EXHIBIT 10.7
COMMERCIAL PROMISSORY NOTE
[FIDELITY BANK LOGO] Loan No.______________
Borrower(s):__________
Location:_____________
Officer:______________
U.S. $1,500,000.00 OCTOBER 1, 2003
FOR VALUE RECEIVED, the undersigned INTELLIGENT SYSTEMS CORPORATION, A
GEORGIA CORPORATION (hereinafter, whether one or more, referred to as "Maker")
promises to pay to the order of Fidelity Bank, chartered under the laws of the
state of Georgia (hereinafter, together with any subsequent holder hereof,
referred to as "Holder"), at its office at ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇ or at such other place as Holder hereof may from time to time designate in
writing, in lawful money of the United States of America, the principal sum of
ONE MILLION FIVE HUNDRED DOLLARS ($ 1,500,000.00 ) or so much as may be
disbursed hereunder, together with simple interest (computed on the basis of
actual days elapsed in a 360-day year) on the principal balance from time to
time outstanding prior to default hereunder at the rate of PRIME PLUS 1.5% PER
ANNUM percent per annum. The initial interest rate on this loan is 5.50 %.
(If the interest rate is stated in terms of, or with reference to,
"Prime", "Prime Rate", or "P" (the "Prime Rate"), then (i) such terms shall mean
the rate established by Holder from time to time as being its "Prime Rate" for
the purpose of a reference from which it sets rates for specific loans, which
reference rate is not necessarily the rate actually provided to the most
creditworthy, or any other class of, borrowers, and (ii) the interest rate
charged hereunder will change as of the opening business on each day the Prime
Rate changes.)
Installments of principal and interest shall be due under this Note as
follows:
SEE RIDER ATTACHED HERETO AND INCORPORATED HEREIN BY THIS REFERENCE.
This Note shall mature and the principal balance hereof, together with
all unpaid interest and other charges, costs and expenses provided for hereunder
or under any other document or instrument evidencing or securing the
indebtedness of this Note shall be due and payable on SEPTEMBER 1, 2004 .
If (i) any payment of principal or interest on this Note is not
received by Holder as and when same is due or (ii) a default occurs n the
performance of any other covenant or agreement of Maker in this Note or by Maker
(or by any guarantor, endorser, accommodation party or any other party liable
for payment of this Note or providing security for payment of the same,
collectively with Maker, an "Obligor") under any other Loan Document or (iii)
any Obligor shall cease to exist or become insolvent or (iv) debtor
reorganization, relief or liquidation proceedings shall be initiated by or
against any Obligor, or (v) Holder shall otherwise deem itself insecure, then
all obligations of Maker to Holder, including this Note, although otherwise
unmatured or contingent, shall, at the option of Holder, forthwith mature, and
the entire principal balance and all accrued interest and other charges due
Holder shall become immediately due and payable without any notice or demand
whatsoever.
If the principal balance of this Note is accelerated, or any
installment due hereunder is not paid as and when the same is due, or if the
principal balance of this Note is not paid at maturity, then Holder shall have
the option to increase the rate of interest to a default rate equal to two
percentage points (2%) per annum plus the rate specified above, but in no event
to exceed the maximum rate permitted by applicable law. If any monthly
installment is not received within ten (10) days after its due date, Maker
shall, at Holder's option, pay a late charge equal to five percent (5%) of the
past due installment, such payment to be due with the succeeding monthly
installment. Payment of any late charge or default interest does not entitle
Maker to extension of any due date.
To secure this indebtedness, along with any extensions or renewals
thereof, in whole or in part, as well as all other indebtedness of Maker to
Holder, now existing or hereafter incurred or arising however incurred
(hereinafter sometimes referred to collectively as the "Liabilities"), Maker
does hereby grant to Holder a security interest in and security title to the
following:
SEE RIDER ATTACHED HERETO AND INCORPORATED HEREIN BY THIS REFERENCE.
together with any and all additions and accessions thereto or replacements
thereof, returned or unearned premiums from any insurance on any of the same
against fire, theft, collision or other catastrophe and any products and/or
proceeds of any of the foregoing (al referred to herein as the "Collateral").
Holder shall have the right to accelerate the maturity of the
Liabilities in the event that the Collateral or any portion thereof is
transferred, assigned, or sold, or any security interest granted therein without
the prio r written consent of Holder. If at any time Holder deem itself
insecure, Maker will immediately furnish such further Collateral to be held by
Holder, or make such payment on account, as will be satisfactory to holder.
In addition to and independent of the rights and remedies of Holder as
a secured party under the Uniform Commercial Code of Georgia, Holder shall, as
security for the Liabilities, have the right to take possession of the
Collateral, or the proceeds thereof and to sell or otherwise dispose thereof,
and for this purpose, to sign in the name of Maker any transfer, conveyance or
instrument necessary therefor, and Holder may enter upon the premises on which
the Collateral or any part thereof may be situated and remove the same
therefrom, without being liable in any way to Maker on account of entering any
premises. Holder may require Maker to assemble the Collateral and make the same
reasonably convenient to both parties. The right is expressly granted to Holder
to transfer at any time to itself or its nominee any Collateral held hereunder
and to receive the income therefrom and hold the same as security herefor, or to
apply it to any of the Liabilities. If any notification of intended disposition
of any of the Collateral is required by law, such notification shall be deemed
reasonable and properly given if mailed at least five days before such
disposition.
Whenever Holder in good faith reasonably believes that the prospect of
payment of this Note is impaired, Holder, without notice or demand of any kind,
may if the Maker is in bankruptcy place an administrative freeze upon, and if
the Maker is not in bankruptcy, hold and set off against any or all outstanding
principal or interest as Holder may elect, any balance or amount to the credit
of Maker in any deposit, agency, reserve, holdback or other account of any
nature whatsoever maintained by or on behalf of Maker with Holder at any of its
offices, regardless of whether such accounts are general or special and
regardless of whether such accounts are individual or joint, excepting only
accounts which are actually known to Holder to be trust accounts.
Time is of the essence with respect to all of Maker's obligations and
agreements under this Note and the Loan Documents. In the event that Holder
institutes legal proceedings to enforce this Note or refers the same to an
attorney-at-law for enforcement or collection, Maker agrees to pay to Holder, in
addition to an y indebtedness due and unpaid, all costs and expenses of such
proceedings, including attorney's fees in the amount of fifteen percent (15%) of
the outstanding principal and interest.
Holder shall not by any act of omission or commission be deemed to
waive any of its rights or remedies hereunder unless such waiver be in writing
and signed by an authorized officer of Holder and then only to the extent
specifically set forth therein; a waiver on one occasion shall not be construed
as continuing or as a bar to or waiver of such right or remedy on any other
occasion. All remedies conferred upon Holder by this Note or any other
instrument or agreement connected herewith or related hereto shall be cumulative
and none is exclusive, and such remedies may be exercised concurrently or
consecutively at Holder's option.
This Note is hereby expressly limited so that in no contingency or
event whatsoever, whether by acceleration of maturity of the debt evidenced
hereby or otherwise, shall the amount paid or agreed to be paid to Holder for
the use, forbearance or retention of the money advanced or to be advanced
hereunder exceed the highest lawful rate permissible under applicable laws. If,
from any circumstances whatsoever, fulfillment of any provision hereof or of any
other agreement evidencing or securing the debt, at the time performance of such
provisions shall be due, shall involve the payment of interest in excess of that
authorized by law, the obligation to be fulfilled shall be reduced to the limit
so authorized by law, and if from any circumstances, Holder shall ever receive
as interest an amount which would exceed the highest lawful rate applicable to
Maker, such amount which would be excessive interest shall be applied to the
reduction of the unpaid principal balance of the debt evidenced hereby and not
to the payment of interest, regardless of any books or records of Holder which
may indicate the contrary.
As used herein, the terms "Maker" and "Holder" shall be deemed to
include their respective heirs, successors, legal representatives and assigns,
whether by voluntary action of the parties or by operation of law; provided,
nothing herein shall be deemed consent by Holder to any assignment or conveyance
which is restricted or prohibited by the terms of any Loan Document. In the
event that more than one person, firm or entity is a Maker hereunder, then all
references to "Maker" shall be deemed to refer equally to each of said persons,
firms, or entities, all of whom shall be jointly and severally liable for all of
the obligations of Maker hereunder.
Each Obligor hereby waives presentment for payment, demand, notice of
non-payment of this Note, protest and notice of protest, and consents that
Holder may extend the time of payment of any part or the whole of the debt at
any time at the request of any other person or entity liable.
Each Obligor hereby waives and renounces for itself, its heirs,
successors and assigns, all rights to the benefits of any appraisement,
exemption or homestead now provided, or which may hereafter be provided by the
Constitution and laws of the United States of America and of any state thereof
in and to all of its property, real and personal, against the enforcement and
collection of the Liabilities. Each Obligor hereby transfers, conveys and
assigns to Holder a sufficient amount of such homestead or exemption as may be
set apart in bankruptcy, to pay this Note in full, with all costs of collection,
and does hereby direct any trustee in bankruptcy having possession of such
homestead or exemption to deliver to Holder a sufficient amount of property or
money set apart as exempt to pay the indebtedness evidenced hereby, or any
renewal thereof, and does hereby appoint Holder the attorney-in-fact for such
Obligor to claim any and all homestead exemptions allowed by law.
In the event any suit or legal action is commenced by Holder, Maker
hereby expressly agrees, consents and submits to the personal jurisdiction of
any state or federal court sitting in DeKalb or ▇▇▇▇▇▇ County, Georgia with
respect to such suit or legal action, and the Maker also expressly consents and
submits to and agrees that venue in any such suit or legal action is proper in
said courts and county and Maker hereby expressly waives any and all personal
rights under applicable law or in equity to object to the jurisdiction and venue
in said courts and county. The jurisdiction and venue of the courts consented
and submitted to and agreed upon in this paragraph are not exclusive but are
cumulative and in addition to the jurisdiction and venue of any court under any
applicable laws or in equity.
This Note shall be governed and construed under the laws of the State
of Georgia except to the extent applicable Georgia law is preempted by the laws
of the United States of America.
Maker warrants that the proceeds of the loan evidenced hereby shall be
used solely for business or commercial purposes.
IN WITNESS WHEREOF, Maker has signed, sealed and delivered this Note as of the
date first hereinbove written and acknowledges receipt of a complete copy
hereof.
MAKER: MAKER:
INTELLIGENT SYSTEMS CORPORATION, A GEORGIA
CORPORATION
By:_______________________________________ By:________________________________
Title:
[CORPORATE SEAL]
__________________________________________ ___________________________________
Address ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Address
Norcross, Georgia 30093
Social Security No.:_______________
Phone No.:_________________________
Social Security No.:______________________
Phone No.:____________
RIDER TO COMMERCIAL PROMISSORY NOTE FROM
INTELLIGENT SYSTEMS CORPORATION, A GEORGIA CORPORATION ("MAKER")
IN FAVOR OF FIDELITY BANK ("HOLDER")
IN THE FACE PRINCIPAL AMOUNT OF $1,500,000.00 DATED OCTOBER 1, 2003
This Rider to the above referenced Promissory Note (the "NOTE") is
hereby made a part of the Note and incorporated therein by this reference.
1. From and after the date hereof, interest shall accrue at the "prime
rate" of Holder (as defined on the face of the Note) plus one and one-half
percent (1 1/2 %) per annum, and shall be adjusted daily with changes in the
prime rate during the term of the Note. The Note is calculated on a 360 day
basis.
2. Commencing on November 1, 2003 and continuing on the same day of each
month thereafter through and including August 1, 2004, payments of interest
only, in arrears, shall be due and payable.
3. On September 1, 2004, the entire outstanding principal balance of the
indebtedness hereby evidenced, together with all accrued and unpaid interest
thereon, and all sums due to Holder hereunder shall be due and payable in full.
4. The Liabilities (as defined in the Note) are secured by certain assets
of Maker as more particularly described in the following documents dated of even
date herewith:
a. Security Agreement from Maker, as pledgor, to Holder, as
lender;
b. Loan Agreement by and between Maker and Holder; and
c. Those certain Georgia form UCC-1 financing statements
executed by Maker, as debtor to ▇▇▇▇▇▇, as secured
party.
d. Guaranties from VISaer, Inc., Corecard Software,
Inc., ChemFree Corporation, and QS Technologies,
Inc., all secured by Security Agreements executed by
each Guarantor in favor of the Secured Party as
evidenced by certain form UCC-1 financing statements
executed by Guarantor, as guarantor to Holder, as
secured party.
e. Assignment of Life Insurance Policy in the amount of
no less than $1,000,000.00 on the life of ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇.
5. Disbursements under the loan evidenced by this Note
(the "LOAN") shall be made in accordance with the terms of that certain Loan
Agreement of even date herewith by and between Maker, as debtor, and ▇▇▇▇▇▇, as
secured party (the "LOAN AGREEMENT").
The undersigned Maker has executed this Rider under seal on this ______
day of October, 2003.
MAKER:
INTELLIGENT SYSTEMS CORPORATION., a Georgia corporation
Attest:__________________________ By: __________________________________
Its:__________________________________
[CORPORATE SEAL]