Exhibit 10.23
AMENDMENT NO. 1
TO
SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
This Amendment No. 1 to Second Amended and Restated Credit
Agreement (this "Amendment"), dated as of February 8, 2005, amends that
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certain Second Amended and Restated Credit Agreement, dated as of March 25,
2004 (as amended, the "Agreement"), among the financial institutions from
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time to time parties hereto (such financial institutions, together with
their respective successors and assigns, are referred to hereinafter each
individually as a "Lender" and collectively as the "Lenders"), Bank of
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America, N.A., with an office at 55 South Lake Avenue, Suite 900, Pasadena,
California 91101, as administrative agent for the Lenders (in its capacity
as agent, the "Agent"), Cenveo, Inc. (f/k/a Mail-Well, Inc.), a Colorado
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corporation ("Parent"), Cenveo Corporation (f/k/a Mail-Well I Corporation),
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a Delaware corporation ("Cenveo"), and certain subsidiaries of Cenveo
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(Cenveo and each such subsidiary, individually, a "Borrower", and,
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collectively, the "Borrowers"). Capitalized terms used and not otherwise
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defined herein shall have the meanings ascribed to such terms in the
Agreement.
R E C I T A L S
WHEREAS, Parent, the Borrowers, the Lenders and the Agent have
entered into the Agreement;
WHEREAS, Parent and the Borrowers desire to amend the Agreement in
order to amend Section 9.1(q) of the Agreement; and
WHEREAS, the Agent and the Lenders are willing to do so, subject to
the terms and conditions stated herein.
NOW, THEREFORE, in consideration of the premises herein contained
and other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the Agent, the Lenders, Parent and the Borrowers
hereby agree as follows.
A G R E E M E N T
Section 1. Amendment to the Agreement. The Agent, the Lenders,
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Parent and the Borrowers agree that the Agreement shall be amended as follows:
A. Section 9.1 (q) of the Agreement is hereby amended and
restated in its entirety to read as follows:
(q) an event having a Material Adverse Effect
occurs, or continues to exist, during an Availability Trigger
Period. For purposes of this Section 9.1 (q), "Availability Trigger
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Period" means the period commencing upon the date, if any, upon
which Availability has been less than $75,000,000 for 5 consecutive
Business Days, and
1
continuing until the first day of any fiscal month on which the
following is true: Availability has not been less than $75,000,000
at any time during the 30 day period ending on the immediately
preceding fiscal month end.
Section 2. Waiver/Consent to Stock Sale. The Lenders hereby consent
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to the sale by Supremex, Inc. ("Supremex") of all of the issued and outstanding
common stock of its wholly owned subsidiary Classic Envelope Plus, Ltd.
("Classic"), on or before February 28, 2005, for a purchase price equal to
the net book value of Classic less C$25,000 (approximately C$500,000). The
Lenders agree that upon the consummation of such sale, (i) Classic shall be
released as a Canadian Guarantor; (ii) the proceeds of such sale need not be
applied to the Revolving Loans but may be retained by Supremex subject to
the terms of Sections 7.25 and 7.26 of the Agreement.
Section 3. Conditions. The effectiveness of this Amendment is subject
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to the satisfaction of the following conditions precedent:
A. Amendment. A fully executed copy of this Amendment signed
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by Parent, the Borrowers, and the Majority Lenders shall be delivered to the
Agent;
B. Other Documents. Parent and the Borrowers shall have
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executed and delivered to the Agent such other documents and instruments as
the Agent may reasonably require in furtherance of this Amendment.
Section 4. Miscellaneous.
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A. Survival of Representations and Warranties. All
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representations and warranties made in the Agreement or any other document
or documents relating thereto, including, without limitation, any Loan
Document furnished in connection with this Amendment, shall survive the
execution and delivery of this Amendment and the other Loan Documents, and
no investigation by Agent or Lenders or any closing shall affect the
representations and warranties or the right of Agent or Lenders to rely
thereon;
B. Reference to Agreement. The Agreement, each of the Loan
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Documents, and any and all other agreements, documents or instruments now or
hereafter executed and delivered pursuant to the terms hereof, or pursuant
to the terms of the Agreement as amended hereby, are hereby amended so that
any reference therein to the Agreement shall mean a reference to the
Agreement as amended hereby;
C. Agreement Remains in Effect. The Agreement and the Loan
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Documents, as amended hereby, remain in full force and effect and the
Borrowers ratify and confirm their agreements and covenants contained
therein. Parent and the Borrowers hereby confirm that, after giving effect
to this Amendment, no Event of Default or Default exists as of such date;
D. Severability. Any provision of this Amendment held by a
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court of competent jurisdiction to be invalid or unenforceable shall not
impair or invalidate the remainder
2
of this Amendment and the effect thereof shall be confined to the provision
so held to be invalid or unenforceable;
E. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
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CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO THE CONFLICT
OF LAWS PROVISIONS PROVIDED THAT ISSUES WITH RESPECT TO THE CREATION,
PERFECTION, AND ENFORCEMENT OF LIENS UNDER DIVISION 9 OF THE UCC MAY GIVE
EFFECT TO APPLICABLE CHOICE OR CONFLICT OF LAW RULES SET FORTH IN ARTICLE 9
OF THE UCC) OF THE STATE OF CALIFORNIA; PROVIDED, THAT THE AGENT AND THE
LENDERS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW;
F. Successors and Assigns. This Amendment is binding upon
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and shall inure to the benefit of Agent, the Lenders, Parent and the
Borrowers and their respective successors and assigns; provided, however,
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that Parent and the Borrowers may not assign or transfer any of their rights
or obligations hereunder without the prior written consent of the Lenders;
G. Counterparts. This Amendment may be executed in one or
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more counterparts, each of which when so executed shall be deemed to be an
original, but all of which when taken together shall constitute one and the
same instrument;
H. Headings. The headings, captions and arrangements used
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in this Amendment are for convenience only and shall not affect the
interpretation of this Amendment;
I. NO ORAL AGREEMENTS. THIS AMENDMENT, TOGETHER WITH THE
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OTHER LOAN DOCUMENTS AS WRITTEN, REPRESENTS THE FINAL AGREEMENT AMONG THE
AGENT, THE LENDERS, PARENT AND THE BORROWERS AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE AGENT, THE
LENDERS, PARENT AND THE BORROWERS;
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IN WITNESS WHEREOF, the parties have executed this Amendment on the
date first above written.
"PARENT"
CENVEO, INC. (F/K/A MAIL-WELL, INC.),
a Colorado corporation
By:
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Name:
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Title:
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"BORROWERS"
CENVEO CORPORATION (F/K/A MAIL-WELL I
CORPORATION),
a Delaware corporation
By:
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Name:
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Title:
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CENVEO SERVICES, L.L.C. (F/K/A MAIL-WELL
SERVICES, L.L.C.),
a Colorado limited liability company
By:
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Name:
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Title:
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DISCOUNT LABELS, INC.,
an Indiana corporation
By:
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Name:
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Title:
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S-1
Amendment No. 1
to Second Amended and Restated
Credit Agreement
CENVEO WEST, INC. (F/K/A MAIL-WELL
WEST, INC.),
a Delaware corporation
By:
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Name:
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Title:
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CENVEO GOVERNMENT PRINTING, INC. (F/K/A
MAIL-WELL GOVERNMENT PRINTING, INC.),
a Colorado corporation
By:
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Name:
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Title:
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S-2
Amendment No. 1
to Second Amended and Restated
Credit Agreement
The undersigned (the "U.S. Guarantors"), (i) consent to and approve
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the execution and delivery of this Amendment by the parties hereto, (ii)
agree that this Amendment does not and shall not limit or diminish in any
manner the obligations of each of the U.S. Guarantors pursuant to the
guarantees delivered in connection with the Agreement (the "U.S.
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Guarantees") by each of the undersigned and that such obligations would not
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be limited or diminished in any manner even if the U.S. Guarantors had not
executed this Amendment, (iii) agree that this Amendment shall not be
construed as requiring the consent of the U.S. Guarantors in any other
circumstance, (iv) reaffirm each of their obligations under the U.S.
Guarantees, and (v) agree that the U.S. Guarantees remains in full force and
effect and each is hereby ratified and confirmed.
"U.S. GUARANTORS"
CENVEO INTERNATIONAL HOLDINGS, INC.
(F/K/A MAIL-WELL MEXICO HOLDINGS, INC.),
a Colorado corporation
By:
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Name:
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Title:
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CENVEO TEXAS FINANCE, L.P. (F/K/A
MAIL-WELL TEXAS FINANCE, L.P.),
a Texas limited partnership
By:
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Name:
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Title:
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MMTP HOLDINGS, INC.,
a Colorado corporation
By:
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Name:
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Title:
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S-3
Amendment No. 1
to Second Amended and Restated
Credit Agreement
The undersigned (the "Canadian Guarantors"), (i) consent to and
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approve the execution and delivery of this Amendment by the parties hereto,
(ii) agree that this Amendment does not and shall not limit or diminish in
any manner the obligations of each of the Canadian Guarantors pursuant to
the guarantees delivered in connection with the Agreement (the "Canadian
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Guarantees") by each of the undersigned and that such obligations would not
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be limited or diminished in any manner even if the Canadian Guarantors had
not executed this Amendment, (iii) agree that this Amendment shall not be
construed as requiring the consent of the Canadian Guarantors in any other
circumstance, (iv) reaffirm each of their obligations under the Canadian
Guarantees, and (v) agree that the Canadian Guarantees remains in full force
and effect and each is hereby ratified and confirmed.
"CANADIAN GUARANTORS"
SUPREMEX INC.,
a company organized under the laws of Canada
By:
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Name:
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Title:
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CENVEO CANADA LEASING COMPANY INC.
(F/K/A MAIL-WELL CANADA LEASING COMPANY INC.),
a company organized under the laws of the
Province of Nova Scotia
By:
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Name:
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Title:
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PNG INC.,
a company organized under the laws of the
Province of Ontario
By:
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Name:
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Title:
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S-4
Amendment No. 1
to Second Amended and Restated
Credit Agreement
CLASSIC ENVELOPE PLUS LTD.,
a company organized under the laws of the
Province of British Columbia
By:
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Name:
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Title:
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INNOVA ENVELOPE INC. - ENVELOPE INNOVA INC.,
a company organized under the laws of the
Province of Ontario
By:
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Name:
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Title:
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CENVEO ALBERTA FINANCE, LIMITED PARTNERSHIP
(F/K/A MAIL-WELL ALBERTA FINANCE LIMITED
PARTNERSHIP), a limited partnership
organized under the laws of the
Province of Alberta
By:
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Name:
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Title:
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CENVEO MCLAREN, MORRIS AND TODD COMPANY
(F/K/A MCLAREN, MORRIS AND TODD COMPANY),
a company organized under the laws of the
Province of Nova Scotia
By:
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Name:
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Title:
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S-5
Amendment No. 1
to Second Amended and Restated
Credit Agreement
CENVEO MM&T PACKAGING COMPANY
(F/K/A MM&T PACKAGING COMPANY),
a company organized under the laws of
the Province of Nova Scotia
By:
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Name:
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Title:
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PRECISION FINE PAPERS, INC.
a company organized under the laws of Ontario
By:
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Name:
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Title:
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S-6
Amendment No. 1
to Second Amended and Restated
Credit Agreement
"AGENT"
BANK OF AMERICA, N.A.,
as the Agent
By:
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Name:
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Title:
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S-7
Amendment No. 1
to Second Amended and Restated
Credit Agreement
"LENDERS"
BANK OF AMERICA, N.A.,
as a Lender
By:
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Name:
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Title:
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S-8
Amendment No. 1
to Second Amended and Restated
Credit Agreement
"LENDERS"
GENERAL ELECTRIC CAPITAL CORPORATION,
as a Lender
By:
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Name:
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Title:
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S-9
Amendment No. 1
to Second Amended and Restated
Credit Agreement
"LENDERS"
WACHOVIA BANK, NATIONAL ASSOCIATION,
as a Lender
By:
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Name:
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Title:
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S-10
Amendment No. 1
to Second Amended and Restated
Credit Agreement
"LENDERS"
JPMORGAN CHASE BANK,
as a Lender
By:
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Name:
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Title:
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S-11
Amendment No. 1
to Second Amended and Restated
Credit Agreement
"LENDERS"
WELLS FARGO FOOTHILL, INC.,
formerly known Foothill Capital
Corporation, as a Lender
By:
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Name:
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Title:
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S-12
Amendment No. 1
to Second Amended and Restated
Credit Agreement
"LENDERS"
WASHINGTON MUTUAL BANK,
as a Lender
By:
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Name:
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Title:
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S-13
Amendment No. 1
to Second Amended and Restated
Credit Agreement
"LENDERS"
PNC BANK, NATIONAL ASSOCIATION,
as a Lender
By:
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Name:
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Title:
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S-14
Amendment No. 1
to Second Amended and Restated
Credit Agreement
"LENDERS"
THE CIT GROUP/BUSINESS CREDIT, INC.,
as a Lender
By:
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Name:
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Title:
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S-15
Amendment No. 1
to Second Amended and Restated
Credit Agreement
"LENDERS"
U.S. BANK, NATIONAL ASSOCIATION,
as a Lender
By:
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Name:
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Title:
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S-16
Amendment No. 1
to Second Amended and Restated
Credit Agreement
"LENDERS"
MERRILL LYNCH CAPITAL,
a division of Merrill Lynch Business
Financial Services Inc., as a Lender
By:
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Name:
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Title:
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S-17
Amendment No. 1
to Second Amended and Restated
Credit Agreement