Exhibit 10.1.1


 


CONSENT AND FIRST AMENDMENT TO AMENDED
AND RESTATED CREDIT AGREEMENT


 


THIS CONSENT AND FIRST
AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this "Amendment"), with an effective date of November 8, 2013,
is by and among the Lenders party hereto, WELLS FARGO CAPITAL FINANCE, 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 Amended and Restated Credit Agreement dated as of March
20, 2013 (as amended, modified or supplemented from time to time, the "Credit Agreement");


 


WHEREAS, Borrower has
advised Agent and Lenders that Parent desires to settle in cash all of the outstanding Stock Appreciation Rights (the "SARs")
issued pursuant to the Parent's Stock Appreciation Rights Plan adopted as of January 1, 2003, as amended, for an aggregate settlement
price in an amount not to exceed $80,000,000 (the "SAR Redemption"), and


 


WHEREAS, Borrower, Agent
and the Lenders have agreed to amend and modify the Credit Agreement as provided herein, 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.             Consent.
Subject to the satisfaction of the conditions set forth in Section 5 below and in reliance upon the representations and
warranties of the Loan Parties set forth in Section 6 below, Agent and Lenders hereby consent to (a) the SAR Redemption
and (b) the payment by the Loan Parties of dividends to Parent up to an aggregate amount necessary to permit Parent to consummate
the SAR Redemption (the "SAR Dividend") so long as, in each case, (i) at the time of making each of the SAR Redemption
and the SAR Dividend, no Default or Event of Default exists or would arise therefrom, (ii) Excess Availability, after giving effect
to each of the SAR Redemption and the SAR Dividend, exceeds the Applicable Excess Availability Amount, (iii) Availability, after
giving effect to each of the SAR Redemption and the SAR Dividend, exceeds the Applicable Availability Amount and (iv) each of the
SAR Redemption and the SAR Dividend are made on or before the date that is 30 Business Days following February 12, 2014. This is
a limited consent and shall not demonstrate a course of dealing or be deemed to constitute a consent to any other departure from
the requirements of any provision of the Credit Agreement.


 




    	 



    	 



    

 


3.             Amendments
to Credit Agreement. Subject to the satisfaction of the conditions set forth in Section 5 below and in reliance upon
the representations and warranties of the Loan Parties set forth in Section 6 below, the Credit Agreement is hereby amended
as follows:


 


(a)          Section
6.9(g) of the Credit Agreement is hereby amended and restated in its entirety as follows:


 


(g) so long as (i) no Default
or Event of Default exists or would otherwise arise as a result thereof, (ii) Excess Availability, after giving effect thereto,
exceeds the Applicable Excess Availability Amount and (iii) Availability, after giving effect thereto, exceeds the Applicable Availability
Amount (such conditions, collectively, the "Restricted Junior Payment Basket Conditions"), Parent and its Subsidiaries
may make Restricted Junior Payments in any fiscal year ending on or after December 31, 2013, not otherwise permitted pursuant to
clauses (a) through (f) above, (1) during the fiscal year ending December 31, 2013, up to an aggregate amount not to exceed, during
such fiscal year, an amount equal to (I) 75% of Excess Cash Flow for the period commencing January 1, 2012 and ending December
31, 2012, less (II) the sum of (x) the aggregate amount of Restricted Junior Payments made pursuant to clause (f) of this Section
6.9 in the fiscal year ending December 31, 2013 and (y) the aggregate amount of Investments made pursuant to clause (t) of
the definition of "Permitted Investments" in the fiscal year ending December 31, 2013 and (2) on any date after December
31, 2013, up to an aggregate amount not to exceed an amount equal to (I) 75% of Excess Cash Flow for the period commencing January
1, 2012 and ending on the last day of the then most recently ended fiscal quarter less (II) the sum of (x) the aggregate amount
of Restricted Junior Payments made pursuant to this clause (g) and clause (f) of this Section 6.9 during the
period commencing on January 1, 2013 and ending on such date and (y) the aggregate amount of Investments made pursuant to clause
(t) of the definition of "Permitted Investments" during the period commencing January 1, 2013 and ending on such date.


 


(b)          The
definition of "Excess Cash Flow" Set forth in Schedule 1.1 of the Credit Agreement is hereby amended and restated in
its entirety as follows:


 


"Excess Cash Flow"
means, for any fiscal period and with respect to Parent and its Subsidiaries determined on a consolidated basis, (a) EBITDA for
such fiscal period, minus (b) the sum of (i) the cash portion of Interest Expense paid during such fiscal period, (ii) the
cash portion of portion of Taxes paid during such fiscal period, (iii) Capital Expenditures made during such fiscal period (excluding
amounts related to Capital Leases), and (iv) all principal payments of Indebtedness made during such fiscal period (including payments
related to Capital Leases).


 


(c)          The
definition of "Permitted Investments" set forth in Schedule 1.1 of the Credit Agreement is hereby amended (i)
to delete the "and" appearing at the end of clause (r) and replace it with ",", (ii) to delete the "."
appearing at the end of clause (s) and replace it with ", and" and (iii) to add the following clause (t) following clause
(s):


 




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(t) so long
as the Restricted Junior Payment Basket Conditions are satisfied, any Investments made (i) during the fiscal year ending December
31, 2013, up to an amount not to exceed, during such fiscal year, an amount equal to (I) 75% of Excess Cash Flow for the period
commencing January 1, 2012 and ending December 31, 2012, less (II) the sum of the aggregate amount of Restricted Junior Payments
made pursuant to clauses (f) or (g) of Section 6.9 in the fiscal year ending December 31, 2013 and (ii) on any date after
December 31, 2013, up to an aggregate amount not to exceed an amount equal to (I) 75% of Excess Cash Flow for the period commencing
January 1, 2012 and ending on the last day of the then most recently ended fiscal quarter less (II) the sum of the aggregate amount
of Restricted Junior Payments made pursuant to clauses (f) or (g) of Section 6.9 and Investments made pursuant to this clause
(t) during the period commencing January 1, 2013 and ending on such date.


 


(d)          Section
5.12 of the Credit Agreement shall be amended to add the following proviso at the end of the first sentence thereof:


 


"; provided, further, that
in connection with any Real Property, Borrower will deliver such documents as are reasonably requested by any Lender in connection
with compliance with the National Flood Insurance Reform Act of 1994 and related legislation and regulations."


 


4.             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 other Loan Documents as appropriate to express the agreements contained herein. The Credit
Agreement (other than as amended by this Amendment) and the other Loan Documents shall remain unchanged and in full force and effect
in accordance with their original terms.


 


5.             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.


 


6.             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 (as amended by this Amendment) 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.


 




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7.             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. Receipt by telecopy or electronic mail of any executed signature page to this Amendment
shall constitute effective delivery of such signature page.


 


(d)          References.
Any references in the Credit Agreement to "this Agreement", and any references to the Credit Agreement contained in any
document, instrument or agreement executed in connection with the Credit Agreement shall be deemed to be a reference to the Credit
Agreement as modified by this Amendment.


 


(e)          Loan
Document. This Amendment shall constitute a "Loan Document" as defined in the Credit Agreement.


 


(f)          No
Waiver of Rights. Except as expressly set forth herein, the terms and provisions set forth in this Amendment shall not be deemed
to be a consent to the modification or waiver of any other term or condition of the Credit Agreement, and shall not be deemed to
waive or modify any rights of Agent or the Lenders.


 


8.             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.


 




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(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 Agreement to be executed and delivered as of the date first above written. 


 


	 	MDC PARTNERS INC., a federal company
	 	organized under the laws of Canada
	 	 	 
	 	By:	 
	 	Name:	 
	 	Title:	Authorized Signatory
	 	 	 
	 	By:	 
	 	Name:	 
	 	Title:	Authorized Signatory
	 	 	 
	 	MAXXCOM INC.,
	 	a Delaware corporation
	 	 	 
	 	By:	 
	 	Name:	 
	 	Title: 	Authorized Signatory
	 	 	 
	 	By:	 
	 	Name:	 
	 	Title: 	Authorized Signatory


 


Signature Pages to Consent and First Amendment to Amended and
Restated Credit Agreement


 




    	 



    	 



    

 


6 DEGREES INTEGRATED COMMUNICATIONS
CORP


 


72ANDSUNNY PARTNERS, LLC


 


ACCENT MARKETING SERVICES, L.L.C.


 


ACCUMARK PARTNERS INC. (formerly
known as 6 Degrees Integrated Communications Inc.)


 


ALLISON & PARTNERS LLC


 


ANOMALY PARTNERS LLC


 


ANOMALY INC.


 


ATTENTION PARTNERS LLC


 


BOOM MARKETING INC.


 


BRUCE MAU DESIGN INC.


 


BRUCE MAU DESIGN (USA) LLC


 


BRUCE MAU HOLDINGS LTD.


 


BRYAN MILLS IRADESSO CORP.


 


CAPITAL C PARTNERS GP INC.


 


CAPITAL C PARTNERS LP

By: Capital C Partners GP Inc.

     Its general partner


 


COLLE & MCVOY LLC


 


COMPUTER COMPOSITION OF CANADA LP


By: MDC Canada GP Inc.

      Its general partner


 


CONCENTRIC PARTNERS LLC


 


CRISPIN PORTER & BOGUSKY EUROPE AB


 


CRISPIN PORTER & BOGUSKY LLC


 


DONER PARTNERS LLC


 


DOTGLU LLC


 


Signature Pages to Consent and First Amendment to Amended and
Restated Credit Agreement


 




    	 



    	 



    

 


HELLO DESIGN, LLC


 


HL GROUP PARTNERS LLC


 


INTEGRATED MEDIA SOLUTIONS
PARTNERS LLC


 


KBP HOLDINGS LLC


 


KBS+P ATLANTA LLC (formerly
known as Fletcher Martin LLC)


 


KBS+P CANADA LP KBS+P CANADA SEC


By: MDC Canada GP Inc.

  Its general partner


 


KENNA COMMUNICATIONS GP INC.


 


KENNA COMMUNICATIONS LP


By: Kenna Communications GP Inc.

      Its general partner


 


KIRSHENBAUM BOND SENECAL &
PARTNERS LLC (formerly known as Kirshenbaum Bond & Partners LLC)


 


KIRSHENBAUM BOND & PARTNERS
WEST LLC


 


KWITTKEN PR LLC


 


LAIRD + PARTNERS NEW YORK LLC


 


LBN PARTNERS LLC


 


MAXXCOM GLOBAL MEDIA LLC


 


MAXXCOM INC.


 


MAXXCOM (USA) FINANCE COMPANY


 


MAXXCOM (USA) HOLDINGS INC.


 


MDC ACQUISITION INC.


 


MDC CANADA GP INC.


 


MDC CORPORATE (US) INC.


 


Signature Pages to Consent and First Amendment to Amended and
Restated Credit Agreement


 




    	 



    	 



    

 


MDC INNOVATION PARTNERS LLC
(d/b/a Spies & Assassins)


 


MDC TRAVEL, INC.


 


MONO ADVERTISING, LLC


 


NEW TEAM LLC


 


NORTHSTAR MANAGEMENT HOLDCO INC.


 


NORTHSTAR RESEARCH GP LLC


 


NORTHSTAR RESEARCH HOLDINGS
CANADA INC.


 


NORTHSTAR RESEARCH HOLDINGS USA LP


 


NORTHSTAR RESEARCH PARTNERS INC.


 


NORTHSTAR RESEARCH PARTNERS
(USA) LLC


 


OUTERACTIVE, LLC


 


PULSE MARKETING, LLC


 


REDSCOUT LLC


 


RELEVENT PARTNERS LLC


 


RJ PALMER PARTNERS LLC


 


SKINNY NYC LLC


 


SLOANE & COMPANY LLC


 


SOURCE MARKETING LLC


 


STUDIO PICA INC.


 


TARGETCAST LLC


 


TARGETCOM LLC


 


TC ACQUISITION INC.


 


THE ARSENAL LLC (formerly
known as Team Holdings LLC)


 


TRACK 21 LLC


 


Signature Pages to Consent and First Amendment to Amended and
Restated Credit Agreement


 




    	 



    	 



    

 


TRADE X PARTNERS LLC


 


UNION ADVERTISING CANADA LP


By: MDC Canada GP Inc.

      Its general partner


 


VARICK MEDIA MANAGEMENT LLC


 


VERITAS COMMUNICATIONS INC.


 


VITRO PARTNERS LLC


 


VITROROBERTSON LLC


 


X CONNECTIONS INC.


 


YAMAMOTO MOSS MACKENZIE, INC.


 


ZYMAN GROUP, LLC


 


	 	By:	 
	 	Name:	 
	 	Title:	Authorized Signatory
	 	 	 
	 	By:	 
	 	Name:	 
	 	Title:	
        Authorized Signatory

         



 


Signature Pages to Consent and First Amendment to Amended and
Restated Credit Agreement


 




    	 



    	 



    

 


 


	 	WELLS FARGO CAPITAL FINANCE, LLC, formerly known as Wells Fargo Foothill, LLC, as Agent and as a Lender
	 	 	 
	 	By:	 
	 	Name:	 
	 	Title:	 
	 	 	 
	 	JPMorgan Chase Bank, N.A., as a Lender
	 	 	 
	 	By:	 
	 	Name:	 
	 	Title:	 
	 	 	 
	 	Bank of Montreal, as a Lender
	 	 	 
	 	By:	 
	 	Name:	 
	 	Title:	 
	 	 	 
	 	Goldman Sachs Lending Partners LLC, as a Lender
	 	 	 
	 	By:	 
	 	Name:	 
	 	Title:	 


 


Signature Pages to Consent and First Amendment to Amended and
Restated Credit Agreement