FIRST AMENDMENT TO EXTENSION AGREEMENT
THIS FIRST AMENDMENT TO EXTENSION AGREEMENT ("First Amendment") is
made and entered into as of August 25, 2005, by and among XXXXX SYSTEMS, INC.
("Borrower"), a South Dakota corporation; XXXXX CORPORATION, an Indiana
corporation ("Guarantor"); and SUNTRUST BANK ("Lender"), a Georgia banking
corporation.
RECITALS:
Lender, Borrower and Guarantor entered into an Extension Agreement dated
June 24, 2005 (the "EXTENSION AGREEMENT") pursuant to which, among other things,
the maturity date for repayment of the obligations owed by Borrower and
Guarantor to Lender was extended under the terms and conditions stated in the
Extension Agreement. Capitalized terms used herein, to the extent not otherwise
defined, shall have the meanings ascribed to such terms in the Extension
Agreement.
Borrower has delivered to Lender a letter from Branch Banking & Trust Co.,
dated August 18, 2005 (the "BB&T LETTER"), that Borrower contends constitutes an
Acceptable Commitment Letter that results in extension of the Extension Period
through and including September 19, 2005. In addition, Borrower has requested
that the Extension Period be extended through September 30, 2005, in order to
afford Borrower the opportunity to repay the Obligations in full using financing
described in the BB&T Letter. Without necessarily agreeing that the BB&T Letter
constitutes an Acceptable Commitment Letter, Lender is willing to extend the
Extension Period as provided herein.
NOW, THEREFORE, for TEN DOLLARS ($10.00) in hand paid and in consideration
of the premises and the mutual covenants herein contained, the parties hereto,
intending to be legally bound hereby, agree as follows:
1. DEFINITIONS. All capitalized terms used in this First Amendment,
unless otherwise defined, shall have the meanings ascribed to such terms in the
Extension Agreement.
2. AMENDMENT TO EXTENSION AGREEMENT. The Extension Agreement is hereby
amended as follows:
(a) In SECTION 1, by deleting the definition of "Extension Period"
and by substituting in lieu thereof the following definition:
"EXTENSION PERIOD" shall mean the period commencing on June 24,
2005, and ending at 5:00 o'clock p.m. on September 30, 2005.
3. REPRESENTATIONS, ACKNOWLEDGMENTS AND WARRANTIES. Each Obligor hereby
acknowledges, stipulates and warrants to Lender that (i) the Loan Documents and
the Extension Agreement are legal, valid and binding obligations of such Obligor
and are enforceable against such Obligor in accordance with the terms thereof;
(ii) all of the Obligations are owing and payable without defense, offset or
counterclaim (and to the extent there exists any such defense, offset or
counterclaim on the date hereof, the same is hereby waived by such Obligor);
(iii) the security interests and liens granted by Borrower in favor of Lender
are duly perfected, first priority security interests and liens; (iv) as of the
opening of business on August 25, 2005, the aggregate principal balance of Loans
outstanding totaled $1,756,096.50, the aggregate undrawn amount of Letters of
Credit outstanding totaled $411,619.00, and the unpaid principal balance of the
Term Loan Obligations totaled $397,705.53, in each case exclusive of interest,
fees, other charges and attorneys' fees at any time payable by Borrower under
any of the Loan Documents; and (v) each of the warranties and representations of
such Obligor contained in the Extension Agreement was true, accurate and
complete at the time of execution of the Extension Agreement and remains true,
accurate and complete as of the date hereof.
4. RATIFICATION AND REAFFIRMATION. Borrower hereby ratifies and reaffirms
the Loan Documents, the Extension Agreement and all of its obligations and
liabilities thereunder. Guarantor hereby ratifies and reaffirms the validity,
legality and enforceability of the Guaranty and the Extension Agreement and
agrees that the Guaranty is and shall remain in full force and in effect until
all of the Obligations have been paid in full.
5. NO NOVATION. Except for the amendment expressly provided in Section 2
of this First Amendment, nothing herein shall be deemed to amend or modify any
provision of the Extension Agreement or the Loan Documents, which shall continue
in full force and effect. This First Amendment is not intended to be, nor shall
it be construed to create, a novation or an accord and satisfaction.
6. GOVERNING LAW; WAIVER OF NOTICE OF ACCEPTANCE. This First Amendment
shall be deemed to be a contract made in Georgia and shall be governed by and
construed in accordance with the internal laws of the State of Georgia. Obligors
hereby waive notice of the acceptance of this First Amendment.
7. NON-WAIVER OF DEFAULT; RESERVATION OF RIGHTS AND REMEDIES. Neither
this First Amendment, nor Lender's agreements hereunder, nor Lender's continued
extension of credit (if any) to Borrower shall be deemed to constitute a waiver
of or consent to any Event of Default or breach of any Extension Condition.
Lender reserves all of the rights and remedies available to it under the Loan
Documents, the Extension Agreement and Applicable Law.
8. PAYMENT OF EXPENSES. Obligors agree to pay all expenses, including,
without limitation, legal fees, incurred by Lender in connection with the
negotiation, drafting and execution of this First Amendment.
9. COUNTERPARTS; FACSIMILE SIGNATURES. This First Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall constitute an
original, but all of which taken together shall be one and the same instrument.
In proving this First Amendment, it shall not be necessary to produce or account
for more than one such counterpart signed by the party against whom enforcement
is sought. Any signed counterpart of this First Amendment that is transmitted by
facsimile transmission shall be deemed to constitute an original counterpart for
all purposes.
10. RELEASE OF CLAIMS. TO INDUCE LENDER TO ENTER INTO THIS FIRST
AMENDMENT, EACH OBLIGOR HEREBY RELEASES, ACQUITS AND FOREVER DISCHARGES LENDER,
AND LENDER'S OFFICERS, DIRECTORS, AGENTS, ATTORNEYS, EMPLOYEES, SUCCESSORS AND
ASSIGNS, FROM ALL LIABILITIES, CLAIMS, DEMANDS, ACTIONS OR CAUSES OF ACTION OF
ANY KIND (IF ANY THERE BE), WHETHER ABSOLUTE OR CONTINGENT, DUE OR TO BECOME
DUE, DISPUTED OR UNDISPUTED, LIQUIDATED OR UNLIQUIDATED, AT LAW OR IN EQUITY, OR
KNOWN OR UNKNOWN, THAT ANY ONE OR MORE OF THEM NOW HAVE OR EVER HAVE HAD AGAINST
LENDER, WHETHER ARISING UNDER OR IN CONNECTION WITH ANY OF THE LOAN DOCUMENTS,
THE EXTENSION AGREEMENT, THIS FIRST AMENDMENT OR OTHERWISE.
11. WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, THE PARTIES HERETO EACH HEREBY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY
ACTION, SUIT OR PROCEEDING ARISING OUT OF OR RELATED TO THIS FIRST AMENDMENT,
THE EXTENSION AGREEMENT, THE LOAN DOCUMENTS OR THE GUARANTY.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
be duly executed and delivered as of the date first written above.
ATTEST: XXXXX SYSTEMS, INC.
("Borrower")
/s/ By: /s/
----------------------------- --------------------------------
Secretary Title: ________________________________
ATTEST: XXXXX CORPORATION
("Guarantor")
/s/ By: /s/
----------------------------- --------------------------------
Secretary Title: ________________________________
Accepted on August 29, 2005
SUNTRUST BANK
("Lender")
By: /s/
--------------------------------
Title: ________________________________
