Monaker Group, Inc. 8-K


Exhibit
10.2


 


SECURED
PROMISSORY NOTE




 


	Effective
    Date: April 3, 2020	U.S.
    $895,000.00






 


FOR
VALUE RECEIVED, MONAKER GROUP, INC., a Nevada corporation (“Borrower”), promises to pay to ILIAD RESEARCH AND
TRADING, L.P., a Utah limited partnership, or its successors or assigns (“Lender”), $895,000.00 and any interest,
fees, charges, and late fees accrued hereunder on the date that is twelve (12) months after the Purchase Price Date (the “Maturity
Date”) in accordance with the terms set forth herein and to pay interest on the Outstanding Balance at the rate of ten
percent (10%) per annum from the Purchase Price Date until the same is paid in full. All interest calculations hereunder shall
be computed on the basis of a 360-day year comprised of twelve (12) thirty (30) day months, shall compound daily and shall be
payable in accordance with the terms of this Note. This Secured Promissory Note (this “Note”) is issued and
made effective as of April 3, 2020 (the “Effective Date”). This Note is issued pursuant to that certain Note
Purchase Agreement dated April 3, 2020, as the same may be amended from time to time, by and between Borrower and Lender (the
“Purchase Agreement”). Certain capitalized terms used herein are defined in Attachment 1 attached hereto
and incorporated herein by this reference.


 


1.               
Payment; Prepayment.


 


1.1.          
Payment. All payments owing hereunder shall be in lawful money of the United States of America and delivered to Lender
at the address or bank account furnished by Lender to Borrower for that purpose. All payments shall be applied first to (a) Lender’s
reasonable costs of collection, if any, then to (b) fees and charges hereunder, if any, then to (c) accrued and unpaid interest
hereunder, and thereafter, to (d) principal hereunder.


 


1.2.          
Prepayment. Borrower may pay all or any portion of the Outstanding Balance earlier than it is due; provided that in
the event Borrower elects to prepay all or any portion of the Outstanding Balance it shall pay to Lender 115% of the portion of
the Outstanding Balance Borrower elects to prepay. Early payments of less than all principal, fees and interest outstanding will
not, unless agreed to by Lender in writing, relieve Borrower of Borrower’s remaining obligations hereunder. For the avoidance
of doubt, Equity Payments shall be considered prepayments under this Section 1.2.


 


1.3.          
Equity Payment Failure. Upon the occurrence of each Equity Payment Failure, the Outstanding Balance shall automatically
be increased by an amount equal to ten percent (10%) of the then- current Outstanding Balance.


 


2.               
Security. This Note is secured by the Security Agreement (as defined in the Purchase Agreement), executed by Borrower in
favor of Lender encumbering the collateral set forth therein, as more specifically set forth in the Security Agreement, all the
terms and conditions of which are hereby incorporated into and made a part of this Note.


 


3.               
Redemption. Beginning on the date that is six (6) months after the Purchase Price Date, Lender shall have the right, exercisable
at any time in its sole and absolute discretion, to redeem any amount of this Note up to $200,000.00 (such amount, the “Redemption
Amount”) per calendar month by providing written notice to Borrower (each, a “Redemption Notice”).
For the avoidance of doubt, Lender may submit to Borrower one (1) or more Redemption Notices in any given calendar month so long
as the aggregate amount being redeemed in such month does not exceed $200,000.00. Upon receipt of any Redemption Notice, Borrower
shall pay the applicable Redemption Amount in cash to Lender within seven (7) Trading Days of Borrower’s receipt of such
Redemption Notice. Notwithstanding the foregoing, if Borrower does not pay the applicable Redemption Amount in cash to Lender
within three (3) Trading Days of Borrower’s receipt of a Redemption Notice, then an amount equal to twenty-five percent
(25%) of such Redemption Amount will be added to the Outstanding Balance. Borrower shall have the right to defer up to three (3)
separate redemptions for up to thirty (30) days each by providing written notice to Lender within three (3) Trading Days of its
receipt of a Redemption Notice. In the event Borrower elects to exercise its deferral right, the Outstanding Balance shall automatically
be increased by two percent (2%) of the Outstanding Balance as of the date Borrower exercises such deferral right.


 




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4.               
Defaults and Remedies.


 


4.1.          
Defaults. The following are events of default under this Note (each, an “Event of
Default”): (a) Borrower fails to pay any principal, interest, fees, charges, or any other amount when due and
payable hereunder (other than an Equity Payment Failure); (b) a receiver, trustee or other similar official shall be appointed
over Borrower or a material part of its assets and such appointment shall remain uncontested for twenty (20) days or shall not
be dismissed or discharged within sixty (60) days; (c) Borrower becomes insolvent or generally fails to pay, or admits in writing
its inability to pay, its debts as they become due, subject to applicable grace periods, if any; (d) Borrower makes a general
assignment for the benefit of creditors; (e) Borrower files a petition for relief under any bankruptcy, insolvency or similar
law (domestic or foreign); (f) an involuntary bankruptcy proceeding is commenced or filed against Borrower and is not dismissed
or stayed within sixty (60) days; (g) Borrower or any pledgor, trustor, or guarantor of this Note defaults or otherwise fails
to observe or perform any covenant, obligation, condition or agreement of Borrower or such pledgor, trustor, or guarantor contained
herein or in any other Transaction Document (as defined in the Purchase Agreement), other than those specifically set forth in
this Section 4.1 and Section 4 of the Purchase Agreement; (h) any representation, warranty or other statement made or furnished
by or on behalf of Borrower or any pledgor, trustor, or guarantor of this Note to Lender herein, in any Transaction Document,
or otherwise in connection with the issuance of this Note is false, incorrect, incomplete or misleading in any material respect
when made or furnished; (i) the occurrence of a Fundamental Transaction without Lender’s prior written consent; (j) any
United States money judgment, writ or similar process is entered or filed against Borrower or any subsidiary of Borrower or any
of its property or other assets for more than $1,000,000.00, and shall remain unvacated, unbonded or unstayed for a period of
twenty (20) calendar days unless otherwise consented to by Lender; and (k) Borrower fails to observe or perform any covenant set
forth in Section 4 of the Purchase Agreement (other than the covenant with respect to Equity Payment Failures). The occurrence
of any event set forth in Section 4.1(g) – (k) above shall not be considered an Event of Default if such event is cured
within fifteen (15) days of the occurrence thereof. No “Event of Default” shall be deemed to have occurred
hereunder until the end of any applicable cure period relating thereto, assuming such event which would have otherwise caused
an Event of Default at the end of the applicable cure period, is not cured by the end of such applicable cure period.


 


4.2.          
Remedies. At any time and from time to time after Lender becomes aware of the occurrence of any Event of Default, Lender
may accelerate this Note by written notice to Borrower, with the Outstanding Balance becoming immediately due and payable in cash
at the Mandatory Default Amount. Notwithstanding the foregoing, at any time following the occurrence of any Event of Default,
Lender may, at its option, elect to increase the Outstanding Balance by applying the Default Effect (subject to the limitation
set forth below) via written notice to Borrower without accelerating the Outstanding Balance, in which event the Outstanding Balance
shall be increased as of the date of the occurrence of the applicable Event of Default pursuant to the Default Effect, but the
Outstanding Balance shall not be immediately due and payable unless so declared by Lender (for the avoidance of doubt, if Lender
elects to apply the Default Effect pursuant to this sentence, it shall reserve the right to declare the Outstanding Balance immediately
due and payable at any time and no such election by Lender shall be deemed to be a waiver of its right to declare the Outstanding
Balance immediately due and payable as set forth herein unless otherwise agreed to by Lender in writing). Notwithstanding the
foregoing, upon the occurrence of any Event of Default described in clauses (b), (c), (d), (e) or (f) of Section 4.1, the Outstanding
Balance as of the date of acceleration shall become immediately and automatically due and payable in cash at the Mandatory Default
Amount, without any written notice required by Lender. At any time following the occurrence of any Event of Default, upon written
notice given by Lender to Borrower, interest shall accrue on the Outstanding Balance beginning on the date the applicable Event
of Default occurred at an interest rate equal to the lesser of twenty-two percent (22%) per annum or the maximum rate permitted
under applicable law (“Default Interest”). In connection with acceleration described herein, Lender need not
provide, and Borrower hereby waives, any presentment, demand, protest or other notice of any kind, and Lender may immediately
and without expiration of any grace period enforce any and all of its rights and remedies hereunder and all other remedies available
to it under applicable law. Such acceleration may be rescinded and annulled by Lender at any time prior to payment hereunder and
Lender shall have all rights as a holder of the Note until such time, if any, as Lender receives full payment pursuant to this
Section 4.2. No such rescission or annulment shall affect any subsequent Event of Default or impair any right consequent thereon.
Nothing herein shall limit Lender’s right to pursue any other remedies available to it at law or in equity including, without
limitation, a decree of specific performance and/or injunctive relief.










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5.               
Unconditional Obligation; No Offset. Borrower acknowledges that this Note is an unconditional, valid, binding and enforceable
obligation of Borrower not subject to offset, deduction or counterclaim of any kind. Borrower hereby waives any rights of offset
it now has or may have hereafter against Lender, its successors and assigns, and agrees to make the payments called for herein
in accordance with the terms of this Note.


 


6.               
Waiver. No waiver of any provision of this Note shall be effective unless it is in the form of a writing signed by the
party granting the waiver. No waiver of any provision or consent to any prohibited action shall constitute a waiver of any other
provision or consent to any other prohibited action, whether or not similar. No waiver or consent shall constitute a continuing
waiver or consent or commit a party to provide a waiver or consent in the future except to the extent specifically set forth in
writing.


 


7.               
Right of First Refusal. In the event Borrower desires to make a Restricted Issuance, it must first provide notice of such
proposed Restricted Issuance to Lender, which notice must include all of the material terms of the Restricted Issuance. Lender
shall then have a period of ten (10) days to provide financing to the Company on the same terms as outlined in the notice of the
potential Restricted Issuance. If Lender elects to not provide such financing, then Borrower may elect to make the Restricted
Issuance on the same terms that were offered to Lender. In the event Borrower makes
such Restricted Issuance, the Outstanding Balance will automatically be increased by three percent (3%) for each time Borrower
makes a Restricted Issuance after Lender has refused to provide financing on the same terms, which increase will be effective
as of the date of each Restricted Issuance. In the event Borrower fails to notify Lender of a potential Restricted Issuance and
offer Lender a right of first refusal with respect to such Restricted Issuance, the Outstanding Balance will automatically be
increased by ten percent (10%) for each time Borrower makes a Restricted Issuance without first offering Lender the right of first
refusal to match the terms of the Restricted Issuance, which increase will be effective as of the date of each Restricted Issuance.
For the avoidance of doubt, in the event Borrower offers Lender the right to match a potential Restricted Issuance, but subsequently
changes the terms of such potential Restricted Issuance after Lender has refused to match the terms originally offered to it,
Borrower must again comply with the terms of this Section as the alteration of the terms of such potential Restricted Issuance
shall constitute a new Restricted Issuance.


 


8.               
Opinion of Counsel. In the event that an opinion of counsel is needed for any matter related to this Note, Lender has the
right to have any such opinion provided by its counsel.


 


9.               
Governing Law; Venue. This Note shall be construed and enforced in accordance with, and all questions concerning the construction,
validity, interpretation and performance of this Note shall be governed by, the internal laws of the State of Utah, without giving
effect to any choice of law or conflict of law provision or rule (whether of the State of Utah or any other jurisdiction) that
would cause the application of the laws of any jurisdiction other than the State of Utah. The provisions set forth in the Purchase
Agreement to determine the proper venue for any disputes are incorporated herein by this reference.










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10.            
Arbitration of Disputes. By its issuance or acceptance of this Note, each party agrees to be bound by the Arbitration Provisions
(as defined in the Purchase Agreement) set forth as an exhibit to the Purchase Agreement.


 


11.            
Cancellation. After repayment of the entire Outstanding Balance, this Note shall be deemed paid in full, shall automatically
be deemed canceled, and shall not be reissued.


 


12.            
Amendments. The prior written consent of both parties hereto shall be required for any change or amendment to this Note.


 


13.            
Assignments. Borrower may not assign this Note without the prior written consent of Lender. This Note may be offered, sold,
assigned or transferred by Lender to any of its affiliates without the consent of Borrower, so long as such transfer is in accordance
with applicable federal and state securities laws and written notice is provided to Borrower.


 


14.            
Notices. Whenever notice is required to be given under this Note, unless otherwise provided herein, such notice shall be
given in accordance with the subsection of the Purchase Agreement titled “Notices.”


 


15.            
Liquidated Damages. Lender and Borrower agree that in the event Borrower fails to comply with any of the terms or provisions
of this Note, Lender’s damages would be uncertain and difficult (if not impossible) to accurately estimate because of the
parties’ inability to predict future interest rates, future share prices, future trading volumes and other relevant factors.
Accordingly, Lender and Borrower agree that any fees, balance adjustments, Default Interest or other charges assessed under this
Note are not penalties but instead are intended by the parties to be, and shall be deemed, liquidated damages.


 


16.            
Severability. If any part of this Note is construed to be in violation of any law, such part shall be modified to achieve
the objective of Borrower and Lender to the fullest extent permitted by law and the balance of this Note shall remain in full
force and effect.


 


 


 


 


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IN
WITNESS WHEREOF, Borrower has caused this Note to be duly executed as of the Effective Date.








	 	BORROWER:
	 	 
	 	MONAKER
    GROUP INC.
	 	 
	 	By: 	/s/ 
		Name:

        Title:
	Bill
    Kerby
CEO



 








 


 


	ACKNOWLEDGED,
    ACCEPTED AND AGREED	 
	 	 
	LENDER:	 
	 	 
	ILIAD
                    RESEARCH AND TRADING, L.P.




	 
	 	 
	By: Iliad Management, LLC, its General
    Partner	 
	 	 
	 	By: Fife Trading, Inc., its Manager	 
	 	 
	 	 
	 	By	 	 
	 	John M. Fife, President	 









 


 


 


 


 


 


 


[Signature
Page to Secured Promissory Note]


 


 




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ATTACHMENT
1


DEFINITIONS


 


For
purposes of this Note, the following terms shall have the following meanings:





A1.
“Default Effect” means multiplying the Outstanding Balance as of the date the applicable Event of Default occurred
by (a) fifteen percent (15%) for each occurrence of any Major Default, or (b) five percent (5%) for each occurrence of any Minor
Default, and then adding the resulting product to the Outstanding Balance as of the date the applicable Event of Default occurred,
with the sum of the foregoing then becoming the Outstanding Balance under this Note as of the date the applicable Event of Default
occurred; provided that the Default Effect may only be applied three (3) times hereunder with respect to Major Defaults and three
(3) times hereunder with respect to Minor Defaults. Notwithstanding the foregoing, in no event shall the foregoing balance increases
exceed a maximum of thirty percent (30%) of the Outstanding Balance immediately prior to the first occurrence of an Event of Default
in the aggregate.


A2.
“Equity Payment” means a payment that is required to be made by Borrower to Lender pursuant to Section 4(iv)
of the Purchase Agreement.


A3.“Equity
Payment Failure” means the failure by Borrower to make any Equity Payment
within ten


(10)
days of the consummation of the applicable financing.


A4.
“Fundamental Transaction” means that (a) (i) Borrower or any of its subsidiaries shall, directly or indirectly,
in one or more related transactions, consolidate or merge with or into (whether or not Borrower or any of its subsidiaries is
the surviving corporation) any other person or entity, or (ii) Borrower or any of its subsidiaries shall, directly or indirectly,
in one or more related transactions, sell, lease, license, assign, transfer, convey or otherwise dispose of all or substantially
all of its respective properties or assets to any other person or entity, or (iii) Borrower or any of its subsidiaries shall,
directly or indirectly, in one or more related transactions, allow any other person or entity to make a purchase, tender or exchange
offer that is accepted by the holders of more than 50% of the outstanding shares of voting stock of Borrower (not including any
shares of voting stock of Borrower held by the person or persons making or party to, or associated or affiliated with the persons
or entities making or party to, such purchase, tender or exchange offer), or (iv) Borrower or any of its subsidiaries shall, directly
or indirectly, in one or more related transactions, consummate a stock or share purchase agreement or other business combination
(including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with any other person or
entity whereby such other person or entity acquires more than 50% of the outstanding shares of voting stock of Borrower (not including
any shares of voting stock of Borrower held by the other persons or entities making or party to, or associated or affiliated with
the other persons or entities making or party to, such stock or share purchase agreement or other business combination), or (v)
Borrower or any of its subsidiaries shall, directly or indirectly, in one or more related transactions, reorganize, recapitalize
or reclassify the Common Stock, other than an increase in the number of authorized shares of Borrower’s Common Stock, or
reverse splits of its outstanding and authorized shares of Common Stock to meet Nasdaq listing requirements or (b) any “person”
or “group” (as these terms are used for purposes of Sections 13(d) and 14(d) of the 1934 Act and the rules and regulations
promulgated thereunder) is or shall become the “beneficial owner” (as defined in Rule 13d-3 under the 1934 Act), directly
or indirectly, of 50% of the aggregate ordinary voting power represented by issued and outstanding voting stock of Borrower.


A5.“Major
Default” means any Event of Default occurring under Sections 4.1(a) or 4.1(k).


A6.
“Mandatory Default Amount” means the Outstanding Balance following the application of the Default Effect.


A7.
“Minor Default” means any Event of Default that is not a Major Default. A8. “OID” means
an original issue discount.


A9.
“Outstanding Balance” means as of any date of determination, the Purchase Price, as reduced or increased, as
the case may be, pursuant to the terms hereof for payment, offset, or otherwise, plus the OID, the Transaction Expense Amount,
accrued but unpaid interest, collection and enforcements costs (including attorneys’ fees) incurred by Lender, transfer,
stamp, issuance and similar taxes and fees incurred under this Note.


A10.“Purchase
Price Date” means the date the Purchase Price is delivered by Lender to Borrower.


 




    	



    	 



    
 

A11.
“Restricted Issuance” means the issuance of any promissory note, debenture, or other instrument that evidences
a debt obligation of Borrower to any person or entity who is not an officer or director of the Company. The term “Restricted
Issuance” shall also not include any promissory note, debenture, or other instrument that evidences a debt obligation of
Borrower which is offered to be sold, or which is sold, to any governmental (local, state or federal) agency or entity, nor shall
it include any governmental (local, state or federal) grants.


A12.
“Trading Day” means any day on which the New York Stock Exchange (or such other principal market for the Common
Stock) is open for trading.


 


 


 


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