Exhibit 10.2
This
Revolving Line of Credit Agreement, dated as of November 5, 2007 (the
“Agreement”), is made by and among Protexx, Inc., a Delaware corporation
whose principal office is located at 00 Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxx Xxxxx, Xxxxxxx
00000 and its subsidiaries, including but not limited to 22THEN LLC (collectively, the
“Borrower”), Peter, Letizia, an individual whose home address is 00000
Xxxxxxxx Xxxxxx., Xxxx Xxxxx, XX 00000 (“Guarantor”), and WidePoint
Corporation, a Delaware corporation with its principal office located at One Lincoln
Center, R.E., Xxxxx 0000, Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000 (“Lender”).
AGREEMENT
In
consideration of the mutual promises set forth herein, and intending to be legally bound,
the Borrower, Guarantor and Lender hereby agree as follows:
| 1. |
Background. Lender has approved an uncommitted line of credit up to One
Hundred Thousand Dollar ($100,000.00) for Borrower’s use pursuant to this
Agreement. |
| 2. |
Uncommitted Revolving Line of Credit. Lender hereby establishes, subject
to the terms and conditions of this Agreement, a secured, uncommitted, revolving
line of credit facility in favor of Borrower in an aggregated principal amount
not to exceed One Hundred Thousand Dollars ($100,000.00). |
| 3. |
Promise to Repay. Borrower and Guarantor promise to pay UPON DEMAND on an
Event of Default or Final Maturity (as defined herein) the aggregate principal
amount of all amounts provided by Lender to Borrower, up to One Hundred Thousand
Dollars ($100,000.00), which are outstanding at any time under this Agreement,
together with all accrued and unpaid Interest (as defined herein), if any,
outstanding on such principal amount. |
| 4. |
Interest. Interest shall accrue on the unpaid principal balance
outstanding hereunder at a simple rate equal to ten percent (10%) per annum,
calculated on a daily basis (the “Interest”). |
| 5. |
Interest Payments. Borrower or Guarantor shall make payments to the order
of Lender of all Interest that accrues during the term of the Agreement UPON
DEMAND on an Event of Default or on or before Final Maturity. |
| 6. |
Purpose of Loan. The line of credit shall be used for general corporate
business purposes for the sole benefit of the Borrower; provided however, that
advances made by the Lender to the Borrower under the line of credit shall not
be used for purposes of paying intra-company debt, distributions to any
shareholders, or corporate debt of any kind without the express written consent
of Lender. Prior to each advance made under this line of credit, Borrow shall
submit to Lender a detailed written spreadsheet showing the intended use of such
funds relating to such advance, which shall be subject to the Lender’s
approval, and thereafter Borrower agrees to promptly and only use such funds
solely for each use as shown in such spreadsheet and only in the amounts shown
on such spreadsheet. |
| 7. |
Maturity. All advances (if any) made under this line of credit will be
due and payable to the order of Lender UPON DEMAND on an Event of Default, but
in no event later than on 11:59 p.m. on January 2, 2008 (the “Final
Maturity”), and at all times will be subject to the terms and
conditions set forth in this Agreement and in the Promissory Note of even date
herewith, a copy of which is attached hereto as Exhibit A and incorporated as if
fully set forth herein, as given by Borrower in the principal amount of One
Hundred Thousand Dollars ($100,000.00), payable to the order of Lender (the
“Promissory Note”). The Borrower and the Guarantor agree to
execute the Promissory Note at the same time that Borrower and Guarantor execute
this Agreement. |
| |
BORROWER
AND GUARANTOR ACKNOWLEDGE AND AGREE THAT LENDER MAY AT ANY TIME AND IN ITS SOLE DISCRETION
DEMAND PAYMENT OF ALL AMOUNTS OUTSTANDING UNDER THIS AGREEMENT OR THE PROMISSORY NOTE
WITHOUT PRIOR NOTICE TO THE BORROWER UPON AN EVENT OF DEFUALT OR UPON FINAL MATURITY. |
| 8. |
Draw Requests. Borrower may request an advance under this Agreement in
any amount by a written draw request signed by any authorized signatory of
Borrower subject to the submission of a spreadsheet for Lender approval
contemplated in Section 6 of this Agreement. Guarantor hereby unconditionally
pledges and guarantees that Borrower shall repay to Lender in a timely manner
all amounts borrowed by Borrower under this Agreement. |
| 9. |
Collateral. All advances (if any) made under this line of credit shall be
secured under a security agreement, a copy of which is attached hereto as
Exhibit B and incorporated as if fully set forth herein (the “Security
Agreement”), which and Borrow hereby authorizes liens to be filed in
the appropriate jurisdictions pursuant to the terms and conditions of the
Security Agreement. The Borrower and the Guarantor agree to execute the Security
Agreement at the same time that Borrower and Guarantor execute this Agreement. |
| 10. |
Software Escrow Agreement. The parties to this Agreement further agree to
execute a Software Escrow Agreement, a copy of which is attached hereto as
Exhibit C and incorporated as if fully set forth herein (“Escrow
Agreement”). The Borrower and the Guarantor agree to execute the Escrow
Agreement at the same time that Borrower and Guarantor execute this Agreement.
Within seven (7) business days of the date of this Agreement, Borrower agrees to
cause all intellectual property described in the Escrow Agreement to be
deposited with the escrow agent named in the Escrow Agreement, with such
intellectual property to be in the form and content as required under the Escrow
Agreement Lender shall hold all relevant intellectual property in escrow for a
specified period of time determined by Lender or until all amounts payable by
Borrower and Guarantor to Lender have been fully and completely repaid by
Borrower and Guarantor to Lender in a timely manner. |
Page 2 of 8
| 11. |
Release of Guarantor’s Obligations. Upon delivery by Borrower of all
intellectual property described under the Escrow Agreement, in the form and
content as described in the Escrow Agreement, all obligations and liabilities of
Guarantor imposed hereunder shall terminate and Guarantor shall no longer be
liable under this Agreement, the Promissory Note and the Security Agreement. |
| 12. |
Calculation of Interest. Interest shall be calculated on the basis of a
year comprised of 360 days over the actual number of days in the period. |
| 13. |
Credit of Payments. Any payment of principal or Interest under this
Agreement must be received by Lender at its principal office (or at such other
office or depository institution as Lender may from time to time designate by
written notice to Borrower) by 2:00 p.m. prevailing Eastern Time on a business
day in the jurisdiction where such office or institution is situated, in order
to be credited on such date. |
| 14. |
Application of Payments. Payments received by Lender shall be applied to
charges, fees and expenses (including attorneys’ fees), accrued Interest,
and principal in any order Lender may in its sole discretion choose. |
| 15. |
Revolving Nature of Facility. This Agreement and the Promissory Note
evidence a revolving line of credit. Borrower and Guarantor agree to be liable
for all sums advanced hereunder. The unpaid principal balance owing on this
facility at any time may be evidenced by endorsements on the Promissory Note, or
by Lender’s records, which shall be conclusive of indebtedness. |
| 16. |
Prepayment. The indebtedness evidenced by this Agreement and the
Promissory Note may be prepaid in whole or in part at any time without penalty. |
| 17. |
No Commitment to Fund. This is not a committed line of credit. The
Borrower and Guarantor acknowledge and agree that advances made under this line
of credit, if any, shall be made at the sole discretion of Lender. Lender,
through its officers, may decline to make advances under the line, or terminate
the line, at any time and for any reason without prior notice to the Borrower.
In no event shall Borrower be entitled to further advances once the total
principal amount of this facility has been advanced unless (and then only to the
extent that) repayment of advances is received by Lender. This Agreement sets
forth certain terms and conditions solely to assure that the parties understand
each other’s expectations and to assist the parties in evaluating and
monitoring the line of credit. |
| 18. |
Obligations of Borrower. Lender’s willingness to consider making
advances under this facility is subject to the Borrower’s ongoing agreement
(a) to promptly furnish Lender, upon Lender’s written request, the
Borrower’s unaudited financial statements and such other financial
information as Lender may reasonably request from time to time, and (b) to
notify Lender as soon as practicable following the occurrence of any Event of
Default as defined herein (or event that, with the passage of time or giving of
notice or both, would become an Event of Default). |
Page 3 of 8
| 19. |
Event of Default. An “Event of Default” shall exist
under this Agreement or the Promissory Note if any of the following occurs: (a)
Borrower and/or Guarantor fail to make any payment required by this Agreement or
the Promissory Note when due and the same is not cured within five (5) business
days; (b) Borrower and/or Guarantor break any promise that Borrower and
Guarantor has made to Lender, or fail to perform promptly at the time and
strictly in the manner provided in this Agreement, the Promissory Note, or the
Security Agreement; (c) any representation or statement made to Lender by
Borrower or on Borrower’s behalf is false or misleading in any material
respect; (d) Borrower and/or Guarantor become insolvent or a receiver is
appointed for any part of Borrower’s property and/or Guarantor’s
property; (e) Borrower or Guarantor makes any material assignment for the
benefit of creditors; (f) any proceeding is commenced either by Borrower or
Guarantor or against Borrower or Guarantor under any bankruptcy or insolvency
law without prior written notice to Lender and such proceeding is not cured
within sixty (60) calendar days; or (g) Borrower and/or Guarantor commit an
actual default in the prompt payment or other performance required with respect
to any of its indebtedness (including but not limited to with respect to Lender
hereunder) for loans, advances or any other forms of borrowings or under any
agreement under which such indebtedness is outstanding or secured. |
| 20. |
Lender’s Rights Upon Default. During the existence of an Event of
Default, Lender may: (i) increase the applicable rate of interest to a rate per
annum that shall be two percentage points (2%) in excess of the rate otherwise
in effect at any time under this Agreement, but not more than the maximum rate
allowed by law (the “Default Interest Rate”); (ii) demand
payment in full or in part of all principal amounts outstanding hereunder, and
accelerate any and all accrued and unpaid Interest due hereunder to be
immediately due and payable; and/or (iii) exercise all of its rights under this
Agreement, the Promissory Note, the Security Agreement, and/or the Escrow
Agreement, or at law or in equity, in order to satisfy the indebtedness of
Borrower and Guarantor. In the event that Lender elects to apply the Default
Interest Rate to any principal balance due hereunder, the Default Interest Rate
shall continue to apply whether or not judgment shall be entered on this
Agreement. |
| 21. |
Late Fees. If any payment of interest or principal due hereunder is ten
(10) or more calendar days late, Lender, is its sole discretion, may charge
Borrower and Guarantor a late fee equal to Two Per Cent (2%) of the unpaid
portion of such payment (the “Late Fee”), in addition to any
other remedies authorized in this Agreement. Lender may not charge Interest
against any Late Fee, or assess a Late Fee against any single unpaid amount on
more than one occasion. |
Page 4 of 8
| 22. |
Governing Law. This Agreement will be deemed to have been made, executed
and delivered by Borrower, Guarantor and Lender in the State of Delaware. This
Agreement will be interpreted and the rights and liabilities of the parties
hereto determined in accordance with the laws of the State of Delaware. |
| 23. |
Jurisdiction. The Borrower and Guarantor hereby agree, consent and submit
to the jurisdiction and venue of any state or federal court located within New
Castle County, Delaware, and consents that all service of process be made by
certified mail or overnight delivery service directed to the Borrower at the
Borrower’s address set forth below, and service so made will be deemed to
be completed either three (3) business days after the same has been deposited in
the U.S. mail, postage prepaid or (ii) the next business day after being
deposited with an overnight delivery service; provided that nothing contained
herein shall prevent Lender from bringing any action or exercising any right
against any security or against the Borrower or Guarantor, or against any
property of the Borrower, within any other state or nation to enforce any award
or judgment obtained in the forum specified above. The Borrower and the
Guarantor each waives any objection to venue and any objection based on a more
convenient forum in any action instituted hereunder. |
| |
WidePoint
Corporation
One Lincoln Centre, R.E., Suite 0000
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
ATTN: Xxxxx XxXxxxxx, Chief Financial Officer and VP |
| |
Protexx,
Inc.
00 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx Xxxxx, Xxxxxxx 00000
ATTN: President |
| |
Xxxxx
Xxxxxxx
00000 Xxxxxxxx Xxxxxx
Xxxx Xxxxx, XX 00000 |
| |
THE
BORROWER AND GUARANTOR HEREBY FOREVER WAIVE ALL OF ITS RESPECTIVE RIGHT TO PRESENTMENT,
DEMAND, PROTEST, NOTICE OF DISHONOR, NONPAYMENT OR DEFAULT AND ANY OTHER NOTICES OF ANY
KIND. THE BORROWER AND GUARANTOR WAIVE ANY AND ALL RIGHTS THE BORROWER AND/OR THE
GUARANTOR MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR CLAIM OF ANY NATURE
RELATING TO THIS AGREEMENT, ANY DOCUMENTS EXECUTED IN CONNECTION WITH THIS AGREEMENT
(INCLUDING THE PROMISSORY NOTE, THE SECURITY AGREEMENT AND THE ESCROW AGREEMENT) OR ANY
TRANSACTION CONTEMPLATED IN ANY OR SUCH DOCUMENTS AND ACKNOWLEDGES THAT THE FOREGOING
WAIVER IS KNOWING AND VOLUNTARY. |
Page 5 of 8
| 26. |
All Rights To Be Preserved. No failure to exercise, and no delay in
exercising, on the part of Lender, any right, power or privilege hereunder shall
operate as a waiver of the same, nor shall any single or partial exercise of any
right, power or privilege preclude any other or future exercise thereof, or the
exercise of any other power or right. The rights and remedies herein provided
are cumulative and not exclusive of any rights or remedies provided by law. |
| 27. |
Successors in Interest. This Agreement shall bind the Borrower and the
successors and assigns of the Borrower, and the benefits hereof shall inure to
the benefit of Lender and its successors and assigns. All references herein to
“Borrower” shall be deemed to apply to Borrower, all of its
subsidiaries, and all of its successors and assigns. All references herein to
“Lender” shall be deemed to apply to Lender and its successors and
assigns. |
| 28. |
Assignment. This Agreement shall not be assigned by the Borrower or
Guarantor without the prior express written consent of Lender, but may be
assigned by Lender without the consent of Borrower or Guarantor. |
| 29. |
Duly Executed Documents. Prior to the making of any advances hereunder,
Borrower and Guarantor must deliver to Lender a duly executed original of the
Promissory Note, Security Agreement and Escrow Agreement, and any such other
documents that Lender may reasonably request. All actions of Borrower and
Guarantor under each of this Agreement, the Promissory Note, the Security
Agreement and the Escrow Agreement have been duly approved by each of Borrower
and Guarantor, and represent the duly authorized and legally enforceable actions
of each of Borrower and Guarantor. |
| 31. |
Survival. If any provision of this Agreement shall be held by a court of
competent jurisdiction to be invalid or unenforceable, such invalidity or
unenforceability shall not affect the remainder of the Agreement, which may be
given effect without the invalid or unenforceable provision, and to this end the
provisions of this Agreement shall be severable. |
| 32. |
Entire Understanding. This Agreement contains the entire understanding of
the parties hereto with respect to the subject matter hereof and supersedes all
prior understandings and agreements. |
Page 6 of 8
| 33. |
Headings. All section headings in this Agreement are for convenience of
reference only and do not form part of this Agreement and shall not affect in
any way the meaning or interpretation of this Agreement. |
| 34. |
Counterparts. This Agreement may be executed in counterparts, each of
which when so executed and delivered shall constitute a complete and original
instrument, but all of which together shall constitute one and the same
agreement, and it shall not be necessary when making proof of this Agreement or
any counterpart thereof to account for any other counterpart. |
[The next page is the
signature page.]
Page 7 of 8
IN WITNESS WHEREOF, the undersigned
have duly executed this Agreement as of the 2nd day of November, 2007.
| BORROWER: |
LENDER: |
| PROTEXX, INC. |
WIDEPOINT CORPORATION |
By: /s/ Xxxxx Xxxxxxx |
By: /s/ Xxxxx XxXxxxxx |
| Name: Xxxxx Xxxxxxx |
Name: Xxxxx XxXxxxxx |
| Title: CEO/President |
Title: V.P. and C.F.O. |
GUARANTOR: |
/s/ Xxxxx Xxxxxxx |
| Xxxxx Xxxxxxx, Individually |
SEEN AND AGREED TO: |
| 22THEN LLC |
By: /s/ Xxxxx Xxxxxxx |
| Name: Xxxxx Xxxxxxx |
| Title: CEO/President |
Page 8 of 8
