SEVENTH AMENDMENT TO CREDIT AGREEMENT

EX-10.1 2 v238097_ex10-1.htm EXHIBIT 10.1
Exhibit 10.1
 
SEVENTH AMENDMENT TO CREDIT AGREEMENT
 
THIS SEVENTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is entered into as of September 21, 2011, by and among the Lenders party hereto, WELLS FARGO CAPITAL FINANCE, LLC, formerly known as Wells 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, the Credit Agreement is hereby amended as follows:
 
(a)           Subsection (e) of Section 7 of the Credit Agreement is hereby amended and restated in its entirety 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
3.50:1.0
 
For the 12 month period ending
December 31, 2010
4.00:1.0
 
For the 12 month period ending
March 31, 2011
4.00:1.0
 
For the 12 month period ending
June 30, 2011
4.15:1.0
 
For the 12 month period ending
September 30, 2011
3.90:1.0
 
For the 12 month period ending
December 31, 2011
3.75:1.0
 
For the 12 month period ending
March 31, 2012 and for the 12 month period
ending on the last day of each calendar quarter thereafter
 
 
 

 

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.
 
MDC PARTNERS INC., a federal company
organized under the laws of Canada
 
By:
/s/
Name:
Mitchell Gendel
Title:
Authorized Signatory
   
By:
/s/
Name:
Michael Sabatino
Title:
Authorized Signatory

MAXXCOM INC.,
a Delaware corporation
 
By:
/s/
Name:
Mitchell Gendel
Title:
Authorized Signatory
   
By:
/s/
Name:
Michael Sabatino
Title:
Authorized Signatory
 
Signature Pages to Seventh Amendment to Credit Agreement
 
 

 

72ANDSUNNY PARTNERS, LLC,
a Delaware limited liability company
 
ACCENT MARKETING SERVICES, L.L.C.,
a Delaware limited liability company
 
ADRENALINA LLC,
a Delaware limited liability company
 
ALLISON & PARTNERS LLC,
a Delaware limited liability company
 
ATTENTION PARTNERS LLC,
a Delaware limited liability company
 
ANOMALY PARTNERS LLC,
a Delaware limited liability company
 
BRUCE MAU DESIGN (USA) LLC,
a Delaware limited liability company
 
COLLE & MCVOY LLC,
a Delaware limited liability company
 
COLLE & MCVOY, 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
 
CONCENTRIC PARTNERS LLC,
a Delaware limited liability company
 
CRISPIN PORTER & BOGUSKY LLC,
a Delaware limited liability company
 
DOTGLU LLC,
a Delaware limited liability company
 
EXPECTING PRODUCTIONS, LLC,
a California limited liability company
By: Hudson and Sunset Media, LLC, its sole member
 
GUARDIANT WARRANTY, LLC,
a Delaware limited liability company
 
HELLO ACQUISITION INC.,
a Delaware corporation
 
HELLO DESIGN, LLC,
a California limited liability company
 
Signature Pages to Seventh Amendment to Credit Agreement
 
 
 

 

HL GROUP PARTNERS LLC,
a Delaware limited liability company
 
HUDSON 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
 
KBS+P ATLANTA LLC (formerly known as FLETCHER MARTIN LLC),
a Delaware limited liability company
 
KIRSHENBAUM BOND SENECAL & PARTNERS LLC (formerly known as Kirshenbaum Bond & Partners LLC), a Delaware limited liability company
 
KIRSHENBAUM BOND & PARTNERS WEST LLC, a Delaware limited liability company
 
KWITTKEN PR LLC,
a Delaware limited liability company
 
LAIRD + PARTNERS NEW YORK LLC,
a Delaware limited liability company
 
MARGEOTES FERTITTA POWELL 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
  
Signature Pages to Seventh Amendment to Credit Agreement
 
 
 

 

 
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
 
 Signature Pages to Seventh Amendment to Credit Agreement
 
 

 

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 MOSS MACKENZIE, INC.,
a Delaware corporation
 
ZG ACQUISITION INC. (for itself and as successor-in-interest to MDC/CPB Holdings Inc.),
a Delaware corporation
 
ZYMAN GROUP, LLC,
a Delaware limited liability company
 
By:
/s/
Name:
Mitchell Gendel
Title:
Authorized Signatory
   
By:
/s/
Name:
Michael Sabatino
Title:
Authorized Signatory

ASHTON POTTER CANADA INC.,
an Ontario corporation
 
HENDERSON BAS, an Ontario general partnership, by the members of its management committee
 
BRUCE MAU DESIGN INC.,
an Ontario corporation
 
BRUCE MAU HOLDINGS LTD.,
an Ontario corporation
 
Signature Pages to Seventh Amendment to Credit Agreement
 
 

 

TREE CITY INC.,
an Ontario corporation
 
VERITAS COMMUNICATIONS INC.,
an Ontario corporation
 
656712 ONTARIO LIMITED,
an Ontario corporation
 
NORTHSTAR RESEARCH HOLDINGS CANADA INC., an Ontario corporation
 
NORTHSTAR RESEARCH PARTNERS INC.,
an Ontario corporation
 
X CONNECTIONS INC., an Ontario corporation
 
STUDIO PICA INC., a federal company organized under the laws of Canada
 
6 DEGREES INTEGRATED COMMUNICATIONS INC.
(formerly known as Accumark Communications Inc.), an Ontario corporation
 
MAXXCOM (NOVA SCOTIA) CORP.,
a Nova Scotia corporation
 
BRYAN MILLS IRADESSO CORP.,
an Ontario corporation
 
KENNA COMMUNICATIONS LP,
an Ontario limited partnership
By:
Kenna Communications GP Inc.
 
Its general partner
 
CAPITAL C PARTNERS LP,
an Ontario limited partnership
By:
Capital C Partners GP Inc.
 
Its general partner
 
KENNA COMMUNICATIONS GP INC.,
an Ontario corporation
 
CAPITAL C PARTNERS GP INC.,
an Ontario corporation
 
CRISPIN PORTER + BOGUSKY CANADA LP,
an Ontario limited partnership
By: Its general partner, MDC Canada GP Inc.
 
KBS+P CANADA LP,
an Ontario limited partnership
By: Its general partner, MDC Canada GP Inc.
 
COMPUTER COMPOSITION OF CANADA LP,
an Ontario limited partnership
By: Its general partner, MDC Canada GP Inc.
 
Signature Pages to Seventh Amendment to Credit Agreement
 
 

 

MDC CANADA GP INC.,
a corporation incorporated under the laws of Canada
 
By:
/s/
Name:
Mitchell Gendel
Title:
Authorized Signatory
   
By:
/s/
Name:
Michael Sabatino
Title:
Authorized Signatory
 
Signature Pages to Seventh Amendment to Credit Agreement  
 
 

 

 
CRISPIN PORTER & BOGUSKY EUROPE AB
 
By:
/s/
Name:
Mitchell Gendel
Title:
Authorized Signatory
   
By:
/s/
Name:
Michael Sabatino
Title:
Authorized Signatory
  
Signature Pages to Seventh Amendment to Credit Agreement
 
 

 

WELLS FARGO CAPITAL FINANCE, LLC, formerly known as Wells Fargo Foothill, LLC, as Agent and as a Lender
 
By:
/s/
Name:
Paul Chao
Title:
Senior Vice President

JPMORGAN CHASE BANK, N.A., as a Lender
 
By:
/s/
Name:
Michelle Cipriani
Title:
Vice President

BANK OF MONTREAL, as a Lender
 
By:
  
Name:
  
Title:
  

GOLDMAN SACHS LENDING PARTNERS LLC, as a Lender
 
By:
  
Name:
  
Title:
  
 
Signature Pages to Seventh Amendment to Credit Agreement