Blueprint





Exhibit
10.1






 



SUBORDINATED SECURED CONFESSED JUDGMENT PROMISSORY
NOTE


 


	
$1,333,333 

	
 February
8, 2017 (“Effective
Date”)











 


 

 



IMPORTANT NOTICE


 


THIS
INSTRUMENT CONTAINS A CONFESSION OF JUDGMENT PROVISION WHICH
CONSTITUTES A WAIVER OF IMPORTANT RIGHTS YOU MAY HAVE AS A DEBTOR
AND ALLOWS THE CREDITOR TO OBTAIN A JUDGMENT AGAINST YOU WITHOUT
ANY FURTHER NOTICE.


 

 


FOR VALUE RECEIVED, the undersigned,
Smart Server, Inc., a Delaware corporation (“Borrower”), does hereby
promise to pay to the order of NextGen Dealer Solutions, LLC
(“Lender”), on the third
anniversary of the Effective Date (the “Maturity Date”), or such
earlier time as provided herein, the principal sum of One Million
Three Hundred Thirty Three Thousand Three Hundred Thirty Three
Dollars ($1,333,333) (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 Subordinated Secured
Confessed Judgment Promissory Note (this “Note”).

 

1. Interest.
From the Effective Date through and until the second anniversary of
the Effective Date, Interest shall accrue on the outstanding and
unpaid Principal Amount at the rate of 6.5% per annum. From the
second anniversary of the Effective Date and until the Maturity
Date, Interest shall accrue on the outstanding and unpaid Principal
Amount at the rate of 8.5% per annum. Interest shall be computed on
the basis of a 365-day year for the actual number of days in the
interest period. All Interest shall be paid to Lender semi-annually
in arrears on the last day of each six month anniversary of the
Effective Date, including, if applicable, on the Maturity
Date.

 

2. Maturity
Date. Borrower will repay the
outstanding Principal Amount, together with any accrued and unpaid
Interest thereon, in one lump sum on the Maturity
Date.

 

3. Prepayment.
The Principal Amount and any Interest accrued thereon may be
prepaid by Borrower at any time prior to the Maturity Date without
premium or penalty.

 

4. Application of
Payments. All payments made under this Note shall be applied
first to late penalties or other sums owed to the holder of this
Note, next to accrued interest, if any, and then to the Principal
Amount.

 


 




 








 






 

5. Default. If
(1) Borrower shall fail to pay the then unpaid Principal Amount on
the Maturity Date or any Interest accrued thereon when due, (2)
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, (3) NextGen Pro, LLC shall fail to
pay any amount due under the Unconditional Guaranty Agreement
attached hereto and incorporated herein by reference as Exhibit A and executed on
the date hereof by the NextGen Pro, LLC in favor of the Lender (the
“Guaranty”), (4) NextGen Pro, LLC shall fail to
perform, observe or comply with any other obligation under the
Guaranty or the Security Agreement attached hereto and incorporated
herein by reference as Exhibit B and executed on
the date hereof by the NextGen Pro, LLC in favor of the Lender (the
“Security Agreement”), which failure is not cured
promptly but in no case more than fifteen (15) days after written
notice to NextGen Pro, LLC, except that in the event NextGen Pro,
LLC is unable to complete the cure within the fifteen (15) day
period, the cure period shall be extended if NextGen Pro, LLC 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 NextGen Pro, LLC mutually agree to an extension
of the cure period, (4) Borrower or NextGen Pro, LLC is acquired in
a merger, consolidation or transfer of all or substantially all of
its assets, or (5) 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 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 a
trustee or custodian is appointed for, or takes charge of, all or
substantially all of the property of Borrower, or 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 Borrower is adjudicated
insolvent or bankrupt; or any order of relief or other order
approving any such case or proceeding is entered; or Borrower makes
a general assignment for the benefit of creditors (any of the
events referred to in Section 4 (1) – (5) above being
referred to herein as a “Default”); then Lender, by
written notice to Borrower, may declare the unpaid Principal Amount
and any accrued 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 ten percent (10%) per
annum.

 

6. Security.

 


As
security for the prompt payment and complete performance of
Borrower of its obligations under this Note, NextGen Pro, LLC has
executed and delivered to the Lender on the date hereof the
Guaranty and the Security Agreement.

 




 

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7. Subordination.

 

(a) Notwithstanding
anything to the contrary set forth in this Note, all of the
obligations under this Note ("Subordinated Obligations")
shall at all times and in all respects be subordinate and junior in
right of payment to all Senior Debt (defined below), and for so
long as any Senior Debt shall be outstanding, Borrower shall not be
obligated to make any payments otherwise required hereunder if the
Borrower is then in default under any agreements evidencing and
securing the Senior Debt ("Senior Debt Documents") or the
payment would cause the Borrower to be in default under the Senior
Debt Documents. For purposes of this Note, "Senior Debt" shall mean any
indebtedness of the Borrower as defined under United States
Generally Accepted Accounting Principles, as in effect on the date
hereof, that is secured by any assets of the Borrower, including,
but not limited to (i) any indebtedness for borrowed money or
indebtedness evidenced by notes, bonds or similar instruments,
including any term loan, revolving credit financing, working
capital financing, floor plan financing or real estate financing,
and (ii) purchase money indebtedness and capital leases, , in each
case, whether now existing or entered into after the date
hereof.

 

(b) The security
interest granted under the Security Agreement (the “Security
Interest”) shall be subordinated for all purposes and in all
respects to the liens and security interests securing any Senior
Debt, regardless of the time, manner or order of perfection of any
such liens and security interests.

 

(c) Promptly upon
Borrower's request, Lender will from time to time execute and
deliver a subordination agreement on the terms consistent with this
Section 7 and reasonably requested by any holder of any Senior Debt
(or any agent for such holders), including but not limited to
subordination provisions providing for "deep subordination" of this
Note, the Subordinated Obligations and the Security Interest to any
Senior Debt; provided that the provisions of such subordination
agreement shall not expand the limitations on Borrower's payment
obligations set forth in the first sentence of Section
7(a).

 


(d) The
subordination, agreements and priorities set forth in this Section
7 shall remain in full force and effect until this Note shall have
been indefeasibly paid in full (regardless of whether or not any
Senior Debt shall be outstanding), and in the event the Lender is
required to return to any party funds or other property that Lender
receives from Borrower or any of its respective affiliates in
respect of the Subordinated Obligations, the Lender shall not have
been deemed to have waived its rights to payment in full under this
Note, provided that the provisions of this Section 7 shall apply to
such rights to payment of the Lender and to the continuing
obligations of the Borrower in respect thereof (which for all
purposes shall continue to be Subordinated Obligations hereunder),
and Lender agrees to be bound thereby.


 

8. CONFESSION
OF JUDGMENT. UPON A DEFAULT
OF THIS NOTE, THE BORROWER AUTHORIZES ANY ATTORNEY ADMITTED TO
PRACTICE BEFORE ANY COURT OF RECORD IN THE UNITED STATES, INCLUDING
GLENN D. SOLOMON, AS THE BORROWER’S TRUE
AND LAWFUL ATTORNEY-IN-FACT, WITH FULL POWER AND AUTHORITY FOR THE
BORROWER, IN THE BORROWER’S NAME, PLACE AND STEAD,
ON BORROWER’S BEHALF, TO
WAIVE THE ISSUANCE AND SERVICE OF PROCESS AND CONFESS JUDGMENT AGAINST THE BORROWER, IN
THE FULL AMOUNT THEN DUE UNDER THIS NOTE, INCLUDING ANY EXPENSES OF
COLLECTION, PLUS REASONABLE ATTORNEYS’ FEES. THE AUTHORITY
AND POWER TO APPEAR FOR AND ENTER JUDGMENT AGAINST THE BORROWER
SHALL NOT BE EXTINGUISHED BY ANY JUDGMENT ENTERED PURSUANT THERETO;
SUCH AUTHORITY AND POWER MAY BE EXERCISED ON ONE OR MORE OCCASIONS
FROM TIME TO TIME, IN THE SAME OR DIFFERENT JURISDICTIONS, AS OFTEN
AS THE HOLDER OF THIS NOTE SHALL DEEM NECESSARY OR ADVISABLE UNTIL
ALL SUMS DUE UNDER THIS NOTE HAVE BEEN PAID IN
FULL.


 




 

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9. 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
thereof. 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.

 

10. Waiver of
Presentment. Borrower hereby waives presentment for payment,
protest and notice of maturity or non-payment.

 

11. 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 parties consent to the reformation of any
invalid or unenforceable provision so that it is enforceable to the
maximum extent permitted by law.


 

12. 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.


 

13. Assignments.
The Lender shall not assign or transfer any claim, or suffer or
permit the creation or attachment of any lien, claim, encumbrance,
hypothecation or pledge upon any claim, with respect to the
Subordinated Obligations, unless such assignment or transfer is
made expressly subject to this Note, and Lender agrees to provide
to any holder of Senior Debt (or its agents) written confirmation
from any such assignee or transferee of receipt of, and agreement
to be bound by, this Note. Borrower agrees that Lender may pledge
this Note to Cycle Express, LLC as security for the repayment of
the $250,000 Promissory Note executed by the Lender on the date
hereof in favor of Cycle Express, LLC. Cycle Express, LLC and any
other assignee or pledgee of this Note shall promptly deliver to
Borrower a written acknowledgement of the subordination provisions
contained in Section 7 of this Note and its obligation to comply
therewith. In the event one or more subordination agreements are in
effect, Cycle Express, LLC and any other assignee or pledgee of
this Note shall promptly execute a joinder to or an acknowledgement
of such subordination agreement(s) in the form reasonably
acceptable to the Senior Lender(s) party to such subordination
agreement(s).


 

14. Governing
Law. This Note shall be governed by and construed in
accordance with the laws of the State of Maryland.

 

15. Consent to
Jurisdiction. Each of Borrower
and Lender submits to the exclusive jurisdiction of any state or
federal court within the State
of Maryland in any action or proceeding arising out of or relating
to this Agreement and agrees that all claims in respect of the
action or proceeding shall be exclusively heard and determined in
any such court. The parties hereby irrevocably waive, to the
fullest extent permitted by applicable law, any objection which
they may now or hereafter have to the laying of venue of any such
dispute brought in such court. Each of the Parties waives any
defense of inconvenient forum to the maintenance of any action or
proceeding so brought.

 


 




 

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16. WAIVER OF JURY
TRIAL: EACH PARTY HEREBY 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 OR THEREOF. 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
EACH OF THE PARTIES HERETO AND THESE PROVISIONS WILL NOT BE SUBJECT
TO ANY EXCEPTIONS. EACH PARTY HERETO HEREBY FURTHER WARRANTS AND
REPRESENTS THAT SUCH PARTY HAS REVIEWED THIS WAIVER WITH ITS LEGAL
COUNSEL, AND THAT SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS
JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL
COUNSEL.

 

17. 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.

 

18. Usury Laws.
It is the intention of the parties to conform strictly to all
applicable usury laws now or hereafter in force, and if the
interest imposed 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’) any Interest payable 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 interest, service charges, points,
or otherwise) contracted for, chargeable, or receivable under this
Note shall under no circumstances exceed the maximum legal rate
upon the unpaid principal balance of this Note remaining unpaid. If
such interest does exceed the maximum legal rate, 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.

 

19. Expenses of
Collection. Upon a Default, this Note may be referred 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.

 

20. Binding
Nature. This Note shall inure to the benefit of and be
enforceable by the Lender and the Lender’s successors and
permitted assigns, and shall be binding and enforceable against the
Borrower and the Borrower’s successors and
assigns.

 




 

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NOW THEREFORE, Borrower has executed
this Subordinated Secured Confessed Judgment Promissory Note under
seal on the date first above written.

 


 


	WITNESS: 

	BORROWER:
	
 

	
 


	
 

	SMART SERVER,
INC.
	
 

	
 


	/s/ Thomas
Aucamp  

Thomas
Aucamp  

Title: Chief
Executive Officer



	
By:/s/ Marshall
Chesrown 

Name: Marshall
Chesrown












 


ACKNOWLEDGED
AND AGREED:


 


LENDER:


 


NEXTGEN
DEALER SOLUTIONS, LLC


 



By:/s/ Kartik
Kakarala






Name:
Kartik Kakarala


Title:
President