embl_ex101





  Exhibit 10.1







 



AMENDED AND RESTATED SECURED PROMISSORY NOTE


 


 



$2,500,000.00          
New York, New York          
April 8, 2021



 


 


FOR
VALUE RECEIVED, NextGen Pro, LLC, a Delaware limited liability
company (“NextGen”), and RumbleOn, Inc., a Nevada
corporation (“Parent”; NextGen and Parent collectively
herein called the “Borrowers” and each a
“Borrower”), both jointly and severally, promise to pay
to the order of BRF Finance Co., LLC, a Delaware limited liability
company (herein called “Lender”), at its offices in
30780 Russell Ranch Rd Suite 250, Westlake Village, CA 91362 , or
at such other place as the holder of this note may hereafter
designate in writing, in immediately available funds and in lawful
money of the United States of America, the principal sum of Two
Million Five Hundred Thousand Dollars ($2,500,000.00), together
with interest on the unpaid principal balance of this note from
time to time outstanding until maturity (whether by acceleration or
otherwise) at the Stated Rate and interest on all past due
principal and other past due amounts owing hereunder at the Past
Due Rate.


 


"Stated
Rate" means, on any day, a rate per annum equal to twelve percent
(12%). "Past Due Rate" means, on any day , a rate per annum equal
to the Stated Rate plus six percent (6%). Interest shall be
computed for the actual number of days elapsed in a year consisting
of 360 days.


 


Notwithstanding any
provision to the contrary contained in this note or any other
document, it is expressly provided that in no case or event (A)
shall the aggregate of (i) all interest on the unpaid balance
hereof accrued or paid from the date hereof and (ii) the aggregate
of any other amounts accrued or paid pursuant hereto which under
applicable laws are or may be deemed to constitute interest upon
the indebtedness evidenced hereby, ever exceed the maximum rate of
interest which could lawfully be contracted for, charged or
received on the unpaid principal balance of this note; or (B) shall
Borrowers be obligated to pay interest and other amounts described
above at a rate which could subject the Lender to either civil or
criminal liability as a result of such rate being in excess of the
maximum rate which the Lender is permitted to charge under
applicable law. In this connection, it is expressly stipulated and
agreed that it is the intent of the Borrowers and the Lender to
contract in strict compliance with the applicable federal and state
usury laws (whichever permit the higher rate of interest) from time
to time in effect.


 


On the
first day of each calendar month during the term of this note,
interest hereunder shall be due and payable and shall be paid and
discharged by adding the accrued but unpaid interest to the
principal amount of this note, whereupon it shall be deemed to be a
portion of the principal amount outstanding hereunder for all
purposes (including, without limitation, the accrual of interest).
This note shall be due and payable in an amount equal to the
principal of this note which then remains unpaid, together with all
accrued but unpaid interest, on September 30, 2021, the final
maturity of this note. On or after maturity, interest on this note
shall be payable on demand.


 


This
note may be prepaid in whole or in part at any time without premium
or penalty. All outstanding amounts under this this note shall be
immediately prepaid in full without premium or penalty in the event
that the Parent shall issue either debt or equity, or a combination
thereof, in one or more transactions occurring on or following May
1, 2021 resulting in cash proceeds to the Parent from such
transactions in excess of $2,650,000 net of transaction costs. All
prepayments shall be applied first to accrued but unpaid interest,
the balance to principal.


 






 

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Borrowers' failure
to pay any principal or accrued interest on this note when due or
Borrowers' failure to pay any other amount payable pursuant to this
note within five (5) days of written demand or the occurrence of
any default of any other obligation in this note that is not
remedied within ten (10) days of the earlier of (1) written notice
thereof or (2) a Borrower obtaining knowledge thereof or an
involuntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect is commenced against
either Borrower and such petition remains unstayed and in effect
for a period of 60 consecutive days or any Borrower shall commence
a voluntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or consent to the
entry of an order for relief in an involuntary case under any such
law, or consent to the appointment or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official of such Borrower or any substantial part of its
respective property or make any general assignment for the benefit
of creditors or any Borrower shall admit in writing its inability
to pay its debts generally as they become due or any action shall
be taken by any Borrower in furtherance of any of the foregoing
purposes, in each case, shall constitute default under this note,
whereupon the holder of this note may elect to exercise any or all
rights, powers and remedies afforded (a) as set forth in this note
with regard to the Collateral (as defined below) and under all
writings related to this note and (b) by law, including the right
to accelerate the maturity of this entire note.


 


Borrowers shall,
jointly and severally, pay on written demand all reasonable fees
and expenses, including reasonable attorneys’ fees and
expenses, incurred by Lender with respect to any amendments or
waivers hereof or in the enforcement or attempted enforcement of
any of the obligations of Borrowers to Lender under this note or in
preserving any of Lender’s rights and remedies (including,
without limitation, all such fees and expenses incurred in
connection with any “workout” or restructuring
affecting this note, including without limitation, the enforcement
of any lien on the Collateral or of the obligations thereunder or
any bankruptcy or similar proceeding involving any Borrower) and
all reasonable attorneys’ fees and expenses incurred by
Lender in analyzing, exercising, or addressing any rights of Lender
in connection with any future actions of the Lender or
Borrowers.  Any such amounts shall be deemed to be outstanding
under this note and shall be payable on written
demand.


 


Except
only for any notices which are specifically required by another
provision of this note, Borrowers waive notice (including, but not
limited to, notice of intent to accelerate and notice of
acceleration, notice of protest and notice of dishonor), demand,
presentment for payment, protest, diligence in collecting and the
filing of suit for the purpose of fixing liability. Borrowers
absolutely, unconditionally and irrevocably waive any and all right
to assert any defense, counterclaim, crossclaim or setoff of any
nature whatsoever with respect to this note except to the extent
such right (other than setoff) would be waived if not asserted in
any proceeding commenced by the Lender.

 





As
security for the payment and performance of all obligations of the
Borrowers under or pursuant to, or evidenced by, this note, NextGen
does hereby grant to the Lender a continuing first priority
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 NextGen’s right, title and interest in (a)
software and other general intangibles as such terms are defined in
Article 9 of the Uniform Commercial Code of the State of New York
(the "UCC"), (b) copyrights, trademarks and other intellectual
property, together with all goodwill associated therewith, (c) all
contract rights, documents, applications, licenses, materials and
other matters related to such general intangibles, and (d) all
proceeds of the foregoing. Without limiting the foregoing, NextGen
intends that the Collateral shall include all of NextGen’s
right, title and interest in intellectual property including, but
not limited to, (i) all patents, and all unpatented or unpatentable
inventions; (ii) all trademarks, service marks, and trade names;
(iii) all copyrights and literary rights; (iv) all computer
software programs; (v) all mask works of semiconductor chip
products; (vi) all trade secrets, proprietary information, customer
lists, manufacturing, engineering and production plans, drawings,
specifications, processes and systems; and (vii) all good will
connected with or symbolized by any of such general intangibles,
including, without limitation, the intellectual property described
on Exhibit A hereto and the goodwill associated therewith (the
“Specific IP”). The Lender is a secured party under
Article 9 of the UCC and shall have all the rights of a secured
party under Article 9 of the UCC and applicable law including,
without limitation, the right to foreclose or otherwise enforce the
security interest upon default under this note. Upon disposition of
any Collateral, the Borrowers and each other obligor shall remain
liable for any deficiency. The Lender is authorized to file
financing statements naming the Lender as secured party and NextGen
as debtor indicating that the financing statement covers all assets
or all personal property of NextGen. NextGen hereby represents and
warrants that it is the sole owner of the Specific IP, free and
clear of any liens charges or other encumbrances and that none of
the Specific IP is subject to any license other than non-exclusive
licenses granted by NextGen in the ordinary course of business.
None of the Specific IP is subject to any copyright filed in the US
Copyright Office. Until payment in full in cash of all outstanding
amounts under this note, NextGen shall not create, assume or incur,
directly or indirectly, or permit to be created, assumed or
incurred, or suffer to exist any lien, charge or other encumbrance
on the Collateral or sell, transfer, license or otherwise dispose
of any Collateral other than non-exclusive licenses of the
Collateral in the ordinary course of business.


 







 

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THIS
NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK. NEW YORK COUNTY, NEW YORK SHALL BE A
PROPER PLACE OF VENUE FOR SUIT HEREON. BORROWERS IRREVOCABLY AGREE
THAT ANY LEGAL PROCEEDINGS IN RESPECT OF THIS NOTE OR ANY OTHER
WRITING RELATING HERETO MAY BE BROUGHT IN ANY COURT OF THE STATE OF
NEW YORK LOCATED IN NEW YORK COUNTY, NEW YORK, OR IN THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND
BORROWERS IRREVOCABLY SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF
SUCH COURTS IN ANY SUCH LEGAL PROCEEDINGS. THE BORROWERS AGREE THAT
SERVICE OF PROCESS MAY BE MADE BY DELIVERY BY CERTIFIED OR
REGISTERED MAIL, RETURN RECEIPT REQUESTED, OR COURIER OR OVERNIGHT
DELIVERY SERVICE, TO THE BORROWERS' ADDRESSES AS THEN SHOWN ON THE
RECORDS OF THE LENDER.


 


BORROWERS
AND LENDER WAIVE TRIAL BY JURY IN CONNECTION WITH ANY ACTION OR
PROCEEDING OF ANY NATURE WHATSOEVER (INCLUDING, WITHOUT LIMITATION,
ANY



COUNTERCLAIM, OFFSET OR DEFENSE) ARISING UNDER, OUT OF OR IN
CONNECTION WITH THIS NOTE.


 


BORROWERS’
OBLIGATIONS TO PAY THIS NOTE ARE JOINT AND SEVERAL.


 


The
Borrowers may not assign this note. The Lender may assign this note
at any time to an affiliate of the Lender or, after the occurrence
of a default hereunder, to any party.


 


This
note may be executed in any number of counterparts, each of which
shall be an original, and all of which, when taken together, shall
constitute a single instrument. Delivery of this note or an
executed signature page of this note by facsimile or other
electronic transmission (e.g., “pdf” or
“tif”) shall be
effective as delivery of a manually executed counterpart hereof,
and the words “execution,” “execute”,
“signed,” “signature,” and words of like
import in or related to this note shall be deemed to include
electronic signatures, the electronic matching of assignment terms
and contract formations on electronic platforms, or the keeping of
records in electronic form, each of which shall be of the same
legal effect, validity or enforceability as a manually executed
signature or the use of a paper based recordkeeping system, as the
case may be, to the extent and as provided for in any applicable
law, including the Federal Electronic Signatures in Global and
National Commerce Act, the New York State Electronic Signatures and
Records Act, or any other similar state laws based on the Uniform
Electronic Transactions Act.


 


This
note amends and restates in its entirety that certain Secured
Promissory Note, dated March 12, 2021, in the face amount of
$2,500,000.00, executed by Borrowers in favor of the Lender (the
“Existing Note”). This note shall not constitute or be
construed as a novation of the indebtedness evidenced by the
Existing Note or the Lender’s security interest in the
Collateral contained therein and granted by the Borrowers to the
Lender thereunder.


 


[Signature
Pages Follow]


 




 

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RumbleOn,
Inc.


 


By:_/s/ Thomas
Aucamp_____


Name:_Thomas Aucamp_____



Title:__CAO_______________     








 


 


NextGen
Pro, LLC


 


By:_/s/ Thomas
Aucamp_____


Name:__Thomas Aucamp____


Title:___CAO______________









 


Agree
to accept the foregoing Amended and Restated Secured Promissory
Note in substitution for that certain Existing Note (as defined
above):


 


BRF
Finance Co., LLC,


a
Delaware limited liability company


 


 


By:
/s/ Daniel
Shribman                                     




Name:
Daniel
Shribman                                     




Title:  
CIO                                                         




 


 


 




 

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Exhibit A

 



Specific Intellectual Property

 



1) CyclePro Trademark



2) Cash offer Tool

 

a) Proprietary
acquisitions tool with full website integration and third party
valuation tools

b) Global
Margin Controls

c) Machine
Learning /AI valuation predictions



3) Targeted Acquisition Tool (Sniper)

a) Targeted
cash offer submissions

b) Focus
on Region, brand, value, miles, color, previous targets,
etc



4) Middleware Integration Normalization Portal

a) Normalizes
third party data

b) Full
DMS and Website integration



5) Dealer Direct Marketplace

a) Fully
online Dealer Marketplace

b) RumbleOn
to Dealer auction sales

c) Dealer
to Dealer Auction Sales



6) Inventory/Transaction Management Hub (P2)

a) Proprietary
Inventory Management tool

b) Controls
all inventory for all companies

c) Stores
and tracks all valuations and data for inventory
history



7) Corporate Analytics & Metrics


a)
Real time analytics for
Sales, Performance, Acquisitions, Inventory, Leads, and Pay
plans



8) CyclePro

a) Full
Powersports focused CRM

b) Equity
Mining Tool

c) ProValue
Acquisitions Tool



9) Fulfillment Center and CR

a) Location
Control of Cash Offers. Ability to submit, edit, and accept offers
for customers

b) Complete
Acquisitions in person

c) CR
ability on purchased units



10) Dealer Portal

a) Full
RumbleOn Dealer Service Access

b) Submit
Cash Offers

c) Monitor
Leads

d) Sell
to RumbleOn Cash Offer Leads

e) Dealer
Direct Access



11) On Demand Vehicle Acquisition Service (Spedding)

a) Live
and Realtime filtered vehicles available for sale.

b) Allows
targeted purchases on multiple platforms.



12) Real Time Vehicle Pricing, Valuation, and Stock Tool
(Carvis)

a) Full
Acquisitions Tool

b) Ability
to Evaluate, Save, and Purchase

c) Automated
integrations to stock in the unit, book transportation and
unwind.



13) Wholesale Express Logistics

a) Automated
transportation quoting tool

b) Integration
for transportation booking

 



Patents and Applications

 


	


App. No.

	


Pat. No.

	


Title

	


Owner


	


14/614160

	


10165424

	


Near Field Communication (NFC) Vehicle

	


Nextgen Pro, LLC


	
 

	
 

	


Identification System and Process

	
 







 




 

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