EXHIBIT 10.4
FIRST TERM NOTE
$ 500,000 Atlanta, Georgia September 19, 2005
FOR VALUE RECEIVED, the undersigned, COLOR IMAGING, INC. ("Borrower"), a
Delaware corporation, promises to pay to the order of WACHOVIA BANK, NATIONAL
ASSOCIATION, successor by merger to SOUTHTRUST BANK ("Bank"), at any office of
Bank in Atlanta, Georgia, or at such other place as the holder of this Note may
from time to time designate in writing, the principal sum of FIVE HUNDRED
THOUSAND DOLLARS ($500,000), together with interest on the unpaid principal
amount hereof as set forth in the Second Amendment and Restated Loan and
Security Agreement (the "Loan Agreement") dated as of the date hereof between
Borrower and Bank, the terms of which are incorporated herein by this reference.
This Note is the "First Term Note" under, and as defined in, the Loan Agreement.
The principal amount outstanding and the interest due hereunder will be payable
as set forth in the Loan Agreement. Time is of the essence with respect to the
amounts due hereunder. All capitalized terms utilized herein, not defined herein
but defined in the Loan Agreement shall have the definitions ascribed thereto in
the Loan Agreement.
If any payment of principal or interest is late ten (10) days or more, in
addition to interest at the Default Rate, Maker agrees to pay a late charge
equal to five percent (5%) of the amount of the payment which is late, subject
to a minimum late charge of $10.00 for any one payment, as compensation for
administrative and other costs associated with the late payment. Collection or
acceptance by Bank of such late charge shall not constitute a waiver of any
remedies of Bank provided herein.
This Note is secured by the security set forth or referred to in the Loan
Agreement. Funds disbursed hereunder shall be disbursed in accordance with the
Loan Agreement.
The principal sum evidenced by this Note, together with accrued but unpaid
interest, shall be due and payable on the maturity date specified above, but in
any event at the option of Bank upon the occurrence of (a) any failure by
Borrower to pay as and when due any installment of principal or interest due
hereunder; (b) any default or Event of Default under the Loan Agreement or any
other default or failure by Borrower to observe any covenant, condition or
agreement under the terms of this Note, the Loan Agreement, any of the Loan
Documents (as defined in the Loan Agreement) or any other security documents
heretofore or hereafter executed by Borrower to secure this Note; (c) the filing
by Borrower of a voluntary petition in bankruptcy, the adjudication of Borrower
as a bankrupt or insolvent, the filing by Borrower of any petition or answer
seeking or acquiescing in any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any present or
future federal, state or other statute, law or regulation relating to
bankruptcy, insolvency or other relief for debtors, or Xxxxxxxx's seeking or
consenting to or acquiescence in the appointment of any trustee, receiver or
liquidator or the making of any general assignment for the benefit of creditors
or its admission in writing of its inability to pay its or his debts generally
as they become due; (d) the entry by a court of competent jurisdiction of an
order, judgment or decree approving a petition filed against Borrower seeking
any reorganization, arrangement, composition, readjustment, liquidation,
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dissolution or similar relief under any present or future federal, state or
other statute, law or regulation relating to bankruptcy, insolvency, or other
relief for debtors, which order, judgment or decree remains unvacated and
unstayed for thirty (30) consecutive days from the date of entry thereof, or the
appointment of any trustee, receiver or liquidator of Borrower or of a
substantial part of its property or of any or all of the rents, revenues,
issues, earnings, profits or income thereof, or (e) the occurrence of any
material adverse change in the financial condition or prospects of Borrower.
Upon any default, Xxxxxxxx agrees to pay interest to Bank (or any holder)
at the annual rate equal to the Default Rate, as said rate shall change from
time to time, on the aggregate indebtedness represented by this Note, including
interest earned to maturity, from maturity, whether or not resulting from
acceleration, until such aggregate indebtedness is paid in full. The Bank (or
any holder) shall be entitled to recover all expenses of collecting this Note,
including, without limitation, costs of court and reasonable and actual
attorneys' fees.
The acceptance by the Bank of any payment or payments due hereunder, or any
part of such payment, after any default shall not constitute a waiver of such
default by the Bank.
With respect to the amounts due under this Note, Borrower waives the
following:
1. All rights of exemption of property from levy or sale under
execution or other process for the collection of debts under the
Constitution or laws of the United States or any state thereof;
2. Demand, presentment, protest, notice of dishonor, notice of
non-payment, suit against any party, diligence in collection, and
all other requirements necessary to charge or hold the
undersigned liable on any obligations hereunder; and
3. Any further receipt for or acknowledgment of any collateral now
or hereafter deposited as security for the obligations hereunder.
Regardless of any provision contained in this Note or any of the Loan
Documents, in no event shall the aggregate of all amounts that are contracted
for, charged or collected pursuant to the terms of this Note or any of the Loan
Documents, and that are deemed interest under Applicable Laws, exceed the
Maximum Rate. No provision of this Note or in any of the Loan Documents or the
exercise by Bank of any right hereunder or under any Loan Document or the
prepayment by Borrower of any of the Obligations or the occurrence of any
contingency whatsoever, shall entitle Bank to charge or receive, or to require
Borrower to pay, interest or any amounts deemed interest by Applicable Laws
(such amounts being referred to herein collectively as "Interest") in excess of
the Maximum Rate, and all provisions hereof or in any Loan Document which may
purport to require Borrower to pay Interest exceeding the Maximum Rate shall be
without binding force or effect to the extent only of the excess of Interest
over such Maximum Rate. Any Interest charged or received in excess of the
Maximum Rate ("Excess"), shall be conclusively presumed to be the result of an
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accident and bona fide error, and shall, to the extent received by Bank, at the
option of Bank, either be applied to reduce the principal amount of the
Obligations or returned to Borrower. The right to accelerate the maturity of any
of the Obligations does not include the right to accelerate unaccrued interest
and no such interest will be collected by Bank. All monies paid to Bank
hereunder or under any of the Loan Documents shall be subject to any rebate of
unearned interest as and to the extent required by Applicable Laws. By the
execution of this Agreement, Borrower covenants that: (a) the credit or return
of any Excess shall constitute the acceptance by Borrower of such Excess, and
(b) Borrower shall not seek or pursue any other remedy, legal or equitable,
against Bank, based in whole or in part upon contracting for, charging or
receiving any Interest in excess of the Maximum Rate. For the purpose of
determining whether or not any Excess has been contracted for, charged or
received by Bank, all interest at any time contracted for, charged or received
from Borrower in connection with this Agreement shall, to the extent permitted
by Applicable Laws, be amortized, prorated, allocated and spread in equal parts
throughout the full term of the Obligations. Borrower and Bank shall, to the
maximum extent permitted under Applicable Laws, (a) characterize any
non-principal payment as an expense, fee or premium rather than as Interest and
(b) exclude voluntary prepayments and the effects thereof. The provisions of
this Section shall be deemed to be incorporated into each Loan Document (whether
or not any provision of this Section is referred to therein).
BORROWER AND BANK HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY ON ANY CLAIM,
COUNTERCLAIM, SETOFF, DEMAND, ACTION OR CAUSE OF ACTION (A) ARISING OUT OF OR IN
ANY WAY PERTAINING OR RELATING TO THIS NOTE, THE LOAN AGREEMENT, ANY LOAN
DOCUMENT, OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED
IN CONNECTION WITH THIS NOTE OR (B) IN ANY WAY CONNECTED WITH OR PERTAINING OR
RELATED TO OR INCIDENTAL TO ANY DEALINGS OF THE PARTIES HERETO WITH RESPECT TO
THIS NOTE, THE LOAN AGREEMENT, ANY LOAN DOCUMENT, OR ANY OTHER INSTRUMENT,
DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR IN
CONNECTION WITH THE TRANSACTIONS RELATED THERETO OR CONTEMPLATED THEREBY OR THE
EXERCISE OF EITHER PARTY'S RIGHTS AND REMEDIES THEREUNDER, IN ALL OF THE
FOREGOING CASES WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING
IN CONTRACT, TORT OR OTHERWISE. XXXXXXXX AND XXXX AGREE THAT EITHER OR BOTH OF
THEM MAY FILE A COPY OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE
KNOWING, VOLUNTARY AND BARGAINED AGREEMENT BETWEEN THE PARTIES IRREVOCABLY TO
WAIVE TRIAL BY JURY, AND THAT ANY DISPUTE OR CONTROVERSY WHATSOEVER BETWEEN THEM
SHALL INSTEAD BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING
WITHOUT A JURY.
Bank shall not by any act, delay, omission, or otherwise be deemed to have
waived any of its rights or remedies, and no waiver of any kind shall be valid
unless in writing and signed by the Bank. All rights and remedies of Bank under
the terms of this Note and under applicable statutes or rules of law shall be
cumulative and may be exercised successively or concurrently. Xxxxxxxx agrees
that there are no defenses, equities or set offs in respect to the obligations
set forth herein. The obligations of Borrower hereunder shall be binding upon
and enforceable against Xxxxxxxx's successors and assigns. The obligations of
each person named as Borrower herein shall be joint and several obligations of
all such persons. This Note shall be governed by, and construed in accordance
with, the laws of the State of Georgia. Any provision in this Note 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
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validity of any other provision hereof. Any notice required to be given shall be
deemed given if mailed, postage prepaid, to Borrower at the address set forth in
the Loan Agreement.
IN WITNESS WHEREOF, Xxxxxxxx has executed this instrument under seal as of
the day and year first above written.
BORROWER:
COLOR IMAGING, INC., a Delaware
corporation
/S/ XXXXXXX XXXX
By:_____________________________
Xx. Xxx-Xxxx Xxxx, President
[CORPORATE SEAL]
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