FIFTH AMENDMENT TO CREDIT AGREEMENT
Exhibit 10.1.1
FIFTH AMENDMENT TO CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), with an effective date as of March 25, 2011, is entered into 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. Amendment to Credit Agreement. Subject to the satisfaction of the conditions set forth in Section 4 below and in reliance upon the representations and warranties of the Loan Parties set forth in Section 5 below, Subsection (a) of Section 7 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:
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Applicable Amount
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Applicable Period
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| $ | 85,000,000 |
For the 12 month period ending
March 31, 2011 and for the 12 month period
ending on the last day of each calendar quarter thereafter
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; provided, that, concurrently with the closing of each Permitted Acquisition consummated after March 31, 2011, 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.
3. Ratification; Other Acknowledgments. This Amendment, subject to satisfaction of the conditions provided below, shall constitute an amendment to the Credit Agreement and all of the Loan Documents as appropriate to express the agreements contained herein. 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.
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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]
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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/ Xxxxxxxx Xxxxxx
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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/ Xxxxxxx Xxxxxxxx
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Name:
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Xxxxxxx Xxxxxxxx
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Title:
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Authorized Signatory
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MAXXCOM INC.,
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a Delaware corporation
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By:
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/s/ Xxxxxxxx Xxxxxx
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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/ Xxxxxxx Xxxxxxxx
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Name:
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Xxxxxxx Xxxxxxxx
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Title:
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Authorized Signatory
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Signature Page to Fifth Amendment to Credit Agreement
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72ANDSUNNY PARTNERS, LLC,
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a Delaware limited liability company
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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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XXXXXXX & PARTNERS 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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ANOMALY 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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COMMUNIFX PARTNERS LLC,
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a Delaware limited liability company
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COMPANY C COMMUNICATIONS, INC.,
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a Delaware corporation
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COMPANY C COMMUNICATIONS LLC,
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a Delaware limited liability company
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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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EXPECTING PRODUCTIONS, LLC,
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a California limited liability company
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By: Xxxxxx and Sunset Media, LLC, its sole member
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GUARDIANT WARRANTY, LLC,
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a Delaware limited liability company
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Signature Page to Fifth Amendment to Credit Agreement
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HELLO ACQUISITION INC.,
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a Delaware corporation
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HELLO DESIGN, LLC,
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a California limited liability company
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HL GROUP PARTNERS LLC,
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a Delaware limited liability company
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XXXXXX AND SUNSET MEDIA, LLC (formerly known as Shout Media LLC),
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a California limited liability company
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HW ACQUISITION LLC,
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a Delaware limited liability company
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INTEGRATED MEDIA SOLUTIONS PARTNERS LLC, a Delaware limited liability company
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KBP HOLDINGS LLC,
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a Delaware limited liability company
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KBS+P ATLANTA LLC (formerly known as XXXXXXXX XXXXXX LLC),
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a Delaware limited liability company
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XXXXXXXXXXX BOND XXXXXXX & PARTNERS LLC (formerly known as Xxxxxxxxxxx Bond & Partners LLC), a Delaware limited liability company
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XXXXXXXXXXX BOND & PARTNERS WEST LLC, a Delaware limited liability company
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KWITTKEN PR 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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Signature Page to Fifth Amendment to Credit Agreement
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MDC CORPORATE (US) INC.,
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a Delaware corporation
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MDC INNOVATION PARTNERS LLC
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(d/b/a Spies & Assassins),
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a Delaware limited liability company
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MDC TRAVEL, INC.,
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a Delaware corporation
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MDC/CPB HOLDINGS INC.
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(formerly known as CPB Acquisition 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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NEW TEAM 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, a Delaware limited liability company
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OUTERACTIVE, LLC,
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a Delaware limited liability company
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PULSE MARKETING, 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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RELEVENT PARTNERS LLC,
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a Delaware limited liability company
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SKINNY NYC LLC,
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a Delaware limited liability company
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Signature Page to Fifth Amendment to Credit Agreement
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SLOANE & COMPANY 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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THE ARSENAL LLC
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(formerly known as Team Holdings LLC),
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a Delaware limited liability company
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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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VARICK MEDIA MANAGEMENT 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/ Xxxxxxxx Xxxxxx
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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/ Xxxxxxx Xxxxxxxx
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Name:
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Xxxxxxx Xxxxxxxx
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Title:
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Authorized Signatory
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Signature Page to Fifth Amendment to Credit Agreement
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XXXXXX XXXXXX CANADA INC.,
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an Ontario corporation
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XXXXXXXXX BAS, an Ontario general partnership, by the members of its management committee
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COMPUTER COMPOSITION OF CANADA INC.,
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an Ontario corporation
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XXXXX XXX DESIGN INC.,
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an Ontario corporation
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XXXXX XXX HOLDINGS LTD.,
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an Ontario corporation
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KBS+P CANADA INC. (formerly known as Xxxxxx Xxxxxxx Communications Inc.),
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an Ontario corporation
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TREE CITY INC.,
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an Ontario corporation
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VERITAS COMMUNICATIONS INC.,
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an Ontario corporation
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656712 ONTARIO LIMITED,
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an Ontario corporation
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NORTHSTAR RESEARCH HOLDINGS CANADA INC., an Ontario corporation
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NORTHSTAR RESEARCH PARTNERS INC.,
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an Ontario corporation
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X CONNECTIONS INC., an Ontario corporation
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STUDIO PICA INC., a federal company organized under the laws of Canada
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XXXXXXX XXXXXX + BOGUSKY CANADA INC. (formerly known as Zig Inc.), an Ontario corporation
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6 DEGREES INTEGRATED COMMUNICATIONS INC. (formerly known as Accumark Communications Inc.), an Ontario corporation
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Signature Page to Fifth Amendment to Credit Agreement
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MAXXCOM (NOVA SCOTIA) CORP.,
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a Nova Scotia corporation
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XXXXX XXXXX IRADESSO CORP.,
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an Ontario corporation
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KENNA COMMUNICATIONS LP,
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an Ontario limited partnership
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By: Kenna Communications GP Inc.
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Its general partner
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CAPITAL C PARTNERS LP,
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an Ontario limited partnership
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By: Capital C Partners GP Inc.
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Its general partner
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KENNA COMMUNICATIONS GP INC.,
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an Ontario corporation
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CAPITAL C PARTNERS GP INC.,
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an Ontario corporation
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By:
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/s/ Xxxxxxxx Xxxxxx
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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/ Xxxxxxx Xxxxxxxx
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Name:
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Xxxxxxx Xxxxxxxx
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Title:
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Authorized Signatory
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Signature Page to Fifth Amendment to Credit Agreement
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XXXXXXX XXXXXX & BOGUSKY EUROPE AB
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By:
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/s/ Xxxxxxxx Xxxxxx
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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/ Xxxxxxx Xxxxxxxx
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Name:
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Xxxxxxx Xxxxxxxx
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Title:
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Authorized Signatory
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Signature Page to Fifth Amendment to Credit Agreement
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XXXXX FARGO CAPITAL FINANCE, LLC, formerly known as Xxxxx Fargo Foothill, LLC, as Agent and as a Lender
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By:
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/s/ Xxxx X. Xxxx |
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Name:
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Xxxx X. Xxxx |
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Title:
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SVP |
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JPMORGAN CHASE BANK, N.A., as a Lender
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By:
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/s/ Xxxxxxxx Xxxxxxxx |
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Name:
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Xxxxxxxx Xxxxxxxx |
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Title:
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Vice President |
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BANK OF MONTREAL, as a Lender
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By:
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/s/ Xxxxxxx Xxxxxxxxxxx |
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Name:
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Xxxxxxx Xxxxxxxxxxx |
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Title:
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Director |
Signature Page to Fifth Amendment to Credit Agreement
