FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 10.1
FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this "Amendment"), with an effective date of March 23, 2016, is by and among the Lenders party hereto, XXXXX FARGO CAPITAL FINANCE, LLC, a Delaware limited liability company, as the agent for the Lenders (in such capacity, "Agent"), MDC PARTNERS INC., a Canadian corporation ("Parent"), Maxxcom Inc., a Delaware corporation ("Borrower"), and each of the Subsidiaries of Parent identified on the signature pages hereof (together with Parent and Borrower, the "Loan Parties").
WHEREAS, Parent, Borrower, the other Loan Parties, Agent, and Lenders are parties to that certain Amended and Restated Credit Agreement dated as of March 20, 2013 (as amended, modified or supplemented from time to time, the "Credit Agreement"); and
WHEREAS, Borrower, Agent and the Lenders have agreed to amend and modify the Credit Agreement as provided herein, subject to the terms and provisions hereof.
NOW THEREFORE, in consideration of the premises and mutual agreements herein contained, the parties hereto agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized terms used herein shall have the meanings ascribed to such terms in the Credit Agreement.
2. Amendments to Credit Agreement. Subject to the satisfaction of the conditions set forth in Section 4 below and in reliance upon the representations and warranties of the Loan Parties set forth in Section 5 below, the Credit Agreement is hereby amended as follows:
(a) Section 2.1(d) of the Credit Agreement is hereby amended and restated in its entirety as follows:
"(d) Notwithstanding anything contained in the Loan Documents to the contrary, Revolver Usage shall at no time exceed either (a) the maximum amount permitted to be outstanding under Section 3.8(b)(3) of the Senior Unsecured Trust Indenture (or, after the consummation of any Permitted Senior Unsecured Debt Refinancing, the corresponding section of the Permitted Refinancing Senior Unsecured Trust Indenture) or (b) the maximum amount permitted to be secured under clauses (10) and (27) of the definition of "Permitted Liens" set forth in the Senior Unsecured Trust Indenture (or, after the consummation of any Permitted Senior Unsecured Debt Refinancing, the corresponding clauses of the definition of "Permitted Liens" set forth in the Permitted Refinancing Senior Unsecured Trust Indenture), in each case as such provisions of the Senior Unsecured Trust Indenture or the Permitted Refinancing Senior Unsecured Trust Indenture may be amended, modified, waived or supplemented from time to time in accordance with the terms thereof."
(b) Section 3.2(c) of the Credit Agreement is hereby amended and restated in its entirety as follows:
"(c) if any request in a calendar month for such extension of credit would cause Revolver Usage to exceed $300,000,000, Borrower shall have delivered to Agent during such month and prior to such requested extension of credit the Certificate re Consolidated EBITDA Calculation for the most recently ended four fiscal quarter period for which financial statements are available to Parent, certifying as to the maximum amount of Revolver Usage that may be outstanding during such month that will not cause the Obligations to breach Sections 3.8 or 3.14 of the Senior Unsecured Trust Indenture (or, after the consummation of any Permitted Senior Unsecured Debt Refinancing, the corresponding sections of the Permitted Refinancing Senior Unsecured Trust Indenture)."
(c) Section 6.7(b) of the Credit Agreement is hereby amended by deleting the reference to "$800,000,000" contained therein and inserting "$925,000,000" in lieu thereof.
(d) The definition of "Existing Senior Unsecured Trust Indenture" contained in Schedule 1.1 of the Credit Agreement is hereby amended and restated in its entirety as follows:
""Existing Senior Unsecured Trust Indenture" means that certain Indenture dated as of March 20, 2013 among Parent, the "Note Guarantors" party thereto and The Bank of New York Mellon, as trustee, as heretofore amended, modified or supplemented."
(e) Clause (p) of the definition of "Permitted Indebtedness" contained in Schedule 1.1 of the Credit Agreement is hereby amended by (i) deleting the reference to "$550,000,000 contained herein and inserting "$900,000,000" in lieu thereof, and (ii) deleting the reference to "$800,000,000" contained therein and inserting "$925,000,000" in lieu thereof.
(f) The definition of "Permitted Refinancing Senior Unsecured Trust Indenture" contained in Schedule 1.1 of the Credit Agreement is hereby amended by deleting the reference to "$800,000,000" contained therein and inserting "$925,000,000" in lieu thereof.
(g) The definition of "Senior Unsecured Debt" contained in Schedule 1.1 of the Credit Agreement is hereby amended by (i) deleting the reference to "$550,000,000 contained therein and inserting "$900,000,000" in lieu thereof, and (ii) deleting the reference to "$800,000,000" contained therein and inserting "$925,000,000" in lieu thereof.
(h) The definition of "Senior Unsecured Trust Indenture" contained in Schedule 1.1 of the Credit Agreement is hereby amended and restated in its entirety as follows:
"Senior Unsecured Trust Indenture" means that certain Indenture dated as of March 23, 2016 among Parent, the "Note Guarantors" party thereto and The Bank of New York Mellon, as trustee, as the same may be amended, modified or supplemented from time to time in accordance with the terms thereof.
3. Ratification; Other Acknowledgments. This Amendment, subject to satisfaction of the conditions provided below, shall constitute an amendment to the Credit Agreement and all of the other Loan Documents as appropriate to express the agreements contained herein. The Credit Agreement (other than as amended by this Amendment) and the other Loan Documents shall remain unchanged and in full force and effect in accordance with their original terms. Each Loan Party hereby ratifies, affirms, acknowledges and agrees that the Credit Agreement and the other Loan Documents 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 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 the Loan Parties in all respects.
| -2- |
4. Conditions to Effectiveness. This Amendment shall become effective as of the date hereof and upon the satisfaction of the following conditions precedent:
(a) Agent shall have received a fully executed copy of this Amendment;
(b) Agent shall have received resolutions of each Loan Party's Board of Directors authorizing such Loan Party's execution, delivery, and performance of this Amendment and the Senior Unsecured Debt Documents (as such term is defined after giving effect to this Amendment) in form and substance satisfactory to Agent;
(c) Agent shall have received fully executed copies of the Senior Unsecured Debt Documents (as such term is defined after giving effect to this Amendment), including all schedules and exhibits thereto, in form and substance satisfactory to Agent, together with a certification that such copies are true, complete and correct,
(d) Agent shall have received evidence that Senior Unsecured Debt (as such term is defined after giving effect to this Amendment) in the principal amount of $900,000,000 shall have been funded;
(e) Agent shall have received evidence, in form and substance satisfactory to Agent, that the Existing Senior Unsecured Debt (as such term is defined after giving effect to this Amendment) has been paid in full and all obligations under the Existing Senior Unsecured Debt Documents (as such term is defined after giving effect to this Amendment) have been terminated;
(f) Borrower shall have paid all reasonable and documented costs and expenses (including reasonable attorneys fees) incurred by Agent and all fees due and owing; and
(g) No Default or Event of Default shall have occurred and be continuing on the date hereof or as of the date of the effectiveness of this Amendment.
5. Representations and Warranties. In order to induce Agent and Lenders to enter into this Amendment, each Loan Party hereby represents and warrants to Agent and Lenders, after giving effect to this Amendment:
(a) All representations and warranties contained in the Credit Agreement (as amended by this Amendment) and the other Loan Documents are true and correct on and as of the date of this Amendment, in each case as if then made, other than representations and warranties that expressly relate solely to an earlier date (in which case such representations and warranties were true and correct on and as of such earlier date);
| -3- |
(b) (i) the execution, delivery and performance of each of the Senior Unsecured Debt Documents has been duly authorized by all necessary action on the part of each Loan Party party thereto, (ii) each Senior Unsecured Debt Document is the legal, valid and binding obligation of each Loan Party party thereto, enforceable against such Loan Party in accordance with its terms, in each case, except (x) as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting generally the enforcement of creditors' rights and (y) the availability of the remedy of specific performance or injunctive or other equitable relief is subject to the discretion of the court before which any proceeding therefor may be brought, (iii) the Loan Parties are not in default in the performance or compliance with any provisions thereof and (iv) all representations and warranties made by the Loan Parties in the Senior Unsecured Debt Documents and in the certificates delivered in connection therewith are true and correct in all material respects;
(c) No Default or Event of Default has occurred and is continuing;
(d) The execution, delivery and performance of this Amendment has been duly authorized by all requisite corporate action on the part of such Loan Party; and
(e) This Amendment has been duly executed and delivered by each Loan Party that is a party thereto and is the legally valid and binding obligation of such Loan Party, enforceable against such Loan Party in accordance with its respective terms, except as enforcement may be limited by equitable principles or by bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to or limiting creditors' rights generally.
6. Miscellaneous.
(a) Expenses. Borrower agrees to pay on demand all costs and expenses of Agent (including the reasonable fees and expenses of outside counsel for Agent) in connection with the preparation, negotiation, execution, delivery and administration of this Amendment and all other instruments or documents provided for herein or delivered or to be delivered hereunder or in connection herewith. All obligations provided herein shall survive any termination of this Amendment and the Credit Agreement as amended hereby.
(b) Governing Law. This Amendment shall be a contract made under and governed by the internal laws of the State of New York.
(c) Counterparts. This Amendment may be executed in any number of counterparts, and by the parties hereto on the same or separate counterparts, and each such counterpart, when executed and delivered, shall be deemed to be an original, but all such counterparts shall together constitute but one and the same Amendment. Receipt by telecopy or electronic mail of any executed signature page to this Amendment shall constitute effective delivery of such signature page.
| -4- |
(d) References. Any references in the Credit Agreement to "this Agreement", and any references to the Credit Agreement contained in any document, instrument or agreement executed in connection with the Credit Agreement shall be deemed to be a reference to the Credit Agreement as modified by this Amendment.
(e) Loan Document. This Amendment shall constitute a "Loan Document" as defined in the Credit Agreement.
(f) No Waiver of Rights. Except as expressly set forth herein, the terms and provisions set forth in this Amendment shall not be deemed to be a consent to the modification or waiver of any other term or condition of the Credit Agreement, and shall not be deemed to waive or modify any rights of Agent or the Lenders.
7. Release.
(a) In consideration of the agreements of Agent and Lenders contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, each Loan Party, on behalf of itself and its successors, assigns, and other legal representatives, hereby absolutely, unconditionally and irrevocably releases, remises and forever discharges Agent and Lenders, and their successors and assigns, and their present and former shareholders, affiliates, subsidiaries, divisions, predecessors, directors, officers, attorneys, employees, agents and other representatives (Agent, each Lender and all such other Persons being hereinafter referred to collectively as the "Releasees" and individually as a "Releasee"), of and from all demands, actions, causes of action, suits, covenants, contracts, controversies, agreements, promises, sums of money, accounts, bills, reckonings, damages and any and all other claims, counterclaims, defenses, rights of set-off, demands and liabilities whatsoever (individually, a "Claim" and collectively, "Claims") of every name and nature, known or unknown, suspected or unsuspected, both at law and in equity, which such Loan Party or any of its respective successors, assigns, or other legal representatives may now or hereafter own, hold, have or claim to have against the Releasees or any of them for, upon, or by reason of any circumstance, action, cause or thing whatsoever which arises at any time on or prior to the day and date of this Amendment, including, without limitation, for or on account of, or in relation to, or in any way in connection with any of the Credit Agreement, or any of the other Loan Documents or transactions thereunder or related thereto.
(b) Each Loan Party understands, acknowledges and agrees that the release set forth above may be pleaded as a full and complete defense and may be used as a basis for an injunction against any action, suit or other proceeding which may be instituted, prosecuted or attempted in breach of the provisions of such release.
(c) Each Loan Party agrees that no fact, event, circumstance, evidence or transaction which could now be asserted or which may hereafter be discovered shall affect in any manner the final, absolute and unconditional nature of the release set forth above.
[Signature Page Follows]
| -5- |
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered as of the date first above written.
MDC PARTNERS INC., a federal company
organized under the laws of Canada
By: /s/ Xxxxx Xxxx
Name: Xxxxx Xxxx
Title: Authorized Signatory
By: /s/ Xxxxxxxx Xxxxxx
Name: Xxxxxxxx Xxxxxx
Title: Authorized Signatory
MAXXCOM INC.,
a Delaware corporation
By: /s/ Xxxxx Xxxx
Name: Xxxxx Xxxx
Title: Authorized Signatory
By: /s/ Xxxxxxxx Xxxxxx
Name: Xxxxxxxx Xxxxxx
Title: Authorized Signatory
6 DEGREES INTEGRATED COMMUNICATIONS CORP
72ANDSUNNY PARTNERS, LLC
ACCUMARK PARTNERS INC. (formerly known as 6 Degrees Integrated Communications Inc.)
ALBION BRAND COMMUNICATION LIMITED
XXXXXXX & PARTNERS LLC
ANOMALY PARTNERS LLC
ANOMALY INC.
ATTENTION PARTNERS LLC
BOOM MARKETING INC.
XXXXX XXX DESIGN INC.
XXXXX XXX DESIGN (USA) LLC
XXXXX XXX HOLDINGS LTD.
XXXXX XXXXX IRADESSO CORP.
CAPITAL C PARTNERS GP INC.
CAPITAL C PARTNERS LP
By: Capital C Partners GP Inc.
Its general partner
COLLE & XXXXX LLC
CONCENTRIC PARTNERS LLC
XXXXXXX XXXXXX & BOGUSKY EUROPE AB
XXXXXXX XXXXXX & BOGUSKY LIMITED
XXXXXXX XXXXXX & BOGUSKY LLC
XXXXX PARTNERS LLC
DOTGLU LLC
HELLO DESIGN, LLC
HL GROUP PARTNERS LLC
HPR PARTNERS, LLC
INTEGRATED MEDIA SOLUTIONS PARTNERS LLC
KBP HOLDINGS LLC
KBS+P ATLANTA LLC (formerly known as
Xxxxxxxx Xxxxxx LLC)
KBS+P CANADA LP KBS+P CANADA SEC
By: MDC Canada GP Inc.
Its general partner
KENNA COMMUNICATIONS GP INC.
KENNA COMMUNICATIONS LP
By: Kenna Communications GP Inc.
Its general partner
KINGSDALE PARTNERS LP
By: MDC Kingsdale GP Inc.
Its general partner
XXXXXXXXXXX BOND XXXXXXX & PARTNERS LLC
(formerly known as Xxxxxxxxxxx Bond & Partners LLC)
XXXXXXXXXXX BOND & PARTNERS WEST LLC
KWITTKEN PR LLC
XXXXX + PARTNERS NEW YORK LLC
LBN PARTNERS LLC
LEGEND PR PARTNERS LLC
LUNTZ GLOBAL PARTNERS LLC
MAXXCOM GLOBAL MEDIA LLC
MAXXCOM (USA) FINANCE COMPANY
MAXXCOM (USA) HOLDINGS INC.
MDC ACQUISITION INC.
MDC CANADA GP INC.
MDC CORPORATE (US) INC.
MDC EUROPE LIMITED
MDC INNOVATION PARTNERS LLC
(d/b/a Spies & Assassins)
MDC KINGSDALE GP, INC.
MDC PARTNERS UK HOLDINGS LIMITED
MDC TRAVEL, INC.
MONO ADVERTISING, LLC
NEW TEAM LLC
NORTHSTAR MANAGEMENT HOLDCO INC.
NORTHSTAR RESEARCH GP LLC
NORTHSTAR RESEARCH HOLDINGS CANADA INC.
NORTHSTAR RESEARCH HOLDINGS USA LP
NORTHSTAR RESEARCH PARTNERS INC.
NORTHSTAR RESEARCH PARTNERS (USA) LLC
OUTERACTIVE, LLC
PLUS PRODUCTIONS, LLC
PULSE MARKETING, LLC
REDSCOUT LLC
RELEVENT PARTNERS LLC
XX XXXXXX PARTNERS LLC
SKINNY NYC LLC
SLOANE & COMPANY LLC
SOURCE MARKETING LLC
STUDIO PICA INC.
TARGETCAST LLC
TARGETCOM LLC
TC ACQUISITION INC.
THE ARSENAL LLC (formerly known as Team
Holdings LLC)
THE PATH WORLDWIDE LIMITED
TRACK 21 LLC
TRADE X PARTNERS LLC
TRAPEZE MEDIA LIMITED
UNION ADVERTISING CANADA LP
By: MDC Canada GP Inc.
Its general partner
UNIQUE INFLUENCE PARTNERS LLC
VARICK MEDIA MANAGEMENT LLC
VERITAS COMMUNICATIONS INC.
VITRO PARTNERS LLC
VITROROBERTSON LLC
X CONNECTIONS INC.
YAMAMOTO XXXX XXXXXXXXX, INC.
Y MEDIA LABS LLC
ZYMAN GROUP, LLC
Each by: /s/ Xxxxx Xxxx
Name: Xxxxx Xxxx
Title: Authorized Signatory
Each by: /s/ Xxxxxxxx Xxxxxx
Name: Xxxxxxxx Xxxxxx
Title: Authorized Signatory
XXXXX FARGO CAPITAL FINANCE, LLC,
formerly known as Xxxxx Fargo Foothill, LLC, as
Agent and as a Lender
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: Vice President
JPMORGAN CHASE BANK, N.A., as a Lender
By: /s/ Xxxxx Xxxxxxxxx
Name: Xxxxx Xxxxxxxxx
Title: Vice President
BANK OF MONTREAL, as a Lender
By: /s/ Xxxxxxxxx Xxxxx
Name: Xxxxxxxxx Xxxxx
Title: Managing Director
XXXXXXX XXXXX LENDING PARTNERS LLC, as a Lender
By: /s/ Xxxxx Xx
Name: Xxxxx Xx
Title: Authorized Signatory
CITIZENS BANK, NATIONAL ASSOCIATION,
as a Lender
By: /s/ Xxxxxxx X. Xxxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Senior Vice President
