FIRST AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.1.1
FIRST
AMENDMENT
THIS
FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is
entered into as of March 19, 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 Lenders have agreed to amend the Credit Agreement in certain
respects, subject to the terms and conditions contained herein.
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) Clause
(ii) of Section 2.4(e) of the Credit Agreement is hereby amended and restated in
its entirety as follows:
"(ii) In
the event any Loan Party desires to make any payment in respect of Earn-outs and
(x) a Default or Event of Default then exists or would otherwise arise as a
result thereof or (y) after giving effect to such Restricted Junior Payment,
Excess Availability would be less than $15,000,000, Borrower agrees to prepay
the Obligations in full and terminate the Revolver Commitments prior to making
such payment."
(B) Section
5.17(k) of the Credit Agreement is hereby amended and restated in its entirety
as follows:
"(k) In
the event any Loan Party desires to make any payment, or series of payments in a
fiscal quarter, in respect of Earn-outs that exceeds $5,000,000, Borrower shall
provide at least 15 days prior written notice thereof to Agent."
(C) Clause
(e) of Section 6.9 of the Credit Agreement is hereby amended and restated in its
entirety as follows:
"(e) any
Loan Party may make payments in respect of Earn-outs, and"
(D) Clause
(b) of the defined term "Permitted Acquisition" in Schedule 1.1 of the
Credit Agreement is hereby amended and restated in its entirety as
follows:
"(b) no
Indebtedness 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,"
(E) Clause
(j) of the defined term "Permitted Disposition" in Schedule 1.1 of the
Credit Agreement is hereby amended and restated in its entirety as
follows:
"(j) (i)
the sale or issuance of Stock (other than Prohibited Stock) of Parent or (ii)
the sale or issuance of Stock (other than Prohibited Stock) of any other Loan
Party to current or former employees, officers, and directors of Parent or any
of its Subsidiaries, their respective estates, spouses or former spouses; provided, that the
aggregate value of Stock sold or issued pursuant to this clause (ii) shall not
exceed $1,000,000 in any fiscal year,"
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. 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.
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; and
(b) 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. 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.
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]
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.
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MDC
PARTNERS INC., a federal company
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organized
under the laws of Canada
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By:
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/s/
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Name: Xxxxxx
X. Xxxxxxx
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Title: Managing
Director
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By:
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/s/
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Name: Xxxxx
Xxxxxx
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Title: Senior
Vice President
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MAXXCOM
INC.,
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a
Delaware corporation
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By:
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/s/
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Name:
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Xxxxx X. Xxxx |
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Title:
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Authorized Signatory
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By:
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/s/
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Name:
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Xxxxxxxx Xxxxxx |
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Title:
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Authorized Signatory
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Signature
Pages to First Amendment to Credit Agreement
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ACCENT
MARKETING SERVICES, L.L.C.,
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a
Delaware limited liability company
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ADRENALINA
LLC,
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a
Delaware limited liability company
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ATTENTION
PARTNERS LLC,
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a
Delaware limited liability company
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XXXXX
XXX DESIGN (USA) LLC,
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a
Delaware limited liability company
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COLLE
& XXXXX LLC,
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a
Delaware limited liability company
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COLLE
& XXXXX, INC.,
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a
Minnesota corporation
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COMPANY
C COMMUNICATIONS, INC.,
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a
Delaware corporation
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COMPANY
C COMMUNCATIONS LLC,
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a
Delaware limited liability company
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CPB
ACQUISITION INC.,
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a
Delaware corporation
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XXXXXXX
XXXXXX & BOGUSKY LLC,
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a
Delaware limited liability company
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DOTGLU
LLC,
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a
Delaware limited liability company
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XXXXXXXX
XXXXXX LLC,
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a
Delaware limited liability company
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HELLO
ACQUISITION INC.,
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a
Delaware corporation
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HL
GROUP PARTNERS LLC,
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a
Delaware limited liability company
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HW
ACQUISITION LLC,
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a
Delaware limited liability company
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Signature
Pages to First Amendment to Credit Agreement
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KBP
HOLDINGS LLC,
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a
Delaware limited liability company
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XXXXXXXXXXX
BOND & PARTNERS LLC,
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a
Delaware limited liability company
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XXXXXXXXXXX
BOND & PARTNERS WEST LLC,
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a
Delaware limited liability company
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MARGEOTES
XXXXXXXX XXXXXX LLC,
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a
Delaware limited liability company
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MAXXCOM
(USA) FINANCE COMPANY,
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a
Delaware corporation
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MAXXCOM
(USA) HOLDINGS INC.,
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a
Delaware corporation
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MDC
ACQUISITION INC.,
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a
Delaware Corporation
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MDC
CORPORATE (US) INC.,
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a
Delaware corporation
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MDC
TRAVEL, INC.,
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a
Delaware corporation
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MDC/KBP
ACQUISITION INC.,
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a
Delaware corporation
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MF+P
ACQUISITION CO.,
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a
Delaware corporation
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MONO
ADVERTISING, LLC,
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a
Delaware limited liability company
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NORTHSTAR
RESEARCH GP LLC,
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a
Delaware limited liability company
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NORTHSTAR
RESEARCH HOLDINGS USA LP,
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a
Delaware limited partnership
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NORTHSTAR
RESEARCH PARTNERS (USA) LLC,
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a
Delaware limited liability company
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REDSCOUT
LLC,
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a
Delaware limited liability company
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Signature
Pages to First Amendment to Credit Agreement
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SKINNY
NYC LLC,
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a
Delaware limited liability company
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SOURCE
MARKETING LLC,
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a
New York limited liability company
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TARGETCOM
LLC,
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a
Delaware limited liability company
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TC
ACQUISITION INC.,
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a
Delaware corporation
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TRACK
21 LLC,
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a
Delaware limited liability company
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TRAFFIC
GENERATORS, LLC,
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a
Georgia limited liability company
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TREND
CORE, LLC,
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a
Delaware limited liability company
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VITROROBERTSON
LLC,
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a
Delaware limited liability company
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YAMAMOTO
XXXX XXXXXXXXX, INC.,
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a
Delaware corporation
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ZG
ACQUISITION INC.,
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a
Delaware corporation
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ZIG
(USA) LLC,
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a
Delaware limited liability company
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ZYMAN
GROUP, LLC,
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a
Delaware limited liability
company
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By:
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/s/
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Name:
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Xxxxx X. Xxxx |
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Title:
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Authorized
Signatory
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By:
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/s/
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Name:
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Xxxxxxxx Xxxxxx |
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Title:
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Authorized
Signatory
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Signature
Pages to First Amendment to Credit Agreement
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HELLO
DESIGN, LLC,
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a
California limited liability company
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By:
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/s/
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Name:
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Xxxxxxxx Xxxxxx |
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Title:
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Authorized
Signatory
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By:
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/s/
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Name:
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Xxxxx Xxx |
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Title:
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Authorized
Signatory
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XXXXXX
XXXXXX CANADA INC.,
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an
Ontario corporation
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By:
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/s/
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Name:
Xxxxxxxx Xxxxxx
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Title: Authorized
Signatory
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By:
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/s/
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Name:
Xxxxx X. Xxxx
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Title: Authorized
Signatory
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MAXXCOM
INC.,
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an
Ontario corporation
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By:
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/s/
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Name:
Xxxxxxxx Xxxxxx
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Title: Authorized
Signatory
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By:
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/s/
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Name:
Xxxxx X. Xxxx
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Title: Authorized
Signatory
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Signature
Pages to First Amendment to Credit Agreement
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XXXXXXXXX
BAS, an Ontario general partnership,
by the members of its management committee |
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By:
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/s/
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Name:
Xxxxxxxx Xxxxxx
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Title: Authorized
Signatory
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By:
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/s/
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Name:
Xxxxx X. Xxxx
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Title: Authorized
Signatory
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COMPUTER
COMPOSITION OF CANADA INC.,
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an
Ontario corporation
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By:
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/s/
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Name:
Xxxxxxxx Xxxxxx
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Title: Authorized
Signatory
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By:
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/s/
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Name:
Xxxxx X. Xxxx
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Title: Authorized
Signatory
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XXXXX
XXX DESIGN INC.,
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an
Ontario corporation
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By:
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/s/
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Name:
Xxxxxxxx Xxxxxx
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Title: Authorized
Signatory
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By:
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/s/
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Name:
Xxxxx X. Xxxx
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Title: Authorized
Signatory
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Signature
Pages to First Amendment to Credit Agreement
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XXXXX
XXX HOLDINGS LTD.,
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an
Ontario corporation
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By:
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/s/
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Name:
Xxxxxxxx Xxxxxx
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Title: Authorized
Signatory
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By:
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/s/
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Name:
Xxxxx X. Xxxx
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Title: Authorized
Signatory
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XXXXXX
XXXXXXX COMMUNICATIONS INC.,
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an
Ontario corporation
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By:
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/s/
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Name:
Xxxxxxxx Xxxxxx
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Title: Authorized
Signatory
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By:
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/s/
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Name:
Xxxxx X. Xxxx
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Title: Authorized
Signatory
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TREE
CITY INC.,
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an
Ontario corporation
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By:
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/s/
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Name:
Xxxxxxxx Xxxxxx
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Title: Authorized
Signatory
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By:
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/s/
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Name:
Xxxxx X. Xxxx
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Title: Authorized
Signatory
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Signature
Pages to First Amendment to Credit Agreement
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VERITAS
COMMUNICATIONS INC.,
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an
Ontario corporation
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By:
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/s/
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Name:
Xxxxxxxx Xxxxxx
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Title: Authorized
Signatory
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By:
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/s/
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Name:
Xxxxx X. Xxxx
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Title: Authorized
Signatory
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656712
ONTARIO LIMITED,
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an
Ontario corporation
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By:
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/s/
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Name:
Xxxxxxxx Xxxxxx
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Title: Authorized
Signatory
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By:
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/s/
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Name:
Xxxxx X. Xxxx
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Title: Authorized
Signatory
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NORTHSTAR
RESEARCH HOLDINGS CANADA
INC.,
an Ontario corporation
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By:
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/s/
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Name:
Xxxxxxxx Xxxxxx
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Title: Authorized
Signatory
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By:
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/s/
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Name:
Xxxxx X. Xxxx
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Title: Authorized
Signatory
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Signature
Pages to First Amendment to Credit Agreement
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NORTHSTAR
RESEARCH PARTNERS INC.,
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an
Ontario corporation
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By:
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/s/
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Name:
Xxxxxxxx Xxxxxx
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Title: Authorized
Signatory
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By:
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/s/
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Name:
Xxxxx X. Xxxx
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Title: Authorized
Signatory
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X
CONNECTIONS INC., an Ontario corporation
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By:
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/s/
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Name:
Xxxxxxxx Xxxxxx
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Title: Authorized
Signatory
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By:
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/s/
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Name:
Xxxxx X. Xxxx
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Title: Authorized
Signatory
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STUDIO
PICA INC., a federal company organized
under
the laws of Canada
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By:
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/s/
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Name:
Xxxxxxxx Xxxxxx
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Title: Authorized
Signatory
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By:
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/s/
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Name:
Xxxxx X. Xxxx
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Title: Authorized
Signatory
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ZIG
INC., an Ontario corporation
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By:
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/s/
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Name:
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Xxxxxxxx Xxxxxx |
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Title:
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Authorized
Signatory
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By:
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/s/
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Name:
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Xxxxx X. Xxxx |
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Title:
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Authorized
Signatory
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Signature
Pages to First Amendment to Credit Agreement
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ACCUMARK
COMMUNICATIONS INC.,
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an
Ontario corporation
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By:
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/s/
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Name:
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Xxxxxxxx Xxxxxx |
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Title:
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Authorized
Signatory
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By:
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/s/
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Name:
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Xxxxx X. Xxxx |
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Title:
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Authorized
Signatory
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MAXXCOM
(NOVA SCOTIA) CORP.,
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a
Nova Scotia corporation
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By:
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/s/
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Name:
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Xxxxxxxx Xxxxxx |
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Title:
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Authorized
Signatory
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By:
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/s/
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Name:
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Xxxxx X. Xxxx |
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Title:
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Authorized
Signatory
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XXXXX
XXXXX IRADESSO CORP.,
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an
Ontario corporation
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By:
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/s/
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Name:
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Xxxxxxxx Xxxxxx |
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Title:
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Authorized
Signatory
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By:
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/s/
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Name:
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Xxxxx X. Xxxx |
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Title:
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Authorized
Signatory
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Signature
Pages to First Amendment to Credit Agreement
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COMMUNIFX
PARTNERS LLC,
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a
Delaware limited liability company
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By:
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/s/
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Name:
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Xxxxx X. Xxxx |
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Title:
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Authorized
Signatory
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By:
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/s/
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Name:
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Xxxxxxxx Xxxxxx |
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Title:
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Authorized
Signatory
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Signature
Pages to First Amendment to Credit Agreement
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TEAM HOLDINGS
LLC,
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a
Delaware limited liability company
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By:
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/s/
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Name:
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Xxxxxxxx Xxxxxx |
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Title:
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Authorized
Signatory
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NEW TEAM
LLC,
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a
Delaware limited liability company
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By:
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/s/
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Name:
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Xxxxx X. Xxxx |
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Title:
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Authorized
Signatory
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OUTERACTIVE,
LLC,
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a
Delaware limited liability company
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By:
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/s/
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Name:
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Xxxxxxxx Xxxxxx |
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Title:
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Authorized
Signatory
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PULSE MARKETING,
LLC,
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a
Delaware limited liability company
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By:
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/s/
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Name:
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Xxxxx X. Xxxx |
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Title:
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Authorized
Signatory
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Signature
Pages to First Amendment to Credit Agreement
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XXXXX
FARGO CAPITAL FINANCE, LLC,
formerly known as Xxxxx Fargo Foothill, LLC, |
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a
Delaware limited liability company, as Agent and
as
a Lender
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By:
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/s/ |
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Title:
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Senior Vice President |
