LINE OF CREDIT PROMISSORY NOTE
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EXHIBIT 4.9
$500,000.00 Atlanta, Georgia
May 5/th/, 2000
FOR VALUE RECEIVED, the undersigned, COLOR IMAGE INC. ("Borrower"), a
Georgia corporation, promises to pay to the order of SOUTHTRUST BANK, N.A.
("Bank"), at the 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 ($500,000.00), or so much thereof
as may have been advanced to Borrower from time to time and not repaid by
Borrower pursuant to the terms hereof, together with interest on the unpaid
principal amount of such advances at a per annum rate equal to the Base Rate of
Bank as in effect from time to time plus one-half of one percent (.5%) so long
as the principal amount, or any part thereof, is outstanding. The principal
amount of such advances shall bear interest from the date of each such advance.
Interest provided for herein shall be due and payable monthly commencing on
the 1st day of May, 2000, and continuing on the same day of each month
thereafter through and until such time as there remains no unpaid principal
balance on the amounts advanced to Borrower hereunder under that certain Loan
and Security Agreement between Borrower and Bank dated as of the date hereof
(the "Loan Agreement"). The applicable interest rate shall be determined by Bank
and shall change from time to time as and when the Base Rate of Bank changes
until the principal amount is paid in full.
Principal and interest shall be payable in lawful money of the United
States of America. Interest on the principal amount shall be calculated on the
basis of a 360-year by multiplying the principal amount by the per annum rate
set forth above, multiplying the product thereof by the actual number of days
elapsed, and dividing the product so obtained by 360. The term "Base Rate" means
the rate of interest designated by Bank periodically as its Base Rate. The Base
Rate is not necessarily the lowest rate charged by Bank. The Base Rate on the
date of this Note is nine percent (9%) per annum. The interest rate effective
hereunder on the date of this note is therefore nine and one-half percent (9.5%)
per annum. Time is of the essence with respect to the amounts due hereunder.
During the Commitment Period (as defined in the Loan Agreement), Borrower
may borrow, repay and reborrow the principal sum of this Note, all in accordance
with the terms of the Loan Agreement but only in such amounts and to the extent
therein provided. On September 15, 2000 or such earlier date as may be provided
in the Loan Agreement (the "Maturity Date"), this Note shall mature and all
principal, interest, and other fees and charges due with respect hereto, if not
previously paid, shall be immediately due and payable.
Borrow will pay to Bank a late charge equal to three percent (3%) of any
payment not received by Bank within fifteen (15) days after the due date
thereof. Collection or acceptance by Bank of such late charge shall not
constitute a waiver of any remedies of Bank provided herein.
This Note is the referred to in and is entitled to the benefits of the Loan
Agreement and is secured by the security set forth and/or referred to in said
Loan Agreement. Funds disbursed hereunder shall be disbursed in accordance with
the Loan Agreement. This Note is unconditionally guaranteed by Guaranty
Agreements executed by XX. XXX-XXXX XXXX, XXX-XXX (XXXXX) XXXX, XXX-XXXX (XXXX)
XXXX, XXX-XXXX (XXXXX) XXXX and KINGS BROTHERS, LLC. (collectively, the
"Guarantors"; singularly, a "Guarantor") bearing even date herewith.
The principal sum evidenced by this Note, together with accrued but unpaid
interest, shall be due and payable on the Maturity Date, but in any event at the
option of Bank upon the occurrence of (1) any failure by Borrower to pay as and
when due any installment of principal or interest due hereunder; (2) 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; (3) the expiration of the Commitment Period (as
defined in the Loan Agreement); (4) the filing by Borrower or any Guarantor of a
voluntary petition in bankruptcy, the adjudication of Borrower or any Guarantor
as a bankrupt or insolvent, the filing by Borrower or any Guarantor 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 Borrower's or any
Guarantor'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; (5) the entry by a court of competent
jurisdiction of an order, judgment or decree approving a petition filed against
Borrower or any Guarantor seeking 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, 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 any Guarantor or of a substantial part of its or his property or
of any or all of the rents, revenues, issues, earnings, profits or income
thereof, (6) the death, dissolution or termination of any Guarantor unless a
substitute Guarantor acceptable to Bank is obtained within one hundred and
twenty days (120) days of the death, dissolution or termination of said
Guarantor, or (7) the occurrence of any material adverse change in the financial
condition or prospects of Borrower or any Guarantor.
Upon any default, Xxxxxxxx agrees to pay interest to Bank (or any holder)
at the annual rate of two percent (2%) in excess of the rate otherwise herein
provided, 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. 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 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 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.
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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 Law, 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 Law (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 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 Law. By the execution of
this Agreement, Borrower covenants that (i) the credit or return of any Excess
shall constitute the acceptance by Borrower of such Excess, and (ii) 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
Law, 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 Law, (i) characterize any non-principal payment as
an expense, fee or premium rather than as Interest and (ii) 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, as and to the greatest extent allowed by law, 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. Borrower and Bank 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 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 off in respect to the obligations
set forth herein. The obligations of Borrower
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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 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:
WITNESSES: COLOR IMAGE, INC., a
Georgia corporation
/s/ [ILLEGIBLE] By: /s/ Xxx-Xxxx Xxxx
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Xx. Xxx-Xxxx Xxxx, President
/s/ [ILLEGIBLE] [CORPORATE SEAL]
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