Revolving Line of Credit Agreement - Michael Robertson and Lindows.com Inc.
AMENDED AND RESTATED
REVOLVING LINE OF CREDIT AGREEMENT
This Revolving Line of Credit Agreement (the "AGREEMENT") is made and
entered into in this 29th day of July, 2002, by and between MICHAEL ROBERTSON
("LENDER"), and Lindows.com, Inc., a Delaware corporation ("BORROWER"). On
August 5, 2004, the parties hereto amended and restated the Agreement solely to
modify Lender's address set forth in Section 8 and the Promissory Note attached
hereto.
In consideration of the mutual covenants and agreements contained herein,
the parties agree as follows:
1. LINE OF CREDIT. Lender hereby establishes for a period extending to
December 31, 2003 (the "MATURITY DATE") a revolving line of credit (the "CREDIT
LINE") for Borrower in the principal amount of Five Hundred Thousand Dollars
($500,000.00) (the "CREDIT LIMIT"). In connection herewith, Borrower shall
execute and deliver to Lender a Promissory Note in the amount of the Credit
Limit and in form and content satisfactory to Lender. All sums advanced on the
Credit Line or pursuant to the terms of this Agreement (each an "ADVANCE") shall
become part of the principal of said Promissory Note.
2. ADVANCES. Any request for an Advance may be made from time to time and
in such amounts as Borrower may choose; provided, however, any requested Advance
will not, when added to the outstanding principal balance of all previous
Advances, exceed the Credit Limit. Requests for Advances may be made orally or
in writing by such officer of Borrower authorized by it to request such
Advances. Until such time as Lender may be notified otherwise, Borrower hereby
authorizes its president or any vice president to request Advances. Lender may
deposit or credit the amount of any requested Advance to Borrower's checking
account with Lender. Lender may refuse to make any requested Advance if an event
of default has occurred and is continuing hereunder either at the time the
request is given or the date the Advance is to be made, or if an event has
occurred or condition exists which, with the giving of notice or passing of time
or both, would constitute an event of default hereunder as of such dates.
The funds from the Advances will be used by the Borrower for operating
expenses in connection with the operations of the Borrower.
3. INTEREST. All sums advanced pursuant to this Agreement shall bear
interest from the date each Advance is made until paid in full at the rate of
ten percent (10%) per annum, simple interest (the "EFFECTIVE RATE").
4. REPAYMENT. Borrower shall pay accrued interest on the outstanding
principal balance on a monthly basis commencing on September 15, 2002, and
continuing on the fifteenth day of each month thereafter. The entire unpaid
principal balance, together with any accrued interest and other unpaid charges
or fees hereunder, shall be due and payable on the Maturity Date. All payments
shall be made to Lender at such place as Lender may, from time to time,
designate. All payments received hereunder shall be applied, first, to any costs
or expenses incurred by Lender in collecting such payment or to any other unpaid
charges or expenses due hereunder; second, to accrued interest; and third, to
principal. Borrower may prepay principal at any time without penalty.
5. REPRESENTATIONS AND WARRANTIES. In order to induce Lender to enter into
this Agreement and to make the advances provided for herein, Borrower represents
and warrants to Lender as follows:
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EXHIBIT 10.6
a. Borrower is a duly organized, validly existing, and in good
standing under the laws of the State of Utah with the power to own its assets
and to transact business in California, and in such other states where its
business is conducted.
b. Borrower has the authority and power to execute and deliver any
document required hereunder and to perform any condition or obligation imposed
under the terms of such documents.
c. The execution, delivery and performance of this Agreement and
each document incident hereto will not violate any provision of any applicable
law, regulation, order, judgment, decree, article of incorporation, by-law,
indenture, contract, agreement, or other undertaking to which Borrower is a
party, or which purports to be binding on Borrower or its assets and will not
result in the creation or imposition of a lien on any of its assets.
d. There is no action, suit, investigation, or proceeding pending
or, to the knowledge of Borrower, threatened, against or affecting Borrower or
any of its assets which, if adversely determined, would have a material adverse
affect on the financial condition of Borrower or the operation of its business.
6. EVENTS OF DEFAULT. An event of default will occur if any of the
following events occurs:
a. Failure to pay any principal or interest hereunder within ten
(10) days after the same becomes due.
b. Any representation or warranty made by Borrower in this Agreement
or in connection with any borrowing or request for an Advance hereunder, or in
any certificate, financial statement, or other statement furnished by Borrower
to Lender is untrue in any material respect at the time when made.
c. Default by Borrower in the observance or performance of any other
covenant or agreement contained in this Agreement, other than a default
constituting a separate and distinct event of default under this Paragraph 6.
d. Filing by Borrower of a voluntary petition in bankruptcy seeking
reorganization, arrangement or readjustment of debts, or any other relief under
the Bankruptcy Code as amended or under any other insolvency act or law, state
or federal, now or hereafter existing.
e. Filing of an involuntary petition against Borrower in bankruptcy
seeking reorganization, arrangement or readjustment of debts, or any other
relief under the Bankruptcy Code as amended, or under any other insolvency act
or law, state or federal, now or hereafter existing, and the continuance thereof
for sixty (60) days undismissed, unbonded, or undischarged.
7. REMEDIES. Upon the occurrence of an event of default as defined above,
Lender may declare the entire unpaid principal balance, together with accrued
interest thereon, to be immediately due and payable without presentment, demand,
protest, or other notice of any kind. Lender may suspend or terminate any
obligation it may have hereunder to make additional Advances. To the extent
permitted by law, Borrower waives any rights to presentment, demand, protest, or
notice of any kind in connection with this Agreement. No failure or delay on the
part of Lender in exercising any right, power, or privilege hereunder will
preclude any other or further exercise thereof or the exercise of any other
right, power, or privilege. The rights and remedies provided herein are
cumulative and not exclusive of any other rights
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EXHIBIT 10.6
or remedies provided at law or in equity. Borrower agrees to pay all costs of
collection incurred by reason of the default, including court costs and
reasonable attorney's fees.
8. NOTICE. Any written notice will be deemed effective on the date such
notice is placed, first class, postage prepaid, in the United States mail,
addressed to the party to which notice is being given as follows:
Lender: Michael Robertson
c/o Lindows.com, Inc.
9333 Genesee Ave. 3rd Floor
San Diego, CA 92121
Borrower: Lindows.com, Inc.
Attn.: Kevin Carmony
9333 Genesee Ave. 3rd Floor
San Diego, CA 92121
9. GENERAL PROVISIONS. All representations and warranties made in this
Agreement and the Promissory Note and in any certificate delivered pursuant
thereto shall survive the execution and delivery of this Agreement and the
making of any loans hereunder. This Agreement will be binding upon and inure to
the benefit of Borrower and Lender, their respective successors and assigns,
except that Borrower may not assign or transfer its rights or delegate its
duties hereunder without the prior written consent of Lender. This Agreement,
the Promissory Note, and all documents and instruments associated herewith will
be governed by and construed and interpreted in accordance with the laws of the
State of California. Time is of the essence hereof. This Agreement will be
deemed to express, embody, and supersede any previous understanding, agreements,
or commitments, whether written or oral, between the parties with respect to the
general subject matter hereof. This Agreement may not be amended or modified
except in writing signed by the parties.
EXECUTED on the day and year first written above.
Borrower: Lindows.com, Inc.
By: /s/ Kevin Carmony
---------------------------
Title: Pres/COO
-------------------
Lender: /s/ Michael Robertson
------------------------------
Michael Robertson
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EXHIBIT 10.6
1 Promissory Note
$500,000.00 San Diego, CA
July 29, 2002
This Promissory Note (the "NOTE") is made and executed as of the date
referred to above, by and between Lindows.com, Inc., a Delaware corporation (the
"BORROWER"), and Michael Robertson ("LENDER"). By this Note, the Borrower
promises and agrees to pay to the order of Lender, at 9333 Genesee Ave. 3Ta
Floor, San Diego, CA 92121, or at such other place as Lender may designate in
writing, the principal sum of Five Hundred Thousand and 00/100 Dollars
($500,000.00), or the aggregate unpaid principal amount of all advances made by
Lender to Borrower pursuant to the terms of a Revolving Line of Credit Agreement
(the "LOAN AGREEMENT") of even date herewith, whichever is less, together with
interest thereon from the date each advance is made until paid in full, both
before and after judgment, at the rate of 10 percent (10%) per annum, simple
interest.
Borrower shall pay accrued interest on the outstanding principal balance
under the Note on a monthly basis commencing on September 15, 2002, and
continuing on the fifteenth day of each month thereafter until paid in full. The
entire unpaid principal balance, together with any accrued interest and other
unpaid charges or fees hereunder, shall be due and payable on December 31, 2003
(the "MATURITY DATE").
Prepayment in whole or part may occur at any time hereunder without
penalty; provided that the Lender shall be provided with not less than ten (10)
days notice of the Borrower's intent to pre-pay; and provided further that any
such partial prepayment shall not operate to postpone or suspend the obligation
to make, and shall not have the effect of altering the time for payment of the
remaining balance of the Note as provided for above, unless and until the entire
obligation is paid in full. All payments received hereunder shall be applied,
first, to any costs or expenses incurred by Lender in collecting such payment or
to any other unpaid charges or expenses due hereunder; second, to accrued
interest; and third, to principal.
An event of default will occur if any of the following events occurs: (a)
failure to pay any principal or interest hereunder within ten (10) days after
the same becomes due; (b) if any representation or warranty made by Borrower in
the Loan Agreement or in connection with any borrowing or request for an advance
thereunder, or in any certificate, financial statement, or other statement
furnished by Borrower to Lender is untrue in any material respect at the time
when made; (c) default by Borrower in the observance or performance of any other
covenant or agreement contained in the Loan Agreement, other than a default
constituting a separate and distinct event of default under Paragraph 7 of the
Loan Agreement; (d) filing by Borrower of a voluntary petition in bankruptcy
seeking reorganization, arrangement or readjustment of debts, or any other
relief under the Bankruptcy Code as amended or under any other insolvency act or
law, state or federal, now or hereafter existing; or (e) filing of an
involuntary petition against Borrower in bankruptcy seeking reorganization,
arrangement or readjustment of debts, or any other relief under the Bankruptcy
Code as amended, or under any other insolvency act or law, state or federal, now
or hereafter existing, and the continuance thereof for sixty (60) days
undismissed, unbonded, or undischarged.
Any notice or demand to be given to the parties hereunder shall be deemed
to have been given to and received by them and shall be effective when
personally delivered or when deposited in the U.S. mail, certified or registered
mail, return receipt requested, postage prepaid, and addressed to the party at
his or its last known address, or at such other address as the one of the
parties may hereafter designate in writing to the other party.
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EXHIBIT 10.6
The Borrower hereof waives presentment for payment, protest, demand,
notice of protest, notice of dishonor, and notice of nonpayment, and expressly
agrees that this Note, or any payment hereunder, may be extended from time to
time by the Lender without in any way affecting its liability hereunder.
In the event any payment under this Note is not made at the time and in
the manner required, the Borrower agrees to pay any and all costs and expenses
which may be incurred by the Lender hereof in connection with the enforcement of
any of its rights under this Note or under any such other instrument, including
court costs and reasonable attorneys' fees.
This Note shall be governed by and construed and enforced in accordance
with the laws of California.
The Borrower: Lindows.com, Inc., a Delaware corporation
By: /s/ Kevin Carmony
------------------------------
Title: Pres/COO
------------------------------
Lender: /s/ Michael Robertson
---------------------------------
Michael Robertson
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EXHIBIT 10.6
Addendum to the Revolving Line of Credit Agreement
$500,000.00 San Diego, CA
September 11, 2002
This Addendum to the Revolving Line of Credit Agreement by and between
Lindows.com, Inc., a Delaware Corporation (the "BORROWER") and Michael Robertson
("LENDER") is made and executed as of the date referred to above. An additional
principal sum of Five Hundred Thousand and 00/100 Dollars ($500,000.00) has been
added to the Revolving Line of Credit Agreement (the "LOAN AGREEMENT") bringing
the Loan Agreement to a total sum of One Million and 00/100 Dollars
($1,000,000.00).
This Addendum shall be governed by and construed and enforced in
accordance with the laws of California.
The Borrower: Lindows.com, Inc., a Delaware corporation
By: /s/ Kevin Carmony
---------------------------
President
Lender: /s/ Michael Robertson
------------------------------
Michael Robertson
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EXHIBIT 10.6
Addendum to the Revolving Line of Credit Agreement
$1,000,000.00 San Diego, CA
December 6, 2002
This Addendum to the Revolving Line of Credit Agreement by and between
Lindows.com, Inc., a Delaware Corporation (the "BORROWER") and Michael Robertson
("LENDER") is made and executed as of the date referred to above. An additional
principal sum of One Million and 00/100 Dollars ($1,000,000.00) has been added
to the Revolving Line of Credit Agreement (the "LOAN AGREEMENT") bringing the
Loan Agreement to a total sum of Two Million and 00/100 Dollars ($2,000,000.00).
This Addendum shall be governed by and construed and enforced in
accordance with the laws of California.
The Borrower: Lindows.com, Inc., a Delaware corporation
By: /s/ Kevin Carmony
---------------------------
President
Lender: /s/ Michael Robertson
------------------------------
Michael Robertson
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EXHIBIT 10.6
Addendum to the Revolving Line of Credit Agreement
$1,000,000.00 San Diego, CA
February 7, 2003
This Addendum to the Revolving Line of Credit Agreement by and between
Lindows.com, Inc., a Delaware Corporation (the "BORROWER") and Michael Robertson
("LENDER") is made and executed as of the date referred to above. An additional
principal sum of One Million and 00/100 Dollars ($1,000,000.00) has been added
to the Revolving Line of Credit Agreement (the "LOAN AGREEMENT") bringing the
Loan Agreement to a total sum of Three Million and 00/100 Dollars
($3,000,000.00).
This Addendum shall be governed by and construed and enforced in
accordance with the laws of California.
The Borrower: Lindows.com, Inc., a Delaware corporation
By: /s/ Kevin Carmony
---------------------------
President
Lender: /s/ Michael Robertson
------------------------------
Michael Robertson
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EXHIBIT 10.6
Addendum to the Revolving Line of Credit Agreement
$500,000.00 San Diego, CA
September 17, 2003
This Addendum to the Revolving Line of Credit Agreement by and between
Lindows.com, Inc., a Delaware Corporation (the "BORROWER") and Michael Robertson
("LENDER") is made and executed as of the date referred to above. An additional
principal sum of Five Hundred Thousand and 00/100 Dollars ($500,000.00) has been
added to the Revolving Line of Credit Agreement (the "LOAN AGREEMENT") bringing
the Loan Agreement to a total sum of Three Million, Five Hundred Thousand and
00/100 Dollars ($3,500,000.00).
This Addendum shall be governed by and construed and enforced in
accordance with the laws of California.
The Borrower: Lindows.com, Inc., a Delaware corporation
By: /s/ Kevin Carmony
---------------------------
President
Lender: /s/ Michael Robertson
------------------------------
Michael Robertson
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EXHIBIT 10.6
Addendum to the Revolving Line of Credit Agreement
$100,000.00 San Diego, CA
November 11, 2003
This Addendum to the Revolving Line of Credit Agreement by and between
Lindows.com, Inc., a Delaware Corporation (the "BORROWER") and Michael Robertson
("LENDER") is made and executed as of the date referred to above. An additional
principal sum of One Hundred Thousand and 00/100 Dollars ($100,000.00) has been
added to the Revolving Line of Credit Agreement (the "LOAN AGREEMENT") bringing
the Loan Agreement to a total sum of Three Million, Six Hundred Thousand and
00/100 Dollars ($3,600,000.00).
This Addendum shall be governed by and construed and enforced in
accordance with the laws of California.
The Borrower: Lindows.com, Inc., a Delaware corporation
By: /s/ Kevin Carmony
------------------------------
President
Lender: /s/ Michael Robertson
------------------------------
Michael Robertson
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EXHIBIT 10.6
Addendum to the Revolving Line of Credit Agreement
$500,000.00 San Diego, CA
November 14, 2003
This Addendum to the Revolving Line of Credit Agreement by and between
Lindows.com, Inc., a Delaware Corporation (the "BORROWER") and Michael Robertson
("LENDER") is made and executed as of the date referred to above. An additional
principal sum of Five Hundred Thousand and 00/100 Dollars ($500,000.00) has been
added to the Revolving Line of Credit Agreement (the "LOAN AGREEMENT") bringing
the Loan Agreement to a total sum of Four Million, One Hundred Thousand and
00/100 Dollars ($4,100,000.00).
This Addendum shall be governed by and construed and enforced in
accordance with the laws of California.
The Borrower: Lindows.com, Inc., a Delaware corporation
By: /s/ Kevin Carmony
---------------------------
President
Lender: /s/ Michael Robertson
------------------------------
Michael Robertson
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EXHIBIT 10.6
Addendum to the Revolving Line of Credit Agreement
$900,000.00 San Diego, CA
December 23, 2003
This Addendum to the Revolving Line of Credit Agreement by and between
Lindows.com, Inc., a Delaware Corporation (the "BORROWER") and Michael Robertson
("LENDER") is made and executed as of the date referred to above. An additional
principal sum of Nine Hundred Thousand and 00/100 Dollars ($900,000.00) has been
added to the Revolving Line of Credit Agreement (the "LOAN AGREEMENT") bringing
the Loan Agreement to a total sum of Five Million and 00/100 Dollars
($5,000,000.00).
This Addendum shall be governed by and construed and enforced in
accordance with the laws of California.
The Borrower: Lindows.com, Inc., a Delaware corporation
By: /s/ Kevin Carmony
---------------------------
President
Lender: /s/ Michael Robertson
------------------------------
Michael Robertson
12
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EXHIBIT 10.6
Addendum to the Revolving Line of Credit Agreement
$5,000,000.00 San Diego, CA
February 12, 2004
This Addendum to the Revolving Line of Credit Agreement by and between
Lindows.com, Inc., a Delaware Corporation (the "BORROWER") and Michael Robertson
("LENDER") is made and executed as of the date referred to above. An additional
principal sum of Five Million and 00/100 Dollars ($5,000,000.00) has been added
to the Revolving Line of Credit Agreement (the "LOAN AGREEMENT") bringing the
Loan Agreement to a total sum of Ten Million and 00/100 Dollars
($10,000,000.00).
This Addendum shall be governed by and construed and enforced in
accordance with the laws of California.
The Borrower: Lindows.com, Inc., a Delaware corporation
By: /s/ Kevin Carmony
------------------------------
President
Lender: /s/ Michael Robertson
------------------------------
Michael Robertson
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Amendment to the Revolving Line of Credit Agreement and Promissory Note
San Diego, CA
February 12, 2004
This Amendment to the Revolving Line of Credit Agreement and Promissory
Note by and between Lindows.com, Inc., a Delaware Corporation (the "BORROWER"),
and Michael Robertson ("LENDER") is made and executed as of the date referred to
above.
An additional principal sum of Five Million and 00/100 Dollars
($5,000,000.00) has been added to the Revolving Line of Credit Agreement dated
July 29, 2002 (the "LOAN AGREEMENT") and Promissory Note dated July 29, 2002
(the "NOTE") bringing the total principal amount available under the Loan
Agreement and Note to a total sum of Ten Million and 00/100 Dollars
($10,000,000.00).
Borrowings currently outstanding under the Loan Agreement are Five Million
and 00/100 Dollars ($5,000,000).
The Credit Limit as set forth in the Loan Agreement is hereby increased to
the principal amount of Ten Million and 00/100 Dollars ($10,000,000.00).
The Maturity Date as set forth in the Loan Agreement and Note is hereby
extended to June 30, 2005.
The first sentence of Section 4 of the Loan Agreement and the first
sentence of the second paragraph of the Note are hereby deleted such that no
interest shall be due and payable prior to the Maturity Date.
Lender hereby waives any and all defaults that may have occurred under the
Loan Agreement and/or Note prior to the date of this Amendment.
Except as provided above in this Amendment and in all prior addendums, all
terms, covenants and conditions in the Loan Agreement and Note shall remain in
full force and effect and shall not be affected by this Amendment.
This Amendment shall be governed by and construed and enforced in
accordance with the laws of California.
The Borrower: Lindows.com, Inc., a Delaware Corporation
By /s/ Kevin Carmomy
---------------------------------------
President
Lender: /s/ Michael Robertson
-----------------------------------------
Michael Robertson