Blueprint





  Exhibit 10.3











 



SUBORDINATION AGREEMENT

 


This
Subordination Agreement is made as of April 30, 2018 by and among
HALCYON CONSULTING, LLC (“Creditor”), RUMBLEON, INC., a
Nevada corporation (“Parent”), NEXTGEN PRO,
LLC, a Delaware limited liability company (“NextGen Pro”), RMBL
MISSOURI, LLC, a Delaware limited liability company
(“RMBL
Missouri”), RMBL TEXAS, LLC, a Delaware limited
liability company (“RMBL Texas”), and each of
their Qualified Subsidiaries from time to time party hereto
(together with Parent, NextGen Pro, RMBL Missouri and RMBL Texas,
individually, each, a “Borrower”, and
collectively, “Borrowers”), and HERCULES
CAPITAL, INC. (“Agent”), in its capacity
as administrative agent for itself and Lender (as defined in the
Loan Agreement (as defined below)).

 



RECITALS

 

A. Borrowers have
requested certain loans and other credit accommodations pursuant to
the terms of that certain Loan and Security Agreement dated as of
April 30, 2018 by and between Borrowers, Agent and certain lenders
from time to time party to thereto (as amended, restated,
supplemented or otherwise modified from time to time, the
“Loan
Agreement”), and have granted a security interest in
substantially all assets to secure the obligations
thereunder.

 

B. NextGen Pro and
Parent have entered into certain agreements and instruments with
NextGen Dealer Solutions, LLC (“Dealer Solutions”)
including, without limitation, a Subordinated Secured Confessed
Judgment Promissory Note, dated February 8, 2017, issued by Parent
(the “Subordinated
Note”), an Unconditional Guaranty Agreement, dated as
of February 8, 2017, by NextGen Pro to and for the benefit of
Dealer Solutions, a Security Agreement, dated as of February 8,
2017, by and between NextGen Pro and Dealer Solutions, a Patent
Security Agreement, dated as of February 8, 2017, by and between
NextGen Pro and Dealer Solutions and a Trademark Security
Agreement, dated as of February 8, 2017, by and between NextGen Pro
and Dealer Solutions (collectively, the Subordinated Note
Documents”).

 

C. On December 31,
2017, Dealer Solutions assigned all of its right, title and
interest in and to the Subordinated Note Documents to
Creditor.

 

D. Creditor is willing
to subordinate: (i) all of each Borrower’s indebtedness
and obligations to such Creditor, whether presently existing or
arising in the future, (the “Subordinated Debt”) to
all of Borrowers’ indebtedness and obligations to Agent and
Lender; and (ii) all of such Creditor’s security
interests, if any, in each Borrower’s property to all of
Agent’s security interests in Borrowers’ property, all
in accordance with the provisions set forth herein.

 



AGREEMENT

 


NOW,
THEREFORE, THE PARTIES AGREE AS FOLLOWS:

 

1. Creditor
subordinates to Agent any security interest or lien that Creditor
may have in any property of each Borrower. Notwithstanding the
respective dates of attachment or perfection of the security
interest of Creditor and the security interest of Agent, the
security interest of Agent in the Collateral, as defined in the
Loan Agreement, shall at all times be prior to the security
interest of Creditor. Capitalized terms not otherwise defined
herein shall have the same meaning as in the Loan
Agreement.

 

2. Except as expressly
set forth in Section 3, all Subordinated Debt is subordinated in
right of payment to all obligations of each Borrower to Agent and
Lender now existing or hereafter arising, together with all costs
of collecting such obligations (including attorneys’ fees),
including, without limitation, all interest accruing after the
commencement by or against each Borrower of any Bankruptcy,
reorganization or similar proceeding, and all obligations under the
Loan Agreement (the “Senior
Debt”).

 




 

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3. Creditor will not
demand or receive from any Borrower (and no Borrower will pay to
Creditor) all or any part of the Subordinated Debt by way of
payment, prepayment, setoff, lawsuit or otherwise, nor will
Creditor exercise any remedy with respect to the Collateral, nor
will Creditor commence, or cause to commence, prosecute or
participate in any administrative, legal or equitable action
against any Borrower, for so long as any portion of the Senior Debt
remains outstanding. Notwithstanding the foregoing, Creditor shall
be permitted to receive, and Borrowers shall be permitted to pay,
the following payments:

 




(a)

If an Advance has
been made pursuant to Tranche III of the Loan Agreement, regularly
scheduled payments as set forth in the Subordinated Note in the
form attached hereto, but only if no Event of Default has occurred
and is continuing as of the date of such payment and no Event of
Default would result from such payment.





 




(b)

If no Advance has
been made pursuant to Tranche III of the Loan Agreement, (a)
regularly scheduled payments of interest as set forth in the
Subordinated Note in the form attached hereto, but only if no Event
of Default has occurred and is continuing as of the date of such
payment and no Event of Default would result from such payment, and
(b) regularly scheduled payments of principal as set forth in the
Subordinated Note in the form attached hereto, but only if (i)
after giving pro forma effect to such payment, Borrowers would have
cash in Deposit Accounts or Investment Accounts subject to Account
Control Agreements (as such terms are defined in the Loan
Agreement) in favor of Agent in an amount not less than $7,500,000,
on a consolidated basis, or (ii) as of the end of the last fiscal
quarter for which financial statements were required to be
delivered to Agent pursuant to the Loan Agreement, Parent
maintained Adjusted EBITDA (as defined in the Loan Agreement) for
the twelve month period ended as of such date, of not less than
$2,000,000.





 

4. Creditor shall
promptly deliver to Agent in the form received (except for
endorsement or assignment by Creditor where required by Agent) for
application to the Senior Debt any payment, distribution, security
or proceeds received by Creditor with respect to the Subordinated
Debt other than in accordance with this Agreement.

 

5. In the event of any
Borrower’s insolvency, reorganization or any case or
proceeding under any Bankruptcy or insolvency law or laws relating
to the relief of debtors, these provisions shall remain in full
force and effect, and Agent’s and Lender’s claims
against such Borrower shall be paid in full before any payment is
made to Creditor.

 

6. For so long as any
of the Senior Debt remains unpaid, Creditor irrevocably appoints
Agent as Creditor’s attorney-in-fact, and grants to Agent a
power of attorney with full power of substitution, in the name of
Creditor or in the name of Agent, for the use and benefit of Agent,
without notice to Creditor, to perform at Agent’s option the
following acts in any Bankruptcy, insolvency or similar proceeding
involving a Borrower

 




a.

To file the
appropriate claim or claims in respect of the Subordinated Debt on
behalf of Creditor if Creditor does not do so prior to 30 days
before the expiration of the time to file claims in such proceeding
and if Agent elects, in its sole discretion, to file such claim or
claims; or





 




b.

To accept or reject
any plan of reorganization or arrangement on behalf of such
Creditor and to otherwise vote such Creditor’s claims in
respect of any Subordinated Debt in any manner that Agent deems
appropriate for the enforcement of its rights
hereunder.





 




 

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7. In the event of a
Borrower’s insolvency, reorganization or any case or
proceeding, arrangement or transaction under any federal or state
bankruptcy or insolvency law or similar laws or proceedings
involving a Borrower, for so long as any of the Senior Debt remains
unpaid, if Agent, Lender or any of them shall seek to provide any
Borrower or any of their subsidiaries with any financing under
Section 364 of the Bankruptcy Code , or Agent or Lender
support or consent to such financing provided by a third party, or
consent to any order for the use of cash collateral under
Section 363 of the Bankruptcy Code (each, a
“DIP
Financing” or “Cash Collateral Use”),
with such DIP Financing or Cash Collateral Use to be secured by all
or any portion of the Collateral (including assets that, but for
the application of Section 552 of the Bankruptcy Code (or any
similar provision of any foreign laws relating to the relief of
debtors) would be Collateral), then Creditor agrees that it will
raise no objection and will not support, directly or indirectly,
any objection to such DIP Financing or Cash Collateral Use nor
object to the liens or claims granted in connection therewith on
any grounds, including a failure to provide “adequate
protection” for the liens, if any, securing any Subordinated
Debt (and will not request any adequate protection as a result of
such DIP Financing or Cash Collateral Use, and will not support any
debtor-in-possession financing or Cash Collateral Use which would
compete with such DIP Financing or Cash Collateral Use which is
provided to or consented to by Agent or Lender). In addition,
Creditor agrees that it will not provide nor seek to provide or
support any debtor-in-possession financing without the prior
written consent of Agent.

 

8. Creditor shall
immediately affix a legend to the instruments evidencing the
Subordinated Debt stating that the instruments are subject to the
terms of this Agreement. No amendment of the documents evidencing
or relating to the Subordinated Debt shall directly or indirectly
modify the provisions of this Agreement in any manner which might
terminate or impair the subordination of the Subordinated Debt or
the subordination of the security interest or lien that Creditor
may have in any property of a Borrower. In addition, such
instruments shall not be amended to (i) increase the rate of
interest with respect to the Subordinated Debt, or
(ii) accelerate the payment of the principal or interest or
any other portion of the Subordinated Debt. Creditor represents and
warrants that a true copy of the Subordinated Note, as in effect as
of the date hereof is attached as Exhibit A hereto, and that
neither the Subordinated Note, nor any of the Subordinated Note
Documents have been assigned to any other person (it being
understood that a security interest in the Subordinated Note has
been granted to Cycle Express, LLC).

 

9. This Agreement
shall remain effective for so long as Agent or Lender has any
obligation to make credit extensions to a Borrower or any Borrower
owes any amounts to Agent or Lender under the Loan Agreement or
otherwise. If, at any time after payment in full of the Senior Debt
any payments of the Senior Debt must be disgorged by Agent or
Lender for any reason (including, without limitation, the
Bankruptcy of a Borrower), this Agreement and the relative rights
and priorities set forth herein shall be reinstated as to all such
disgorged payments as though such payments had not been made and
Creditor shall immediately pay over to Agent all payments received
with respect to the Subordinated Debt to the extent that such
payments would have been prohibited hereunder. At any time and from
time to time, without notice to Creditor, Agent or Lender may take
such actions with respect to the Senior Debt as Agent and Lender,
respectively, in its sole discretion, may deem appropriate,
including, without limitation, terminating advances to a Borrower,
increasing the principal amount (which may include any DIP
Financing), extending the time of payment, increasing applicable
interest rates, renewing, compromising or otherwise amending the
terms of any documents affecting the Senior Debt and any collateral
securing the Senior Debt, and enforcing or failing to enforce any
rights against a Borrower or any other person. No such action or
inaction shall impair or otherwise affect Agent’s or
Lender’s rights hereunder.

 

10. This Agreement
shall bind any successors or assignees of Creditor and shall
benefit any successors or assigns of Agent. This Agreement is
solely for the benefit of Creditor, Agent and Lender and not for
the benefit of any Borrower or any other party. Creditor further
agrees that if a Borrower is in the process of refinancing a
portion of the Senior Debt with a new lender, and if Agent makes a
request of Creditor, Creditor shall agree to enter into a new
subordination agreement with the new lender on substantially the
terms and conditions of this Agreement.

 

11. This Agreement may
be executed in two or more counterparts, each of which shall be
deemed an original and all of which together shall constitute one
instrument.

 

12. This Agreement
shall be governed by, and construed in accordance with, the
internal laws of the State of California, without regard to
principles of conflicts of law. Jurisdiction shall lie in the State
of California. THE UNDERSIGNED ACKNOWLEDGE THAT THE RIGHT TO TRIAL
BY JURY IS A CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED UNDER
CERTAIN CIRCUMSTANCES. TO THE EXTENT PERMITTED BY LAW, EACH PARTY,
AFTER CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH
COUNSEL OF ITS, HIS OR HER CHOICE, KNOWINGLY AND VOLUNTARILY, AND
FOR THE MUTUAL BENEFIT OF ALL PARTIES, WAIVES ANY RIGHT TO TRIAL BY
JURY IN THE EVENT OF LITIGATION ARISING OUT OF OR RELATED TO THIS
AGREEMENT OR ANY OTHER DOCUMENT, INSTRUMENT OR AGREEMENT BETWEEN
THE UNDERSIGNED PARTIES. If the jury waiver set forth in this
Section is not enforceable, then any dispute, controversy or
claim arising out of or relating to this Agreement or any of the
transactions contemplated herein shall be resolved by judicial
reference pursuant to Code of Civil Procedure Section 638 et
seq before a mutually acceptable referee or, if none is selected,
then a referee chosen by the Presiding Judge of the California
Superior Court for Santa Clara County, provided this provision
shall not restrict any party from seeking to enforce any
prejudgment remedies.

 

13. This Agreement
represents the entire agreement with respect to the subject matter
hereof, and supersedes all prior negotiations, agreements and
commitments. Creditor is not relying on any representations by
Agent, Lender or any Borrower in entering into this Agreement.
Creditor has kept and will continue to keep itself fully apprised
of the financial and other condition of each Borrower. This
Agreement may be amended only by written instrument signed by
Creditor, Agent and Borrowers.

 

14. In the event of any
legal action to enforce the rights of a party under this Agreement,
the party prevailing in such action shall be entitled, in addition
to such other relief as may be granted, all reasonable costs and
expenses, including reasonable attorneys’ fees, incurred in
such action.

 


[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]

 




 

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[SIGNATURE
PAGE TO SUBORDINATION AGREEMENT]

 


IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.

 


AGENT:

 


HERCULES CAPITAL,
INC.

 



By: /s/ Zhuo
Huang                                                      









Name: Zhuo
Huang                               









Title: Associate General
Counsel                                       







 




 








 






 


[SIGNATURE
PAGE TO SUBORDINATION AGREEMENT]

 


IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.

 

 


CREDITOR:

 


HALCYON
CONSULTING, LLC

 



By: /s/ Kartik
Kakarala                                          









Name: Kartik
Kakarala                 









Title: CEO                                                  







 


 




 








 






 


[SIGNATURE
PAGE TO SUBORDINATION AGREEMENT]

 


IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.

 


BORROWERS:

 


RUMBLEON,
INC.

 



Signature:         



_/s/ Steven R. Berrard
____







Print
Name:     


__Steven R. Berrard
______







Title:                   



__Chief Financial
Officer__





 

 


NEXTGEN
PRO, LLC

 



Signature:          



_/s/ Steven R. Berrard
____







Print
Name:     


__Steven R. Berrard
______







Title:           



___Manager_____________





 

 


RMBL
MISSOURI, LLC

 



Signature:      



_/s/ Steven R. Berrard
____







Print
Name:     


__Steven R. Berrard
______







Title:            



___Manager_____________





 

 


RMBL
TEXAS, LLC

 



Signature:           



_/s/ Steven R. Berrard
____







Print
Name:   


__Steven R. Berrard
______







Title:             



___Manager_____________





 


 

 


 

 


 




 








 






 


EXHIBIT
A

 


SUBORDINATED
NOTE

 


 

 


 

 


 

 

 


 

 


 

 


 

 


 

 


 

 


 

 


 

 


 

 


 




 








 






 



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.

 




 








 






 

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.


 




 








 





 

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.

 


 




 








 






 

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.

 




 








 






 


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.

 


 

 

                                                

By: /s/ Marshall
Chesrown

 


Name:
Marshall Chesrown


Title:
Chief Executive Officer




	
  


	
  







 


ACKNOWLEDGED
AND AGREED:

 


 

 


LENDER:

 


 

 


NEXTGEN
DEALER SOLUTIONS, LLC

 

 



By: /s/ Kartik
Kakarala        








Name:
Kartik Kakarala


Title:
President


 




 








 






 


EXHIBIT
A

 


 

 


UNCONDITIONAL
GUARANTY AGREEMENT

 


 


 


 


 


 




 








 










 



UNCONDITIONAL GUARANTY AGREEMENT

 


 


 


THIS
UNCONDITIONAL GUARANTY AGREEMENT (the "Guaranty") is made as of the
8th day of February, 2017, by NEXTGEN PRO, LLC, a Delaware limited
liability company (the "Guarantor") to and for the benefit of
NEXTGEN DELAER SOLUTIONS, LLC, a Delaware limited liability company
(the "Lender").


 


 



R E C I T A L S


 


A.           Pursuant
to the Asset Purchase Agreement executed on January 8, 2017 by and
among the Lender, Smart Server, Inc. (“Borrower”),
Halcyon Consulting, LLC (“Halcyon”) and certain other
parties signatory thereto, the Lender agreed to sell and the
Borrower agreed to purchase substantially all of the assets of the
Lender (the “Asset Purchase Agreement”).


 


B.           One
Million Three Hundred Thirty-Three Thousand Three Hundred
Thirty-Three Dollars ($1,333,333.00) of the purchase price under
the Asset Purchase Agreement is to be paid pursuant to the terms
and conditions set forth in the Subordinated Secured Confessed
Judgment Promissory Note of even date herewith executed by Borrower
in favor of the Lender (the "Note").


 


C.           On
the date hereof, Borrower assigned its rights, but not obligations,
under the Asset Purchase Agreement to the Guarantor.


 


D.           As
a condition precedent to the Lender’s agreement to close
under the Asset Purchase Agreement, the Guarantor has agreed to
execute and deliver this Guaranty pursuant to which the Guarantor
will guarantee to the Lender (the "Beneficiary") the full payment
and performance of all of the Borrower's obligations under the
Note.


 


NOW,
THEREFORE, in consideration of the foregoing recitals, and other
good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Guarantor agrees as
follows:


 


1.           Guaranty.
The Guarantor unconditionally guarantees to the Beneficiary and its
respective successors and assigns, the full and prompt payment to
the Beneficiary when due of all amounts of every kind due to the
Beneficiary from the Borrower pursuant to the Note, and the full
and prompt performance of all of the Borrower's obligations to the
Beneficiary under the Note. The Guarantor unconditionally
guarantees that all sums due and owing under the Note shall be paid
when and as due, whether by reason of installments, acceleration or
otherwise, time being of the essence.


 




 








 






 


2.           Nature
of the Guaranty. This is a guaranty of payment and not of
collection and the obligations of the Guarantor hereunder shall be
direct, immediate and primary. This Guaranty shall in all respects
be a continuing absolute and unconditional guarantee irrespective
of the genuineness, validity or enforceability of the Note or any
part thereof, or by the existence, enforceability, perfection or
extent of any collateral therefor.


 


3.           Beneficiaries
Need Not Pursue Rights Against Borrower, Any Guarantor, or
Collateral. The Guarantor authorizes the Beneficiary without
notice, demand or any reservation of rights against the Guarantor
and without affecting the Guarantor's obligations hereunder, from
time to time, to resort to the Guarantor for payment of the amounts
due and performance of the obligations under the Note or any part
thereof, whether or not the Beneficiary shall have resorted to any
collateral securing the Note or any part thereof or shall have
proceeded against any other person principally or secondarily
obligated with respect to the Note or any part
thereof.


 


4.           Accuracy
of Representations. The Guarantor warrants that all of the
representations made by the Guarantor in connection with the Note
and the transactions contemplated thereby are true and correct and
not knowingly misleading and the Guarantor agrees to indemnify the
Beneficiary from any loss or expense as a result of any
representation or statement of the Guarantor or the Borrower being
false, incorrect, or knowingly misleading


 


5.           Representations
of the Guarantor. To induce the Beneficiary to accept this
Guaranty for the purposes for which it is given, the Guarantor
represents and warrants to the Beneficiary as follows:


 


A.           Organization. Guarantor is a
limited liability company, duly organized, validly existing and in
good standing under the laws of the State of Delaware, and has all
requisite corporate power and authority to own, lease and operate
its properties and to carry on its business. Guarantor is duly
qualified or authorized to do business as a foreign company and is
in good standing under the laws of each jurisdiction in which the
conduct of its business or the ownership of its properties requires
such qualification or authorization, except to the extent the
failure to do so would not reasonably be expected to result in a
material adverse effect on Guarantor.

 


B.           Non-Existence
of Defaults, etc. The Guarantor is not in material default
with respect to any of its existing indebtedness, and the making
and performance of this Guaranty will not immediately, or with the
passage of time, the giving of notice, or both, constitute a
default under any existing indebtedness of Guarantor.


 


C.           Violation
of Laws. In the conduct of its businesses and affairs, the
Guarantor is not in violation of any applicable federal, state or
local laws, the violation of which would cause a material adverse
effect on the Guarantor.


 


D.           Capacity.
The execution, delivery and performance of this Guaranty has been
duly authorized by all necessary action by or on behalf of
Guarantor. The Guarantor has the legal capacity to execute and
deliver this Guaranty as a valid obligation, which is binding and
enforceable in accordance with the terms hereof.


 




 








 






 


E.           No
Insolvency. There is no pending or threatened bankruptcy or
insolvency proceeding by or against the Guarantor.


 


6.           Security.
As security for the prompt payment and complete performance by
Guarantor of its obligations under this Guaranty, Guarantor has
executed and delivered to the Lender on the date hereof the
Security Agreement (hereinafter defined in Section 9).

 


7.           Rights
of Beneficiary to Deal With Borrower, Guarantor, and
Collateral. The Beneficiary may, without compromising,
impairing, diminishing, or in any way releasing the Guarantor from
the Guarantor's obligations hereunder and without notifying or
obtaining the prior approval of the Guarantor at any time or from
time to time: (a) waive or excuse a default or defaults by the
Borrower or any person who has guaranteed in whole or in part any
of the Borrower's obligations under the Note, or a delay in the
exercise by the Beneficiary of any or all of the Beneficiary's
rights or remedies with respect to such default or defaults; (b)
grant extensions of time for payment or performance by the Borrower
or any person who has guaranteed in whole or in part any of the
Borrower's obligations under the Note; (c) release, substitute,
exchange, surrender, or add collateral of the Borrower or any
person who has guaranteed in whole or in part any of the Borrower's
obligations under the Note, or waive, release or subordinate, in
whole or in part, any lien or security interest held by the
Beneficiary on any real or personal property securing payment or
performance, in whole or in part, of the Borrower's obligations
under the Note; (d) release the Borrower or any person who has
guaranteed in whole or in part, any of the Borrower's obligations
under the Note; (e) apply payments made by the Borrower, or by any
person who has guaranteed in whole or in part, any of the
Borrower's obligations under the Note, to any sums owed by the
Borrower to the Beneficiary, in any order, or manner, or to any
specific account or accounts, as the Beneficiary may elect; or (f)
modify, change, renew, extend, or amend, in any respect any of the
provisions of the Note or this Guaranty.


 


8.           Waivers
by the Guarantor. The Guarantor waives: (a) any and all
notices whatsoever with respect to this Guaranty or with respect to
any of the Borrower's obligations under the Note, including, but
not limited to, notice of: (i) the Beneficiary's acceptance hereof
or the Beneficiary's intention to act, or the Beneficiary's action,
in reliance hereon; (ii) the present existence or future occurrence
of an event of default of any of the Borrower's obligations under
the Note or any terms or amounts thereof of any change therein;
(iii) any default by the Borrower or any surety, pledgor, grantor
of security, guarantor or other person who has guaranteed or
secured in whole or in part the Borrower's obligations under the
Note; and (iv) the obtaining or release of any guaranty or surety
agreement (in addition to this Guaranty), pledge, assignment, or
other security for any of the Borrower's obligations under the
Note; and (b) (i) presentment, protest and demand for payment of
any sum due from the Borrower under the Note or any person who has
guaranteed in whole or in part any of the Borrower's obligations
under the Note, including the Guarantor; (ii) notice of default by
the Borrower or any person who has guaranteed in whole or in part
any of the Borrower's obligations under the Note, including the
Guarantor; (iii) demand for performance by the Borrower or any
person who has guaranteed in whole or in part any of the Borrower's
obligations under the Note.


 




 








 






 


9.           Events
Authorizing Acceleration of Guaranty. In the event any of
the following occur with respect to the Guarantor or, with respect
to the Borrower (an "Event of Default"), the Beneficiary may, in
the Beneficiary's sole and absolute discretion, accelerate and call
due as to the Guarantor all sums due from the Borrower: (a)
Guarantor 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 Guarantor 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 Guarantor, or
Guarantor 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 Guarantor, or there
is commenced against Guarantor any such proceeding which remains
undismissed for a period of 90 days, or Guarantor is adjudicated
insolvent or bankrupt; or any order of relief or other order
approving any such case or proceeding is entered; or Guarantor
makes a general assignment for the benefit of creditors; (b) any
"Default" as defined under the Note or under the Security Agreement
between the Guarantor and the Lender, dated the date hereof,
attached hereto as Exhibit A and incorporated herein by reference
(the “Security Agreement”), or (c) a default by the
Guarantor in payment or in performance of any of its obligations
under this Guaranty.


 


10.           Confession
of Judgment. UPON A DEFAULT
OF THIS GUARANTY, THE GUARANTOR AUTHORIZES ANY ATTORNEY ADMITTED TO
PRACTICE BEFORE ANY COURT OF RECORD IN THE UNITED STATES, INCLUDING
GLENN D. SOLOMON, AS GUARANTOR’S TRUE AND
LAWFUL ATTORNEY-IN-FACT, WITH FULL POWER AND AUTHORITY FOR
GUARANTOR, IN GUARANTOR’S NAME, PLACE AND STEAD,
ON GUARANTOR’S BEHALF, TO
WAIVE THE ISSUANCE AND SERVICE OF PROCESS AND CONFESS JUDGMENT AGAINST GUARANTOR, IN THE
FULL AMOUNT THEN DUE UNDER THIS GUARANTY, INCLUDING ANY EXPENSES OF
COLLECTION, PLUS REASONABLE ATTORNEYS’ FEES. THE AUTHORITY
AND POWER TO APPEAR FOR AND ENTER JUDGMENT AGAINST GUARANTOR 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 BENEFICIARY SHALL DEEM NECESSARY OR ADVISABLE UNTIL ALL SUMS
DUE UNDER THE GUARANTY HAVE BEEN PAID IN FULL.


 


11.           Collection
Expenses. All reasonable and documented out-of-pocket costs
and expenses (including reasonable attorney fees and expenses) of
the prevailing party in any action to enforce any rights under this
Guaranty, shall be borne and paid by the non-prevailing
party.


 


12.           Subordination
of Certain Indebtedness. If the Guarantor shall advance any
sums to Borrower or its successors or assigns or if the Borrower or
its successors or assigns shall hereafter become indebted to the
Guarantor, such sums and indebtedness shall be subordinate in all
respects to the amounts then or thereafter due and owing to the
Beneficiary. Nothing herein contained shall be construed to give
the Guarantor any right of subrogation in and to any obligations of
the Borrower to the Beneficiary, or in any of the collateral
therefor, or all or any part of the Beneficiary's interest
therein.


 




 








 






 


13.           Invalidity
of Any Part. If any provision or part of any provision of
this Guaranty shall for any reason be held invalid, illegal, or
unenforceable in any respect, such invalidity, illegality, or
unenforceability shall not affect any other provisions or the
remaining part of any effective provisions of this Guaranty and
this Guaranty shall be construed as if such invalid, illegal, or
unenforceable provision or part thereof had never been contained
herein, but only to the extent of its invalidity, illegality, or
unenforceability.


 


14.           Subrogation
Rights. The Guarantor waives and releases the Beneficiary
from any damages which the Guarantor may incur as a result of any
impairing, diminishing, or destroying of any of the Guarantor's
rights of subrogation, unless such impairing, diminishing or
destroying is willful or grossly negligent. To the extent that the
Guarantor satisfies or discharges any of the Borrower's obligations
to the Beneficiary, the Beneficiary does hereby assign, transfer
and convey unto the Guarantor any and all rights, interests,
actions or causes of action, claims and remedies of the
Beneficiary, provided, that, any and all such rights of the
Guarantor shall be subordinate to the rights and interests of the
Beneficiary hereunder.


 


15.           Notices.
Any notice or consent required or permitted by this Guaranty (but
without implying any obligation to give a notice or obtain a
consent) shall be in writing and shall be made by hand delivery, by
overnight mail by nationally recognized courier, by wire or by
certified mail, return receipt requested, postage prepaid,
addressed to the Beneficiary or the Guarantor at the appropriate
address set forth below or to such other address as may be
hereafter specified by written notice by either party, and shall be
considered given as of the date of hand delivery or wire, one day
after being sent by overnight mail or as of two (2) business days
after the date of mailing, as the case may be:


 


If to
the Beneficiary:


 


NextGen
Dealer Solutions, LLC


1431
Greenway Drive


Suite
775


Irving,
TX 75038


Attention: Kartik
Kakarala


 


With a
copy (which shall not constitute notice) to:


 


Glenn
D. Solomon, Esquire


Offit
Kurman, P.A.


8171
Maple Lawn Boulevard


Suite
200


Maple
Lawn, MD 20759


 


If to
the Guarantor:


 


NextGen
Pro, LLC


4521
Sharon Road


Suite
370


Charlotte, NC
28211


Attn:
Steven Berrard


 




 








 






 


With a
copy (which shall not constitute notice) to:

 


Akerman
LLP


Three
Brickell City Centre


98 SE
7th
Street


Miami,
FL 33131


Attn:
Scott A. Wasserman


 


16.           Effective
Date. The guaranty of the Guarantor as herein set forth
shall be effective as of the date of this Guaranty, independent of
the date of execution or delivery thereof.


 


17.           Duration.
This Guaranty shall be a continuing one and shall be binding upon
the Guarantor regardless of how long before or after the date of
this Guaranty any of the Borrower's obligations to the Beneficiary
were or are incurred by the Borrower. The guaranty under this
Guaranty shall be terminated upon the repayment and performance in
full of all of the Borrower's obligations under the
Note.


 


18.           Binding
Nature. This Guaranty shall inure to the benefit of and be
enforceable by the Beneficiary and the Beneficiary's successors and
assigns and any other person to whom the Beneficiary may grant an
interest in the Borrower's obligations to the Beneficiary, and
shall be binding upon and enforceable against the Guarantor's
heirs, personal representatives, and assigns.


 


19.           Assignability.
This Guaranty may be assigned by the Beneficiary at any time or
from time to time. This Guaranty may not be assigned by the
Guarantor.


 


20.           Choice
of Law; Consent to Jurisdiction. This Guaranty shall be
construed, interpreted, and enforced under the laws of the State of
Maryland.


 


21.           Tense,
Gender, Defined Terms, Captions. As used herein, the plural
shall refer to and include the singular, and the singular the
plural, and the use of any gender shall include and refer to any
other gender. All captions are for the purpose of convenience
only.


 




 








 






 


IN
WITNESS WHEREOF, the Guarantor has executed this Guaranty under
seal as of the date first written above, with the specific
intention that this Guaranty constitutes an instrument under
seal.


 


 



WITNESS:                                                                                      

GUARANTOR





 



 


NEXTGEN
PRO, LLC







 

 







_______________________

 By:
/s/ Marshall
Chesrown (SEAL)






 


 

 


 




 








 






 


EXHIBIT
B

 


 

 


SECURITY
AGREEMENT

 


 




 








 






 



SECURITY AGREEMENT

 


THIS SECURITY AGREEMENT (the
“Agreement”), made this 8th day of February, 2017, by
and between NEXTGEN PRO, LLC, a Delaware limited liability company,
with an address of 4521 Sharon Road, Suite 370, Charlotte, North
Carolina 28211 ("Debtor"),
and NEXTGEN DEALER SOLUTIONS, LLC, a Delaware limited liability
company, with an address of 1431 Greenway Drive, Suite 775, Irving,
Texas 75038 (the "Secured
Party").

 



1.            

Grant
of Security Interest. Subject
to the applicable terms of this Security







Agreement, Debtor grants to Secured Party a security interest in
the Collateral to secure the payment of the Obligation, provided
that the security interest granted hereby is subject to the
provisions of applicable law (e.g., UCC Section
9-408(c).

 



2.            

The
Obligation. As used in this
Agreement, "Obligation"
means collectively all





 



of the following:

 

(a) All
amounts due pursuant to the terms of an Unconditional Guaranty
Agreement dated even date herewith (the "Guaranty")
from the Debtor to Secured Party, pursuant to which the Debtor
guaranteed the payment and performance of all obligations of Smart
Server, Inc. under a Subordinated Secured Confessed Judgment
Promissory Note dated even date herewith in the face amount of One
Million Three Hundred Thirty-Three Thousand Three Hundred
Thirty-Three Dollars ($1,333,333.00).

 

(b) All
costs incurred by Secured Party to enforce the security interest
granted hereby ("Security
Interest"), collect the
Obligation, and maintain the Collateral free of liens (other than
Permitted Encumbrances as defined on Exhibit A
attached hereto), and including (but
not limited to) reasonable attorneys' fees and legal expenses, and
expenses of sale.

 



3.            

The
Collateral. As used in this
Security Agreement, "Collateral"
shall mean all







of Debtor's assets, both now and hereafter acquired, and wherever
located, including but not limited to:

 

(a) Accounts;

 

(b) Chattel
paper;

 

(c) Contracts;

 

(d) Deposit
accounts;

 

(e) Documents;

 

(f) Equipment;

 

(g) Farm
products;

 

(h) Fixtures;

 




 








 





 

(i) General
intangibles;

 

(j) Goods;

 

(k) Instruments;

 

(l) Inventory;

 

(m) Investment
property;

 

(n) Letter-of-credit
rights;

 

(o) Franchise
agreements; and

 

(p) The
Patent Collateral (hereinafter defined);

 

(q) The
Trademark Collateral (hereinafter defined);

 

(r) Intellectual
property; and

 

(s) Proceeds
and products of all of the foregoing;

 


provided however, that the "Collateral" shall
exclude the "Excluded
Property". Excluded Property
means (i) motor vehicles and other assets subject to certificates
of title, letter of credit rights and commercial tort claims; (ii)
pledges and security interests prohibited by applicable law, rule,
regulation; (iii) equity interests in any person other than
wholly-owned subsidiaries of Borrower; (iv) any lease, license or
other agreement to the extent that a grant of a security interest
therein would violate or invalidate such lease, license or
agreement or create a right of termination in favor of any other
party thereto; (v) any governmental licenses or state or local
franchises, charters and authorizations (but not registered patents
and trademarks); (vi) any equipment or other asset subject to liens
securing capitalized lease obligations or permitted purchase money
indebtedness.

 


“Patent
Collateral” means:

 

(a) All
patents and patent applications, including patent application
number 14614160 known as “Near Field Communication (NFC)
Vehicle Identification System and Process” filed with the
United States Patent and Trademark Office and all registrations,
reissues, divisions, continuations, continuations-in-part,
renewals, extensions and reexaminations thereof and amendments
thereto (the "Patents");

 

(b) all
rights of any kind whatsoever of Debtor accruing under any of the
Patents provided by applicable law of any jurisdiction, by
international treaties and conventions and otherwise throughout the
world;

 

(c) any
and all royalties, fees, income, payments and other proceeds now or
hereafter due or payable with respect to any and all of the
Patents; and

 




 








 






(d)           any
and all claims and causes of action, with respect to any of the
Patents, whether occurring before, on or after the date hereof,
including all rights to and claims for damages, restitution and
injunctive and other legal and equitable relief for past, present
and future infringement, misappropriation, violation, misuse,
breach or default, with the right but no obligation to sue for such
legal and equitable relief and to collect, or otherwise recover,
any such damages.

 



“Trademark Collateral” means:

 

(a) All
trademark registrations and applications, including the trademark
“CyclePro” registered with the United States Patent and
Trademark Office, Registration number 4,662,863, together with the
goodwill connected with the use of and symbolized thereby and all
extensions and renewals thereof (the "Trademarks"), excluding only United States intent-to-use
trademark applications to the extent that and solely during the
period in which the grant of a security interest therein would
impair, under applicable federal law, the registrability of such
applications or the validity or enforceability of registrations
issuing from such applications;

 

(b) all
rights of any kind whatsoever of Debtor accruing under any of the
Trademarks provided by applicable law of any jurisdiction, by
international treaties and conventions and otherwise throughout the
world;

 

(c) any
and all royalties, fees, income, payments and other proceeds now or
hereafter due or payable with respect to any and all of the
Trademarks; and

 

(d) any
and all claims and causes of action, with respect to any of the
Trademarks, whether occurring before, on or after the date hereof,
including all rights to and claims for damages, restitution and
injunctive and other legal and equitable relief for past, present
and future infringement, dilution, misappropriation, violation,
misuse, breach or default, with the right but no obligation to sue
for such legal and equitable relief and to collect, or otherwise
recover, any such damages.

 



4.            

Debtor's
Covenants.





 

(a) Debtor
shall maintain at its principal place of business complete records
regarding all account balances due Debtor, whether secured or
unsecured, which account balances comprise the Collateral
hereunder. Such records shall include, without limitation, current
statements of balances due, and copies of all contracts,
instruments or documents evidencing, securing or guarantying such
balances. Upon reasonable prior notice by Secured Party, Debtor
shall make all such records available for inspection and copying by
Secured Party and/or its agents during normal business
hours.

 

(b) Debtor
covenants and agrees that it shall: (i) take adequate care of the
Collateral (except as provided in 4(b)(viii) below) in accordance
with reasonable and customary business practices for similar
businesses as the Debtor's, reasonable wear and tear excepted;
(ii) insure
the Collateral for such hazards and in such amounts customary for
similar businesses as the Debtor's, with policies to name the
Secured Party as additional insured and/or loss payee, as the case
may be; (iii) pay all costs necessary to enforce the Security
Interest, collect the Obligation, and maintain the Collateral free
of liens (other than Permitted Encumbrances), including (but not
limited to) taxes, assessments, reasonable attorneys' fees and
legal expenses, and expenses of sale; (iv) furnish Secured Party
with any information on the Collateral reasonably requested by
Secured Party; (v) upon receipt of reasonable prior written notice,
allow Secured Party to inspect the Collateral, and inspect and copy
all records relating to the Collateral and the Obligation, in each
case, during business hours; (vi) take commercially reasonable
steps to preserve the liability of account debtors, obligors, and
secondary parties whose obligations are part of the Collateral;
(vii) notify Secured Party of any material change occurring in or
to the Collateral, taken as a whole, and (viii) in its sole
discretion, make the decisions regarding any continued prosecution
and maintenance of the Patent Collateral and Trademark
Collateral.

 



 







 





 

(c) Debtor
agrees and covenants that it shall not (without Secured Party's
consent, which shall not be unreasonably withheld): (i) remove the
Collateral or any records relating thereto from the address set
forth above; (ii) allow the Collateral to become an accession to
other goods; or (iii) allow the Collateral to be affixed to real
estate, except goods identified herein as fixtures.

 

(d) Debtor
warrants and represents to the best of its information, knowledge
and belief, as follows: no financing statement or collateral
assignment has been filed or executed with respect to the
Collateral except in favor of the Secured Party; (ii) Debtor is
absolute owner of the Collateral and the Collateral is not
encumbered other than by Permitted Encumbrances; (iii) none of the
Collateral is affixed to real estate or an accession to other
goods, nor will Collateral acquired hereafter be affixed to real
estate or an accession to other goods when acquired, unless Debtor
has furnished Secured Party the consents or disclaimers necessary
to make this Security Interest valid against persons holding
interests in the real estate or other goods; (iv) all of the
Collateral is located at Debtor's address set forth above; (v)
Debtor has never been known by, or done business under, any name
other than those set forth above.

 

(e) Debtor
authorizes Secured Party to (i) file financing statements and
assignments covering the Collateral and all personal property of
Debtor and containing such legends as Secured Party shall deem
necessary or desirable to protect Secured Party's interest in the
Collateral, and (ii) file and have recorded with the United States
Patent and Trademark Office a short-form of a security agreement
evidencing the Security Interest in the Patent Collateral and
Trademark Collateral in the forms attached hereto and incorporated
herein by reference as Exhibits B and C.

 



5.            

Default.





 


(a)           Any
"Default" as defined under the Note or the Guaranty shall be an
event of default hereunder. "Senior Debt" means any indebtedness of
the Debtor as defined under United States Generally Accepted
Accounting Principles ("GAAP"),
as in effect on the date hereof, that is secured by any assets of
the Debtor, 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)           When
an event of default occurs, the entire Obligation becomes
immediately due and payable at Secured Party's option without
notice to Debtor, and Secured Party may proceed to enforce payment
of same and exercise any and all of the rights and remedies
available to a secured party under the Uniform Commercial Code as
well as all other rights and remedies provided for herein or by
law. When Debtor is in default, Debtor, upon demand by Secured
Party, shall assemble the Collateral and make it available to
Secured Party at a place reasonably convenient to both parties.
Debtor is entitled to any surplus and shall be liable to Secured
Party for any deficiency, arising from accounts, contract rights,
or chattel paper included in the Collateral through sale thereof to
the Secured Party.

 


6.            Remedies
of Secured Party. Secured Party
may, in its discretion, after an event of default: (i) require
Debtor to give possession or control of the Collateral to Secured
Party, and Secured Party may take possession of the Collateral
without the exercise of judicial process; (ii) indorse as Debtor's
agent any instruments or chattel paper in the Collateral; (iii)
notify account debtors and obligors on instruments to make payment
directly to Secured Party; (iv) contact account debtors directly to
verify information furnished by Debtor; (v) take control of
proceeds and use cash proceeds to reduce any part of the
Obligation; (vi) take any action Debtor is required to take or
otherwise necessary to perfect, preserve, and enforce the Security
Interest, and maintain and preserve the Collateral, without notice
to Debtor, and add costs of same to the Obligation (but Secured
Party is under no duty to take any such action); (vii) release
Collateral in its possession to Debtor, temporarily or otherwise;
(viii) take control of funds generated by the Collateral, such as
dividends, interest, proceeds or refunds from insurance, and use
same to reduce any part of the Obligation; and (ix) waive any of
its rights hereunder without such waiver prohibiting the later
exercise of the same or similar rights.

 


7.            Satisfaction
of Liens. If Secured Party
disposes of the Collateral following default, the proceeds of such
disposition shall be applied first to the Note secured by the
Guaranty included in the Obligation, and thereafter to all
remaining Obligations secured hereby. For purposes of this
paragraph, an extended or renewed guaranty will be considered
executed on the date of the original Guaranty.

 


8.            Subordination.
Notwithstanding anything to the contrary set forth in this Security
Agreement:

 

(a) 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.

 

(b) Promptly
upon Debtor's request, Secured Party will from time to time execute
and deliver a subordination agreement on the terms consistent with
Section 7 of the Note and this Section 8 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
subordination of the Note, the Obligation and the Security Interest
to any Senior Debt.

 




 








 





 


9.            Release.
Upon payment in full of the Obligation, the Security Interest shall
automatically terminate and be released without any further action
of the Secured Party, and at such time Debtor is authorized to file
terminations, releases and any other document necessary to
terminate and release any evidence of the Security Interest
delivered by Debtor or otherwise recorded or filed to evidence the
Security Interest, including releases of UCC financing
statements.

 


10.            Miscellaneous.
The rights and privileges of Secured Party shall inure to its
successors and assigns. All representations, warranties, covenants
and agreements of Debtor shall bind Debtor and Debtor's successors
and assigns. Unless otherwise defined herein, definitions in the
Uniform Commercial Code apply to words and phrases in this
Agreement. Debtor waives presentment, demand, notice of dishonor,
protest, and extension of time without notice as to any instruments
and chattel paper in the Collateral. Notice mailed to Debtor's
address set forth above, or to Debtor's most recent changed address
on file with Secured Party, at least five (5) days prior to the
related action (or, if the Uniform Commercial Code specifies a
longer period, such longer period prior to the related action),
shall be deemed reasonable. The laws of the State of Maryland shall
govern the rights and obligations of the parties to this Security
Agreement and the interpretation, construction and enforceability
thereof. As used herein, the singular shall include the plural, the
plural shall include the singular, and the use of any gender shall
include all genders. A photographic or other reproduction of this
Security Agreement, or any financing statement signed by Debtor, is
sufficient as a financing statement.

 




 








 






 


IN
WITNESS WHEREOF, the parties have executed this Security Agreement
under seal as of the day and year first above written.

 



WITNESS:                                                        

NEXTGEN
DEALER SOLUTIONS, LLC





 



_________________________________           
By: /s/ Marshall
Chesrown(SEAL)



                                                                                    
Marshall Chesrown, President

 


"Debtor"

 



WITNESS:                                                        

NEXTGEN
DEALER SOLUTIONS, LLC






 


_________________________________           
By: /s/ Kartik
Kakarala  (SEAL)


Kartik
Kakarala, Manager

 


"Secured
Party"

 




 








 





 



EXHIBIT "A"

 



Permitted Encumbrances

 

(a) liens
created hereby or otherwise securing the Note;

 

(b) the
following liens existing on the date hereof and any renewals or
extensions



thereof:                                                                                                                

;





 

(c) liens
(other than liens imposed under ERISA) for taxes, assessments or
governmental charges or levies not yet due or which are being
contested in good faith and by appropriate proceedings diligently
conducted, if adequate reserves with respect thereto are maintained
on the books of the applicable person in accordance with
GAAP;

 

(d) statutory
or common law liens of landlords (and customary landlords’
liens in leases), carriers, warehousemen, mechanics, materialmen
and suppliers and other liens imposed by law or pursuant to
customary reservations or retentions of title arising in the
ordinary course of business, provided that such liens secure only
amounts not overdue by more than 90 days or, if more than 90 days
overdue, are unfiled and no other action has been taken to enforce
such lien or which are being contested in good faith by appropriate
proceedings for which adequate reserves determined in accordance
with GAAP have been established;

 

(e) pledges
or deposits in the ordinary course of business in connection with
workers’ compensation, unemployment insurance and other
social security legislation, other than any lien imposed by
ERISA;

 

(f) deposits
to secure the performance of bids, trade contracts and leases,
statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature incurred in the ordinary
course of business;

 

(g) easements,
rights-of-way, restrictions and other similar encumbrances
affecting real property which, in the aggregate, are not
substantial in amount, and which do not in any case materially
detract from the value of the property subject thereto or
materially interfere with the ordinary conduct of the business of
the applicable person;

 

(h) judgment
liens in respect of judgments, the uninsured portion of which, if
any, does not exceed $100,000;

 

(i) liens
securing Senior Debt;

 

(j) leases
or subleases granted to others not interfering in any material
respect with the business of Debtor;

 

(k) any
interest of title of a lessor under, and liens arising from UCC
financing statements (or equivalent filings, registrations or
agreements in foreign jurisdictions) relating to,
leases

 




 








 





 

(l) normal
and customary rights of setoff upon deposits of cash in favor of
banks or other depository institutions;

 

(m) liens
of a collection bank arising under Section 4-210 of the Uniform
Commercial Code on items in the course of collection;

 

(n) liens
of sellers of goods to the Debtor arising under Article 2 of the
Uniform Commercial Code or similar provisions of applicable law in
the ordinary course of business, covering only the goods sold and
securing only the unpaid purchase price for such goods and related
expenses; and

 

(o) liens
existing on property at the time of its acquisition;
provided,
that,
(i) such lien was not created in contemplation of such acquisition,
and (ii) such lien does not encumber any property other than the
property encumbered at the time of such
acquisition.

 

 

 

 

 

 

 




 








 





 


EXHIBIT
“B”

 


PATENT
SECURITY AGREEMENT


 


 


 


 


 


 




 








 





 



PATENT SECURITY AGREEMENT

 


THIS PATENT SECURITY AGREEMENT (the
“Agreement”),
made this 8th day of February, 2017, by and between NEXTGEN PRO,
LLC, a Delaware limited liability company, with an address of 4521
Sharon Road, Suite 370, Charlotte, North Carolina 28211
(“Debtor”),
and NEXTGEN DEALER SOLUTIONS, LLC, a Delaware limited liability
company, with an address of 1431 Greenway Drive, Suite 775, Irving,
Texas 75038 (the “Secured
Party”).

 


WHEREAS, Debtor has executed an Unconditional
Guaranty Agreement dated even date herewith (the
"Guaranty")
in favor of the Secured Party, pursuant to which the Debtor
guaranteed the payment and performance of all obligations of Smart
Server, Inc. under a Subordinated Secured Confessed Judgement
Promissory Note executed in favor of the Secured Party on the date
hereof.

 


WHEREAS, to secure the obligations under the
Guaranty, the Debtor executed and delivered to the Secured Party
that certain Security Agreement dated as of the date hereof (the
“Security
Agreement”).

 


WHEREAS,
under the terms of the Security Agreement, the Debtor granted to
the Secured Party, a security interest in, among other property,
certain intellectual property of the Debtor, and agreed to execute
and deliver this Patent Security Agreement, for recording with
national, federal and state government authorities, including, but
not limited to, the United States Patent and Trademark
Office.

 


NOW
THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Debtor agrees with
the Secured Party as follows:

 



1.            

Grant of
Security. Debtor hereby pledges
and grants to the Secured Party a security interest in and to all
of the right, title and interest of such Debtor in, to and under
the following, wherever located, and whether now existing or
hereafter arising or acquired from time to time (the
“Patent
Collateral”):





 

(a) All
patents and patent applications, including patent application
number 14614160 entitled “Near Field Communication (NFC)
Vehicle Identification System and Process” filed with the
United States Patent and Trademark Office and all registrations,
reissues, divisions, continuations, continuations-in-part,
renewals, extensions and re-examinations thereof and amendments
thereto (the “Patents”);

 

(b) all
rights of any kind whatsoever of such Debtor accruing under any of
the Patents provided by applicable law of any jurisdiction, by
international treaties and conventions and otherwise throughout the
world;


 




 








 






 

(c) any
and all royalties, fees, income, payments and other proceeds now or
hereafter due or payable with respect to any and all of the
Patents; and

 

(d) any
and all claims and causes of action, with respect to any of the
Patents, whether occurring before, on or after the date hereof,
including all rights to and claims for damages, restitution and
injunctive and other legal and equitable relief for past, present
and future infringement, misappropriation, violation, misuse,
breach or default, with the right but no obligation to sue for such
legal and equitable relief and to collect, or otherwise recover,
any such damages.

 


2.             Recordation.
Debtor authorizes the Commissioner for Patents and any other
government officials to record and register this Patent Security
Agreement upon request by the Secured Party.

 


3.             Loan
Documents. This Patent Security
Agreement has been entered into pursuant to and in conjunction with
the Security Agreement, which is hereby incorporated by reference.
The provisions of the Security Agreement, including the provisions
in Section 8 for subordination, shall supersede and control over
any conflicting or inconsistent provision herein. The rights and
remedies of the Secured Party with respect to the Patent Collateral
are as provided by the Security Agreement, and nothing in this
Patent Security Agreement shall be deemed to limit such rights and
remedies.

 


4.             Execution
in Counterparts. This Patent
Security Agreement may be executed in counterparts (and by
different parties hereto in different counterparts), each of which
shall constitute an original, but all of which when taken together
shall constitute a single contract. Delivery of an executed
counterpart of a signature page to this Patent Security Agreement
by facsimile or in electronic (i.e., “pdf” or
“tif” format) shall be effective as delivery of a
manually executed counterpart of this Patent Security
Agreement.

 


5.             Successors
and Assigns. This Patent
Security Agreement will be binding on and shall inure to the
benefit of the parties hereto and their respective successors and
assigns.

 


6.             Governing
Law. This Patent Security
Agreement and any claim, controversy, dispute or cause of action
(whether in contract or tort or otherwise) based upon, arising out
of or relating to this Patent Security Agreement and the
transactions contemplated hereby and thereby shall be governed by,
and construed in accordance with, the laws of the United States and
the State of Maryland, without giving effect to any choice or
conflict of law provision or rule (whether of the State of Maryland
or any other jurisdiction).

 



[Intentionally Left Blank—Signature Page
Follows]

 




 








 






 


IN
WITNESS WHEREOF, Debtor has caused this Patent Security Agreement
to be duly executed and delivered by its officer thereunto duly
authorized as of the date first above written.

 


NEXTGEN
PRO, LLC

 

 


 

 


                                                                             By:
/s/ Marshall
Chesrown 


Name:
Marshall
Chesrown


Title: President


Address
for Notices:


4521
Sharon Road


Suite
370


Charlotte,
North Carolina 28211


Attention:
Steven Berard

 

 


AGREED
TO AND ACCEPTED:

 


NEXTGEN
DEALER SOLUTIONS. LLC

 


By: /s/ Kartik
Kakarala


Name:
Kartik Kakarala


Title:
President


 


Address
for Notices:


1431
Greenway Drive


Suite
775


Irving,
Texas 75038


Attention:
Kartik Kakarala

 




 








 





 



EXHIBIT “C”

 



TRADEMARK SECURITY AGREEMENT


 


 


 


 


 


 


 




 








 





 



TRADEMARK SECURITY AGREEMENT

 


THIS TRADEMARK SECURITY AGREEMENT (the
“Agreement”),
made this 8th day of February, 2017, by and between NEXTGEN PRO,
LLC, a Delaware limited liability company, with an address of 4521
Sharon Road, Suite 370, Charlotte, North Carolina 28211
(“Debtor”),
and NEXTGEN DEALER SOLUTIONS, LLC, a Delaware limited liability
company, with an address of 1431 Greenway Drive, Suite 775, Irving,
Texas 75038 (the “Secured
Party”).

 


WHEREAS, Debtor has executed an Unconditional
Guaranty Agreement dated even date herewith (the
"Guaranty")
in favor of the Secured Party, pursuant to which the Debtor
guaranteed the payment and performance of all obligations of Smart
Server, Inc. under a Subordinated Secured Confessed Judgement
Promissory Note executed in favor of the Secured Party on the date
hereof.

 


WHEREAS, to secure the obligations under the Note,
the Debtor executed and delivered to the Secured Party that certain
Security Agreement dated as of the date hereof (the
“Security Agreement”).

 


WHEREAS,
under the terms of the Security Agreement, the Debtor granted to
the Secured Party, a security interest in, among other property,
certain intellectual property of the Debtor, and agreed to execute
and deliver this Trademark Security Agreement, for recording with
national, federal and state government authorities, including, but
not limited to, the United States Patent and Trademark
Office.

 


NOW
THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Debtor agrees with
the Secured Party as follows:

 



1.            

Grant of
Security. Debtor hereby pledges
and grants to the Secured Party a security interest in and to all
of the right, title and interest of such Debtor in, to and under
the following, wherever located, and whether now existing or
hereafter arising or acquired from time to time (the
“Trademark
Collateral”):







	









 



(a)            

All
trademark registrations and applications, including the
trademark





 


registered with the United States Trademark and
Trademark Office, Registration number 4,662,863, together with the
goodwill connected with the use of and symbolized thereby and all
extensions and renewals thereof (the “Trademarks”),
excluding only United States intent-to-use trademark applications
to the extent that and solely during the period in which the grant
of a security interest therein would impair, under applicable
federal law, the registrability of such applications or the
validity or enforceability of registrations issuing from such
applications;


 




 








 






 

(b) all
rights of any kind whatsoever of such Debtor accruing under any of
the Trademarks provided by applicable law of any jurisdiction, by
international treaties and conventions and otherwise throughout the
world;

 

(c) any
and all royalties, fees, income, payments and other proceeds now or
hereafter due or payable with respect to any and all of the
Trademarks; and

 

(d) any
and all claims and causes of action, with respect to any of the
Trademarks, whether occurring before, on or after the date hereof,
including all rights to and claims for damages, restitution and
injunctive and other legal and equitable relief for past, present
and future infringement, dilution, misappropriation, violation,
misuse, breach or default, with the right but no obligation to sue
for such legal and equitable relief and to collect, or otherwise
recover, any such damages.

 


2.             Recordation.
Debtor authorizes the Commissioner for Trademarks and any other
government officials to record and register this Trademark Security
Agreement upon request by the Secured Party.

 


3.             Loan
Documents. This Trademark
Security Agreement has been entered into pursuant to and in
conjunction with the Security Agreement, which is hereby
incorporated by reference. The provisions of the Security
Agreement, including the provisions in Section 8 for subordination,
shall supersede and control over any conflicting or inconsistent
provision herein. The rights and remedies of the Secured Party with
respect to the Trademark Collateral are as provided by the Security
Agreement, and nothing in this Trademark Security Agreement shall
be deemed to limit such rights and remedies.

 


4.             Execution
in Counterparts. This Trademark
Security Agreement may be executed in counterparts (and by
different parties hereto in different counterparts), each of which
shall constitute an original, but all of which when taken together
shall constitute a single contract. Delivery of an executed
counterpart of a signature page to this Trademark Security
Agreement by facsimile or in electronic (i.e., “pdf” or
“tif” format) shall be effective as delivery of a
manually executed counterpart of this Trademark Security
Agreement.

 


5.             Successors
and Assigns. This Trademark
Security Agreement will be binding on and shall inure to the
benefit of the parties hereto and their respective successors and
assigns.

 


6.             Governing
Law. This Trademark Security
Agreement and any claim, controversy, dispute or cause of action
(whether in contract or tort or otherwise) based upon, arising out
of or relating to this Trademark Security Agreement and the
transactions contemplated hereby and thereby shall be governed by,
and construed in accordance with, the laws of the United States and
the State of Maryland, without giving effect to any choice or
conflict of law provision or rule (whether of the State of Maryland
or any other jurisdiction).

 




 








 





 


IN
WITNESS WHEREOF, Debtor has caused this Trademark Security
Agreement to be duly executed and delivered by its officer
thereunto duly authorized as of the date first above
written.

 


NEXTGEN
PRO, LLC

 

 


 

 


                                                                             By:
/s/ Marshall
Chesrown 


Name:
Marshall
Chesrown



Title: President

 


Address
for Notices:


4521
Sharon Road


Suite
370


Charlotte,
North Carolina 28211


Attention:
Steven Berrard

 


AGREED
TO AND ACCEPTED:

 


NEXTGEN
DEALER SOLUTIONS. LLC

 


By: /s/ Kartik
Kakarala


Name:
Kartik Kakarala


Title:
President

 


Address
for Notices:


1431
Greenway Drive


Suite
775


Irving,
Texas 75038


Attention:
Kartik Kakarala