EXHIBIT 10.1
ASSIGNMENT AND ASSUMPTION AGREEMENT
(Relating to Development Authority of Gwinnett County
Industrial Development Revenue Bonds
(Color Image, Inc. Project), Series 1999)
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (the "Assumption Agreement") is
entered into as of the 19th day of September 2005, by and among KINGS BROTHERS,
LLC, a Georgia limited liability company (the "Assignor") and COLOR IMAGING,
INC. (formerly Color Image, Inc., a Georgia corporation), a Delaware corporation
(the "Assignee");
WITNESSETH:
WHEREAS, the Development Authority of Gwinnett County (the "Issuer") has
previously issued its $4,100,000 in original aggregate principal amount of
Industrial Development Revenue Bonds (Color Image, Inc. Project), Series 1999
(the "Bonds") for the purpose of financing the acquisition, construction and
equipping of a manufacturing plant in Gwinnett County, Georgia (the "Project");
and
WHEREAS, the Issuer lent the proceeds of the Bonds to Assignor pursuant to
a Loan Agreement, dated as of June 1, 1999 (the "Loan Agreement"), between the
Issuer, the Assignor and the Assignee; and
WHEREAS, as security for the Bonds, the Assignor requested that Wachovia
Bank, National Association (formerly SouthTrust Bank, National Association), a
national banking association with a principal office in Atlanta, Georgia (the
"Bank") issue its irrevocable letter of credit (the "Letter of Credit") to
Wachovia Bank, National Association (formerly SouthTrust Bank, National
Association), as trustee (the "Trustee"); and
WHEREAS, in connection with the issuance of the Letter of Credit, the
Assignor entered into and executed, the following:
(1) Loan Agreement, dated as of June 1, 1999 (the "Loan Agreement")
by and between the Assignor, the Assignee and the Issuer;
(2) Remarketing and Interest Services Agreement, dated as of June 1,
1999 (the "Remarketing Agreement), among the Assignor, the
Assignee, the Issuer and Wachovia Bank, National Association
(formerly SouthTrust Securities, Inc.), as remarketing agent;
(3) Reimbursement Agreement, dated as of June 1, 1999 (the
"Reimbursement Agreement") by and between the Assignor, the
Assignee and the Bank.
(suchdocuments are hereinafter referred to collectively as the
"Bond Documents"); and
WHEREAS, the Assignor is a related entity to the Assignee; and
WHEREAS, the Assignor has requested that it be released from the Bond
Documents (the "Transaction"); and
WHEREAS, in connection with the Transaction, the Assignor desires to
sell and assign all of its rights and liabilities to the Assignee, including
without limitation, all right, title, interest, duties and obligations of the
Assignor in, to and under the Bond Documents;
NOW, THEREFORE, in consideration of the premises, the mutual agreements
herein contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. The Assignor hereby assigns, transfers and delegates all its right,
title, interest, duties and obligations in, to and under the Bond Documents to
the Assignee.
2. The Assignee hereby assumes all of the Assignor's right, title,
interest, duties and obligations in, to and under the Bond Documents and
covenants to perform all of the Assignor's agreements, obligations and covenants
thereunder.
3. The Assignee hereby acknowledges that the Bank, the Issuer, the
Remarketing Agent and the Trustee may have and exercise, as against Assignee,
all right, title, interest, powers and privileges of the Bank, the Trustee, the
Remarketing Agent and the Issuer under the Bond Documents, until all of the
payments and other obligations required of the Assignor and the Assignee
thereunder have been paid or otherwise satisfied in full.
4. The Bank hereby acknowledges and consents to the foregoing assignment
and assumption under each such Bond Document.
5. The Assignor hereby represents and warrants, on the date hereof, as
follows:
(a) The Bond Documents executed and delivered on the date of issuance
and delivery of the Bonds, copies of which have been furnished to the
Assignee, constitute true, complete and accurate copies of the Bond
Documents, and there have been no supplements, amendments and modifications
thereto; and there are no amendments and modifications to the Bond
Documents or to any other instruments or agreements to which the Assignor
is a party or by which it is bound and which relate to the Bond Documents.
(b) The Bond Documents are in full force and effect as of the date
hereof, and no breached, defaults or defenses are in existence or have been
asserted under the Bond Documents by the Trustee or the Bank (as
applicable), and no facts or circumstances exist which, with the giving of
notice or the passage of time, or both, would constitute a breach or
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default under the Bond Documents.
(c) The aggregate outstanding principal balance under the Bonds on
September 19, 2005 is $2,075,000.
6. The Assignee represents and warrants, on the date hereof, as follows:
(a) The Assignee is a corporation duly organized, validly existing and
in good standing under the laws of the of the State of Delaware and has all
requisite power and authority and all necessary licenses and permits to own
and operate its properties and to carry on its business as now being
conducted and as presently proposed to be conducted.
(b) There are no proceedings pending, or to the knowledge of the
Assignee threatened against or affecting the Assignee in any court or
before any governmental authority or arbitration aboard or tribunal which
involve the possibility of materially and adversely affecting the
properties, business, prospects, profits or condition (financial or
otherwise) of the Assignee, or the ability of the Assignee to perform its
obligations under this Assumption Agreement or the Bond Documents. The
Assignee is not in default with respect to an order of any court,
governmental authority of arbitration board or tribunal.
(c) The execution and delivery by the Assignee of this Assumption
Agreement, and the compliance by the Assignee with all of the provisions
hereof and of the Bond Documents (i) are within the corporate power of he
Assignee, (ii) will not conflict with or result in any breach of any of the
provisions of, or constitute a default under, or result in the creation of
any lien, charge or encumbrance upon any property of the Assignee under the
provisions of, any agreement, charter document, by-law or other instrument
to which the Assignee is a party or by which it may be bound, or any
license, judgment, decree, law, statute, order, rule or regulation of any
court or governmental agency or body having jurisdiction over the Assignee
or any of its activities or properties, and (iii) have been duly authorized
by all necessary corporate action on the part of the Assignee.
(d) Neither the Assignee nor any of its business or properties, nor
any relationship between the Assignee and any other person, nor any
circumstances in connection with the execution, delivery and performance by
the Assignee of this Assumption Agreement and the Bond Documents is such as
to require the consent, approval or authorization of, or the filing,
registration or qualification with, any governmental authority on the xxx
of the Assignee other than those already obtained.
(e) No event has occurred and no condition exists with respect to the
Assignee that would constitute an "event of default" under the Bond
Documents or which, with the lapse of time or with the giving of notice or
both, would become an "event of default" under the Bond Documents. The
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Assignee has consulted with its legal, tax and accounting advisors, and has
been provided the opportunity to consult with bond counsel, regarding the
requirements for maintaining the excludability of interest on the Bonds
from gross income for federal income tax purposes, and the Assignee has
concluded that the assumption by the Assignee of the obligations of the
Assignor under the Bond Documents, will not, by itself, result in a
Determination of Taxability (as defined in the Loan Agreement). The
Assignee is not in violation in any material respect of any agreement,
charter document, by-law or other instrument to which it is party or by
which it may be bound.
(f) The Assignee is not in violation of any laws, ordinances,
governmental rules or regulations to which it is subject and has not failed
to obtain any licenses, permits, franchises or other governmental
authorizations necessary to the ownership of its properties or to the
conduct of its business, which violation or failure to obtain might
materially and adversely affect the properties, business, prospects,
profits or condition (financial or otherwise) of the Assignee.
(g) The Assignee is not a party of any contract or agreement, or
subject to any charter or other corporate restriction, that materially and
adversely affects the business of the Assignee. The Assignee is not a party
to any contract or agreement that restricts the right or ability of the
Assignee to incur or guarantee indebtedness for borrowed money.
(h) Neither the representations of the Assignee contained in this
Assumption Agreement, nor any written statement furnished by or on behalf
of the Assignee to the Bank in connection with the transactions
contemplated hereby, contains any untrue statement of a material fact or
omits to state a material fact necessary to make the statements contained
herein or herein not misleading. There is no fact that the Assignee has not
disclosed to the Bank or the Trustee in writing that materially and
adversely affects or in the future may (so far as the Assignee can now
reasonably foresee) materially and adversely affect the properties,
business, prospects, profits or condition (financial or otherwise) of the
Assignee, or the ability of the Assignee to perform its obligations under
this Assumption Agreement or the Bond Documents.
7. The address of the Assignee for the purpose of notice under the Bond
Documents is as follows:
Color Imaging, Inc.
0000 Xxxxxxxxx Xxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Chief Financial Officer
8. Assignor acknowledges that it has provided or will provide to the
Trustee, the Issuer and the Bank, an opinion of bond counsel providing that this
Assignment will not adversely affect the exclusion of interest from gross income
of the bondholders for federal income tax purposes.
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IN WITNESS WHEREOF, the Assignor and Assignee have caused this Assumption
Agreement to be duly executed and delivered by their duly authorized officers,
all as of the date first above written.
KINGS BROTHERS, LLC
/S/ XXXXXXX XXXX
By:______________________________
Name: Xxxxxxx Xxxx
Title: Managing Member
COLOR IMAGING, INC.
/S/ JUI-KUNG WANG
By:______________________________
Name: Jui-Kung Wang
Title: Chief Executive Officer
CONSENTED:
WACHOVIA BANK, NATIONAL ASSOCIATION
(formerly SouthTrust Bank, National Association),
as credit facility provider
/S/ XXX X. XXXXXXXX
By:__________________________
Name: Xxx X. Xxxxxxxx
Title: Vice President
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