EXHIBIT 4.14
AMENDMENT OF LOAN DOCUMENTS
THIS AMENDMENT OF LOAN DOCUMENTS (this "Amendment") is made as of June 29,
2004, by and between COLOR IMAGING, INC. ("Borrower"), a Delaware corporation,
and SOUTHTRUST BANK ("Bank"), an Alabama banking corporation.
R E C I T A L S:
1. Current Circumstances. Borrower is obligated to Bank under an Amended
and Restated Revolving Note (the "Note") dated as of June 16, 2003. The Note is
issued and outstanding under and pursuant to an Amended and Restated Loan and
Security Agreement (the "Loan Agreement") between Borrower and Bank dated as of
June 16, 2003, to be effective for all purposes as of July 1, 2003. Borrower and
Bank desire to amend the Loan Agreement, the Note and related loan documents to
(a) extend the maturity date of the loan evidenced therein to June 30, 2005, and
(b) to provide for the issuance of certain letters of credit.
NOW, THEREFORE, Borrower and Bank, intending to be legally bound,
agree as follows:
1. Recitals; Definitions. The foregoing recitals and provisions 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 Loan Agreement shall have the definitions ascribed thereto in
the Loan Agreement.
2. Maturity Date.
(a) Loan Agreement. The definition of "Commitment Period" in
Section 1.1 of the Agreement is hereby amended by inserting "June 30, 2005" in
lieu of "July 1, 2004" therein.
(b) Note. The Note is hereby amended by inserting "June 30, 2005"
in lieu of "July 1, 2004" as the outside Maturity Date in the third (3rd) and
fourth (4th) lines of the second (2nd) paragraph thereof.
3. Letter of Credit.
(a) New Definitions. The following terms and definitions are
hereby inserted in Section 1.1 of the Loan Agreement in their proper
alphabetical locations:
"Credits -- collectively, all letters of credit now or
hereafter issued by Bank for the account of Borrower, together with all renewals
thereof and substitutions therefor.
"Uniform Customs and Practice -- means the "Uniform Customs
and Practice for Documentary Credits (1993 Revision), International Chamber of
Commerce, Publication No. 500," and any subsequent revisions thereof approved by
the International Chamber of Commerce.
(b) Revised Definitions. The definitions of the following terms
set forth in Section 1.1 of the Loan Agreement are hereby amended and restated
in their entirety as follows:
"Obligations - the Loan, Borrower's reimbursement and other obligations as
to any and all Credits, and all other advances, debts, liabilities, obligations,
covenants and duties owing, arising, due or payable from Borrower to Bank of any
kind or nature, present or future, whether or not evidenced by any note,
guaranty or other instrument, whether arising under this Agreement or any of the
other Loan Documents or otherwise, whether direct or indirect (including those
acquired by assignment), absolute or contingent, primary or secondary, due or to
become due, now existing or hereafter arising and however evidenced or acquired.
The term includes, without limitation, all interest, charges, expenses, fees,
attorneys' fees and any other sums chargeable to Borrower under any of the Loan
Documents and all rights Bank may at any time or times have to reimbursement in
connection with any letter of credit or guaranty issued for Borrower's benefit."
(c) Conditions and Requirements. The following provisions are
hereby inserted in the Loan Agreement as Section 2.6:
"2.6 Credits; Security Interest in Collateral. Bank may
hereafter, at the request of and for the account of Borrower, issue Credits,
subject to and in accordance with the provisions of this Section 2.6. Borrower's
reimbursement obligations in regard to all Credits at all times shall be secured
by Collateral.
"(a) Issuance. Upon the request of Borrower from time to time,
provided that Borrower shall not be in default under this Agreement, Bank shall
issue one or more Credits; provided that (a) the form of the Credit, the
transaction in connection with which the Credit is issued and all other matters
relating to the Credit shall be satisfactory to Bank in its sole discretion; (b)
no Credit shall be issued if, after issuance thereof, the sum of the aggregate
amount available to be drawn under all Credits, plus the aggregate amount of any
unreimbursed drawings under Credits, would exceed Five Hundred Thousand Dollars
($500,000); (c) no Credit shall be issued if, after issuance thereof, the sum of
the aggregate amount available to be drawn under all Credits, plus the aggregate
amount of any unreimbursed drawings under Credits, plus the principal amount
outstanding under the Loan (excluding Credits) would exceed One Million Five
Hundred Thousand Dollars ($1,500,000), (d) no Credit shall have an initial term
longer than one year; (e) if any Credit has an expiry date later than the
expiration date of the Commitment Period, Borrower shall, not later than the
expiration date of the Commitment Period deposit with Bank cash in an amount not
less than the face amount of the Credit to be held by Bank, without interest, as
additional security for Borrower's reimbursement obligations in regard to the
Credit and execute and deliver in regard thereto such documents as Bank shall
reasonably require; and (f) Borrower shall pay to Bank annually as invoiced by
Bank a fee equal to one percent (1 %) of the sum of the aggregate amount
available to be drawn under all Credits, plus the aggregate amount of any
unreimbursed drawings under Credits. Bank shall be entitled to reimburse itself
from the cash deposit identified in (e) above for any draw made against the
Credit. Bank shall return the cash deposit to Borrower upon cancellation of the
Credit without any draw having been made thereon, provided that no default
exists hereunder. The issuance and negotiation of Credits shall be governed by
the Uniform Customs and Practice or such other policies and practices as may be
followed by Bank with respect to similar letters of credit at the time.
"(b) Reimbursement Obligation. Borrower hereby affirms its
obligation, and hereby covenants and agrees, to pay Bank, in United States
currency, the amount of each drawing under the Credits, together with interest,
commissions, all customary charges, and all other disbursements or payments by
Bank pursuant to the Credits or this Agreement, such payment to be made on
demand with interest at the rate specified below from the date of payment under
the Credits to the date of payment by Borrower to Bank. If a drawing is payable
in foreign currency, Borrower will pay Bank the equivalent of the amount of such
drawing in United States currency, at Bank's then selling rate for cable
transfers, to the place of payment or to the place of Bank's settlement of its
obligation, as Bank may require. If there is no rate of exchange for effecting
such cable transfer, Borrower will pay Bank on demand the amount in United
States currency equivalent to Bank's actual cost of settlement, with per annum
interest at the interest rate effective in regard to the Loan from time on the
amount in United States currency, payable by Borrower from the date of
settlement to the date of payment by Borrower. Bank shall be entitled to pay and
reimburse itself from the Collateral for any draw made against any Credit and
any other charges or interest payable by Borrower hereunder.
"(c) Indemnity; No Bank Responsibility or Obligation. Borrower
agrees to defend, indemnify and hold harmless Bank from and against any and all
suits, claims, losses, liabilities, or damages, including reasonable attorneys'
fees actually incurred, howsoever arising from or in connection with the
Credits. The agreements in this subparagraph "(c)" will survive any payment
under or termination of this Agreement. Borrower will pay Bank on demand all
charges, costs and expenses, including reasonable attorneys' fees, incurred or
paid by Bank in connection with the exercise of any right, power, or remedy
hereunder, or in the enforcement thereof. Bank shall in no way be responsible
for performance by any beneficiary of any of the Credits of such beneficiary's
obligations to Borrower, nor for the form, sufficiency, correctness,
genuineness, authority of person signing, falsification or legal effect of any
documents called for under the Credits if such documents on their face appear to
be in order. It is agreed that all directions and correspondence relating to the
Credits are to be sent at Borrower's risk and that Bank does not assume any
responsibility for any inaccuracy, interruption, error or delay in transmission,
or delivery by post, telegraph, cable or courier, or for any inaccuracy of
translation. Bank is not and shall not be under any obligation to extend the
expiration date of any of the Credits beyond their stated expiry dates, whether
by virtue of the execution and delivery of this Agreement or otherwise.
"(d) Bank Rights. Borrower hereby authorizes Bank to (a) select
an advising bank, if any, (b) authorize or restrict negotiation under the
Credits and (c) waive any such restriction on negotiation. Bank may honor, as
complying with the terms of the Credits, any drafts or other documents otherwise
in order signed or issued by an administrator, executor, conservator, trustee in
bankruptcy, debtor in possession, assignee for benefit of creditors, liquidator,
receiver, or other legal representative of the party authorized under the
Credits to draw or issue such drafts or other documents. Bank's rights, powers,
and remedies specified herein are cumulative and are in addition to those
otherwise created or existing by law or agreement.
"(e) Default; Remedies. If Bank shall in good xxxxx xxxx itself
insecure at any time, or upon the occurrence of an Event of Default, Bank may,
in addition to any other rights and remedies at law, or in equity or under this
Agreement, require Borrower to deliver to Bank, to be held and treated as
additional Collateral, additional property equal in amount or value to one
hundred twenty-five percent (125%) of the Credits, and Borrower shall promptly
execute such documentation in regard thereto as Bank shall require.
"(f) Uniform Customs and Practice; Applicable Law. The Credits
are and will be subject to, and performance by Bank and the beneficiaries
thereunder are and will be governed by, the Uniform Customs and Practice.
Subject to the foregoing provisions, this Agreement is made in Georgia and shall
be deemed to be a contract under seal to be governed by and construed in
accordance with the laws of the State of Georgia.
"(g) Obligations Absolute. The obligations of Borrower under this
Agreement shall be absolute, unconditional and irrevocable and shall be paid
strictly in accordance with the terms of this Agreement, under all, and
notwithstanding any, circumstances whatsoever, including, without limitation,
the following:
(i) any lack of validity or enforceability of the Credits;
(ii) any amendment or waiver of, or any departure from the
terms of all or any of, the Credits;
(iii) the existence of any claim, set-off, defense or other
rights which Borrower may have at any time against any
person or entity, whether in connection this Agreement, the
Credits or any related or unrelated transaction;
(iv) any statement or any other document presented under any
of the Credits proves to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein proves
to be untrue or inaccurate in any respect whatsoever;
(v) payment by Bank under any of the Credits against
presentation of a draft or certificate which does not comply
with the terms of the Credit, provided such payment shall
not have constituted gross negligence or willful misconduct
by Bank; and
(vi) any other circumstance or happening whatsoever, whether
or not similar to any of the foregoing, provided the same
shall not have constituted gross negligence or willful
misconduct by Bank."
4. Miscellaneous.
(a) Loan Documents. From and after the date hereof, all references in
the Loan Documents to the Note or the Loan Agreement shall refer to the Note or
Loan Agreement, as applicable, as amended by this Amendment.
(b) Ratification and Reaffirmation. Borrower hereby ratifies and
reaffirms the Loan Agreement, the Note and the Loan Documents as amended hereby
and all of Borrower's covenants, duties and liabilities thereunder.
(c) Representations and Warranties. Borrower represents and warrants
to Lender, to induce Lender to enter into this Amendment, that no Events of
Default have occurred or now exist under the Loan Documents; and execution,
delivery and performance of this Amendment have been duly authorized by all
requisite corporate or company action on the part of Borrower and this Amendment
has been duly executed and delivered by Borrower.
(d) Fees and Expenses of Lender. Borrower agrees to pay, as a
condition to Lender's agreements set forth herein, all costs and expenses
incurred by Lender in connection with the preparation, negotiation and execution
of this Amendment and any and all amendments, modifications, and supplements
thereto, including, without limitation, the reasonable costs and fees of
Lender's legal counsel.
(e) Effectiveness; Governing Law. This Amendment shall be effective
upon acceptance by Lender and governed by and construed in accordance with the
internal laws of the State of Georgia, without regard to conflicts of laws.
(f) Successors and Assigns. This Amendment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
(g) No Novation, etc. The Loan Documents, as amended hereby, shall
remain in full force and effect. This Amendment is not intended to be, nor shall
it be construed to create, a novation or accord and satisfaction, and the Loan
Documents as herein modified are hereby affirmed in all respects and shall
continue in full force and effect.
(h) Release. Borrower hereby waives, releases and discharges Lender
from any and all claims, demands, actions or causes of action arising out of or
in any way relating to the Loan Documents and any documents, agreements,
dealings, or other matters connected therewith, including, without limitation,
all known and unknown matters, claims, transactions, or things occurring prior
to the date of this Amendment related to the Loan Documents or such other
documents, agreements, dealings or other matters.
(i) Counterparts; Telecopied Signatures. This Amendment may be
executed in any number of counterparts and by different parties to this
Agreement on separate counterparts, each of which, when so executed, shall be
deemed an original, but all such counterparts shall constitute one and the same
agreement. Any signature delivered by a party by facsimile transmission shall be
deemed to be an original signature hereto.
(j) Costs of Preparation. Borrower shall bear all expenses of the Bank
in connection with this Amendment, any Credits, and with the investigation,
review and approval of this transaction, the preparation of this Amendment and
also in connection with any amendment or modification thereto, 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
appraisal, audit, search and filing fees incurred or sustained by Bank in
connection with this transaction or the administration of the Loan; (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 other Loan Document and (iv) all costs, expenses (including
fees and expenses of outside consultants).
(k) 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 Agreement (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.
(l) Headings. The headings of the articles, sections, paragraphs and
subdivisions of this Agreement 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.
(m) Time of Essence. Time is of the essence of this Amendment.
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IN WITNESS WHEREOF, Borrower and Bank have executed and delivered this
Amendment under seal as of the date first above written.
BORROWER:
COLOR IMAGING, INC., a Delaware corporation
By: /S/ XXXXXXX XXXX
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Xx. Xxx-Xxxx Xxxx, President
Attest: /S/ XXXXXX X. XXX XXXXXXX
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Its: SECRETARY
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[CORPORATE SEAL]
BANK:
SOUTHTRUST BANK
By: /S/ XXXXX X. XXXXX
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Its: VICE PRESIDENT
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[BANK SEAL]
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