Attached files
Exhibit 10.2
SECURED
REVOLVING PROMISSORY NOTE
| $500,000.00 | Salt Lake City, Utah |
October
14, 2009
FOR VALUE RECEIVED, the
undersigned, Midas Medici Group Holdings, Inc., a Delaware corporation (“Midas
Medici”), and Utilipoint International, Inc., a New Mexico corporation
(“Utilipoint”) (collectively, the “Obligor”), hereby promise to pay to the order
of Proficio Bank, a Utah corporation (the “Holder”), the principal
amount of FIVE HUNDRED THOUSAND DOLLARS AND NO/100 ($500,000.00) or so much
thereof as may be advanced and outstanding under the Loan Agreement (as defined
below). Capitalized terms used herein but not defined herein shall
have the meaning given to such term in the Loan Agreement.
The
above-stated principal amount will bear interest at the Applicable Interest Rate
(as such term is defined in the Loan Agreement) (or, if less, the maximum rate
permitted by applicable law) from and after the date of this Secured Revolving
Promissory Note (this “Note”) until full payment of the principal and all
accrued interest hereunder. Interest on the principal amount will be
calculated at the rate set forth above on the basis of a 360-day year and the
actual number of days elapsed.
Accrued
interest shall be payable monthly in arrears on the first day of each month for
the immediately preceding month commencing on the first day of November,
2009. The principal amount outstanding under this Note, together with
any accrued but unpaid interest on the unpaid principal amount, will be due and
payable in full on the 14th day of October, 2010 (the “Maturity
Date”). The Obligor may prepay this Note at any time, in whole or in
part, without premium or penalty.
This Note
is being executed pursuant to the Revolving Loan Agreement by and between and
among the Obligor and Holder dated as of the date hereof (the “Loan Agreement”)
and is secured by (i) Security Agreement, dated as of the date hereof, by and
between and among Obligor and Holder (the “Pledge Agreement”), and (ii) any
other security agreement, pledge, assignment, stock power, mortgage, deed of
trust, security deed and/or other instrument covering personal or real property
which secures an obligation so defined as to include this Note.
An “Event
of Default” shall be deemed to have occurred under this Note if (a) Obligor
shall suffer an Event of Default (as such term is defined in the Loan Agreement)
or (b) Obligor makes an assignment for the benefit of creditors, or files a
voluntary petition in bankruptcy, receivership or insolvency, or files an answer
in any involuntary proceeding of that nature admitting the material allegations
of the petition, or if a proceeding or bankruptcy, receivership or insolvency,
is instituted against Obligor and is not dismissed within sixty (60) days, or if
a trustee or receiver is appointed for Obligor is not dismissed or discharged
within sixty (60) days. Upon any Event of Default, all amounts
advanced hereunder, together with all accrued but unpaid interest thereon,
shall, at the option of Holder, without further notice, become due and payable
and may be collected immediately, regardless of the stipulated Maturity
Date. Upon any Event of Default, in addition to interest as provided
above, Obligor shall pay interest at the Default Rate (as such term is defined
in the Loan Agreement).
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The
provisions of this Note are binding on the successors and assigns of the Obligor
and shall inure to the benefit of the Holder’s successors and
assigns.
Obligor
hereby (a) waives grace, presentment and demand for payment, protest and
notice of protest, and non-payment, all other notices, including notice of
intent to accelerate the Maturity Date and notice of acceleration of the
Maturity Date, filing of suit and diligence in collecting this Note,
(b) agrees that Holder shall not be required first to institute suit or
exhaust its remedies against Obligor under this Note and (c) consents to
any extension or postponement of time of payment of this Note and in any other
indulgence with respect hereto without notice from Holder.
All
notices and communications required or provided for hereunder by any party shall
be in writing and shall be (a) delivered personally, (b) sent by certified or
registered mail, postage prepaid, (c) sent by private courier or other overnight
delivery service, or (d) sent by telecopy (with evidence of transmittal) to the
party or parties to whom such notice is required to be given, to the address set
forth below (or to such other address as any party may designate from time to
time in accordance with the terms of this section:
If to
Holder:
Proficio
Bank
420 E.
South Temple, Suite 520
Salt Lake
City, Utah 84111
Attention: Terry
Grant, Chief Credit & Lending Officer
Facsimile
No. (801) 363-0669
With a copy
to:
Thomas R.
Taylor, Esq.
Holme,
Roberts & Owen, LLP
299 South
Main St., Suite 1800
Salt Lake
City, Utah 84111
Facsimile
No. (801) 521-9639
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If to
Obligor:
c/o Midas
Medici Group Holdings, Inc.
445 Park
Avenue, 20th
Floor
New York,
New York 10022
Attention: Nana
Baffour, Chief Executive Officer
Facsimile
No.: (212) 202-4168
With a copy
to:
Steven H.
Lang, Esq.
360
Venture Law (Shmalo Lang) LLP
P.O. Box
77365
Atlanta,
Georgia 30357
Facsimile
No.: (404) 420-2169
A notice
delivered personally shall be effective upon receipt. A notice
delivered by private courier or other overnight delivery service shall be
effective on the day delivered (or the day on which delivery is refused in the
event delivery is refused). A notice delivered by certified or
registered mail shall be effective on the third business day after the day of
mailing. A notice sent by telecopy shall be effective twenty-four
(24) hours after the dispatch thereof.
It is the
intention of Obligor and Holder to comply with any applicable usury
laws. In furtherance of this intention of Holder and Obligor, all
agreements between Obligor and Holder are hereby expressly limited so that in no
contingency or event whatsoever shall the amount paid or agreed to be paid to
Holder for the use, forbearance or detention of money under this Note exceed the
maximum rate permissible under applicable law. If, from any
circumstance whatsoever, fulfillment of any provision hereof shall be prohibited
by law, the obligation to be fulfilled shall be reduced to the maximum not so
prohibited, and if from any circumstances Holder should ever receive as interest
an amount which would exceed the highest lawful rate, such amount as would be
excessive interest shall, at Holder’s option, be applied to the reduction of the
principal of this Note and not to the payment of interest, or shall be refunded
to Obligor. This provision shall control every other provision of all
agreements between Obligor and Holder.
Time is
of the essence of this Note. If any lawsuit is brought to enforce
this Note or in connection with any breach or violation hereof, the prevailing
party shall be entitled to recover from the non-prevailing party all of its
costs and expenses, including, without limitation, all reasonable attorneys’ fee
and expenses.
Any
payment received by Holder hereunder may, at Holder’s option, be applied first
to interest or to reduce the principal balance. A waiver or release
with reference to one event shall not be construed as continuing, as a bar to,
or as a waiver or release of any subsequent right, remedy or recourse to any
subsequent event. No failure or delay on the part of Holder in
exercising any right, power or remedy granted hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise thereof or the exercise
of any other right, power or remedy hereunder. Obligor hereby
consents to all renewals and extensions of time at or after the maturity hereof
and hereby waives diligence, presentment, protest, demand and notice of every
kind and, to the full extent permitted by applicable law, the right to plead any
statute of limitations as a defense and hereby agrees that no failure on the
part of Holder to exercise any power, right or privilege hereunder, or to insist
upon prompt compliance with the terms hereof, shall constitute a waiver
thereof. The parties to this Note have participated jointly in the in
the negotiation and drafting of this Note. This Note may not be
changed orally, but only by an agreement in writing signed by the party or
parties against whom enforcement of any waiver, change, modification or
discharge is sought. As used herein, the terms, “Obligor” and
“Holder” shall be deemed to include their respective successors, legal
representatives and assigns, whether by voluntary action of the parties or by
operation of law, however, this Note may not be assigned without the prior
written consent of Holder which can be denied at Holder’s sole
discretion. This Note shall be construed in accordance with and
governed by the laws of the State of Utah, and any disputes now or hereafter
arising in connection with the execution or operation of this Note, regardless
of whether such disputes shall arise in contract, tort or otherwise, shall be
governed and determined by the laws of the State of Utah, without regard to the
conflicts of laws provision thereof. Jurisdiction and venue for
purposes of this Note shall be solely with the state and federal courts sitting
in Salt Lake City, Utah, Salt Lake County, Utah.
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OBLIGOR:
Midas
Medici Group Holdings, Inc.
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By:
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/s/ Nana Baffour | |
| Name: Nana Baffour | |||
| Title: Chief Executive Officer | |||
| Utilipoint International, Inc | |||
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By:
|
/s/ Nana Baffour | |
| Name: Nana Baffour | |||
| Title: Chief Executive Officer | |||