AMENDMENT NO. 11
EXECUTION
COPY
AMENDMENT
XX. 00
XXXXXXXXX
XX. 00 dated as of April 4, 2007 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.
11 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
2.04(a) of the Credit Agreement is hereby amended by
amending clause (ii) to read in its entirety as follows:
“(ii)
no Letter of Credit shall have an expiration date later than, or shall permit
the account party or the beneficiary to request the renewal thereof to a date
beyond, the earlier of (x) the date one year after the issuance thereof and
(y)
the date five Business Days prior to the Commitment Termination Date,
provided that any Letter of Credit with a one-year term may provide for
the renewal thereof for additional one-year periods (which shall in no event
extend beyond the date referred to in the foregoing subclause (y)).
Notwithstanding the foregoing, any Collateralized Letter of Credit (as defined
below) may, with the consent of the Issuing Bank that issued such
Collateralized Letter of Credit, expire on any date following the date that
is
five Business Days prior to the Commitment Termination Date. As used
herein, “Collateralized Letter of Credit” means a Letter of Credit that
has been irrevocably cash collateralized by the Borrower pursuant to
arrangements satisfactory to the Issuing Bank that issued such Letter of Credit,
which shall be at least 20 Business Days prior to the Commitment Termination
Date. Notwithstanding anything to the contrary in this Section, the obligations
of the Revolving Lenders to acquire participations in Letters of Credit and
to
reimburse an Issuing Bank for unreimbursed amount shall terminate with respect
to any Collateralized Letter of Credit upon the Commitment Termination Date
and
any participation held by any Lender in a Collateralized Letter of Credit on
the
Commitment Termination Date shall be deemed to have been assigned to the Issuing
Bank that issued such Collateralized Letter of Credit on the Commitment
Termination Date.”
2.03. Section 2.06(b)
of the Credit Agreement is hereby amended by adding at the end thereof the
following words:
“Notwithstanding
the
foregoing, any fees payable on any Collateralized Letter of Credit may, with
the
consent of the Issuing Bank that issued such Collateralized Letter of Credit,
cease to be payable on any date following the date that is five Business Days
prior to the Commitment Termination Date.”
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. 11 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. 11 executed by the Obligors, the Issuing Banks and the
Lenders and (b) evidence that all fees and expenses agreed by MDC Partners
to be
payable in connection with this Amendment No. 11 have been paid in full.
Section
6. Miscellaneous. Except as herein provided, the Credit
Agreement shall remain unchanged and in full force and effect. This
Amendment No. 11 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. 11 by signing any such
counterpart. This Amendment No. 11 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. 11 to be
duly
executed and delivered as of the day and year first above written.
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MAXXCOM
INC., an Ontario corporation
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MAXXCOM
INC., a Delaware corporation
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Agreed
as set forth in Section 4 above:
GUARANTORS
1208075
ONTARIO LIMITED
1220777
ONTARIO LIMITED
1385544
ONTARIO LIMITED
2026646
ONTARIO LIMITED
656712
ONTARIO LIMITED
XXXXXXX
XXXX XXXXXX XXXXXXX INC.
XXXXXX
XXXXXX CANADA INC.
XXXXXX-XXXXXX
CANADA LTD.
XXXXX
XXX DESIGN INC.
XXXXX
XXX HOLDINGS LTD.
XXXXXXXX
+ PARTNERS COMMUNICATIONS LTD.
COMPUTER
COMPOSITION OF CANADA INC.
XXXXXXXXX
BAS
MAXXCOM
(NOVA SCOTIA) CORP.
MAXXCOM
INTERACTIVE INC.
STUDIOTYPE
INC.
TREE
CITY INC.
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ACCENT
ACQUISITION CO.
ACCENT
INTERNATIONAL, INC.
ACCENT
MARKETING SERVICES, L.L.C.
BRATSKEIR
& COMPANY, INC.
XXXXXXXX
DIRECT, INC.
CMS
U.S. HOLDCO, INC.
COLLE
& XXXXX, INC.
CPB
ACQUISITION INC.
XXXXXXX
XXXXXX & BOGUSKY LLC
DOTGLU
LLC
XXXXXXXX
XXXXXX LLC
FMA
ACQUISITION CO.
HELLO
ACQUISITION INC.
KBP
HOLDINGS LLC
XXXXXXXXXXX
BOND & PARTNERS LLC
XXXXXXXXXXX
BOND & PARTNERS WEST LLC
LAFAYETTE
PRODUCTIONS LLC
MACKENZIE
MARKETING, INC.
MARGEOTES/XXXXXXXX
+ PARTNERS LLC
MAXXCOM
(USA) FINANCE COMPANY
MAXXCOM
(USA) HOLDINGS INC.
MDC/KBP
ACQUISITION INC.
MF+P
ACQUISITION CO.
MONO
ADVERTISING, LLC
PRO-IMAGE
CORPORATION
SABLE
ADVERTISING SYSTEMS, INC.
SMI
ACQUISITION CO.
SOURCE
MARKETING LLC
TARGETCOM
LLC
VITROROBERTSON
LLC
ZG
ACQUISITION INC.
ZYMAN
GROUP, LLC
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LENDERS
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JPMORGAN
CHASE BANK, N.A., individually and as Administrative Agent and as
U.S.
Issuing Bank
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JPMORGAN
CHASE BANK, N.A., TORONTO
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BRANCH
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BANK
OF MONTREAL (CHICAGO BRANCH)
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BANK
OF MONTREAL
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THE
BANK OF NOVA SCOTIA, by its Atlanta Agency
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THE
BANK OF NOVA SCOTIA
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TORONTO
DOMINION (TEXAS) INC.
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THE
TORONTO-DOMINION BANK, individually and as Canadian Issuing
Bank
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CIBC
INC.
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CANADIAN
IMPERIAL BANK OF COMMERCE
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