Exhibit 10.9
FIRST MODIFICATION TO LOAN DOCUMENTS
THIS FIRST MODIFICATION TO LOAN DOCUMENTS (herein the "MODIFICATION")
is made and entered into as of this 1st day of September, 2004, by and between
INTELLIGENT SYSTEMS CORPORATION, a Georgia corporation (herein the "BORROWER"),
QS TECHNOLOGIES, INC., a Georgia corporation, VISAER, INC., a Delaware
corporation, CORECARD SOFTWARE, INC., a Delaware corporation, and CHEMFREE
CORPORATION, a Georgia corporation (the aforesaid four corporations being
individually and collectively referred to herein as the "GUARANTORS"), and
FIDELITY BANK, a Georgia state chartered bank (f/k/a Fidelity National Bank)
(herein the "LENDER").
RECITALS:
WHEREAS, on October 1, 2003, Lender made a loan to Borrower in the
original principal amount of One Million Five Hundred Thousand and No/100
Dollars ($1,500,000.00) (the "LOAN") evidenced by that certain Commercial
Promissory Note dated October 1, 2003 executed by Borrower in favor of Lender
(herein the "NOTE").
WHEREAS, the Loan and the Note are secured and evidenced by, among
other instruments, the following:
(a) Security Agreement from Borrower in favor of Lender dated of
even date with the Note (herein the "SECURITY AGREEMENT");
(b) Loan Agreement by and between Borrower and Lender dated of
even date with the Note (herein the "LOAN AGREEMENT");
(c) Financing Statement filed in Gwinnett County, Georgia records,
File no. 000-0000-000000 (herein the "FINANCING STATEMENT");
(d) Negative Pledge Agreement by and between Borrower and Lender
dated of even date with the Note (herein the "NEGATIVE PLEDGE
AGREEMENT");
(e) Assignment of Policy as Collateral Security from Borrower in
favor of Lender dated of even date with the Note (herein the
"LIFE INSURANCE ASSIGNMENT"); and
(f) Subordination Agreements from Borrower and certain of the
Guarantors in favor of Lender dated of even date with the Note
(herein "SUBORDINATION AGREEMENTS").
The Security Agreement, the Loan Agreement, the Financing Statement, the
Negative Pledge Agreement, the Life Insurance Assignment and the Subordination
Agreements are collectively referred to herein as the "LOAN DOCUMENTS".
WHEREAS, on October 1, 2003, each of the Guarantors executed a Guaranty
in favor of Lender whereby each of the Guarantors guaranteed all of the
obligations of Borrower to Lender contained under the Loan, Note and Loan
Documents (herein collectively the "Guaranties");
WHEREAS, in order to secure their obligations under the terms of the
Guaranties, each of the Guarantors executed in favor of Lender certain Security
Agreements dated October 1, 2003 (herein the "Guarantor Security Agreements"),
which Guarantor Security Agreements are further evidenced by a Financing
Statement filed in Gwinnett County, Georgia Records File No. 000-0000-000000 and
that certain Financing Statement filed with the Delaware Department of State
under Filing No. 3274987 (herein collectively the "Guarantor Financing
Statements") (the Guaranties, the Guarantor Security Agreements and the
Guarantor Financing Statements are herein collectively referred to herein as the
"Guaranty Documents");
WHEREAS, Borrower has requested and Lender has agreed to extend the
Maturity Date of the Loan and Note from September 1, 2004 to September 1, 2005,
and Borrower, Guarantors and Lender desire to enter into this Agreement in order
to modify and ratify certain other terms and conditions of the Note, the Loan
Documents and the Guaranty Documents as more particularly set forth herein.
NOW, THEREFORE, for and in consideration of Ten and No/100 Dollars
($10.00) and other good and valuable consideration, the receipt, adequacy and
sufficiency of which are hereby acknowledged, Lender, Borrower and Guarantors
hereby agree as follows:
1. Recitals. The foregoing recitals are true and correct and are
incorporated herein by this reference.
2. Capitalized Terms. All capitalized terms contained in this
Modification shall have the same meaning afforded to them in the Note, Loan
Documents and Guaranty Documents.
3. Specific Modifications to Documents.
a. The Note, each of the Loan Documents and each of the Guaranty
Documents are hereby modified to reflect that the Maturity Date
of the Loan and the Note is hereby extended from September
1, 2004 to September 1, 2005.
b. The Note is hereby modified to provide that payments of interest
only, in arrears, shall continue to be due and payable on the
first (1st) day of each month hereafter as set forth under the
terms of the Note, with the entire outstanding principal balance
and all accrued interest and other charges being due and payable
in full on September 1, 2005.
c. Section 1.l(c) of the Loan Agreement is hereby amended to
provide that the advance rate on the QS Tech's Eligible Accounts
is hereby increased from 70% to 80%. All other advance rates set
forth in such paragraph shall remain unchanged.
d. Section 5.2 of the Loan Agreement is hereby modified to delete
the phrase "In an Event of Default," at the beginning of such
section.
e. Section 11.1 of the Loan Agreement is hereby modified to replace
the date "September 1, 2004" contained in the third line of such
section with the date "September 1, 2005".
f. Exhibit "A" currently attached to the Negative Pledge Agreement
is hereby replaced with the Exhibit "A" which is attached to
this Modification and is incorporated herein by this reference.
4. No Impairment. Borrower and Guarantors agree that the terms and
provisions hereof shall in no manner impair, limit, restrict or otherwise affect
the obligations of Borrower and Guarantors to Lender or the priority of any lien
evidenced by the Note, the Loan Documents or the Guaranty Documents, except as
modified hereby.
5. No Defenses. Borrower and Guarantors acknowledge that they have no
offsets, claims, counterclaims or defenses against Lender or under any of their
obligations contained in the Note, the Loan Documents or the Guaranty Documents
and to the extent any such offsets, claims, counterclaims, or defenses exist,
the same are hereby waived by the Borrower and Guarantors.
6. Ratification. Except as amended hereby, each and every term and
provision of the Note, the Loan Documents and the Guaranty Documents are hereby
ratified and affirmed by Borrower and Guarantors and shall remain in full force
and effect.
7. No Novation. It is the intention of the parties hereto that the
execution and delivery of this Modification shall in no way constitute a
novation or extinguishment of the debt evidenced by the Note, Loan Documents or
the Guaranty Documents.
8. Effect of Modification. In signing this Modification, the parties
hereto expressly certify and covenant that they have carefully read all
provisions contained herein, have had an opportunity to consult with legal
counsel of their choosing and to consider the ramifications and terms of this
Modification, and they have voluntarily signed this Modification with the
understanding that it will be final and binding as to their interests and they
have had a sufficient opportunity to review the Modification and consult with
counsel of their choice prior to making such decision to execute this
Modification. The parties hereby represent and warrant that this Modification is
executed without reliance on any statement or representation of the other,
except as expressly set forth in the within and foregoing Modification, and this
Modification constitutes the entire Modification between the parties hereto and
that no promise or inducement or consideration, other than that expressed in the
within and foregoing Modification, has been offered or accepted and all such
prior inducements or considerations are deemed merged herein.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
[SIGNATURES COMMENCE ON FOLLOWING PAGE]
IN WITNESS WHEREOF, Borrower, Guarantors and Lender have set their
hands and seals to this Modification as of the day and year first above-written.
BORROWER:
INTELLIGENT SYSTEMS CORPORATION,
a Georgia corporation
By: /s/ J. Xxxxxx Xxxxxxx
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Title: Pres.
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Attest: /s/ Xxxxxx X. Xxxxxx
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Title: Sec.
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[CORPORATE SEAL]
GUARANTORS:
QS TECHNOLOGIES, INC., a Georgia corporation
By: /s/ Xxxxxx X. Xxxxxx
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Title: Sec./Treas.
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Attest: /s/ X.X. Xxxxxxx
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Title: Director
[CORPORATE SEAL]
VISAER, INC., a Delaware corporation
By:
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Title:
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Attest:
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Title:
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[CORPORATE SEAL]
CORECARD S0FTWARE, INC.,
a Delaware corporation
By: /s/ J. Xxxxxx Xxxxxxx
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Title: Pres.
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Attest: /s/ Xxxxxx X. Xxxxxx
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Title: Sec.
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[CORPORATE SEAL]
CHEMFREE CORPORATION,
a Georgia corporation
By: /s/ X. X. Xxxxx
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Title: Pres.
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Attest: /s/ Xxxxxx X. Xxxxxx
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Title: Sec.
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[CORPORATE SEAL]
(SIGNATURES CONTINUED ON FOLLOWING PAGE)
IN WITNESS WHEREOF, Borrower, Guarantors and Lender have set their
hands and seals to this Modification as of the day and year first above-written.
BORROWER:
INTELLIGENT SYSTEMS CORPORATION,
a Georgia Corporation
By:
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Title:
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Attest:
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Title:
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[CORPORATE SEAL]
GUARANTORS:
QS TECHNOLOGIES, INC., a Georgia Corporation
By:
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Title:
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Attest:
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Title:
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[CORPORATE SEAL]
VISAER, INC., a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxxx
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Title: President
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Attest: Xxx Xxxxxx
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Title: Assistant Secretary
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[CORPORATE SEAL]
CORECARD SOFTWARE, INC.,
a Delaware corporation
By:
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Title:
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Attest:
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Title:
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[CORPORATE SEAL]
CHEMFREE CORPORATION,
a Georgia corporation
By:
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Title:
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Attest:
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Title:
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[CORPORATE SEAL)
(SIGNATURES CONTINUED ON FOLLOWING PAGE)
(SIGNATURE PAGE TO FIRST MODIFICATION TO LOAN DOCUMENTS)
LENDER:
FIDELITY BANK,
a Georgia state chartered bank
(f/k/a Fidelity National Bank)
By: /s/ Xxxxx Blamlett
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Title: V.P.
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(BANK SEAL)
