AMENDMENT NO. 9
EXHIBIT
10.2
AMENDMENT
XX. 0
XXXXXXXXX
XX. 0 dated as of November 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. (“JPMCB”),
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. 9 and not otherwise defined are
used herein as defined in the Credit Agreement.
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
definitions to read in their entirety as follows:
“Net
Available Proceeds”
means,
(a) with respect to any Equity Issuance occurring on or prior to December 30,
2005, the aggregate amount of all cash received by the Borrowers and their
Subsidiaries in respect of such Equity Issuance, net of any legal, title and
recording tax expenses, financial advisory fees, commissions and other fees
and
expenses paid or payable by any such Person in connection therewith and (b)
with
respect to the Disposition in whole or in part of the Secure Products Business,
the aggregate amount of all cash received by the Borrowers and their
Subsidiaries in respect of such Disposition in excess of $12,500,000, net of
(i)
any legal, title and recording tax expenses, financial advisory fees,
commissions and other fees and expenses paid or payable by any such Person
in
connection therewith and (ii) any income or other taxes paid or reasonably
estimated to be payable by any such Person as a result thereof.
“Net
Worth”
means
the shareholders’ equity of MDC Partners and its Subsidiaries determined on a
Consolidated basis in accordance with U.S. GAAP; provided
that the
calculation of such Consolidated shareholders’ equity shall be adjusted to
include an addition for any losses on sale or non-cash impairment charges
recorded in connection with the Disposition in whole or in part of the Secure
Products Business not to exceed $21,500,000.
2.03
Section 8.01 of the Credit Agreement is hereby amended in its entirety to read
as follows:
“SECTION
8.01. Total
Debt Ratio. MDC
Partners will not permit the Total Debt Ratio as of the last day of any Test
Period ending on or, as applicable, after the dates set forth below to exceed
the ratio set forth opposite such Test Period:
|
Test
Period Ending
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Total
Debt Ratio
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September
30, 2006
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2.90
to 1.00
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December
31, 2006
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3.25
to 1.00
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March
31, 2007
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3.00
to 1.00
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June
30, 2007
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2.75
to 1.00”
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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. 9 and (b) no Default shall have
occurred and be continuing under the Credit Agreement, as amended
hereby.
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 (a) receipt by the U.S. Administrative Agent of one or more
counterparts of this Amendment No. 9 executed by the Obligors and the Required
Lenders and (b) the payment of an amendment fee to the U.S. Administrative
Agent
for the account of each Lender that has approved this Amendment No. 9 on or
before 12:00 noon, New York City time, on November 3, 2006, such amendment
fee
to be in an amount equal to 0.10% of the Commitment of such Lender.
Section
6. Miscellaneous.
Except
as herein provided, the Credit Agreement shall remain unchanged and in full
force and effect. This Amendment No. 9 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. 9 by
signing any such counterpart. This Amendment No. 9 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. 9 to be
duly
executed and delivered as of the day and year first above written.
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By:________________________________
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Name:
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Title:
Authorized Signatory
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By:________________________________
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Name:
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Title:
Authorized Signatory
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MAXXCOM
INC., an Ontario corporation
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By:________________________________
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Name:
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Title:
Authorized Signatory
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By:________________________________
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Name:
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Title:
Authorized Signatory
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MAXXCOM
INC., a Delaware corporation
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By:________________________________
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Name:
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Title:
Authorized Signatory
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By:________________________________
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Name:
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Title:
Authorized Signatory
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| Agreed as set forth in Section 4 above: | |
| GUARANTORS |
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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:
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| _______________________ | _______________________ |
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Signature
of witness
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Signature of attorney |
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Name
of witness: Xxx Xxxxxxx
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Name
of attorney: Xxxxxx Xxxxxxxx
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1208075
ONTARIO LIMITED
1220777
ONTARIO LIMITED
1385544
ONTARIO LIMITED
2026646
ONTARIO LIMITED
656712
ONTARIO LIMITED
XXXXXXX
XXXX XXXXXX XXXXXXX INC.
XXXXXX
XXXXXX CANADA INC.
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
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By:
________________________________
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Name:
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Title:
Authorized Signatory
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By:
________________________________
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Name:
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Title:
Authorized Signatory
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ACCENT
ACQUISITION CO.
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ACCENT
INTERNATIONAL, INC.
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ACCENT
MARKETING SERVICES, L.L.C.
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XXXXXX-XXXXXX
(USA) LTD.
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BRATSKEIR
& COMPANY, INC.
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XXXXXXXX
DIRECT, INC.
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CMS
U.S. HOLDCO, INC.
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COLLE
& XXXXX, INC.
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CPB
ACQUISITION INC.
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XXXXXXX
XXXXXX & BOGUSKY LLC
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DOTGLU
LLC
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XXXXXXXX
XXXXXX LLC
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FMA
ACQUISITION CO.
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HELLO
ACQUISITION INC.
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KBP
HOLDINGS LLC
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XXXXXXXXXXX
BOND & PARTNERS LLC
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XXXXXXXXXXX
BOND & PARTNERS WEST LLC
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LAFAYETTE
PRODUCTIONS LLC
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MACKENZIE
MARKETING, INC.
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MARGEOTES/XXXXXXXX
+ PARTNERS LLC
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MAXXCOM
(USA) FINANCE COMPANY
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MAXXCOM
(USA) HOLDINGS INC.
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MDC
USA HOLDINGS INC.
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MDC/KBP
ACQUISITION INC.
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MF+P
ACQUISITION CO.
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MONO
ADVERTISING, LLC
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PRO-IMAGE
CORPORATION
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SABLE
ADVERTISING SYSTEMS, INC.
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SMI
ACQUISITION CO.
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SOURCE
MARKETING LLC
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TARGETCOM
LLC
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VITROROBERTSON
LLC
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ZG
ACQUISITION INC.
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ZYMAN
GROUP, LLC
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By:
________________________________
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Name:
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Title:
Authorized Signatory
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By:
________________________________
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Name:
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Title:
Authorized Signatory
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| LENDERS | |
| JPMORGAN CHASE BANK, N.A. | |
| By:________________________________ | |
| Name: | |
| Title: | |
| JPMORGAN CHASE BANK, N.A., TORONTO | |
| BRANCH | |
| By:________________________________ | |
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Name:
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Title:
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| BANK OF MONTREAL (CHICAGO BRANCH) | |
| By:________________________________ | |
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Name:
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Title:
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| BANK OF MONTREAL | |
| By:________________________________ | |
| Name: | |
| Title: |
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THE
BANK OF NOVA SCOTIA, by its Atlanta Agency
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By:________________________________
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Name:
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Title:
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THE
BANK OF NOVA SCOTIA
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By:________________________________
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Name:
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Title:
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By:________________________________
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Name:
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Title:
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TORONTO
DOMINION (TEXAS) INC.
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By:________________________________
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Name:
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Title:
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THE
TORONTO-DOMINION BANK
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By:________________________________
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Name:
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Title:
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CIBC
INC.
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By:________________________________
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Name:
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Title:
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CANADIAN
IMPERIAL BANK OF COMMERCE
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By:________________________________
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Name
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Title:
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By:________________________________
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Name:
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Title:
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