Exhibit 10.1
THIS SENIOR SECURED PROMISSORY NOTE HAS BEEN ISSUED WITH ORIGINAL
ISSUE DISCOUNT (OID) FOR UNITED STATES FEDERAL INCOME TAX PURPOSES.
THE ISSUE PRICE, THE AMOUNT OF OID, THE ISSUE DATE AND THE YIELD TO
MATURITY OF THIS NOTE MAY BE OBTAINED BY CONTACTING THOMAS AUCAMP,
SECRETARY, RUMBLEON, INC., 4521 SHARON ROAD, SUITE 370, CHARLOTTE,
NC 28211, TELEPHONE (704) 448-5240.
NEITHER THE ISSUANCE NOR SALE OF THIS NOTE HAS BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS. THIS NOTE MAY NOT BE OFFERED FOR SALE, SOLD,
TRANSFERRED OR ASSIGNED IN THE ABSENCE OF (A) AN EFFECTIVE
REGISTRATION STATEMENT FOR THIS NOTE UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL (WHICH COUNSEL SHALL
BE SELECTED BY THE HOLDER), IN A GENERALLY ACCEPTABLE FORM, THAT
REGISTRATION IS NOT REQUIRED UNDER SAID ACT. NOTWITHSTANDING
THE FOREGOING, THIS NOTE MAY BE PLEDGED IN CONNECTION WITH A BONA
FIDE LOAN OR FINANCING ARRANGEMENT SECURED BY THIS
NOTE.
SENIOR SECURED PROMISSORY NOTE
$
[●]
|
September 5, 2017 (“
Effective
Date
”)
|
FOR VALUE RECEIVED
, the undersigned,
RumbleON, Inc., a Nevada corporation (“
Borrower
”), does hereby
promise to pay to the order of [●] (“
Lender
”), on the
anniversary of the Effective Date (the “
Maturity Date
”), or such
earlier time as provided herein, the principal sum of [●]
($[●]) (the “
Principal Amount
”), in
lawful money of the United States of America, together with any
unpaid, accrued interest (“
Interest
”) thereon, on
the terms and conditions set forth in this Senior Secured
Promissory Note (this “
Note
”). This Note was
made by Borrower with an original issue discount of [●]
($[●]).
1.
Interest
.
From the Effective Date through December 31, 2017, Interest shall
accrue on the outstanding Principal Amount (including the amount of
the original issue discount) at the rate of five percent (5.0%) per
annum and thereafter until the Maturity Date, Interest shall accrue
on the outstanding Principal Amount (including the amount of the
original issue discount) at the rate of ten percent (10.0%) per
annum. Interest shall be computed on the basis of a 365-day year
for the actual number of days elapsed. All Interest shall be paid
to Lender monthly in arrears on the last day of each calendar month
and on the Maturity Date.
2.
Maturity
Date
. Borrower
will repay the
outstanding Principal Amount, together with any accrued and unpaid
Interest thereon,
on the Maturity Date
.
3.
Prepayment
.
The Principal Amount and any unpaid Interest accrued thereon may be
prepaid by Borrower at any time prior to the Maturity Date without
premium or penalty upon five (5) days prior written notice to
Lender. If after the Effective Date the Borrower consummates in one
or more transactions financing of any nature (including working
capital and floor plan financing) resulting in net proceeds
available to the Borrower of Five Million Dollars ($5,000,000) or
more, then the holder of this Note may require the Borrower to
prepay this Note on thirty (30) days prior written notice to the
Borrower.
4.
Application of
Payments
. All payments made under this Note shall be applied
first to late fees or other sums owed to the holder of this Note,
next to accrued but unpaid Interest, if any, and then to the
Principal Amount.
5.
Default
. If
(a) Borrower shall fail to pay the then unpaid Principal Amount, or
any Interest accrued thereon, when due, (b) Borrower shall fail to
perform, observe or comply with any other obligation under this
Note, which failure is not cured promptly but in no case more than
fifteen (15) days after written notice to Borrower, except that in
the event Borrower is unable to complete the cure within the
fifteen (15) day period, the cure period shall be extended if
Borrower has commenced the cure within fifteen (15) days and is
diligently pursuing the cure; in no event, however, shall the cure
period exceed thirty (30) days from the date of Lender’s
notice, unless Lender and Borrower mutually agree to an extension
of the cure period, (c) a “Default,” as defined in the
Subordinated Note (as defined below), shall occur and be
continuing, (d) Borrower is acquired in a merger, consolidation or
transfer of all or substantially all of its assets, (e) Borrower
shall commence a voluntary case concerning itself under Title 11 of
the United States Code entitled “Bankruptcy,” as now or
hereafter in effect, or any successor thereto (the
“
Bankruptcy
Code
”); or (f) (i) an involuntary case is commenced
against Borrower under the Bankruptcy Code, and the petition is not
controverted within 30 days, or is not dismissed within 90 days,
after commencement of the case; or (ii) a trustee or custodian is
appointed for, or takes charge of, all or substantially all of the
property of Borrower, or (iii) Borrower commences any other
proceeding under any reorganization, arrangement, adjustment of
debt, relief of debtors, dissolution, insolvency or liquidation or
similar law of any jurisdiction whether now or hereafter in effect
relating to Borrower, or there is commenced against Borrower any
such proceeding which remains undismissed for a period of 90 days,
or (iv) Borrower is adjudicated insolvent or bankrupt; or any order
of relief or other order approving any such case or proceeding is
entered; or (v) Borrower makes a general assignment for the benefit
of creditors (any of the events referred to in (a) – (f)
above of this Section 5 being referred to herein as a
“Default”); then Lender, by written notice to Borrower,
may declare the unpaid Principal Amount and any accrued but unpaid
Interest thereon to be, and the same shall thereupon become,
forthwith due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by
Borrower, and Interest on the unpaid Principal Amount shall
thereafter accrue at the rate of two percent (2%) per annum in
excess of the then applicable rate and be payable on
demand.
6.
Security
. As
security for the payment and performance of all obligations of the
Borrower under or pursuant to, or evidenced by, this Note, the
Borrower does hereby grant to the Lender a continuing security
interest in all of the Collateral (as hereinafter defined), whether
now existing or hereafter arising or acquired and wherever located.
For purposes of this Note, the term "
Collateral
" shall mean all of
the Borrower's accounts, chattel paper, deposit accounts,
commercial tort claims, documents, goods, instruments, investment
property, letter of credit rights, letters of credit, money and
general intangibles, as such terms are defined in the Uniform
Commercial Code of the State of New York (the "
UCC
"), and all proceeds
thereof; provided, however, “Collateral” shall exclude
any property hereafter expressly provided as collateral to a
financial institution providing to the Borrower after the Effective
Date working capital, floor plan, purchase money or capital lease
financing. The Lender is authorized to file financing statements
naming the Lender as secured party and the Borrower as debtor
indicating that the financing statement covers all assets or all
personal property of the Borrower. The Borrower shall provide to
the Lender such further agreements, instruments, certificates and
other documents, including security agreements for filing in the
United States Patent and Trademark Office and United States
Copyright Office, as the Lender shall reasonably require in order
to create or perfect, or to maintain its priority, in the
Collateral. The Lender is a secured party under the UCC and shall
have all the rights of a secured party under the UCC. Upon
disposition of any Collateral, the Borrower and each other obligor
shall remain liable for any deficiency.
7.
Senior Note
.
The indebtedness evidenced by this Note is “Senior
Debt,” and this Note is a “Senior Debt Document,”
as such terms are defined in that certain Subordinated Secured
Confessed Judgment Promissory Note dated February 8, 2017 from
Borrower (f\k\a Smart Server, Inc.) and payable to NextGen Dealer
Solutions, LLC (as amended, modified or restated, the
“
Subordinated
Note
”) and the Lender is entitled to all of the rights
of the holder of any Senior Debt as described in the Subordinated
Note.
8.
No Waiver or
Modification Except in Writing
. No failure on the part of
Lender to exercise, and no delay in exercising, any right, remedy,
or power under this Note or under any other document or agreement
executed in connection with this Note shall operate as a waiver
hereof. This Note may not be amended or modified orally, nor may
any right or provision hereof be waived orally, but only by an
instrument in writing signed by the party against which enforcement
of such amendment, modification or waiver is sought.
9.
Waiver of
Presentment
. Borrower hereby waives presentment for payment,
protest and notice of maturity or non-payment.
10.
Severability
.
If any provision of this Note is held invalid or unenforceable by
any court of competent jurisdiction, the other provisions of this
Note will remain in full force and effect. Any provision of this
Note held invalid or unenforceable only in part or degree will
remain in full force and effect to the extent not held invalid or
unenforceable. The Borrower consents to the reformation of any
invalid or unenforceable provision so that it is enforceable to the
maximum extent permitted by law.
11.
Notices
. All
notices, requests, consents, demands, and other communications
under this Note shall be in writing and shall be delivered either
(a) via hand delivery; (b) via facsimile to the recipient’s
number (with a confirmation copy delivered via reputable airborne
carrier); or (c) via reputable airborne carrier (e.g., Federal
Express or DHL). Notice shall be deemed delivered when actually
received by the intended recipient. All notices shall be addressed
to such address as any party may indicate for itself by written
notice to the other party.
12.
Assignments
.
The Lender may assign this Note; provided, however, this Note may
not be offered for sale, sold, transferred or assigned in the
absence of (a) an effective registration statement for this Note
under the Securities Act of 1933, as amended, or (b) an opinion of
counsel (which counsel shall be selected by the holder), in a
generally acceptable form, that registration is not required under
said Act. Notwithstanding the foregoing, this Note may be
pledged by Lender in connection with a bona fide loan or financing
arrangement secured by this Note. The Borrower may not assign this
Note.
13.
Governing
Law
. This Note shall be governed by and construed in
accordance with the laws of the State of New York.
14.
Consent to
Jurisdiction
. The
Borrower
submits to the non-exclusive jurisdiction of any state or federal
court located in the County of New York, State of New York, in any
action or proceeding arising out of or relating to this Note and
agrees that all claims in respect of the action or proceeding shall
be exclusively heard and determined in any such court. The Borrower
irrevocably waives, to the fullest extent permitted by applicable
law, any objection which it may now or hereafter have to the laying
of venue of any such dispute brought in such court. Borrower waives
any defense of inconvenient forum to the maintenance of any action
or proceeding so brought
.
15.
WAIVER OF JURY
TRIAL
: BORROWER WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS NOTE OR
THE SUBJECT MATTER HEREOF. THE SCOPE OF THIS WAIVER IS INTENDED TO
BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN
ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS NOTE,
INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH
OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THIS
SECTION HAS BEEN FULLY DISCUSSED BY BORROWER AND LENDER AND THESE
PROVISIONS WILL NOT BE SUBJECT TO ANY EXCEPTIONS. BORROWER FURTHER
WARRANTS AND REPRESENTS THAT BORROWER HAS REVIEWED THIS WAIVER WITH
ITS LEGAL COUNSEL, AND THAT BORROWER KNOWINGLY AND VOLUNTARILY
WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL
COUNSEL.
16.
Facsimile
Signature
. The execution of this Note by Borrower and the
delivery to Lender of a facsimile or PDF copy of such executed Note
shall be effective to obligate Borrower hereunder for all purposes
and such facsimile or PDF copy shall be deemed to be an original
for all purposes.
17.
Usury Laws
.
It is the intention of the Lender and Borrower to conform strictly
to all applicable usury laws now or hereafter in force, and if the
interest charged, taken or received hereunder is in excess of the
maximum legal amount allowed under the applicable usury laws as now
or hereafter construed by the courts having jurisdiction over such
matters (the “Usury Laws’), then any interest charged,
taken or received under this Note shall be subject to reduction to
the amount equal to the maximum legal amount allowed under the
Usury Laws. The aggregate of all interest (whether designated as
original issue discount, interest, service charges, points, or
otherwise) contracted for, chargeable, or receivable under this
Note shall under no circumstances exceed the maximum amount
permitted under the Usury Laws. If such interest does exceed the
maximum amount permitted under the Usury Laws, it shall be deemed a
mistake and such excess shall be canceled automatically and, if
theretofore paid, rebated to Borrower or credited on the unpaid
Principal Amount, or if this Note has been repaid, then such excess
shall be rebated to Borrower.
18.
Expenses of
Collection
. Upon a Default, this Note may be referred by
Lender to an attorney for collection, whether or not judgment has
been confessed or suit has been filed, and the Borrower shall pay
all of the reasonable costs, fees, and expenses, including
reasonable attorney’s fees, incurred by the
Lender.
19.
Binding
Nature
. This Note shall inure to the benefit of and be
enforceable by the Lender and the Lender’s successors and
assigns, and shall be binding and enforceable against the Borrower
and the Borrower’s successors and assigns.
RUMBLEON,
INC.
By:
_____________________________________
Name:
Title:
ACCEPTED
AND AGREED:
LENDER:
___________________________________
[●]