EXHIBIT 4.10
SIXTH AMENDMENT OF LOAN DOCUMENTS
---------------------------------
THIS SIXTH AMENDMENT OF LOAN DOCUMENTS (this "Amendment") is made as of
February 7, 2002, by and among the following parties:
1. SOUTHTRUST BANK ("Bank");
2. COLOR IMAGING, INC. ("Delaware Color"), a Delaware
corporation; and
3. LOGICAL IMAGING SOLUTIONS, INC. ("Logical"), a California
corporation.
RECITALS:
--------
1. Revolving Loan. Delaware Color and Logical (collectively, jointly
--------------
and severally, "Borrower"), are jointly and severally indebted to Bank under and
in regard to various loans, including but not limited to Revolving Loan (the
"Revolving Loan") in the maximum principal amount of Two Million Five Hundred
Thousand Dollars ($2,500,000) evidenced by Revolving Note (as amended, modified
and restated, the "Revolving Note") dated as of June 24, 1999, from Color
Image, Inc. ("Georgia Color"), a Georgia corporation, to Bank, as amended by
Revolving Note Modification Agreement dated as of May 5, 2000, Second Revolving
Note Modification Agreement dated as of August 30, 2000, Third Revolving Note
Modification Agreement dated as of November 30, 2000, Fourth Revolving Note
Modification Agreement dated as of July 5, 2001, to be effective for all
purposes as of June 30, 2001, and Fifth Revolving Note Modification Agreement
dated as of December 31, 2001; and subject to Loan and Security Agreement (as
amended and modified, the "Revolving Loan Agreement") dated as of May 5, 2000,
between Georgia Color and Bank, as amended and affected by Amendment of Loan
Documents dated as of August 30, 2000, Second Amendment of Loan Documents dated
as of November 30, 2000, Third Amendment of Loan Documents made as of July 5,
2001, to be effective for all purposes as of June 30, 0000, Xxxxxx Xxxxxxxxx of
Loan Documents dated as of November 1, 2001, and Fifth Amendment of Loan
Documents made as of December 31, 2001.
2. Amendments. Borrower has requested that Bank agree to amend those
----------
provisions of the Revolving Loan Agreement regarding the minimum "Fixed Charge
Coverage" and the ratio of "Funded Debt" to "EBITDA", as defined in the
Revolving Loan Agreement. Bank has agreed to such amendments, on and subject to
the terms, conditions and requirements set forth in this Amendment.
NOW, THEREFORE, the parties hereto, intending to be legally bound, agree
that (a) the foregoing recitals are true and correct and are incorporated herein
by this reference, (b) any capitalized terms utilized herein, not defined herein
but defined in the Revolving Loan Agreement shall have the definitions ascribed
thereto in the Revolving Loan Agreement and (c) further as follows:
1. Amendments. Section 6.21 of the Revolving Loan Agreement is hereby
----------
amended to require Borrower to maintain a Fixed Charge Coverage Ratio of not
less than 1.05:1.00 and a ratio of Funded Debt to EBITDA of not more than 5.00
to 1.00, on the terms and conditions otherwise set forth in the Revolving Loan
Agreement.
2. Conditions. Bank's agreements set forth herein are subject to and
----------
conditioned upon satisfaction of the following conditions to Bank's
satisfaction:
a. Costs. Payment by Borrower of all Bank's costs and expenses in
-----
regard to the investigation, review and approval of this transaction, the
preparation of this Amendment and all documents
and agreements required hereby and the administration thereof, including,
without limitation, (i) all legal fees, expenses and disbursements and other
actual third-party expense reimbursements incurred or sustained by Bank in
connection with this transaction, (ii) all travel, appraisal, audit, search and
filing fees incurred or sustained by Bank in connection with this transaction or
the administration of the Loans and this Amendment; (iii) all recording and
filing fees, intangibles taxes, documentary and revenue stamps, other taxes or
other expenses and charges payable in connection with this Amendment or any
agreements or instruments executed in connection herewith and (iv) all costs,
expenses (including fees and expenses of outside consultants), related to the
administration of the transactions contemplated hereby.
b. Patent Assignment. Evidence of recording in US Patent Office of
-----------------
Patent Assignment from Xxxxxxx X. Xxxxxxx to Borrower regarding United States
Letters Patent Number 5,834,150 entitled "Solvent Vapor Fixing Methods and
Process Color Toners for Use in Same".
c. Other Documents. The execution and delivery of such other
---------------
documents and agreements as Bank shall require to evidence and consummate the
transactions described herein.
3. General Provisions.
------------------
a. Legal Counsel. Borrower acknowledges and agrees that legal counsel
-------------
to Bank does not represent Borrower as Borrower's attorney, that Borrower 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
Borrower's reimbursement of expenses pursuant to this Amendment (even if
effected by payment directly by Borrower to Bank's counsel) be deemed to
establish any attorney-client relationship between Borrower 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 or
Event of Default under any document, agreement or instrument. No delay or
omission of Bank or any subsequent holder of the obligations of Borrower to Bank
to exercise any right, remedy, power or privilege after the occurrence of such
default or Event of 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.
d. Survival of Covenants: Reaffirmation. All covenants, agreements,
------------------------------------
representations and warranties made herein and in certificates or reports
delivered pursuant hereto shall be deemed to have been material and relied on by
Bank, nothwithstanding any investigation made by or on behalf of Bank, and shall
survive the execution and delivery to Bank of this Amendment. All the terms and
conditions of the instruments and agreements amended by this Amendment are
hereby ratified, affirmed and approved as herein amended. Obligors here reaffirm
and restate each and every warranty and representation set forth in the Loan
Documents, as amended by this Amendment. This Amendment shall not constitute a
novation of the indebtedness evidence by the Loan Documents.
c. 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 none of Obligors may assign all or any part of this
---------
Amendment without the prior written consent of Bank, which consent may be
granted or withheld in the sole discretion of Bank.
2
f. Controlling Law. This Amendment shall be governed by and construed in
---------------
accordance with the laws of the State of Georgia.
g. Standard of Review. Any document, writing or instrument required or
------------------
permitted to be delivered to Bank under this Amendment shall be deemed
satisfactory only if approved by Bank in the exercise of its sole discretion,
and any act or approval permitted to be done by Bank under this Amendment shall
be in Bank's sole discretion.
h. 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.
i. General Waivers. To the fullest extent permitted by Applicable Law,
---------------
Borrower and all Obligors waive (i) presentment, demand and protest and notice
of presentment, protest, default, nonpayment, maturity, release, compromise,
settlement, extension or renewal of any or all commercial paper, accounts,
contract rights, documents, instruments, chattel paper and guaranties at any
time held by Bank on which Obligors may in any way be liable; (ii) notice prior
to Bank's taking possession or control of any collateral or any bond or security
which might be required by any court prior to allowing Bank to exercise any of
Bank's remedies, including the issuance of an immediate writ of possession;
(iii) the benefit of all valuation, appraisement and exemption laws; (iv) any
right Obligor may have upon payment in full of the Obligations to require Bank
to terminate its security interest in any collateral until the execution by
Obligors of an agreement indemnifying Bank from any loss or damage Bank may
incur as the result of dishonored checks or other items of payment received by
Bank from Obligors or any Account Debtor and applied to the obligations owed to
Bank; and (v) notice of Bank's acceptance hereof or of any document required
hereby.
j. Loan Documents. From and after the date hereof, all references in
--------------
any of the Loan Documents to any document or agreement amended by this Amendment
shall mean and refer to such document or agreement as amended by this Amendment.
k. Representation and Warranty. Borrower, and the individuals executing
---------------------------
this Amendment on behalf of Borrower, represent and warrant to Bank that (a)
each entity constituting Borrower is in existence and in good standing under the
laws of the state of Georgia and their respective states of organization, (b)
the Articles of Incorporation and Bylaws of the entities constituting Borrower
have not been amended since June 30, 2001, and (c) the execution and delivery of
this Amendment have been authorized by all requisite corporate action by and on
behalf of Borrower.
[SIGNATURES COMMENCE ON NEXT PAGE]
-3-
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
By: /s/ Xxxxxxx Xxxx
--------------------------------------
Its: PRESIDENT
-------------------------------------
Attest: /s/ Chia-an Xxxxx
----------------------------------
By: ASSISTANT SECRETARY
--------------------------------------
[CORPORATE SEAL]
LOGICAL IMAGING SOLUTIONS, INC., a
California corporation
By: /s/ Xxxxxxx Xxxx
--------------------------------------
Its: PRESIDENT
-------------------------------------
Attest: /s/ Chia-an Xxxxx
----------------------------------
Its: ASSISTANT SECRETARY
-------------------------------------
[CORPORATE SEAL]
SOUTHTRUST BANK
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Its: Assistant Vice-President
-------------------------------------
[BANK SEAL]
4
