SECOND MODIFICATION OF MODIFIED SECURED PROMISSORY NOTE
EXHIBIT 10.2
SECOND MODIFICATION OF MODIFIED SECURED PROMISSORY NOTE
THIS SECOND MODIFICATION OF MODIFIED SECURED PROMISSORY NOTE (this “ Second Modification ”) dated as of December 17, 2009, is made by and among IPRINT TECHNOLOGIES, LLC, a Delaware limited liability company (" Maker "), MTS PARTNERS, INC. (fka iPRINT TECHNOLOGIES, INC.), a California corporation (" Payee "), AMERICAN TONERSERV CORP., a Delaware corporation (" ATS "), and certain other parties.
RECITALS
A. The Maker, Payee, and ATS are parties to that certain SECURED CONTINGENT PROMISSORY NOTE NO. 1 AND A SECURED CONTINGENT PROMISSORY NOTE NO. 2, dated October 31, 2008, which were combined into a MODIFIED SECURED PROMISSORY NOTE, dated February 28, 2009 in accordance with the MODIFICATION OF SECURED CONTINGENT PROMISSORY NOTE NO. 1, SECURED CONTINGENT PROMISSORY NOTE NO. 2 AND SECURED CONVERTIBLE CONTINGENT PROMISSORY NOTE, dated February 16, 2009, and MODIFICATION OF MODIFIED SECURED PROMISSORY NOTE, dated November 16, 2009 (collectively, the “ Modified Note”)
B. The Maker, Payee and ATS desire to amend the Modified Note in accordance with this Second Modification.
NOW, THEREFORE, in consideration of the covenants and conditions contained herein, the parties agree as follows:
1. Definitions . Capitalized terms used but not otherwise defined herein shall have the meanings ascribed thereto in the Modified Note.
2. Amendment to Section 4(a) . Section 4(a) of the Modified Note, entitled “Scheduled Payments” is hereby amended and modified in its entirety to read:
“All payments or partial payments, to the extent that cash is available to either Maker or ATS, must be paid under the Modified Note per the Additional Note Schedule Payment Schedule (Exhibit C-8 of the Modification of Modified Secured Promissory Note). Notwithstanding the unavailability of cash, the Modified Note shall be paid as follows: (i) a payment of Three Hundred Fifty Thousand Dollars ($350,000) shall be made on January 15, 2010, and (ii) the entire unpaid principal balance and all accrued interest under this Modified Note shall be due and payable at the close of business of Payee on February 15, 2010.”
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3. Amendment to Section 5. Section 5 of the Modified Note entitled “Late Charge” is hereby amended and modified in its entirety to read as follows:
“If any payment of principal or interest under this Note shall not be made after the issuance of written notice that such payment is due, a late charge of five percent (5%) of the overdue amount will be charged by Payee. Such late charge is in addition to the interest that shall continue to accrue, which additional interest shall be paid with the late charge. The late charge represents a reasonable sum considering all of the circumstances existing on the date of this Note and represents a fair and reasonable estimate of the costs sustained and the frustration suffered by Payee due to the failure of Maker to make timely payments. Maker further agrees that proof of actual damages would be costly or inconvenient. Such late charge shall be immediately due and payable and shall be paid without prejudice to the right of Payee to collect any other amounts to be paid or to declare a default under this Note, or from exercising any of the other rights and remedies of Payee.”
4. Amendment to Section 9(a) . Section 9(a) of the Modified Note entitled “Nonpayment” is hereby amended and modified in its entirety to read as follows:
“Maker fails to make a payment due under this Note.”
5. Except as expressly amended hereby, the Modified Note shall remain unchanged. The Modified Note, as amended hereby, shall remain in full force and effect. From and after the date of this Second Modification, references to the Modified Note shall be deemed to refer to the Modified Note as amended hereby. All other terms and conditions of the Modified Note not specifically modified hereby are incorporated herein and shall remain in full force and effect.
6. This Second Modification may be executed in any number of counterparts, each of which shall be deemed to be one and the same instrument. The exchange of copies of this Modification and of signature pages by facsimile or other electronic transmission shall constitute effective execution and delivery of this Second Modification as to the parties and may be used in lieu of the original Modification for all purposes. Signatures of the parties transmitted by facsimile or other electronic means shall be deemed to be their original signatures for all purposes.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have executed this Second Modification of Modified Secured Promissory Note as of the date first set forth above.
| MAKER: | ||
| iPRINT TECHNOLOGIES, LLC, | ||
| a Delaware limited liability company | ||
| By: | AMERICAN TONERSERV | |
| CORP. , | ||
| a Delaware corporation | ||
| Its: | Managing Member | |
| By: | /s/ Xxxxx Mache | |
| Xxxxx Mache | ||
| Its: | President and CEO | |
| ATS: | ||
| AMERICAN TONERSERV CORP. , | ||
| a Delaware corporation | ||
| By: | /s/ Xxxxx Mache | |
| Xxxxx Mache, | ||
| Its: | President and CEO | |
| PAYEE: | ||
| MTS PARTNERS, INC. (fka iPRINT | ||
| TECHNOLOGIES, INC. ), | ||
| a California corporation | ||
| By: | /s/ Xxxx Xxxxxx | |
| Xxxx Xxxxxx | ||
| Its: | President and Secretary | |
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