EX-10 13 tor45700.txt EX. 10.2.4 Exhibit 10.2.4 THIS THIRD AMENDMENT AGREEMENT is made as of the 28th day of October, 2002. B E T W E E N: MAXXCOM INC. a corporation incorporated under the laws of the Province of Ontario ("Maxxcom") - and - MAXXCOM INC. a corporation incorporated under the - AND - 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. ET ACQUISITION INC. BZ ACQUISITION INC. CHINNICI DIRECT, INC. BRATSKEIR & COMPANY, INC. CPB ACQUISITION INC. CORMARK COMMUNICATIONS INC. CAMPBELL & PARTNERS COMMUNICATIONS LTD. AMBROSE CARR LINTON CARROLL INC. STUDIOTYPE INC. AS GUARANTORS -AND- THE BANK OF NOVA SCOTIA a bank to which the Bank Act (Canada) applies, in its capacity as administrative agent hereunder AS ADMINISTRATIVE AGENT -AND- THE BANK OF NOVA SCOTIA a bank to which the Bank Act (Canada) applies, in its capacity as a lender hereunder - and - CANADIAN IMPERIAL BANK OF COMMERCE a bank to which the Bank Act (Canada) applies, in its capacity as a lender hereunder - and - BANK OF MONTREAL a bank to which the Bank Act (Canada) applies, in its capacity as a lender hereunder - and - THE TORONTO-DOMINION BANK a bank to which the Bank Act (Canada) applies, in its capacity as a lender hereunder - and - ROYAL BANK OF CANADA a bank to which the Bank Act (Canada) applies, in its capacity as a lender hereunder - and - THE BANK OF NOVA SCOTIA by its Atlanta Agency, in its capacity as a lender hereunder - and - CIBC INC. a financial institution incorporated under the laws of the State of Delaware, in its capacity as a lender hereunder - and - BANK OF MONTREAL by its Chicago branch, in its capacity as a lender hereunder - and - TORONTO DOMINION (TEXAS), INC. a corporation incorporated under the laws of Delaware, in its capacity as a lender hereunder - and - ROYAL BANK OF CANADA by its Grand Cayman (North America No. 1) Branch, in its capacity as a lender hereunder AS LENDERS RECITALS: A. The Borrowers, certain of the Guarantors, the Agent and the Lenders are parties to a Second Amended and Restated Credit Agreement dated as of 11 July 2001, as amended by a first amendment agreement made as of 31 March 2002 and as further amended by a second amendment agreement made as of 30 June 2002 (the "Credit Agreement"). B. Maxxcom has requested that the Lenders: (a) amend the financial covenants in the Credit Agreement relating to the Senior Debt Ratio and the Total Debt Ratio from and after the fiscal quarter ending 31 December 2002; (b) amend certain provisions of the Credit Agreement to exclude the effect of certain one-time restructuring costs incurred in 2002 relating to Maxxcom's restructuring plan from and after the fiscal quarter ending 31 December 2002; (c) exclude the results of operations for Cormark Communications Inc. for the purpose of calculating the financial covenants in the Credit Agreement from and after the fiscal quarter ending 31 December 2002; (d) permit the funding of Minority Acquisitions under the Credit Agreement of up to Cdn. $5,000,000 annually and to include the EBITDA or Qualifying Income resulting from such Minority Acquisitions on a pro forma basis for the purpose of calculating the financial covenants in the Credit Agreement, from and after the fiscal quarter ending 31 December 2002; and (e) amend certain provisions of the Credit Agreement to exclude the effect of certain one-time restructuring costs incurred in 2003 relating to the implementation of Maxxcom's restructuring plan. C. The Lenders have agreed to such requests on the terms and conditions set forth herein and the parties are entering into this Third Amendment Agreement to give effect thereto and to make the other changes to the Credit Agreement reflected herein. NOW THEREFORE in consideration of these premises and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged and intending to be legally bound hereby, the parties agree as follows: Section 1 - New Definition Section 1.1 of the Credit Agreement is amended by adding the following definitions: 1.1.35.1 "Chinnici Transactions" means: (a) the redemption by Chinnici Direct, LLC of its membership interests held by each of Margeotes/Ferititta + Partners LLC and Gruppo Chinnici, Inc. in Chinnici Direct, LLC for U.S. $1; (b) the transfer of all of the assets of Chinnici Direct, LLC, valued at approximately U.S. $900,000, to CDI Acquisition Co. in consideration of the assumption by CDI Acquisition Co. of all liabilities of Chinnici Direct, LLC; (c) the change of name of CDI Acquisition Co. to "Chinnici Direct, Inc."; and (d) the dissolution of Chinnici Direct, LLC pursuant to the General Corporation Law of the State of Delaware. 1.1.63.1 "e-Source Transactions" means: (a) the transfer of all of the assets of e-Source Drive to Web Marketing LLC to Source Marketing LLC in consideration of the assumption by Source Marketing LLC of all liabilities of e-Source Drive to Web Marketing LLC; and (b) the dissolution of e-Source Drive to Web Marketing LLC pursuant to the General Corporation Law of the State of Delaware. 1.1.88.1 "Interfocus Transactions" means: (a) the share exchange transaction to be entered into between Interfocus Group Limited and Mr. Christopher Zandonati by which Interfocus Group Limited will acquire all of the issued and outstanding shares of Interfocus Technology Group Limited not currently owned by it from Mr. Zandonati in exchange for the issuance of approximately 7,452 of its shares and the payment to Mr. Zandonati of (pound)7,000; (b) the transfer of all of the assets of Interfocus Network Limited to Interfocus Technology Limited in consideration of the assumption by Interfocus Technology Limited of all of the liabilities of Interfocus Network Limited and a promissory note made by Interfocus Technology Limited to Interfocus Network Limited for the balance which is estimated to be approximately (pound)190,000 (the "ITL Promissory Note"); (c) Interfocus Network Limited maintaining its existence under the Companies Act 1985 (United Kingdom), but owning no assets (other than the ITL Promissory Note) and carrying on no business whatsoever; (d) the transfer of all of the issued and outstanding shares of Interfocus Technology Limited from Interfocus Technology Group Limited to Interfocus Group Limited in consideration of a promissory note made by Interfocus Group Limited to Interfocus Technology Group Limited in the amount of approximately (pound)900,000; (e) the change of name of Interfocus Technology Limited to "Interfocus Networks Limited"; and (f) the change of name of Interfocus Network Limited to "Interfocus Technology Limited". 1.1.176.1 "Third Amendment Agreement" means the Third Amendment Agreement to this Agreement made as of 28 October 2002. Section 2 - Amended Definitions Section 1.1.1 of the Credit Agreement is deleted and replaced with the following provision: 1.1.1 "Acquirecos" means MF + P Acquisition Co. (a Delaware corporation), SMI Acquisition Co. (a Delaware corporation), Accent Acquisition Co. (a Delaware corporation), FMA Acquisition Co. (a Delaware corporation), TC Acquisition Inc. (a Delaware corporation), ET Acquisition Inc. (a Delaware corporation), BZ Acquisition Inc. (a Delaware corporation), CPB Acquisition Inc. (a Delaware corporation) and each other direct or indirect Wholly-Owned Subsidiary of Maxxcom which is not an Opco and which controls or acquires an Opco from time to time and "Acquireco" means any one of them. Section 1.1.59 of the Credit Agreement is deleted and replaced with the following provision: 1.1.59 "EBITDA" means, with respect to any fiscal period and any Person, the net income of such Person determined in accordance with GAAP for such fiscal period plus or minus, to the extent deducted or added in determining such net income, without duplication: (a) income taxes paid or payable or refunds received or receivable in respect of income taxes; (b) interest paid or payable or received or receivable; (c) extraordinary gains or losses; (d) amortization, depreciation and other non-cash expenses; and (e) goodwill charges net of income taxes. For greater certainty, when calculating EBITDA: (f) for the purposes of determining the Total Debt Ratio and the Senior Debt Ratio only: (i) the amount of income received or receivable from Non-wholly-owned Subsidiaries shall be excluded, other than Qualifying Income, which Qualifying Income shall have the effect of increasing EBITDA, if a positive number, and to the extent that Qualifying Income is a negative number, EBITDA shall be decreased by such amount; (ii) from and after the fiscal quarter ending 31 December 2002 in relation to any permitted Minority Acquisition completed after 30 September 2002: (A) where such permitted Minority Acquisition does not result in the relevant Restricted Party becoming a Wholly-Owned Subsidiary of Maxxcom, the amount of Qualifying Income attributable to such Minority Acquisition to the extent actually received by the prior holder of the Capital Stock subject to such Minority Acquisition, shall be added to EBITDA, if a positive number, and be subtracted from EBITDA, if a negative number, on a pro forma basis commencing with the three full fiscal quarters completed prior to the date of the completion of such Minority Acquisition; and (B) where such permitted Minority Acquisition results in the relevant Restricted Party becoming a Wholly-Owned Subsidiary of Maxxcom and such Restricted Party (and all other Restricted Parties) have delivered security and guarantees analogous to the Security required under Section 3.1 in relation to such newly wholly-owned Restricted Party, the amount of EBITDA attributable to such Restricted Party shall be added to EBITDA, if a positive number, and be subtracted from EBITDA, if a negative number, on a pro forma basis commencing with the three full fiscal quarters completed prior to the date of the completion of such Minority Acquisition by which the relevant Restricted Party became a Wholly-Owned Subsidiary of Maxxcom. (g) for the purposes of determining the Total Debt Ratio, the Senior Debt Ratio and the Interest Coverage Ratio, there shall be excluded: (i) the EBITDA which would otherwise be attributable to Accent Marketing Services, L.L.C.; (ii) the EBITDA which would otherwise be attributable to any Restricted Party which has incurred Refinanced Intercorporate Debt; (iii) the EBITDA which would otherwise be attributable to 656712 Ontario Limited after 31 March 2001 until the time that its indebtedness to The Toronto-Dominion Bank is replaced with Permitted Intercorporate Debt; and (iv) the EBITDA which would otherwise be attributable to Cormark Communication Inc. (on a pro forma twelve month basis) from and after 31 December 2002; (h) for the purposes of determining the Total Debt Ratio, the Senior Debt Ratio and the Interest Coverage Ratio as at 31 March 2002, 30 June 2002, 30 September 2002 and 31 December 2002, the financial results of the Discontinued Operations shall be excluded from the calculation of EBITDA; (i) for the purposes of determining the Total Debt Ratio, the Senior Debt Ratio and the Interest Coverage Ratio as at 31 March 2002, 30 June 2002 and 30 September 2002, the Restructuring Charges, to the extent deducted in determining net income in the calculation of EBITDA, shall be added to EBITDA; (j) for the purposes of determining the Total Debt Ratio, the Senior Debt Ratio and the Interest Coverage Ratio as at 31 December 2002, 31 March 2003, 30 June 2003 and 30 September 2003, that amount actually incurred by Maxxcom on a consolidated basis for fees, costs, expenses and charges relating to the rationalization of Maxxcom and the other Restricted Parties incurred between 1 January 2002 and 31 December 2002 not in excess of Cdn. $700,000 to the extent deducted in determining net income in the calculation of EBITDA for such period, shall be added to EBITDA; and (k) for the purposes of determining the Total Debt Ratio, the Senior Debt Ratio and the Interest Coverage Ratio for each fiscal quarter of Maxxcom ending after 31 December 2002, there shall be added back to EBITDA for the relevant 12-month period ending on such fiscal quarter end that amount actually incurred by Maxxcom on a consolidated basis in such 12-month period, for fees, costs, expenses and charges relating (not in excess, in the aggregate for all relevant periods, of Cdn. $500,000) to the negotiation of the deferral of Earnout Payments required to be paid during the period from 1 January 2003 to 31 December 2003, to the extent such fees, costs, expenses and charges were deducted in determining net income in the calculation of EBITDA for such 12-month period. Section 1.1.74 of the Credit Agreement is deleted and replaced with the following provision: 1.1.74 "Foreign Opcos" means Interfocus Group Limited, Interfocus Direct Limited, Interfocus Network Limited, Interfocus Technology Group Limited (formerly known as Grange Advertising Limited), Interfocus Technology Limited (formerly known as Grange Advertising and Marketing Communications Limited) and Grange USA, Inc. and each other Person in which a Controlling Interest is directly acquired by Maxxcom from time to time or is indirectly acquired by Maxxcom from time to time in accordance with Section 1.1.126(f), none of which is an Acquireco, a CanSubco, a Finco or an Opco and "Foreign Opco" means any one of them. Section 1.1.79 of the Credit Agreement is deleted and replaced with the following provision: 1.1.79.1 "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., ET Acquisition Inc., BZ Acquisition Inc., Chinnici Direct, Inc., Bratskeir & Company, Inc., CPB Acquisition Inc., Cormark Communications Inc., Campbell & Partners Communications Ltd., Ambrose Carr Linton Carroll Inc., Studiotype Inc. and each other Wholly-Owned Subsidiary of Maxxcom from time to time and "Guarantor" means any one of them. Section 1.1.118 of the Credit Agreement is deleted and replaced with the following provision: 1.1.118 "Opcos" means Mackenzie Marketing, Inc. (a Delaware corporation), Colle & McVoy, Inc. (a Minnesota corporation), Margeotes/Ferititta + Partners LLC (a Delaware corporation), Source Marketing LLC (a New York corporation), Accent Marketing Services, L.L.C. (a Delaware corporation), Fletcher Martin Ewing LLC (a Delaware corporation), Targetcom LLC (a Delaware corporation), E-Telligence LLC (a Delaware corporation), Bang!Zoom LLC (a Delaware corporation), Bratskeir & Company, Inc. (a Delaware corporation), Chinnici Direct, Inc. (a Delaware corporation), Crispin Porter & Bogusky LLC (a Delaware corporation), Crispin Porter & Bogusky L.A., LLC (a Delaware corporation) and each other Person in which a Controlling Interest is directly or indirectly acquired by Maxxcom US from time to time which is not an Acquireco and "Opco" means any one of them. Section 3 - Amendment to the Credit Limit Section 2.1(a) of the Credit Agreement is deleted and replaced with the following provision: 2.1 (a) Upon and subject to the terms and conditions of this Agreement, the Lenders agree to continue to provide a revolving term credit for the use of the Borrowers in the amount of up to Cdn. $60,000,000 or the equivalent thereof in U.S. Dollars (as reduced from time to time in accordance with this Agreement, the "Credit Limit"). The principal amount of any Advance under the Credit which is repaid may be reborrowed from time to time, subject to the terms of this Agreement. Section 4 - Amendment to Credit Limit Repayment Section 2.7(a) of the Credit Agreement is deleted and replaced with the following provision: 2.7 (a) The Credit Limit shall be permanently reduced on the last day of each fiscal quarter of Maxxcom occurring after 30 June 2002 (each a "Mandatory Reduction Date") by the applicable amounts specified below:
Mandatory Reduction Dates Occurring from and including Amount of Reduction -------------------------------------------------------------------------------- 30 September 2002 to 30 June 2003 NIL 30 September 2003 Cdn. $1,900,000 31 December 2003 to 31 March 2005 Cdn. $7,000,000
Section 5 - Amendment to Financial Covenants (a) Section 7.2(b) of the Credit Agreement is deleted and replaced with the following provision: 7.2 (b) For each time period set forth below, Maxxcom on a consolidated basis shall maintain a Senior Debt Ratio of not more than the ratios set forth below:
Period Ratio ------ ----- From 1 October 2002 to 30 September 2003 3.25 to 1.0 From 1 October 2003 to 31 December 2003 3.00 to 1.0 From 1 January 2004 to 31 March 2004 2.25 to 1.0 Thereafter 2.00 to 1.0
(b) Section 7.2(c) of the Credit Agreement is deleted and replaced with the following provision: 7.2 (c) For each time period set forth below, Maxxcom on a consolidated basis shall maintain a Total Debt Ratio of not more than the ratios set forth below:
Period Ratio ------ ----- From 1 October 2002 to 30 September 2003 6.25 to 1.0 From 1 October 2003 to 31 December 2003 6.00 to 1.0 From 1 January 2004 to 31 March 2004 4.50 to 1.0 From 1 April 2004 to 30 June 2004 4.25 to 1.0 From 1 July 2004 to 30 September 2004 3.75 to 1.0 From 1 October 2004 to 31 December 2004 3.50 to 1.0 Thereafter 3.00 to 1.0
Section 6 - Amendments to Positive Covenants (a) The following provision is added as Section 7.1(hh) of the Credit Agreement: 7.1 (hh) use best efforts to obtain agreement to the deferral of Earnout Payments required to be made by Maxxcom in respect of its fiscal year ending 31 December 2002 on account of any Earnout Amount under Restricted Party Purchase Agreements in order to permit compliance with the financial covenants set forth in Sections 7.2(b) and 7.2(c), as such covenants are amended by the Third Amendment Agreement, and provide to the Agent on a quarterly basis a report of the initiatives undertaken in this regard, the results thereof and, forthwith after conclusion thereof, any agreements reached in that connection; (b) The following provision is added as Section 7.1(ii) of the Credit Agreement: 7.1 (ii) cause Maxxcom to immediately issue a notice in writing in accordance with Section 2.1.3 of the Mezz Debenture (a copy of which notice must be provided to the Agent as soon as possible thereafter) to elect to defer payment of the interest otherwise due and payable on the Mezz Obligations from and after the fiscal quarter ending 31 December 2002 to the end of the fiscal quarter ending 31 December 2003 and to add the applicable PIK Interest (as such term is defined in the Mezz Debenture) to the Mezz Obligations on the Interest Payment Date (as such term is defined in the Mezz Debenture) for each applicable Interest Period (as such term is defined in the Mezz Debenture); Section 7 - Amendment to Negative Covenant Section 7.4(d) of the Credit Agreement is deleted and replaced with the following provision: 7.4 (d) make any Investment in or acquisition of a Person other than a Permitted Acquisition or an acquisition of Capital Stock of Restricted Party from a Minority Shareholder pursuant to the applicable Restricted Party Shareholder Agreement (herein, a "Minority Acquisition") or make a Permitted Acquisition or a Minority Acquisition at any time: (i) when there has occurred an Event of Default or Pending Event of Default which is continuing; (ii) unless the Senior Debt Ratio has, at such time, been less than 2.25 to 1 for at least two consecutive fiscal quarters, except (i) where a Permitted Acquisition or a Minority Acquisition is funded solely from the proceeds of an issuance of equity of Maxxcom, or (ii) for Minority Acquisitions, the aggregate cash cost of which is less than Cdn. $5,000,000 in each fiscal year of Maxxcom; (iii) when it has not provided an Acquisition Certificate to the Agent at least 5 days prior to entering into a definitive purchase agreement (or other legally binding purchase obligation) in respect thereof, provided that no Acquisition Certificate shall be required in the case of a Permitted Acquisition (A) under paragraphs (d) and (g) of the definition thereof, and (B) which are Permitted Non-Conforming Acquisitions described in Section 1.1.131(a); (iv) when (if obligated to do so hereunder) it has not executed and delivered the Acquisition Security or demonstrated to the reasonable satisfaction of the Agent that the Acquisition Security is available to be provided concurrent with or immediately following completion of the proposed Permitted Acquisition and, if applicable, that any Follow-Up Merger can be successfully completed; (v) when it has not obtained the consent of the Majority Lenders (such consent not to be unreasonably withheld) to the proposed Permitted Acquisition if the consideration payable in satisfaction of the purchase price for such acquisition (other than consideration consisting of shares of Maxxcom or any acquired entity issued on the closing of the transaction) exceeds 10% of the book value of the total consolidated assets of Maxxcom as at the date of Maxxcom's most recently completed fiscal quarter; (vi) when the Investment or acquisition would not otherwise be permitted to be made under the Mezz Debenture; or (vii) if, in the case of the acquisition of an American Entity, such entity would not be Solvent after giving effect to the acquisition and all related transactions; Section 8 - Consents Subject to the terms and conditions hereof, the Lenders hereby consent: (a) for the purposes of Section 7.4(ll) of the Credit Agreement, to the amendments to the Mezz Debenture effected by the Second Amendment to Subordinated Debenture made as of 28 October 2002 between Maxxcom and the Mezz Agent; (b) for the purposes of Sections 7.4(i) and 7.4(j) of the Credit Agreement, to the e-Source Transactions; (c) for the purposes of Sections 7.4(b), 7.4(g), 7.4(i) and 7.4(n) of the Credit Agreement, to the Interfocus Transactions, subject to Section 10 of this Third Amendment Agreement; and (d) for the purposes of Section 7.4(g), (i), (j) and (n) of the Credit Agreement, to the Chinnici Transactions. Section 9 - Conditions Precedent to Effectiveness of this Third Amendment Agreement This Third Amendment Agreement shall become binding on the Lenders only upon satisfaction of the following conditions precedent: (a) execution and delivery of this Third Amendment Agreement by each of the Borrowers and the Guarantors; (b) execution and delivery of this Third Amendment Agreement by the Lenders in accordance with Section 9.9 of the Credit Agreement; (c) no Event of Default or Pending Event of Default having occurred and being continuing as at the date of satisfaction of all of the foregoing conditions precedent; (d) the Agent having received, for the account of each of the consenting Lenders, an amendment fee equal to 1% of their respective Proportionate Shares after the Credit Limit has been reduced pursuant to this Third Amendment Agreement; (e) the Agent having received evidence, reasonably satisfactory to it, that the Mezz Agent and the Mezz Holders have, for the purposes of the Mezz Debenture, consented to each of the matters set forth in this Third Amendment Agreement or that such consent is not required under the Mezz Debenture and the Agent being satisfied with the other amendments to the Mezz Credit Documents made in that connection; (f) the Agent having received a copy of the notice required to be delivered under Section 7.1(ii) of the Credit Agreement (as amended by this Agreement); (g) the Agent having received the favourable opinion of Fogler, Rubinoff LLP, Ontario counsel to Maxxcom, in relation to the enforceability of this Third Amendment Agreement; and (a) such corporate resolutions, incumbency and other certificates of each of the Borrowers, the Guarantors and the other Restricted Parties as the Agent may reasonably request in connection with this Third Amendment Agreement and the transactions contemplated hereby. Section 10 - Covenants regarding the e-Source Transactions and the Interfocus Transactions The Credit Agreement is amended by adding the following provision as Section 7.1.1: 7.1.1 Each of the Restricted Parties, as applicable, shall: (a) in relation to the e-Source Transactions, deliver to the Agent: (i) executed copies of the documentation by which the assets of e-Source Drive to Web Marketing LLC were transferred to Source Marketing LLC and by which Source Marketing LLC assumed of all liabilities of e-Source Drive to Web Marketing LLC; and (ii) documentation evidencing the dissolution of e-Source Drive to Web Marketing LLC pursuant to the General Corporation Law of the State of Delaware; (b) in relation to the Interfocus Transactions, deliver to the Agent: (i) such acknowledgments and other documentation by the Restricted Parties as the Agent may reasonably require in order to ensure the continued validity and effectiveness of the Security following the implementation of the Interfocus Transactions; (ii) all such documents and material as the Agent may require to satisfy itself that the Interfocus Transactions do not materially differ from the transactions approved under the Third Amendment Agreement; (iii) written confirmation of legal counsel in the United Kingdom as to the effect of the Interfocus Transactions on any existing Security of any applicable Restricted Party together with such other Security as the Lenders may reasonably require in relation thereto; (iv) completion, to the satisfaction of the Agent, of all public filings and registrations necessary to preserve, perfect or protect the Security, the enforceability thereof, the priority thereof or any filings or registrations relating thereto; (v) copies of all material agreements entered into and delivered in connection with the transactions contemplated by the Interfocus Transactions; (vi) receipt of the favourable opinion of legal counsel in the United Kingdom to the Restricted Parties, in form and substance satisfactory to the Agent, in relation to the enforceability of any new documentation, if any, which constitutes Security delivered in connection with the Interfocus Transactions; and (vii) such corporate resolutions, incumbency and other certificates of each of the Restricted Parties as the Agent may require, in form and substance satisfactory to the Agent, in connection with the transactions contemplated by the Interfocus Transactions. Section 11 - Authorization of amendment to the Mezz Inter-Creditor Agreement Each of the Lenders hereby authorizes and directs the Agent to execute and deliver the First Amendment to Mezz Inter-Creditor Agreement dated on or about the date hereof on its behalf and agrees that the Mezz Inter-Creditor Agreement, as so amended, shall be binding on it as if it was a party thereto. Each of the Lenders hereby acknowledges receipt of the First Amendment to Mezz Inter-Creditor Agreement dated on or about the date hereof. Section 12 - Continuing Effect of Credit Agreement Except as amended by this Third Amendment Agreement, the Credit Agreement shall remain in full force and effect, without amendment, and is hereby ratified and confirmed. Each of the Borrowers and the Guarantors confirms that the guarantees and Security made or granted by it pursuant to the Credit Agreement remains in full force and effect notwithstanding the amendments and supplements to the Credit Agreement contained herein. Section 13 - 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 14 - Governing Law The parties agree that this Third Amendment Agreement shall be conclusively deemed to be a contract made under, and shall for all purposes be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable in the Province of Ontario. Section 15 - Interpretation Capitalized terms used herein, unless otherwise defined or indicated herein, have the respective meanings ascribed thereto in the Credit Agreement. This Third Amendment Agreement and the Credit Agreement 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. [Execution Pages Follow] IN WITNESS OF WHICH, the parties have executed this Agreement.
THE LENDERS ----------- The Bank of Nova Scotia THE BANK OF NOVA SCOTIA Scotia Capital Corporate Banking-Industrial Products By: 62nd Floor ------------------------- Scotia Plaza Name: 40 King Street West Title: Toronto, Ontario M5W 2X6 By: ------------------------- Attention: Managing Director Name: Telecopier No. (416) 866-2010 Title: Canadian Imperial Bank of Commerce CANADIAN IMPERIAL BANK OF COMMERCE Canadian Credit Capital Markets BCE Place, 8th Floor 161 Bay Street By: Toronto, Ontario ------------------------- M5J 2S8 Name: Title By: ------------------------- Attention: Managing Director Name: Telecopier No. (416) 956-3816 Title Bank of Montreal BANK OF MONTREAL Media, Telecom & Technology Corporate & Investment Banking By: 1, First Canadian Place ------------------------- 100 King Street West Name: 4th Floor Title: Toronto, Ontario M5X 1H3 Attention: Managing Director Telecopier No. (416) 359-7796 Royal Bank of Canada ROYAL BANK OF CANADA 13th Floor, South Tower Royal Bank Plaza 200 Bay Street By: Toronto, Ontario ------------------------- M5J 2J5 Name: Title: Attention: Senior Manager Telecopier No. (416) 974-2249 The Toronto-Dominion Bank THE TORONTO-DOMINION BANK 55 King Street West 8th Floor Toronto-Dominion Bank Tower By: Toronto, Ontario ------------------------- M5K 1A2 Name: Title: Attention: Vice President Telecopier No. (416) 944-5164 The Bank of Nova Scotia THE BANK OF NOVA SCOTIA, by its Atlanta Agency Suite 2200 600 Peachtree Street N.E. Atlanta, Georgia By: 30308 ------------------------- Name: Title: Attention: Senior Manager Telecopier No. (404) 888-8998 CIBC Inc. CIBC INC. 425 Lexington Avenue 8th Floor New York, New York By: 10017 ------------------------- Name: Title: (CIBC World Markets Corp., as agent for CIBC Inc.) Attention: Executive Director Telecopier No. (212) 856-3761 Bank of Montreal, by its Chicago branch BANK OF MONTREAL Media, Telecom & Technology Asset Portfolio Group Investment & Corporate Banking By: 430 Park Avenue ------------------------- 15th Floor Name: New York, New York Title: 10022 Attention: Managing Director Telecopier No. (212) 605-1648 Royal Bank of Canada, by its Grand Cayman ROYAL BANK OF CANADA, by its Grand Cayman (North America No. 1) Branch (North America No. 1) Branch c/o New York Branch One Liberty Plaza 165 Broadway New York, New York By: 10006-1404 ------------------------- Name: Title: Attention: Ms. Linda Joannou Telecopier No. (212) 428-2372 with a copy to: Royal Bank of Canada One Liberty Plaza 4th Floor 165 Broadway New York, New York 10006-1404 Attention: Mr. N.G. Millar Telecopier No. (212) 809-7148 Toronto Dominion (Texas), Inc. TORONTO DOMINION (TEXAS), INC. 909 Fannin Street, 17th Floor Houston, Texas By: 77010 ------------------------- Name: Title: Attention: Vice-President Telecopier No. (713) 951-9921 THE BORROWERS ------------- Maxxcom Inc. MAXXCOM INC., an Ontario corporation 45 Hazelton Avenue Toronto, Ontario M5R 2E3 By: ------------------------- G. Gibson Authorized Signing Officer Attention: Chief Financial Officer Telecopier No. (416) 960-6093 By: ------------------------- R. Dickson Authorized Signing Officer Maxxcom Inc. MAXXCOM INC., a Delaware corporation c/o 45 Hazelton Avenue Toronto, Ontario M5R 2E3 By: ------------------------- G. Gibson Authorized Signing Officer Attention: President Telecopier No. (416) 960-6093 By: ------------------------- R. Dickson Authorized Signing Officer THE GUARANTORS c/o Maxxcom Inc. MAXXCOM (NOVA SCOTIA) CORP 45 Hazelton Avenue MAXXCOM (USA) FINANCE Toronto, Ontario COMPANY M5R 2E3 MAXXCOM (USA) HOLDINGS INC. 1220777 ONTARIO LIMITED Attention: Chief Financial Officer 1385544 ONTARIO LIMITED Telecopier No. (416) 960-6093 MAXXCOM INTERACTIVE INC. MF+P ACQUISITION CO. SMI ACQUISITION CO. ACCENT ACQUISITION CO. FMA ACQUISITION CO. By: ------------------------- G. Gibson Authorized Signing Officer BRATSKEIR & COMPANY, INC. CPB ACQUISITION INC. CORMARK COMMUNICATIONS INC. CAMPBELL & PARTNERS COMMUNICATIONS LTD. AMBROSE CARR LINTON CARROLL INC. STUDIO TYPE INC. By: ------------------------- R. Dickson Authorized Signing Officer MACKENZIE MARKETING, INC. TC ACQUISITION INC. CHINNICI DIRECT, INC. By: ------------------------- G. Gibson Authorized Signing Officer ET ACQUISITION INC. BZ ACQUISITION INC. By: ------------------------- R. Forzley Authorized Signing Officer THE AGENT --------- The Bank of Nova Scotia THE BANK OF NOVA SCOTIA, Scotia Capital as Administrative Agent Corporate Banking-Loan Syndications 62nd Floor By: Scotia Plaza ------------------------- 40 King Street West Name: Toronto, Ontario Title: M5W 2X6 By: ------------------------- Attention: Managing Director Name: Telecopier No. (416) 866-3329 Title: