopier No. (000) 000-0000 Title
Bank of Montreal BANK OF MONTREAL
Media, Telecom & Technology
Corporate & Investment Banking By:
0, Xxxxx Xxxxxxxx Xxxxx -------------------------
000 Xxxx Xxxxxx Xxxx Name:
4th Floor Title:
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Managing Director
Telecopier No. (000) 000-0000
Royal Bank of Canada ROYAL BANK OF CANADA
00xx Xxxxx, Xxxxx Xxxxx
Xxxxx Xxxx Xxxxx
000 Xxx Xxxxxx By:
Xxxxxxx, Xxxxxxx -------------------------
X0X 0X0 Name:
Title:
Attention: Senior Manager
Telecopier No. (000) 000-0000
The Toronto-Dominion Bank THE TORONTO-DOMINION BANK
00 Xxxx Xxxxxx Xxxx
0xx Xxxxx
Xxxxxxx-Xxxxxxxx Bank Tower By:
Xxxxxxx, Xxxxxxx -------------------------
X0X 0X0 Name:
Title:
Attention: Vice President
Telecopier No. (000) 000-0000
The Bank of Nova Scotia THE BANK OF NOVA SCOTIA, by its Atlanta Agency
Xxxxx 0000
000 Xxxxxxxxx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx By:
30308 -------------------------
Name:
Title:
Attention: Senior Manager
Telecopier No. (000) 000-0000
CIBC Inc. CIBC INC.
000 Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx By:
10017 -------------------------
Name:
Title:
(CIBC World Markets Corp., as agent for CIBC Inc.)
Attention: Executive Director
Telecopier No. (000) 000-0000
Bank of Montreal, by its Chicago branch BANK OF MONTREAL
Media, Telecom & Technology
Asset Portfolio Group
Investment & Corporate Banking By:
000 Xxxx Xxxxxx -------------------------
15th Floor Name:
New York, New York Title:
10022
Attention: Managing Director
Telecopier No. (000) 000-0000
Royal Bank of Canada, by its Grand Cayman ROYAL BANK OF CANADA, by its Grand Cayman
(North America No. 1) Branch (North America No. 1) Branch
x/x Xxx Xxxx Xxxxxx
Xxx Xxxxxxx Xxxxx
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx By:
10006-1404 -------------------------
Name:
Title:
Attention: Xx. Xxxxx Xxxxxxx
Telecopier No. (000) 000-0000
with a copy to:
Royal Bank of Canada
One Liberty Plaza
4th Floor
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx
00000-0000
Attention: Xx. X.X. Xxxxxx
Telecopier No. (000) 000-0000
Toronto Dominion (Texas), Inc. TORONTO DOMINION (TEXAS), INC.
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxx By:
77010 -------------------------
Name:
Title:
Attention: Vice-President
Telecopier No. (000) 000-0000
THE BORROWERS
-------------
Maxxcom Inc. MAXXCOM INC., an Ontario corporation
00 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0 By:
-------------------------
X. Xxxxxx
Authorized Signing Officer
Attention: Chief Financial Officer
Telecopier No. (000) 000-0000
By:
-------------------------
X. Xxxxxxx
Authorized Signing Officer
Maxxcom Inc. MAXXCOM INC., a Delaware corporation
c/o 00 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0 By:
-------------------------
X. Xxxxxx
Authorized Signing Officer
Attention: President
Telecopier No. (000) 000-0000 By:
-------------------------
X. Xxxxxxx
Authorized Signing Officer
THE GUARANTORS
c/o Maxxcom Inc. MAXXCOM (NOVA SCOTIA) CORP
00 Xxxxxxxx Xxxxxx XXXXXXX (XXX) FINANCE
Toronto, Ontario COMPANY
M5R 2E3 MAXXCOM (USA) HOLDINGS INC.
1220777 ONTARIO LIMITED
Attention: Chief Financial Officer 1385544 ONTARIO LIMITED
Telecopier No. (000) 000-0000 MAXXCOM INTERACTIVE INC.
MF+P ACQUISITION CO.
SMI ACQUISITION CO.
ACCENT ACQUISITION CO.
FMA ACQUISITION CO.
By:
-------------------------
X. Xxxxxx
Authorized Signing Officer
BRATSKEIR & COMPANY, INC.
CPB ACQUISITION INC.
CORMARK COMMUNICATIONS INC.
XXXXXXXX & PARTNERS
COMMUNICATIONS LTD.
XXXXXXX XXXX XXXXXX XXXXXXX INC.
STUDIO TYPE INC.
By:
-------------------------
X. Xxxxxxx
Authorized Signing Officer
MACKENZIE MARKETING, INC.
TC ACQUISITION INC.
XXXXXXXX DIRECT, INC.
By:
-------------------------
X. Xxxxxx
Authorized Signing Officer
ET ACQUISITION INC.
BZ ACQUISITION INC.
By:
-------------------------
X. Xxxxxxx
Authorized Signing Officer
THE AGENT
---------
The Bank of Nova Scotia THE BANK OF NOVA SCOTIA,
Scotia Capital as Administrative Agent
Corporate Banking-Loan Syndications
62nd Floor By:
Scotia Plaza -------------------------
00 Xxxx Xxxxxx Xxxx Name:
Toronto, Ontario Title:
X0X 0X0
By:
-------------------------
Attention: Managing Director Name:
Telecopier No. (000) 000-0000 Title:
