Attached files
Exhibit 10.1
THE
SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE
OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISTRIBUTION MAY BE
EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATED
THERETO OR AN OPINION OF COUNSEL IN A FORM SATISFACTORY TO THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES
ACT OF 1933.
AMENDED
AND RESTATED
SUBORDINATED
PROMISSORY NOTE
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$500,000
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August
25, 2017
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For
value received, Novume Solutions, Inc., a Delaware corporation (the
“Company”), as assignee of
KeyStone Solutions, Inc., a Delaware corporation
(“KeyStone”), promises to
pay to Avon Road Partners, L.P. (the “Holder”), the principal
sum of Five Hundred Thousand Dollars ($500,000) or such other
amount as may have been advanced and may be outstanding from time
to time (the “Principal Amount”).
Simple interest shall accrue from the date of this Note on the
unpaid principal amount at a rate equal to the lower of
(i) 9% per annum, or (ii) the highest rate permitted
by applicable law. This Note is one of a series of Subordinated
Promissory Notes containing substantially identical terms and
conditions issued pursuant to that certain Subordinated Note and
Warrant Purchase Agreement, dated March 16, 2016 (the
“Purchase
Agreement”) by and between KeyStone and the other
parties thereto including the Holder. Such Notes are referred to
herein as the “Notes,” and the holders
thereof are referred to herein as the “Holders.” This Note is
subject to the following terms and conditions.
1.
Maturity.
This
Note will automatically mature and be due and payable on March 16,
2019 (the “Maturity
Date”). Interest shall accrue on this Note and shall
be payable monthly in arrears. Notwithstanding any of the
foregoing, the entire unpaid principal sum of this Note, together
with accrued and unpaid interest thereon, shall become immediately
due and payable upon the insolvency of the Company, the commission
of any act of bankruptcy by the Company, the execution by the
Company of a general assignment for the benefit of creditors, the
filing by or against the Company of a petition in bankruptcy or any
petition for relief under the federal bankruptcy act or the
continuation of such petition without dismissal for a period of
ninety (90) days or more, or the appointment of a receiver or
trustee to take possession of the property or assets of the
Company.
2.
Payment;
Prepayment. All
payments shall be made in lawful money of the United States of
America at such place as the Holder hereof may from time to time
designate in writing to the Company. Payment shall be credited
first to the accrued interest then due and payable and the
remainder applied to principal. This Note may be prepaid in whole
or in part from time to time by the Company.
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3.
Nature
of Obligation. This
Note is a general unsecured obligation of the Company.
4.
Transfer;
Successors and Assigns. The terms and conditions of this Note
shall inure to the benefit of and be binding upon the respective
successors and permitted assigns of the parties. Notwithstanding
the foregoing, the Holder may not assign, pledge or otherwise
transfer all or any part of this Note without the prior written
consent of the Company, except to (a) in the case of any
Holder who is an individual, (i) the spouses or former
spouses, parents, siblings or descendants of such Holder,
(ii) all trusts for the benefit of such Holder or the
individuals listed in clause (i), (iii) all persons
principally owned by and/or organized or operating for the benefit
of any of the foregoing and (iv) all Affiliates of such
Holder; and (b) in the case of any Holder that is an entity,
(i) any Affiliate of such Holder, or (ii) any person to
which such Holder shall transfer all or substantially all of its
assets. For purposes hereof, “Affiliate” of a Holder
means (x) solely in the case of Avon Road Partners, LP, any
member, shareholder or partner of such Holder as of the date hereof
and (y) any other person that directly or indirectly
(including through one or more intermediaries) controls, is
controlled by, or is under common control with, such Holder. The
term “control” (including the terms “controlled
by” and “under common control with”) as used in
this defined term means the possession, directly or indirectly, of
the power to direct or cause the direction of the management and
policies of a person, whether through the ownership of voting
securities, by contract or otherwise.
5.
Governing
Law. This Note and
all acts and transactions pursuant hereto and the rights and
obligations of the parties hereto shall be governed, construed and
interpreted in accordance with the laws of the State of Delaware,
without giving effect to principles of conflicts of
law.
6.
Jurisdiction and
Venue. Each of the Holder
and the Company irrevocably consents to the exclusive jurisdiction
and venue of any court within Fairfax County, Virginia, in
connection with any matter based upon or arising out of this Note
or the matters contemplated herein, and agrees that process may be
served upon them in any manner authorized by the laws of the
Commonwealth of Virginia for such persons.
7.
Amendments and
Waivers. The
amendment or waiver of any term in this Note shall be conducted
pursuant to Section 7(h) of the Purchase
Agreement.
8.
Subordination.
The Holder acknowledges and agrees, unconditionally, that the
Company’s payment obligations under this Note may, without
the Holder’s consent, be subordinated to the obligations of
the Company to its lenders under the Company’s financing
facility, if at an time the Company enters into any such financing
facility, including any increase in the size of such facility from
time to time (the lenders under any such facility, the
“Lenders”). At any time
that the Company is subject to payments to Lenders, until such
obligations of the Company to any such Lenders have been satisfied
in full and all commitments of the Lenders to loan money to the
Company have terminated, no payments under this Note shall be paid
to Holder, and any payment received by Holder shall be held in
trust for the Lenders and shall be immediately turned over to
Lenders. By accepting this Note, the Holder agrees to execute a
subordination agreement with any Lender or Lenders evidencing
such subordination as requested by the Company and/or its
Lenders. If the terms or conditions of any subordination
agreement with any Lender shall change, the Holder shall execute
and deliver such further documents or instruments as such Lender
may reasonably request in order to give effect to the provisions of
such subordination agreement and the provisions of this
Note.
[Signature page follows]
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COMPANY:
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NOVUME SOLUTIONS, INC.
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By:
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/s/
Riaz
Latifullah
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Name:
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Riaz
Latifullah
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Title:
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Chief
Financial Officer
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Address:
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14420
Albemarle Point Place, Suite 200
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Chantilly,
VA 20151
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Copy
To:
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Morris
DeFeo
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Crowell &
Moring, LLP
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1001
Pennsylvania Avenue NW
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Washington,
D.C. 20004
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