Exhibit 10.3.4
MAXXCOM INC.
- and -
TD CAPITAL
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THIRD AMENDMENT TO
SUBORDINATED DEBENTURE
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August 15th, 2003
THIRD AMENDMENT
TO SUBORDINATED DEBENTURE
THIS THIRD AMENDMENT AGREEMENT is made as of the 15th day of August,
2003
BETWEEN:
MAXXCOM INC., a corporation governed by the laws of the
Province Ontario
(hereinafter called the "Corporation")
- and -
TD CAPITAL, a division of The Toronto-Dominion Bank, a bank
to which the Bank Act (Canada) applies
(hereinafter called "TD Capital")
RECITALS:
A. The Corporation issued to TD Capital a subordinated debenture in the
original principal amount of $40,000,000 on July 11, 2001, as amended
by the First Amendment Agreement made as of March 31, 2002 and the
Second Amendment Agreement made as of October 28, 2002 (the
"Subordinated Debenture").
B. The parties hereto have agreed to amend the Subordinated Debenture on
the terms and conditions set out herein.
NOW THEREFORE THIS AGREEMENT WITNESSES that, in consideration of the
covenants and agreements herein contained, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto agree as follows:
SECTION 1 - NEW DEFINITIONS
Section 1.1 of the Subordinated Debenture is amended by adding the
following definitions.
"Senior Amendment Agreement # 4" means the Fourth Amendment Agreement
to the Existing Senior Credit Agreement made as of August 15, 2003 between the
Borrower, Maxxcom US, certain Subsidiaries of the Borrower and the Existing
Senior Lenders;
"Third Amendment" means the Third Amendment Agreement to this
Debenture made as of August 15, 2003.
SECTION 2 - AMENDED DEFINITIONS
1. The definition of "Acquirecos" in Section 1.1 of the Subordinated
Debenture is amended to delete references to ET Acquisition Inc. (a
Delaware corporation) and BZ Acquisition Inc. (a Delaware
corporation).
2. The definition of "CanSubCos" in Section 1.1 of the Subordinated
Debenture is amended to include references to 2026646 Ontario Limited
(an Ontario corporation).
3. The definition of "Foreign Opcos" in Section 1.1 of the Subordinated
Debenture is deleted and replaced with the following provision:
"Foreign Opcos" means each of Oval (1873) Limited,
Interfocus Network Limited and each other Person in which a
controlling interest is directly or indirectly acquired by
the Borrower from time to time which is not an Acquireco, a
CanSubCo, a Xxxxx or an Opco and "Foreign Opco" means any
one of them.
4. The definition of "Guarantors" in Section 1.1 of the Subordinated
Debenture is deleted and replaced with the following provision:
"Guarantors" means Maxxcom US, Maxxcom (Nova Scotia) Corp.,
Maxxcom (USA) Finance Company, Maxxcom (USA) Holdings Inc.,
1220777 Ontario Limited, 1385544 Ontario Limited, Maxxcom
Interactive Inc., Mackenzie Marketing, Inc., MF + P
Acquisition Co., SMI Acquisition Co., Accent Acquisition
Co., FMA Acquisition Co., TC Acquisition Inc., Xxxxxxxx
Direct, Inc., Bratskeir & Company, Inc., CPB Acquisition
Inc., Cormark Communications Inc., Xxxxxxxx & Partners
Communications Ltd., Xxxxxxx Xxxx Xxxxxx Xxxxxxx Inc.,
Studiotype Inc., 2026646 Ontario Limited, Oval (1873)
Limited, Interfocus Network Limited, Interfocus Technology
Group Limited, Interfocus Technology USA, Inc. (formerly
known as Grange USA, Inc.) and each other Wholly-Owned
Subsidiary of Maxxcom from time to time and "Guarantor"
means any one of them.
5. The definition of "Restricted Parties" in Section 1.1 of the
Subordinated Debenture is amended to include references to Interfocus
Direct Limited and Interfocus Technology Limited.
SECTION 3 - ADDITIONAL COVENANT
Section 4.4 of the Subordinated Debenture is amended by
adding the following provision:
4.4.33 cause or permit any of Interfocus Technology Group Limited,
Interfocus Technology USA, Inc. (formerly known as Grange USA, Inc.),
Interfocus Direct Limited and Interfocus Technology Limited to own
any assets, enter into any transactions or carry on any business or
undertaking whatsoever.
SECTION 4 - AMENDMENT REGARDING ASSIGNMENT OF INTERCORPORATE DOCUMENTS
The following provision is added as Section 4.6 of the
Subordinated Debenture:
4.6 Agreements and Acknowledgments regarding Assignments of
Intercorporate Documents
The Borrower, in relation to any Intercorporate Document to
which it is a party or which is made in its favour (each an "Applicable
Intercorporate Document"), hereby:
(a) acknowledges the assignment of each Applicable
Intercorporate Document pursuant to the applicable
Credit Document and consents to each such
assignment for all purposes;
(b) agrees that all payments required to be made under
or in connection with each Applicable
Intercorporate Document to the Agent shall be made
to the Agent without regard to any set-off or
counterclaim between the parties to any Applicable
Intercorporate Document;
(c) agrees that it shall not, without the prior written
consent of the Majority Holders, given in
accordance with the provisions of the Debenture,
enforce any of its rights under any of the
Applicable Intercorporate Documents;
(d) acknowledges that all Applicable Intercorporate
Documents are subordinated for all purposes to the
Security Documents; and
(e) acknowledges that notwithstanding the assignment
and transfer of each Applicable Intercorporate
Document to the Agent by way of security, neither
the Agent nor any Holder shall incur any liability
to it or to any other Person under any such
Applicable Intercorporate Document, except to
account for monies the Agent or any Holder receives
thereunder and except, in the case of the Agent, in
respect of any actions the Agent or any such Holder
takes in the course of the exercise of any rights
and remedies of the Agent.
SECTION 5 - CONSENTS
Subject to the terms and conditions hereof, the Agent, on
its own behalf and on behalf of the Holders, hereby consents to the Senior
Amendment Agreement # 4.
SECTION 6 - CONDITIONS PRECEDENT TO EFFECTIVENESS OF THIS THIRD AMENDMENT
AGREEMENT
This Third Amendment Agreement shall become binding on the
Holders only upon satisfaction of the following conditions precedent:
(a) execution and deliver of this Third Amendment
Agreement by the Corporation;
(b) execution and delivery of this Third Amendment
Agreement by TD Capital;
(c) other than as disclosed in the Agreement dated as
of August 13, 2003 between the Corporation, Maxxcom
US, certain of the Guarantors and TD Capital, as
lender and agent, relating to the reorganization of
Interfocus Group Limited and its Subsidiaries, no
Event of Default or Pending Event of Default shall
have occurred and be continuing as at the date of
satisfaction of all of the foregoing conditions
precedent;
(d) the Agent having received evidence, reasonably
satisfactory to it, that the Senior Agent and the
Senior Lenders have, for the purposes of the
Existing Senior Credit Agreement, consented to each
of the matters set forth in this Third Amendment
Agreement or that such consent is not required
under the Existing Senior Credit Agreement and the
Agent being satisfied with the other amendments to
the Existing Senior Credit Documents made in that
connection;
(e) the Agent having received the favourable opinion of
Blake, Xxxxxxx & Xxxxxxx LLP, Ontario counsel to
the Corporation, in relation to, inter alia, the
enforceability of this Third Amendment Agreement
and other related documents; and
(f) such corporate resolutions, incumbency and other
certificates of the Corporation, the Guarantors and
other Restricted Parties as the Agent may
reasonably request in connection with this Third
Amendment Agreement and the transactions
contemplated hereby.
SECTION 7 - CONTINUING EFFECT OF SUBORDINATED DEBENTURE
Except as amended by this Third Amendment Agreement, the
Subordinated Debenture shall remain in full three and effect, without
amendment, and is hereby ratified and confirmed.
SECTION 8 - COUNTERPARTS AND FACSIMILE
This Third Amendment Agreement may be executed in any number
of counterparts, each of which when executed and delivered shall be deemed to
be an original and such counterparts together shall constitute one and the
same agreement. For the purposes of this Section, the delivery of a facsimile
copy of an executed counterpart of this Third Amendment Agreement shall be
deemed to be valid execution and delivery thereof.
SECTION 9 - FURTHER ASSURANCES
Each of the Corporation and the Guarantors shall promptly
do, make, execute or deliver, or cause to be done, made, executed or
delivered, all such further acts, documents and things as the Agent may
require from time to time for the purposes of giving effect to this Third
Amendment Agreement and shall use reasonable efforts and take all such steps
as may be within its power to implement, to the full extent, the provisions of
this Third Amendment Agreement.
SECTION 10 - GOVERNING LAW
This Third Amendment Agreement shall be governed by and
construed in accordance with the laws of the Province of Ontario, Canada and
the federal laws of Canada applicable therein. The parties hereto irrevocably
and unconditionally submit to the non-exclusive jurisdiction of any court of
the Province of Ontario, Canada sitting in Toronto over any suit, action or
proceeding arising out of or relating to this Third Amendment Agreement. Each
party hereto agrees that a final judgment in any such suit, action or
proceeding brought in any such court shall be conclusive and binding upon the
parties hereto, and may be enforced in any other courts to whose jurisdiction
the parties hereto are or may be subject, by suit upon such judgment.
SECTION 11 - INTERPRETATION
Capitalized terms used herein shall, unless otherwise
defined or indicated herein, have the respective meanings ascribed thereto in
the Subordinated Debenture. This Third Amendment Agreement and the
Subordinated Debenture shall be read together and have effect so far as
practicable as though the provisions thereof and the relevant provisions
hereof are contained in one document.
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IN WITNESS OF WHICH, the parties have executed this Agreement.
MAXXCOM INC.
By:/s/ X. Xxxxxx
______________________________________
X. Xxxxxx
Authorized Signing Officer
By:/s/ X. Xxxxxxx
______________________________________
X. Xxxxxxx
Authorized Signing Officer
TD CAPITAL, a division of
The Toronto-Dominion Bank
By:/s/ X. Xxxxxxxx
_______________________________________
Name: Xxx Xxxxxxxx
Title: Managing Director
By:[illegible]
_______________________________________
Name: [illegible]
Title: Managing Director
