EXHIBIT 10.12
AMENDMENT OF INSTALLMENT NOTE
THIS AMENDMENT OF INSTALLMENT NOTE (this "Amendment") is made as of
February 5, 2003, by and between COLOR IMAGING, INC. ("Obligor"), a Delaware
corporation, successor by merger to Color Image, Inc., a Georgia corporation,
and SOUTHTRUST BANK ("Bank"), an Alabama banking corporation, successor by
conversion to SouthTrust Bank, National Association, as follows:
Recitals. Obligor is obligated to Bank under an Installment Note (the
"Note") dated as of June 24, 1999, in the original principal amount of One
Million Seven Hundred Fifty-Two Thousand Dollars ($1,752,000). Obligor and Bank
desire to amend the interest rate and payment schedule set forth in the Note.
NOW THEREFORE, FOR AND IN CONSIDERATION OF TEN DOLLARS ($10), the mutual
agreements set forth herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Obligor and Bank,
intending to be legally bound, agree as follows:
1. Recitals; Definitions. The foregoing provisions and recitals are true
and correct and are hereby incorporated herein by this reference as an integral
part hereof. All capitalized terms utilized herein, not defined herein but
defined in the Note shall have the definitions ascribed thereto in the Note.
2. Interest Rate. The section of the Note entitled "Interest Rate" is
hereby amended and restated in its entirety as follows:
"INTEREST RATE The above-stated sum shall accrue interest as follows:
Interest shall accrue on the above-stated sum through and including
maturity (whether by acceleration, notice of prepayment or otherwise)
at the per annum rate equal to the "LIBOR Rate" defined below plus 250
basis points (one hundred [100] basis points equals one percent [1%])
. "LIBOR Rate," as used herein, means a per annum rate of interest
(rounded upwards, if necessary, to the nearest 1/16th of one percent)
equal to the "London Interbank Offered Rate (LIBOR)" for contracts
with a maturity date of thirty (30) days, as quoted in the MONEY RATES
section of The Wall Street Journal as effective for contracts entered
into on the first day of the applicable interest period (expressed as
a decimal). The applicable LIBOR Rate shall be initially calculated on
the date hereof and shall be recalculated by Holder on each
regularly-scheduled payment date thereafter, notwithstanding that such
recalculation date is more or less than thirty (30) days from the
previous calculation date. If the recalculation date falls on a date
upon which Holder is not open for business, the recalculation shall
occur on the next business day on which Holder is open for business."
3. Payment Schedule. The section of the Note entitled "Payment Schedule" is
hereby amended and restated in its entirety as follows:
"PAYMENT SCHEDULE The above-stated principal sum and interest thereon shall
be paid as follows:
"Principal shall be due and payable in consecutive equal
installments each in the amount of $23,716.35 beginning on the
24th day of February, 2003, and continuing on the same day of
each month thereafter, through and including May 24, 2006, and in
a final installment equal to the unpaid principal amount of this
Note, which shall be due and payable on June 24, 2006. Accrued
interest on the unpaid amount shall be due and payable in full on
each date on which an installment of principal is due and
payable."
4. General Provisions.
(a) Legal Counsel. Obligor acknowledges and agrees that legal counsel
to Bank does not represent Obligor as Obligor's attorney, that Obligor has
retained (or has had an opportunity to retain) counsel of its own choice and has
not and will not rely upon any advice from Bank's counsel. In no event shall
Obligor's reimbursement of expenses pursuant to this Amendment (even if effected
by payment directly by Obligor to Bank's counsel) be deemed to establish any
attorney-client relationship between Obligor and Bank's counsel.
(b) No Waiver. The execution and delivery of this Amendment does not
constitute, and shall not be construed as, a waiver by Bank of any default under
any document, agreement or instrument. No delay or omission of Bank or any
subsequent holder of the obligations of Obligor to Bank to exercise any right,
remedy, power or privilege after the occurrence of such default shall be
construed as a waiver of any such default, or acquiescence therein.
(c) Headings. The headings of the articles, sections, paragraphs and
subdivisions of this Amendment are for convenience of reference only, are not to
be considered a part hereof, and shall not limit or otherwise affect any of the
terms hereof.
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(d) Reaffirmation; No Novation. Obligor reaffirms and restates each
and every provision of the Note, as amended by this Amendment. This Amendment
shall not constitute a novation of the Note or the indebtedness evidenced
thereby.
(e) Continuing Obligation; Benefits. This Amendment, and each and
every provision hereof, is a continuing obligation and shall (i) be binding upon
each of the parties hereto and their respective heirs, representatives,
successors and assigns, and (ii) inure to the benefit of and be enforceable by
the parties hereto and their respective heirs, representatives, successors and
assigns; provided, that Obligor may not assign all or any part of or interest in
this Amendment without the prior written consent of Bank, which consent may be
granted or withheld in the sole discretion of Bank.
(f) Controlling Law. This Amendment shall be governed by and construed
in accordance with the laws of the State of Georgia.
(g) Miscellaneous. This Amendment may not be varied, altered, or
amended except by a written instrument executed by an authorized officer of the
Bank. This Amendment may be executed in any number of counterparts, each of
which, when executed and delivered, shall be an original, but such counterparts
shall together constitute one and the same instrument. Any provision in this
Amendment which may be unenforceable or invalid under any law shall be
ineffective to the extent of such unenforceability or invalidity without
affecting the enforceability or validity of any other provisions hereof.
(h) Loan Documents. From and after the date hereof, all references to
the Note in any other agreement or instrument shall hereafter mean and refer to
the Note as amended by this Amendment.
(j) Representation and Warranty. Obligor, and the individuals
executing this Amendment on behalf of Obligor, represent and warrant to Bank
that (a) Obligor is in existence and in good standing under the laws of the
states of Delaware and Georgia, (b) the Articles of Incorporation of Obligor
have not been amended or terminated since November 1, 2001, and (c) the
execution and delivery of this Amendment have been authorized by all requisite
corporate action by and on behalf of Obligor.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed under seal as of the date first above written.
COLOR IMAGING, INC., a Delaware corporation
/S/ XXXXXXX XXXX
By:__________________________
Xx. Xxx-Xxxx Xxxx, President
[CORPORATE SEAL]
SOUTHTRUST BANK, an Alabama banking corporation
/S/ XXXXX X. XXXXX
By:___________________________________
Xxxxx X. Xxxxx, Assistant Vice President
[BANK SEAL]
The undersigned, being guarantors of Obligor's obligations under the Note,
hereby consent to the execution and delivery of the foregoing Amendment and
confirm that their guaranty obligations remain in full force and effect.
KINGS BROTHERS, LLC, a Georgia limited
liability company (SEAL) /S/ XXXXXXX XXXX
_____________________________ (SEAL)
/S/ XXXXXXX XXXX Xx. Xxx-Xxxx Xxxx
By:_________________________________
Xx. Xxxxxxx Xxxx, Managing Member
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