Exhibit 10.40(b)
AMENDMENT NO. 1
to the
AGREEMENT
FIRST AMENDMENT, dated as of June 10, 2002 (this "AMENDMENT"),
to the Agreement, dated as of December 31, 2001, as amended, supplemented or
otherwise modified from time to time (the "CREDIT AGREEMENT"), between Printcafe
Software, Inc. (formerly known as printCafe, Inc.), a Delaware corporation (the
"BORROWER"), printCafe Systems, Inc., a Delaware corporation (the "MERGER
SUBSIDIARY"), and Xxxxxx X. Xxxxxxxx, Xxxxxxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxx
(collectively, the "LENDERS").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrower and the Lenders consent to amend the
Credit Agreement as hereinafter set forth; and
WHEREAS, the Lenders are willing to consent to the amendments
on and subject to the terms and conditions contained herein.
NOW THEREFORE, in consideration of the premises and mutual
covenants hereinafter set forth, the parties hereto agree as follows:
I. DEFINITIONS. Unless otherwise defined herein, terms defined
in the Credit Agreement are used herein as therein defined.
II. AMENDMENTS TO THE CREDIT AGREEMENT. Effective as of the
Amendment Effective Date (as hereinafter defined):
2.1 SECTION 1.1. The following definition shall be
inserted in alphabetical order to the definitions section of the Credit
Agreement:
"IPO": an initial public offering of the Borrower's
Capital Stock for aggregate gross proceeds of no less than
$37,500,000 and which results in the Capital Stock being
listed on the Nasdaq National Market System.
2.2 SECTION 1.1. The following definitions shall be
deleted from the Credit Agreement in their entireties:
"PIK INTEREST" and "PIK INTEREST RATE".
2.3 SECTION 1.1.
(a) The definition of "Obligations" is hereby amended
to delete from the parenthetical "any PIK Interest and" in the
first and second lines thereof.
(b) The definition of "CREO DEBT" is hereby amended
by deleting such definition in its entirety and substituting
in lieu thereof the following:
"CREO DEBT": Indebtedness of the Borrower in an
aggregate principal amount of $23,600,000 evidenced by the
Creo Agreement, as amended by Amendment No. 1 thereto
(provided that (i) all payments made on the Creo Debt in
connection with the completion of the IPO do not exceed
$11,800,000 of principal together with accrued interest,
excluding attorneys fees, (ii) the prepayment fee paid in
connection therewith does not exceed $3,700,000, and (iii)
the interest rate on the Creo Debt shall be reduced to 4%
per annum effective upon the completion of the IPO), as
the same may be further amended, supplemented or otherwise
modified from time to time as permitted by Section 6.10.
(c) The definition of "M DATA DEBT" is hereby amended
by deleting such definition in its entirety and substituting
in lieu thereof the following:
"M DATA DEBT": Indebtedness of printCafe Systems
in an aggregate principal amount of $4,200,000 under the
Amended and Restated Subordinated Non-Negotiable
Promissory Note, dated as of December 31, 2001, issued to
Xxxxxxx X. Xxxxxx and Xxxx X. Xxxxxx, as amended by
Amendment No. 1 thereto (provided that the interest rate
on the M Data Debt shall be reduced to 8% per annum
effective upon the completion of the IPO), as the same may
be further amended, supplemented or otherwise modified
from time to time as permitted by Section 6.10.
2.4 SECTION 2. Sections 2.3, 2.5, 2.6, 2.8, 2.9, 2.11 and
2.12 of the Credit Agreement are hereby amended by deleting each such provision
in its entirety and substituting in lieu thereof the following:
"2.3 REPAYMENT OF NOTES. The Notes shall mature on
January 2, 2004."
"2.5 OPTIONAL PREPAYMENTS. The Borrower may at any
time and from time to time prepay the Notes, in whole or in
part and without penalty or premium, upon irrevocable notice
delivered to the Lenders at least 3 Business Days prior
thereto, which notice shall specify the date and amount of
prepayment. If any such notice is given, the amount specified
in such notice shall be due and payable on the date specified
therein, together with accrued interest to such date on the
amount prepaid. If any such prepayment shall be less than the
entire unpaid principal amount of the Notes, the amount of
such prepayment shall be applied pro rata on all Notes."
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"2.6 MANDATORY PREPAYMENTS.
(a) [Intentionally Omitted]
(b) If on any date any Group Member shall receive Net
Cash Proceeds from any Asset Sale (other than a Disposition of
the Capital Stock of the Borrower) then such Net Cash Proceeds
shall, subject to the prior payment in full of the Creo Debt,
be applied on such date toward the prepayment of the Notes.
(c) Each prepayment of the Notes under this Section
2.6 shall be accompanied by accrued interest to the date of
such prepayment on the amount prepaid, and, with respect to a
prepayment pursuant to paragraph (b) of less than the entire
unpaid principal amount of the Notes, applied pro rata on all
Notes."
"2.8 INTEREST RATES AND PAYMENT DATES.
(a) The Notes shall bear interest at a rate per annum
equal to 8.0%. Accrued interest on the Notes shall be payable
on each Interest Payment Date.
(b) RESERVED.
(c) To the extent permitted by applicable law, if all
or a portion of the principal amount of the Notes shall not be
paid when due (whether at the stated maturity, by acceleration
or otherwise) or if all or a portion of any interest payable
on the Notes or any fee or other amount payable hereunder
shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such overdue amount shall bear
interest at a rate per month equal to 2%, in each case from
the date of such non-payment until such amount is paid in full
(as well after as before judgment).
(d) Interest shall be payable in arrears on each
Interest Payment Date, PROVIDED that interest accruing
pursuant to paragraph (c) of this Section shall be payable
from time to time on demand."
"2.9 COMPUTATION OF INTEREST AND FEES(a) . Interest
and fees payable pursuant hereto shall be calculated on the
basis of a 365-(or 366-, as the case may be) day year for the
actual days elapsed, provided that interest payable pursuant
to Section 2.8(c) shall be calculated on the basis of the
number of days of such month for the actual days elapsed."
"2.11 PRO RATA TREATMENT AND PAYMENTS.
(a) The amount of each principal prepayment of the
Notes shall be applied PRO RATA to the Notes. Amounts prepaid
on account of the Notes may not be reborrowed.
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(b) All payments (including prepayments) to be made
by the Borrower hereunder, whether on account of principal,
interest, fees or otherwise, shall be made without setoff or
counterclaim and shall be made prior to 12:00 Noon, New York
City time, on the due date thereof to the Lenders by wire
transfer to an account or accounts specified by the Lenders,
in Dollars and in immediately available funds. If any payment
hereunder becomes due and payable on a day other than a
Business Day, such payment shall be extended to the next
succeeding Business Day."
"2.12 REQUIREMENTS OF LAW. RESERVED."
2.5 SECTION 3.13(a). Section 3.13(a) is hereby
amended to add at the end thereof before the final semi-colon the following
parenthetical: "(except such changes effected in connection with the IPO)".
2.6 SECTION 3.13(d). Section 3.13(d) is hereby amended to
add at the end thereof before the final semi-colon the following parenthetical:
"(except in connection with the IPO)".
2.7 SECTION 5.1(c). Section 5.1(c) of the Credit
Agreement is hereby amended by inserting the following sentence at the end
thereof:
"The Borrower shall not be required to provide and
shall not provide the financial statements referred to in this
Section 5.1(c) unless and until the same shall be requested in
writing by all the Lenders."
2.8 SECTION 5.6(c). Section 5.6(c) of the Credit
Agreement is hereby amended by deleting such provision in its entirety and
substituting in lieu thereof the following:
"(c) in the event that the Lenders do not have a
representative who is a member of the Borrower's Board of
Directors, grant the Lenders the right (exercisable at the
option of the Lenders by written notice by all the Lenders to
the Borrower) to have a representative, who shall be one of
the Lenders, attend all meetings of the Board of Directors of
the Borrower as an observer, and, following the Borrower's
receipt of such notice appointing such representative (but at
no time prior to the Borrower's receipt of such notice),
provide the observer (i) prompt notice of such meeting and
copies of any agenda or other documentation accompanying such
notice, and (ii) access to all other written communications,
minutes and materials."
2.9 SECTION 5.11. Section 5.11 of the Credit Agreement is
hereby amended by inserting the following sentence at the end thereof:
"The obligations of the Borrower pursuant to this
Section shall survive the termination of this Agreement and
the payment of the Notes and remain binding upon the Borrower
until June 30, 2006."
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III. CONDITIONS PRECEDENT. This Amendment shall become
effective as of the date hereof when each of the conditions precedent set forth
below shall have been fulfilled (the date such conditions are fulfilled, the
"AMENDMENT EFFECTIVE DATE"):
3.1 AMENDMENT. The Lenders shall have received this
Amendment, executed and delivered by a duly authorized officer of the Borrower,
printCafe Systems and the Subsidiary Guarantors shall have consented to this
Amendment as set forth herein.
3.2 OCCURRENCE OF IPO. The Borrower shall have completed
the IPO by June 30, 2002. In the event that the Borrower does not complete the
IPO by June 30, 2002, this Amendment shall not become effective (except as
otherwise provided in Section 4.3 of this Amendment) and the terms of the Credit
Agreement shall continue to control and be in full force and effect.
3.3 REPAYMENT AND ACCOMMODATION FEE. Upon consummation of
the IPO, the Borrower shall (i) pay to the Lenders, by wire transfer to an
account or accounts specified by the Lenders, a cash payment of $6,000,000 of
principal of the Notes, such payment to be applied PRO RATA on all Notes, and
all accrued cash interest and PIK Interest (as defined in the Credit Agreement,
as in effect immediately prior to the Amendment Effective Date) on the full
$8,000,000 outstanding principal amount of the Notes, up to and including the
date of the IPO, and (ii) execute and deliver to the Lenders addenda to the
Notes, in form and substance satisfactory to the Lenders, (A) reflecting the
changes in the terms and conditions thereof contemplated by this Amendment, and
(B) acknowledging the outstanding principal amount of each Note, giving effect
to the prepayment of principal referred to in clause (i) above and the
capitalization of an accommodation fee of $350,000 (the "Accomodation Fee")
payable, on a PRO RATA basis, by the Borrower to the Lenders in connection with
the IPO (such outstanding principal amounts being the amounts set forth on
EXHIBIT 3.3 to this Amendment).
3.4 LEASE AMENDMENT. Upon consummation of the IPO, the
Borrower (as guarantor) and the Merger Subsidiary shall execute and deliver an
amendment to the lease subject to the First Amendment to Lease Agreement
referred to in Section 4.1(b) of the Credit Agreement, substantially in the form
of Exhibit 3.4 to this Amendment, extending the term of such lease for a period
of one year.
3.5 CREDITOR DOCUMENTS. Amendment No. 1 with respect to
each of the Creo Debt and the M Data Debt in the form of EXHIBIT 3.5(a) and
EXHIBIT 3.5(b), respectively, to this Amendment and shall be effective, and Creo
and the Lenders shall have executed an agreement, substantially in the form of
EXHIBIT 3.5(c) to this Amendment, acknowledging and consenting to the
transactions contemplated to occur in connection with the IPO and, giving effect
to such transactions, confirming the arrangements in the Intercreditor
Agreement.
3.6 CONSENTS. The Borrower shall have obtained any
approvals from shareholders or third parties necessary to consummate the
transactions contemplated by this Amendment and the other transactions
contemplated to occur in connection with the IPO.
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IV. General.
4.1 REPRESENTATION AND WARRANTIES. The representations and
warranties set forth in the Credit Agreement are, after giving effect to this
Amendment, true and correct in all material respects as if made on and as of the
date hereof, except as they may specifically relate to an earlier date and
except as specifically disclosed by the Borrower in writing in connection with
this Amendment.
4.2 CONTINUING EFFECT OF THE CREDIT AGREEMENT. This
Amendment shall not constitute an amendment or waiver of any provision of the
Credit Agreement not expressly referred to herein and shall not be construed as
an amendment, waiver or consent to any action on the part of any party hereto
that would require an amendment, waiver or consent of the the Lenders except as
expressly stated herein. Except as expressly waived or amended hereby, the
provisions of the Credit Agreement are and shall remain in full force and
effect.
4.3 PAYMENT OF LENDER'S EXPENSES. The Borrower shall
reimburse the Lenders for their reasonable attorneys fees incurred in connection
with the negotiation and execution of this Amendment along with outstanding
invoices of Xxxx Plant (#278470, #279538, #281615, and #282937) in the aggregate
amount of $9,637.80. Within one Business Day of the date hereof, the Borrower
shall pay, by wire transfer to an account specified by Xxxx Plant (counsel for
the Lenders), the outstanding balance of such invoices along with a $20,000
deposit for the expenses of the Lenders and costs and fees of their counsel in
connection with the negotiation and execution of this Amendment and related
documentation. In the event that the actual reasonable fees incurred by the
Lenders in connection with the negotiation and execution of this Amendment and
related documentation (and exclusive of the amounts of such outstanding
invoices) are greater than the $20,000 deposit, the Borrower shall pay such
additional amount to the Lenders on the Amendment Effective Date or, if this
Amendment shall not become effective, upon presentation of invoices therefor
and, in the event that such actual reasonable fees so incurred by the Lenders
are less than the $20,000 deposit, the Lenders shall reimburse the Borrower for
such difference on the Amendment Effective Date or, if this Amendment shall not
become effective, upon request by the Borrower. The obligations of the Borrower
pursuant to this Section shall be binding upon the Borrower even if this
Amendment shall not become effective. The Lenders shall promptly provide
reasonable documentation of all fees and expenses upon request by the Borrower.
4.4 GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK.
4.5 COUNTERPARTS. This Amendment may be executed in any
number of counterparts by the parties hereto, each of which counterparts when so
executed shall be an original, but all counterparts taken together shall
constitute one and the same instrument.
4.6 SECURITY DOCUMENTS, ETC. The Borrower acknowledges and
agrees that (i) all obligations of the Borrower under the Credit Agreement, as
amended by the foregoing Amendment, and the other Loan Documents (including
without limitation the Notes, after giving effect to the prepayment and the
capitalization of the Accommodation Fee contemplated by
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Section 3.3 of this Amendment), are Obligations which are secured by the
Security Documents to which it is a party, (ii) all references to the Credit
Agreement in the Security Documents refer to the Credit Agreement, as amended
from time to time (including pursuant to this Amendment), and (iii) all
references to the Notes in the Security Documents refer to the Notes under the
Credit Agreement (after giving effect to the prepayment and the capitalization
of the Accommodation Fee contemplated by Section 3.3 of this Amendment).
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective duly authorized
officers as of the day and year first above written.
PRINTCAFE SOFTWARE, INC., as Borrower
By: /s/ Xxxx Xxxx
--------------------------------------------
Name: Xxxx Xxxx
Title: CEO
PRINTCAFE SYSTEMS, INC., as Merger Subsidiary
By: /s/ Xxxx Xxxx
--------------------------------------------
Name: Xxxx Xxxx
Title: CEO
/s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------------
Xxxxxx X. Xxxxxxxx, as Lender
/s/ Xxxxxxxx X. Xxxxxxxx
-----------------------------------------------
Xxxxxxxx X. Xxxxxxxx, as Lender
/s/ Xxxxxxx X. Xxxxx
-----------------------------------------------
Xxxxxxx X. Xxxxx, as Lender
CONSENT TO AMENDMENT
The undersigned Subsidiary Guarantors do hereby consent and
agree to the foregoing Amendment and acknowledge and agree that (i) all
obligations of the Borrower under the Credit Agreement, as amended by the
foregoing Amendment, and the other Loan Documents (including without limitation
the Notes, after giving effect to the prepayment and the capitalization of the
Accommodation Fee contemplated by Section 3.3 of the foregoing Amendment) are
Obligations which are secured and guaranteed by the Security Documents to which
it is a party, (ii) all references to the Credit Agreement in the Security
Documents refer to the Credit Agreement, as amended from time to time (including
pursuant to the foregoing Amendment), and (iii) all references to the Notes in
the Security Documents refer to the Notes under the Credit Agreement (after
giving effect to the prepayment and the capitalization of the Accommodation Fee
contemplated by Section 3.3 of the foregoing Amendment).
A.H.P. SYSTEMS, INC.
AUTOMATION, INC.
CONSTELLATION SOFTWARE OF NEW HAMPSHIRE, INC.
LOGIC ASSOCIATES, INC.
LOGIC COVALENT CORPORATION
M DATA, INC.
PRINTCAFE SYSTEMS, INC.
PRINTCAFE IP MANAGEMENT, INC.
PROGRAMMED SOLUTIONS, INC.
By: /s/ Xxxx Xxxx
----------------------------------------
Name: Xxxx Xxxx
Title: CEO
EXHIBIT 3.3
PRINCIPAL BALANCE OF THE NOTES
(GIVING EFFECT TO PREPAYMENT AND ACCOMMODATION FEE CAPITALIZATION)
Lender Outstanding Principal Balance
------ -----------------------------
Xxxxxx X. Xxxxxxxx $587,500
Xxxxxxxx X. Xxxxxxxx $587,500
Xxxxxxx X. Xxxxx $1,175,000
