THIRD AMENDMENT TO CREDIT AGREEMENT
Exhibit
10.2.3
THIRD
AMENDMENT TO CREDIT AGREEMENT
THIS
THIRD AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is
entered into as of November 22, 2010, by and among the Lenders party hereto,
XXXXX FARGO CAPITAL FINANCE, LLC, formerly known as Xxxxx Fargo Foothill, 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 Credit Agreement dated as of October 23, 2009 (as amended, modified or
supplemented from time to time, the "Credit
Agreement");
WHEREAS,
Borrower, Agent and the Lenders have agreed to amend and modify the Credit
Agreement as provided herein, in each case 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
Borrower set forth in Section 5 below, the
Credit Agreement is amended as follows:
(a) The
last sentence of Section 2.1(c) of the Credit Agreement is hereby amended and
restated in its entirety as follows:
Without
limiting the foregoing, Agent may establish (i) the Canadian Priority Payables
Reserves, (ii) reserves in an amount equal to the Aggregate Bank Product Reserve
Amount, and (iii) unless Agent has received a Collateral Access Agreement with
respect to the Loan Parties’ chief executive office located at 000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, a reserve in an amount equal to 3
months rent payable under the lease for such property.
(b) 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, in the event the
Maximum Revolver Amount has been increased pursuant to Section 2.2, Revolver
Usage shall at no time exceed either (a) the maximum amount of Indebtedness
permitted to be outstanding under Section 3.8(a)(2) of the Senior Unsecured
Trust Indenture or (b) the maximum amount of Indebtedness permitted to be
secured under clauses (10) and (22) of the definition of "Permitted Liens" set
forth in the Senior Unsecured Trust Indenture, in each case as such provisions
of the Senior Unsecured Trust Indenture may be amended, modified, waived or
supplemented from time to time in accordance with the terms
thereof.
(c) The
first sentence of Section 2.2 of the Credit Agreement is hereby amended and
restated in its entirety as follows:
Borrower
may, at any one time prior to the Maturity Date, by written notice to Agent
(whereupon Agent shall promptly deliver a copy to each of the Lenders), request
to increase the Maximum Revolver Amount to $100,000,000 (such increase, a "Revolver Increase");
provided, that
such Revolver Increase shall only be made if (i) prior to or concurrent with
such Revolver Increase, the Revolver Commitment of Xxxxx Fargo Capital Finance,
LLC has been or shall be reduced to an amount (unless waived by Xxxxx Fargo
Capital Finance, LLC) not to exceed $65,000,000 pursuant to one or more
assignments made in accordance with the provisions of Section 13.1 of the
Agreement, (ii) such Revolver Increase would not be prohibited by the terms
of the Senior Unsecured Debt Documents, (iii) at the time that such Revolver
Increase is to be made (and after giving effect thereto) no Default or Event of
Default shall exist, (iv) Agent shall have received commitments
(satisfactory to Agent) from Lenders (or their Affiliates) or other Persons
acceptable to Agent to provide Revolver Commitments which, in the aggregate,
equal at least $35,000,000, and (v) Availability as of the date of the
request by Borrower is greater than or equal to the Maximum Revolver Amount
(after giving effect to the proposed Revolver Increase).
(d) Clause
(iv) of Subsection 2.4(b)(ii)(H) of the Credit Agreement is hereby amended and
restated in its entirety as follows:
(iv) up
to the Aggregate Bank Product Reserve Amount in the aggregate (after taking into
account any amounts previously paid pursuant to this clause (iv) during the
continuation of the applicable Application Event), ratably (based on the Bank
Product Reserve established by Agent for each Bank Product of a Bank Product
Provider), to the Bank Product Providers based upon amounts then certified by
the applicable Bank Product Provider to Agent (in form and substance
satisfactory to Agent) to be due and payable to such Bank Product Providers on
account of Bank Product Obligations,
(e) Clause
(I) of Section 2.4(b)(ii) of the Credit Agreement is hereby amended and restated
in its entirety as follows:
(I) ninth, to pay any
other Obligations (including being paid, ratably, to the Bank Product Providers
on account of all amounts then due and payable in respect of Bank Product
Obligations, with any balance to be paid to Agent, to be held by Agent, for the
ratable benefit of the Bank Product Providers, as cash collateral (which cash
collateral may be released by Agent to the applicable Bank Product Provider and
applied by such Bank Product Provider to the payment or reimbursement of any
amounts due and payable with respect to Bank Product Obligations owed to the
applicable Bank Product Provider as and when such amounts first become due and
payable and, if and at such time as all such Bank Product Obligations are paid
or otherwise satisfied in full, the cash collateral held by Agent in respect of
such Bank Product Obligations shall be reapplied pursuant to this Section 2.4(b)(ii),
beginning with tier (A) hereof)), and
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(f) The
first paragraph of Section 2.11(a) of the Credit Agreement is hereby amended and
restated in its entirety as follows:
(a) Subject
to the terms and conditions of this Agreement, upon the request of Borrower made
in accordance herewith, the Issuing Lender agrees to issue, or to cause an
Underlying Issuer, as Issuing Lender's agent, to issue, a requested Letter of
Credit. If Issuing Lender, at its option, elects to cause an
Underlying Issuer to issue a requested Letter of Credit, then Issuing Lender
agrees that it will obligate itself to reimburse such Underlying Issuer (which
may include, among, other means, by becoming an applicant with respect to such
Letter of Credit or entering into undertakings which provide for reimbursements
of such Underlying Issuer with respect to such Letter of Credit; each such
obligation or undertaking, irrespective of whether in writing, a "Reimbursement
Undertaking") with respect to Letters of Credit issued by such Underlying
Issuer. By submitting a request to Issuing Lender for the issuance of
a Letter of Credit, Borrower shall be deemed to have requested that Issuing
Lender issue or that an Underlying Issuer issue the requested Letter of Credit
and to have requested Issuing Lender to issue a Reimbursement Undertaking with
respect to such requested Letter of Credit if it is to be issued by an
Underlying Issuer (it being expressly acknowledged and agreed by Borrower that
Borrower is and shall be deemed to be an applicant (within the meaning of
Section 5-102(a)(2) of the Code) with respect to each Underlying Letter of
Credit). Each request for the issuance of a Letter of Credit, or the
amendment, renewal, or extension of any outstanding Letter of Credit, shall be
made in writing by an Authorized Person and delivered to the Issuing Lender via
hand delivery, telefacsimile, or other electronic method of transmission
reasonably in advance of the requested date of issuance, amendment, renewal, or
extension. Each such request shall be in form and substance
reasonably satisfactory to the Issuing Lender and shall specify (i) the
amount of such Letter of Credit, (ii) the date of issuance, amendment,
renewal, or extension of such Letter of Credit, (iii) the expiration date
of such Letter of Credit, (iv) the name and address of the beneficiary of
the Letter of Credit, (v) the Loan Party for whose account the Letter of Credit
is to be issued, and (vi) such other information (including, in the case of
an amendment, renewal, or extension, identification of the Letter of Credit to
be so amended, renewed, or extended) as shall be necessary to prepare, amend,
renew, or extend such Letter of Credit. Anything contained herein to
the contrary notwithstanding, the Issuing Lender may, but shall not be obligated
to, issue or cause the issuance of a Letter of Credit or to issue a
Reimbursement Undertaking in respect of an Underlying Letter of Credit, in
either case, that supports the obligations of Parent or its Subsidiaries at any
time that one or more of the Lenders is a Defaulting Lender. Borrower
agrees that this Agreement (along with the terms of the applicable application)
will govern each Letter of Credit and its issuance. The Issuing
Lender shall have no obligation to issue a Letter of Credit or a Reimbursement
Undertaking in respect of an Underlying Letter of Credit, in either case, if any
of the following would result after giving effect to the requested
issuance:
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(g) Section
3.2 of the Credit Agreement is amended to delete the word "and" at the end of
clause (a), replace the "." at the end of clause (b) with "; and" and add a new
clause (c) as follows:
(c) if
any request in a calendar month for such extension of credit would cause
Revolver Usage to exceed $75,000,000, Borrower shall have delivered to Agent
during such month and prior to such requested extension of credit the
Certificate re Consolidated EBITDA and Consolidated Leverage Ratio 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.
(h) The
second sentence of Section 5.2 of the Credit Agreement is hereby deleted in its
entirety.
(i) Clause
(c) of Section 6.9 of the Credit Agreement is hereby amended and restated in its
entirety as follows:
(c) any
Subsidiary of Parent or the applicable parent company of such Subsidiary may
make Restricted Junior Payments to such Subsidiary's shareholders and employees
and management personnel of such Subsidiary's shareholders pursuant to the terms
of the shareholder agreements or similar agreements between such Subsidiary or
the applicable parent company of such Subsidiary and such shareholders,
including without limitation payments in respect of and pursuant to the Put
Obligations,
(j) Subsection
(a) of Section 7 of the Credit Agreement is hereby amended and restated in its
entirety, as follows:
(a) Minimum
EBITDA. Achieve EBITDA, measured on a quarter-end basis, of at
least the required amount set forth in the following table for the applicable
period set forth opposite thereto:
|
Applicable Amount
|
Applicable Period
|
|
|
$76,500,000
|
|
For
the 12 month period ending
September
30, 2010 and for the 12 month period
ending
on the last day of each calendar quarter
thereafter
|
; provided, that,
concurrently with the closing of each Permitted Acquisition consummated after
September 30, 2010, the EBITDA level set forth above shall be increased by an
amount equal to 100% of Pro Forma EBITDA attributable to any Loan Party or any
Subsidiary of Parent acquired in such Permitted Acquisition for the 12 months
preceding the date of consummation of such Permitted Acquisition; provided further, that, in no
event shall the EBITDA level for the purposes set forth in this subsection be
increased to an amount in excess of $115,000,000.
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(k) A
new subsection (e) is hereby added to Section 7 of the Credit Agreement as
follows:
(e) Total Leverage
Ratio. Have a Total Leverage Ratio, measured on a quarter-end
basis, of not greater than the applicable ratio set forth in the following table
for the applicable date set forth opposite thereto:
|
Applicable Ratio
|
Applicable Date
|
|
|
3.5:1.0
|
|
For
the 12 month period ending
December
31, 2010 and for the 12 month period
ending
on the last day of each calendar quarter
thereafter
|
(l) A
new subsection (f) is hereby added to Section 7 of the Credit Agreement as
follows:
(f) Minimum
Accounts. At all times, the aggregate amount of Loan Parties'
Accounts shall be an amount equal to or in excess of the sum of $100,000,000
plus 133% of the amount of any Revolver Increase.
(m) Clause
(xi) of Section 14.1(a) of the Credit Agreement is hereby amended to delete the
references to each of "Eligible Accounts" and "Eligible Balance Sheet Unbilled
Accounts".
(n) The
first sentence of Section 15.1 of the Credit Agreement is hereby amended and
restated in its entirety as follows:
Each
Lender hereby designates and appoints WFF as its agent under this Agreement and
the other Loan Documents and each Lender hereby irrevocably authorizes (and by
entering into a Bank Product Agreement, each Bank Product Provider shall be
deemed to designate, appoint, and authorize) Agent to execute and deliver each
of the other Loan Documents on its behalf and to take such other action on its
behalf under the provisions of this Agreement and each other Loan Document and
to exercise such powers and perform such duties as are expressly delegated to
Agent by the terms of this Agreement or any other Loan Document, together with
such powers as are reasonably incidental thereto.
(o) Section
17.5 of the Credit Agreement is hereby amended and restated in its entirety as
follows:
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Each Bank
Product Provider shall be deemed a third party beneficiary hereof and of the
provisions of the other Loan Documents for purposes of any reference in a Loan
Document to the parties for whom Agent is acting. Agent hereby agrees
to act as agent for such Bank Product Providers and, by virtue of providing a
Bank Product, each Bank Product Provider shall be automatically deemed to have
appointed Agent as its agent; it being understood and agreed that the rights and
benefits of each Bank Product Provider under the Loan Documents consist
exclusively of such Bank Product Provider's being a beneficiary of the Liens and
security interests (and, if applicable, guarantees) granted to Agent and the
right to share in payments and collections out of the Collateral as more fully
set forth herein. In addition, each Bank Product Provider, by virtue of entering
into a Bank Product Agreement, shall be automatically deemed to have agreed that
Agent shall have the right, but shall have no obligation, to establish,
maintain, relax, or release reserves in respect of the Bank Product Obligations
and that if reserves are established there is no obligation on the part of Agent
to determine or ensure whether the amount of any such reserve is appropriate or
not. In addition, Agent shall not be obligated to establish or
increase a Bank Product Reserve for any Bank Product unless, after giving effect
to such establishment or increase, the sum of the Bank Product Reserves
established for all Bank Products does not exceed the Aggregate Bank Product
Reserve Amount. In connection with any such distribution of payments and
collections, Agent shall be entitled to assume no amounts are due or owing to
any Bank Product Provider unless such Bank Product Provider has provided a
written certification (setting forth a reasonably detailed calculation) to Agent
as to the amounts that are due and owing to it and such written certification is
received by Agent a reasonable period of time prior to the making of such
distribution. Agent shall have no obligation to calculate the amount
due and payable with respect to any Bank Products, but may rely upon the written
certification of the amount due and payable from the relevant Bank Product
Provider. In the absence of an updated certification, Agent shall be
entitled to assume that the amount due and payable to the relevant Bank Product
Provider is the amount last certified to Agent by such Bank Product Provider as
being due and payable (less any distributions made to such Bank Product Provider
on account thereof). Any Loan Party may obtain Bank Products from any
Bank Product Provider, although no Loan Party is required to do
so. Each Loan Party acknowledges and agrees that no Bank Product
Provider has committed to provide any Bank Products and that the providing of
Bank Products by any Bank Product Provider is in the sole and absolute
discretion of such Bank Product Provider. Notwithstanding anything to
the contrary in this Agreement or any other Loan Document, no provider or holder
of any Bank Product shall have any voting or approval rights hereunder (or be
deemed a Lender) solely by virtue of its status as the provider or holder of
such agreements or products or the Obligations owing thereunder, nor shall the
consent of any such provider or holder be required (other than in their
capacities as Lenders, to the extent applicable) for any matter hereunder or
under any of the other Loan Documents, including as to any matter relating to
the Collateral or the release of Collateral or Guarantors.
(p) The
definition of "Affiliate" is hereby amended to delete the reference to "Eligible
Accounts".
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(q) The
definition of "Bank Product Obligations" set forth in Schedule 1.1 of the Credit
Agreement is hereby amended and restated in its entirety as
follows:
"Bank Product
Obligations" means (a) all obligations, liabilities, reimbursement
obligations, fees, or expenses owing by Parent or its Subsidiaries to any Bank
Product Provider pursuant to or evidenced by a Bank Product Agreement and
irrespective of whether for the payment of money, whether direct or indirect,
absolute or contingent, due or to become due, now existing or hereafter arising,
(b) all obligations of Borrower to reimburse an Underlying Issuer in
respect of Underlying Letters of Credit, and (c) all amounts that Parent or
its Subsidiaries are obligated to reimburse to Agent or any member of the Lender
Group as a result of Agent or such member of the Lender Group purchasing
participations from, or executing guarantees or indemnities or reimbursement
obligations to, a Bank Product Provider with respect to the Bank Products
provided by such Bank Product Provider to Parent or its Subsidiaries; provided, however, in order for
any item described in clauses (a) (b), or (c) above, as applicable, to
constitute "Bank Product Obligations", (i) if the applicable Bank Product
Provider is Xxxxx Fargo or its Affiliates, then, if requested by Agent, Agent
shall have received a Bank Product Provider Letter Agreement within 20 days
after the date of such request, or (ii) if the applicable Bank Product
Provider is any other Person, Agent shall have received a Bank Product Provider
Letter Agreement within 10 days after the date of the provision of the
applicable Bank Product to Parent or its Subsidiaries.
(r) The
definition of "Bank Product Provider" set forth in Schedule 1.1 of the Credit
Agreement is hereby amended and restated in its entirety as
follows:
"Bank Product
Provider" means any Lender or any of its Affiliates; provided, however, that no such
Person (other than Xxxxx Fargo or its Affiliates) shall constitute a Bank
Product Provider with respect to a Bank Product unless and until Agent shall
have received a Bank Product Provider Letter Agreement from such Person and with
respect to the applicable Bank Product within 10 days after the provision of
such Bank Product to Parent or its Subsidiaries; provided further,
however, that
if, at any time, a Lender ceases to be a Lender under the Agreement, then, from
and after the date on which it ceases to be a Lender thereunder, neither it nor
any of its Affiliates shall constitute Bank Product Providers and the
obligations with respect to Bank Products provided by such former Lender or any
of its Affiliates shall no longer constitute Bank Product
Obligations.
(s) The
definition of "Bank Product Reserve" set forth in Schedule 1.1 of the Credit
Agreement is hereby amended and restated in its entirety as
follows:
"Bank Product Reserve"
means, as of any date of determination, with respect to a Bank Product, the
amount of reserves that Agent has established (based upon the applicable Bank
Product Provider's reasonable and good faith determination of its credit
exposure to Parent and its Subsidiaries in respect of Bank Product Obligations)
in respect of such Bank Products then provided or outstanding.
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(t) The
definition of "Base Rate" set forth in Schedule 1.1 of the Credit Agreement is
hereby amended and restated in its entirety as follows:
"Base Rate" means the
greatest of (a) the Federal Funds Rate plus ½%, (b) the LIBOR Rate
(which rate shall be calculated based upon an Interest Period of 1 month and
shall be determined on a daily basis), plus 1 percentage point, and
(c) the rate of interest announced, from time to time, within Xxxxx Fargo
at its principal office in San Francisco as its "prime rate", with the
understanding that the "prime rate" is one of Xxxxx Fargo's base rates (not
necessarily the lowest of such rates) and serves as the basis upon which
effective rates of interest are calculated for those loans making reference
thereto and is evidenced by the recording thereof after its announcement in such
internal publications as Xxxxx Fargo may designate.
(u) The
definition of "Borrowing Base" set forth in Schedule 1.1 of the Credit Agreement
is hereby amended and restated in its entirety as follows:
"Borrowing Base"
means, as of any date of determination, the Dollar Equivalent of the result
of:
(a) 75%
of the amount of Eligible Balance Sheet Billed Accounts, minus
(b) the
aggregate amount of reserves, if any, established by Agent under Section 2.1(c) of the
Agreement;
provided, that the
aggregate Availability attributable to Eligible Balance Sheet Billed Accounts of
Foreign Loan Parties shall not exceed the Dollar Equivalent of
$7,500,000.
(v) The
definition of "Borrowing Base Certificate" set forth in Schedule 1.1 of the
Credit Agreement is hereby amended and restated in its entirety as
follows:
"Borrowing Base
Certificate" means a certificate in the form of Exhibit
B-1.
(w) The
definition of "Defaulting Lender" set forth in Schedule 1.1 of the Credit
Agreement is hereby amended and restated in its entirety as
follows:
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"Defaulting Lender"
means any Lender that has (a) failed to make any Advance (or other extension of
credit, including the failure to make available to Agent amounts required
pursuant to a Settlement or to make payment in connection with a Letter of
Credit Disbursement) that it is required to make hereunder on the date that it
is required to do so hereunder, (b) notified Parent, any Borrower, Agent,
or any Lender in writing that it does not intend to comply with all or any
portion of its funding obligations under the Agreement, (c) made a public
statement to the effect that it does not intend to comply with its funding
obligations under the Agreement or under other agreements generally (as
reasonably determined by Agent) under which it has committed to extend credit,
(d) failed, within 1 Business Day after written request by Agent, to
confirm that it will comply with the terms of the Agreement relating to its
obligations to fund any amounts required to be funded by it under the Agreement,
(e) otherwise failed to pay over to Agent or any other Lender any other
amount required to be paid by it under the Agreement within 1 Business Day of
the date that it is required to do so under the Agreement, unless the subject of
a good faith dispute, or (f) (i) becomes or is insolvent or has a
parent company that has become or is insolvent or (ii) becomes the subject
of a bankruptcy or Insolvency Proceeding, or has had a receiver, conservator,
trustee, or custodian or appointed for it, or has taken any action in
furtherance of, or indicating its consent to, approval of or acquiescence in any
such proceeding or appointment or has a parent company that has become the
subject of a bankruptcy or Insolvency Proceeding, or has had a receiver,
conservator, trustee, or custodian appointed for it, or has taken any action in
furtherance of, or indicating its consent to, approval of or acquiescence in any
such proceeding or appointment.
(x) The
definition of "Eligible Balance Sheet Billed Accounts" set forth in Schedule 1.1
of the Credit Agreement is hereby amended and restated in its entirety as
follows:
"Eligible Balance Sheet
Billed Accounts" means, as of any date of determination, Accounts of Loan
Parties (including for the avoidance of doubt, any Minority-Owned Entity that is
a Loan Party) arising in the ordinary course of business from the sale of goods
or the rendition of services that have been billed to the Account Debtors
thereof and are not unpaid more than 90 days past invoice date and that are
reflected in the collateral reports provided to Agent pursuant to Section 5.2; provided, that
Accounts of a Loan Party shall not be considered Eligible Balance Sheet Billed
Accounts unless Agent has a perfected first priority Lien on such Accounts;
provided further, that
Eligible Balance Sheet Billed Accounts shall not include Accounts owing to any
Loan Party (determined by Agent based on the outstanding Accounts owing to such
Loan Party) in excess of 25% of the outstanding Eligible Balance Sheet Billed
Accounts of all Loan Parties to the extent of such Accounts in excess of such
percentage.
(y) The
definition of "Fixed Charge Coverage Ratio" set forth in Schedule 1.1 of the
Credit Agreement is hereby amended and restated in its entirety as
follows:
"Fixed Charge Coverage
Ratio" means, with respect to Parent for any period, the ratio of
(i) EBITDA for such period minus the sum of
(A) Capital Expenditures made (to the extent not already incurred in a
prior period) or incurred during such period and (B) all dividends paid in
cash during such period by Parent on account of Stock issued by Parent, to
(ii) Fixed Charges for such period.
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(z) Clause
(b) of the definition of "Permitted Acquisition" set forth in Schedule
1.1 of the Credit Agreement is hereby amended and restated in its entirety
as follows:
(b) no
Indebtedness (other than Indebtedness evidenced by the Agreement and the other
Loan Documents) will be incurred, assumed, or would exist with respect to Parent
or any Subsidiary of Parent as a result of such Acquisition (other than (i)
Earn-outs pursuant to the terms of the definitive documentation for such
Acquisition and (ii) Acquired Indebtedness), and no Liens will be incurred,
assumed, or would exist with respect to the assets of Parent or any Subsidiary
of Parent as a result of such Acquisition other than Permitted
Liens,
(aa) The
definition of "Subsidiary" set forth in Schedule 1.1 of the Credit Agreement is
hereby amended and restated in its entirety as follows:
"Subsidiary" of a
Person means (a) a corporation, partnership, limited liability company, or
other entity in which that Person directly or indirectly owns or controls the
shares of Stock having ordinary voting power to elect a majority of the board of
directors (or appoint other comparable managers) of such corporation,
partnership, limited liability company, or other entity, and (b) except for
purposes of calculating the financial covenants set forth in Section 7 and the
terms used in connection therewith (including EBITDA, Fixed Charge Coverage
Ratio, Senior Leverage Ratio and Total Leverage Ratio), each Minority-Owned
Entity that is a Loan Party.
(bb) Schedule
1.1 of the Credit Agreement is hereby amended by adding the following new
definitions in their appropriate alphabetical order:
"Aggregate Bank Product
Reserve Amount" means, as of any date of determination, the lesser of (a)
$5,000,000 and (b) the sum of the Bank Product Reserves that have been
established by Agent as of such date of determination.
"Bank Product Provider Letter
Agreement" means a letter agreement in substantially the form attached
hereto as Exhibit
B-2, in form and substance satisfactory to Agent, duly executed by the
applicable Bank Product Provider, Parent, Borrower, and Agent.
"Certificate re Consolidated
EBITDA and Consolidated Leverage Ratio Calculation" means a certificate
substantially in the form of Exhibit C-2 delivered
by the chief financial officer or chief accounting officer of Borrower to
Agent.
"Funded Indebtedness"
means, as of any date of determination, all Indebtedness for borrowed money or
letters of credit of Parent, determined on a consolidated basis in accordance
with GAAP (which, for the avoidance of doubt, shall be net of original issue
discount with respect to the Senior Unsecured Debt), that by its terms matures
more than one year after the date of calculation, and any such Indebtedness
maturing within one year from such date that is renewable or extendable at the
option of Parent or its Subsidiaries, as applicable, to a date more than one
year from such date, including, in any event, but without duplication, with
respect to Parent and its Subsidiaries, the Revolver Usage and the amount of
their Capitalized Lease Obligations.
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"Total Leverage Ratio"
means, as of any date of determination, the ratio of (a) the sum of
(i) Parent's Funded Indebtedness as of such date minus (ii) the
sum of (A) the lesser of (x) $7,500,000 and (y) the Dollar
Equivalent amount of unrestricted cash and Foreign Cash Equivalents of the
Foreign Loan Parties as of such date that is in Deposit Accounts or in
Securities Accounts, or any combination thereof, and which such Deposit Account
or Securities Account is the subject to a first priority perfected Lien in favor
of Agent and (B) the amount of unrestricted cash and Domestic Cash
Equivalents of the US Loan Parties and the Canadian Loan Parties as of such date
that are held in Deposit Accounts in the United States and Canada that are
subject to Control Agreements, to (b) Parent's TTM EBITDA as of such
date.
(cc) The
definitions of "Applicable Excess Availability Amount", "Borrowing Base I",
"Borrowing Base II", "Borrowing Base Trigger Date", "Dilution Reserve",
"Eligible Accounts", "Eligible Balance Sheet Unbilled Account", "Maximum
Revolver Usage" and "Second Amendment Effective Date" are hereby deleted in
their entirety.
(dd) Exhibit
B-1 of the Credit Agreement is hereby replaced with Exhibit B-1 attached
hereto.
(ee) Exhibit
B-2 of the Credit Agreement is hereby replaced with Exhibit B-2 attached
hereto.
(ff) Exhibit
C-1 of the Credit Agreement is hereby replaced with Exhibit C-1 attached
hereto.
(gg) A
new Exhibit C-2 is added to the Credit Agreement in the form of Exhibit C-2 attached
hereto.
(hh) Clause
(c) of Schedule 5.1 of the Credit Agreement is hereby amended to delete the
reference to "Eligible Balance Sheet Unbilled Accounts".
(ii) Schedule
5.2 of the Credit Agreement is hereby replaced with Schedule 5.2 attached
hereto.
3. Ratification; Other
Agreements. This Amendment, subject to satisfaction of the
conditions provided below, shall constitute an amendment to the Credit Agreement
and all of the Loan Documents as appropriate to express the agreements contained
herein. Without limiting the foregoing, the parties hereto
acknowledge and agree that, notwithstanding anything contained in the Fee
Letter to the contrary, Borrower shall only be obligated to reimburse Agent for
up to 2 audits during any calendar year (unless an Event of Default exists in
which case the audits for which Borrower shall be liable shall not be limited)
and the Fee Letter is hereby amended accordingly. In all other
respects, the Credit Agreement and the Loan Documents shall remain unchanged and
in full force and effect in accordance with their original terms.
-11-
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 the Third Amendment Fee referred to below;
and
(c)
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 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);
(b) No
Default or Event of Default has occurred and is continuing; and
(c) the
execution, delivery and performance of this Amendment has been duly authorized
by all requisite corporate action on the part of such Loan Party.
6. Third Amendment
Fee. Borrower shall pay to Agent a fee equal to $175,000 (the
"Third Amendment
Fee") which shall be fully earned and due and payable on the date
hereof.
7. 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.
-12-
8. 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]
-13-
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by
their respective officers thereunto duly authorized and delivered as of the date
first above written.
|
MDC
PARTNERS INC., a federal company
|
||
|
organized
under the laws of Canada
|
||
|
By:
|
/s/ Xxxxxx X. Xxxxxxx
|
|
|
Name:
|
Xxxxxx
X. Xxxxxxx
|
|
|
Title:
|
Managing
Director
|
|
|
By:
|
/s/ Xxxxx Xxxxxx
|
|
|
Name:
|
Xxxxx
Xxxxxx
|
|
|
Title:
|
Senior
Vice President
|
|
|
MAXXCOM
INC.,
|
||
|
a
Delaware corporation
|
||
|
By:
|
/s/ Xxxxxxxx Xxxxxx
|
|
|
Name:
|
Xxxxxxxx
Xxxxxx
|
|
|
Title:
|
Authorized
Signatory
|
|
|
By:
|
/s/ Xxxxxxx Xxxxxxxx
|
|
|
Name:
|
Xxxxxxx
Xxxxxxxx
|
|
|
Title:
|
Authorized
Signatory
|
|
|
ACCENT
MARKETING SERVICES, L.L.C.,
|
|
|
a
Delaware limited liability company
|
|
|
ADRENALINA
LLC,
|
|
|
a
Delaware limited liability company
|
|
|
XXXXXXX
& PARTNERS LLC,
|
|
|
a
Delaware limited liability company
|
|
|
ATTENTION
PARTNERS LLC,
|
|
|
a
Delaware limited liability company
|
|
|
XXXXX
XXX DESIGN (USA) LLC,
|
|
|
a
Delaware limited liability company
|
|
|
COLLE
& XXXXX LLC,
|
|
|
a
Delaware limited liability company
|
|
|
COLLE
& XXXXX, INC.,
|
|
|
a
Minnesota corporation
|
|
|
COMMUNIFX
PARTNERS LLC,
|
|
|
a
Delaware limited liability company
|
|
|
COMPANY
C COMMUNICATIONS, INC.,
|
|
|
a
Delaware corporation
|
|
|
COMPANY
C COMMUNICATIONS LLC,
|
|
|
a
Delaware limited liability company
|
|
|
XXXXXXX
XXXXXX & BOGUSKY LLC,
|
|
|
a
Delaware limited liability company
|
|
|
DOTGLU
LLC,
|
|
|
a
Delaware limited liability company
|
|
|
EXPECTING
PRODUCTIONS, LLC,
|
|
|
a
California limited liability company
|
|
|
By:
Xxxxxx and Sunset Media, LLC, its sole member
|
|
|
XXXXXXXX
XXXXXX LLC,
|
|
|
a
Delaware limited liability company
|
|
|
GUARDIANT
WARRANTY, LLC,
|
|
|
a
Delaware limited liability company
|
|
HELLO
ACQUISITION INC.,
|
|
|
a
Delaware corporation
|
|
|
HL
GROUP PARTNERS LLC,
|
|
|
a
Delaware limited liability company
|
|
|
XXXXXX
AND SUNSET MEDIA, LLC (formerly known as Shout Media
LLC),
|
|
|
a
California limited liability company
|
|
|
HW
ACQUISITION LLC,
|
|
|
a
Delaware limited liability company
|
|
|
INTEGRATED
MEDIA SOLUTIONS PARTNERS LLC, a Delaware limited liability
company
|
|
|
KBP
HOLDINGS LLC,
|
|
|
a
Delaware limited liability company
|
|
|
XXXXXXXXXXX
BOND XXXXXXX & PARTNERS LLC (formerly known as Xxxxxxxxxxx Bond &
Partners LLC), a Delaware limited liability company
|
|
|
XXXXXXXXXXX
BOND & PARTNERS WEST LLC, a Delaware limited liability
company
|
|
|
KWITTKEN
PR LLC,
|
|
|
a
Delaware limited liability company
|
|
|
MARGEOTES
XXXXXXXX XXXXXX LLC,
|
|
|
a
Delaware limited liability company
|
|
|
MAXXCOM
(USA) FINANCE COMPANY,
|
|
|
a
Delaware corporation
|
|
|
MAXXCOM
(USA) HOLDINGS INC.,
|
|
|
a
Delaware corporation
|
|
|
MDC
ACQUISITION INC.,
|
|
|
a
Delaware Corporation
|
|
|
MDC
CORPORATE (US) INC.,
|
|
|
a
Delaware corporation
|
|
|
MDC
INNOVATION PARTNERS LLC
|
|
|
(d/b/a
Spies & Assassins),
|
|
|
a
Delaware limited liability company
|
|
MDC
TRAVEL, INC.,
|
|
|
a
Delaware corporation
|
|
|
MDC/CPB
HOLDINGS INC.
|
|
|
(formerly
known as CPB Acquisition Inc.),
|
|
|
a
Delaware corporation
|
|
|
MDC/KBP
ACQUISITION INC.,
|
|
|
a
Delaware corporation
|
|
|
MF+P
ACQUISITION CO.,
|
|
|
a
Delaware corporation
|
|
|
MONO
ADVERTISING, LLC,
|
|
|
a
Delaware limited liability company
|
|
|
NEW
TEAM LLC,
|
|
|
a
Delaware limited liability company
|
|
|
NORTHSTAR
RESEARCH GP LLC,
|
|
|
a
Delaware limited liability company
|
|
|
NORTHSTAR
RESEARCH HOLDINGS USA LP,
|
|
|
a
Delaware limited partnership
|
|
|
NORTHSTAR
RESEARCH PARTNERS (USA) LLC, a Delaware limited liability
company
|
|
|
OUTERACTIVE,
LLC,
|
|
|
a
Delaware limited liability company
|
|
|
PULSE
MARKETING, LLC,
|
|
|
a
Delaware limited liability company
|
|
|
REDSCOUT
LLC,
|
|
|
a
Delaware limited liability company
|
|
|
RELEVENT
PARTNERS LLC,
|
|
|
a
Delaware limited liability company
|
|
|
SKINNY
NYC LLC,
|
|
|
a
Delaware limited liability company
|
|
|
SLOANE
& COMPANY LLC,
|
|
|
a
Delaware limited liability company
|
|
|
SOURCE
MARKETING LLC,
|
|
|
a
New York limited liability company
|
|
TARGETCOM
LLC,
|
||
|
a
Delaware limited liability company
|
||
|
TC
ACQUISITION INC.,
|
||
|
a
Delaware corporation
|
||
|
THE
ARSENAL LLC
|
||
|
(formerly
known as Team Holdings LLC),
|
||
|
a
Delaware limited liability company
|
||
|
TRACK
21 LLC,
|
||
|
a
Delaware limited liability company
|
||
|
TRAFFIC
GENERATORS, LLC,
|
||
|
a
Georgia limited liability company
|
||
|
VARICK
MEDIA MANAGEMENT LLC,
|
||
|
a
Delaware limited liability company
|
||
|
VITROROBERTSON
LLC,
|
||
|
a
Delaware limited liability company
|
||
|
YAMAMOTO
XXXX XXXXXXXXX, INC.,
|
||
|
a
Delaware corporation
|
||
|
ZG
ACQUISITION INC.,
|
||
|
a
Delaware corporation
|
||
|
ZIG
(USA) LLC,
|
||
|
a
Delaware limited liability company
|
||
|
ZYMAN
GROUP, LLC,
|
||
|
a
Delaware limited liability company
|
||
|
By:
|
/s/ Xxxxxxxx Xxxxxx
|
|
|
Name:
|
Xxxxxxxx
Xxxxxx
|
|
|
Title:
|
Authorized
Signatory
|
|
|
By:
|
/s/ Xxxxxxx Xxxxxxxx
|
|
|
Name:
|
Xxxxxxx
Xxxxxxxx
|
|
|
Title:
|
Authorized
Signatory
|
|
|
HELLO
DESIGN, LLC,
|
||
|
a
California limited liability company
|
||
|
By:
|
/s/ Xxxxx Xxx
|
|
|
Name:
|
Xxxxx
Xxx
|
|
|
Title:
|
Authorized
Signatory
|
|
|
By:
|
/s/ Xxxxxxxx Xxxxxx
|
|
|
Name:
|
Xxxxxxxx
Xxxxxx
|
|
|
Title:
|
Authorized
Signatory
|
|
|
XXXXXX
XXXXXX CANADA INC.,
|
||
|
an
Ontario corporation
|
||
|
By:
|
/s/ Xxxxxx X. Xxxxxxx
|
|
|
Name:
|
Xxxxxx
X. Xxxxxxx
|
|
|
Title:
|
Director
|
|
|
By:
|
/s/ Xxxxx Xxxxxx
|
|
|
Name:
|
Xxxxx
Xxxxxx
|
|
|
Title:
|
Director
|
|
|
XXXXXXXXX
BAS, an Ontario general partnership, by the members of its management
committee
|
||
|
By:
|
/s/ Xxxxxx X. Xxxxxxx
|
|
|
Name:
|
Xxxxxx
X. Xxxxxxx
|
|
|
Title:
|
Director
|
|
|
By:
|
/s/ Xxxxx Xxxxxx
|
|
|
Name:
|
Xxxxx
Xxxxxx
|
|
|
Title:
|
Director
|
|
|
COMPUTER
COMPOSITION OF CANADA INC.,
|
||
|
an
Ontario corporation
|
||
|
By:
|
/s/ Xxxxxx X. Xxxxxxx
|
|
|
Name:
|
Xxxxxx
X. Xxxxxxx
|
|
|
Title:
|
Director
|
|
|
By:
|
/s/ Xxxxx Xxxxxx
|
|
|
Name:
|
Xxxxx
Xxxxxx
|
|
|
Title:
|
Director
|
|
|
XXXXX
XXX DESIGN INC.,
|
||
|
an
Ontario corporation
|
||
|
By:
|
/s/ Xxxxxx X. Xxxxxxx
|
|
|
Name:
|
Xxxxxx
X. Xxxxxxx
|
|
|
Title:
|
Director
|
|
|
By:
|
/s/ Xxxxx Xxxxxx
|
|
|
Name:
|
Xxxxx
Xxxxxx
|
|
|
Title:
|
Director
|
|
|
XXXXX
XXX HOLDINGS LTD.,
|
||
|
an
Ontario corporation
|
||
|
By:
|
/s/ Xxxxxx X. Xxxxxxx
|
|
|
Name:
|
Xxxxxx
X. Xxxxxxx
|
|
|
Title:
|
Director
|
|
|
By:
|
/s/ Xxxxx Xxxxxx
|
|
|
Name:
|
Xxxxx
Xxxxxx
|
|
|
Title:
|
Treasurer
|
|
|
XXXXXX
XXXXXXX COMMUNICATIONS INC.,
|
||
|
an
Ontario corporation
|
||
|
By:
|
/s/ Xxxxxx X. Xxxxxxx
|
|
|
Name:
|
Xxxxxx
X. Xxxxxxx
|
|
|
Title:
|
Director
|
|
|
By:
|
/s/ Xxxxx Xxxxxxxxx
|
|
|
Name:
|
Xxxxx
Xxxxxxxxx
|
|
|
Title:
|
Director
|
|
|
TREE
CITY INC.,
|
||
|
an
Ontario corporation
|
||
|
By:
|
/s/ Xxxxxx X. Xxxxxxx
|
|
|
Name:
|
Xxxxxx
X. Xxxxxxx
|
|
|
Title:
|
Director
|
|
|
By:
|
/s/ Xxxxx Xxxxxx
|
|
|
Name:
|
Xxxxx
Xxxxxx
|
|
|
Title:
|
Director
|
|
|
VERITAS
COMMUNICATIONS INC.,
|
||
|
an
Ontario corporation
|
||
|
By:
|
/s/ Xxxxxx X. Xxxxxxx
|
|
|
Name:
|
Xxxxxx
X. Xxxxxxx
|
|
|
Title:
|
Director
|
|
|
By:
|
/s/ Xxxxx Xxxxxx
|
|
|
Name:
|
Xxxxx
Xxxxxx
|
|
|
Title:
|
Director
|
|
|
656712
ONTARIO LIMITED,
|
||
|
an
Ontario corporation
|
||
|
By:
|
/s/ Xxxxxx X. Xxxxxxx
|
|
|
Name:
|
Xxxxxx
X. Xxxxxxx
|
|
|
Title:
|
Director
|
|
|
By:
|
/s/ Xxxxx Xxxxxx
|
|
|
Name:
|
Xxxxx
Xxxxxx
|
|
|
Title:
|
Director
|
|
|
NORTHSTAR
RESEARCH HOLDINGS CANADA INC., an Ontario corporation
|
||
|
By:
|
/s/ Xxxxxx X. Xxxxxxx
|
|
|
Name:
|
Xxxxxx
X. Xxxxxxx
|
|
|
Title:
|
Director
|
|
|
By:
|
/s/ Xxxxx Xxxxxxxxx
|
|
|
Name:
|
Xxxxx
Xxxxxxxxx
|
|
|
Title:
|
Director
|
|
|
NORTHSTAR
RESEARCH PARTNERS INC.,
|
||
|
an
Ontario corporation
|
||
|
By:
|
/s/ Xxxxxx X. Xxxxxxx
|
|
|
Name:
|
Xxxxxx
X. Xxxxxxx
|
|
|
Title:
|
Director
|
|
|
By:
|
/s/ Xxxxx Xxxxxxxxx
|
|
|
Name:
|
Xxxxx
Xxxxxxxxx
|
|
|
Title:
|
Xxxxxxxx
|
|
|
X
CONNECTIONS INC., an Ontario corporation
|
||
|
By:
|
/s/ Xxxxxx X. Xxxxxxx
|
|
|
Name:
|
Xxxxxx
X. Xxxxxxx
|
|
|
Title:
|
Director
|
|
|
By:
|
/s/ Xxxxx Xxxxxx
|
|
|
Name:
|
Xxxxx
Xxxxxx
|
|
|
Title:
|
Director
|
|
|
STUDIO
PICA INC., a federal company organized under the laws of
Canada
|
||
|
By:
|
/s/ Xxxxxxx Xxxxx
|
|
|
Name:
|
Xxxxxxx
Xxxxx
|
|
|
Title:
|
Director
|
|
|
By:
|
/s/ Xxxxx X. Xxxxxxx
|
|
|
Name:
|
Xxxxx
X. Xxxxxxx
|
|
|
Title:
|
Director
|
|
|
XXXXXXX
XXXXXX + BOGUSKY CANADA INC. (formerly known as Zig Inc.), an Ontario
corporation
|
||
|
By:
|
/s/ Xxxxxx X. Xxxxxxx
|
|
|
Name:
|
Xxxxxx
X. Xxxxxxx
|
|
|
Title:
|
Authorized
Signatory
|
|
|
By:
|
/s/ Xxxxx Xxxxxx
|
|
|
Name:
|
Xxxxx
Xxxxxx
|
|
|
Title:
|
Authorized
Signatory
|
|
|
6
DEGREES INTEGRATED COMMUNICATIONS INC. (formerly known as Accumark
Communications Inc.), an Ontario corporation
|
||
|
By:
|
/s/ Xxxxxx X. Xxxxxxx
|
|
|
Name:
|
Xxxxxx
X. Xxxxxxx
|
|
|
Title:
|
Authorized
Signatory
|
|
|
By:
|
/s/ Xxxxx Xxxxxx
|
|
|
Name:
|
Xxxxx
Xxxxxx
|
|
|
Title:
|
Authorized
Signatory
|
|
|
MAXXCOM
(NOVA SCOTIA) CORP.,
|
||
|
a
Nova Scotia corporation
|
||
|
By:
|
/s/ Xxxxxx X. Xxxxxxx
|
|
|
Name:
|
Xxxxxx
X. Xxxxxxx
|
|
|
Title:
|
Authorized
Signatory
|
|
|
By:
|
/s/ Xxxxx Xxxxxx
|
|
|
Name:
|
Xxxxx
Xxxxxx
|
|
|
Title:
|
Authorized
Signatory
|
|
|
XXXXX
XXXXX IRADESSO CORP.,
|
||
|
an
Ontario corporation
|
||
|
By:
|
/s/ Xxxxxx X. Xxxxxx
|
|
|
Name:
|
Xxxxxx
X. Xxxxxxx
|
|
|
Title:
|
Authorized
Signatory
|
|
|
By:
|
/s/ Xxxxx Xxxxxx
|
|
|
Name:
|
Xxxxx
Xxxxxx
|
|
|
Title:
|
Authorized
Signatory
|
|
|
XXXXXXX
XXXXXX & BOGUSKY EUROPE AB
|
||
|
By:
|
/s/ Xxxxxxxx Xxxxxx
|
|
|
Name:
|
Xxxxxxxx
Xxxxxx
|
|
|
Title:
|
Authorized
Signatory
|
|
|
By:
|
/s/ Xxxxxxx Xxxxxxxx
|
|
|
Name:
|
Xxxxxxx
Xxxxxxxx
|
|
|
Title:
|
Authorized
Signatory
|
|
|
XXXXX
FARGO CAPITAL FINANCE, LLC, formerly known as Xxxxx Fargo Foothill,
LLC,
|
||
|
a
Delaware limited liability company, as Agent and as a
Lender
|
||
|
By:
|
/s/ Xxxx X. Xxxx
|
|
|
Name:
|
Xxxx
X. Xxxx
|
|
|
Title:
|
Senior
Vice President
|
|
