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