EXHIBIT 10.49
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VALUEFLASH.COM, INC.
December 14, 2000 $250,000.00
10% SECURED PROMISSORY NOTE
Due On Demand
VALUEFLASH.COM, INC., a Delaware corporation (the "Company"), for value
received, effective as of the date first written above, promises to pay to the
order of STEVEN A. HOROWITZ (the "Holder"), the principal sum of Two Hundred
Fifty Thousand Dollars ($250,000.00) (the "Principal Amount"), together with
interest on the outstanding Principal Amount at the rate of ten percent (10%)
per annum. The Company shall pay Holder, within 5 business days the Company's
receipt of a written demand from Holder, so much of or all of the amounts due
and owing hereunder as the Holder may demand from time to time (in each such
case, the "Maturity Date"). All payments hereunder shall be made to the Holder
care of Moritt, Hock, Hamroff & Horowitz, LLP., a New York Limited Liability
Partnership, at 400 Garden City Plaza, Suite 202, Garden City, New York 11530,
in such coin or currency which shall constitute legal tender of the United
States. In the event that for any reason whatsoever any interest or other
consideration payable with respect to this Note shall be deemed to be usurious
by a court of competent jurisdiction under the laws of the State of New York or
the laws of any other state governing the repayment hereof, then so much of such
interest or other consideration as shall be deemed to be usurious shall be held
by the Holder as security for the repayment of the principal amount hereof and
shall otherwise be waived.
1. PRIORITY OF PAYMENT; REDUCTION IN PRINCIPAL AMOUNT.
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Any payments hereunder will be applied in the following order of
priority: first to the payment of any fees, expenses or other costs the Company
is obligated to pay hereunder; next to any accrued and unpaid interest due and
owing by the Company to the Holder and then to the unpaid principal balance of
this Note.
2. PAYMENT OF COSTS AND EXPENSES.
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The Company shall pay all costs and expenses, including, without
limitation, reasonable attorneys' fees and all expenses and disbursements of
counsel, in connection with the enforcement, after the occurrence of an Event of
Default (as such term is defined below) hereunder, of any of the Holder's rights
against the Company under this Note (whether or not suit is instituted by or
against the Holder).
3. COVENANTS OF COMPANY.
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(a) The Company covenants and agrees that, so long as this Note shall
be outstanding, it will:
(1) Promptly notify Holder in writing when funds becomes
available to the Company from a certain private placement involving the issuance
of up to a total of 92 units consisting of convertible debentures and warrants
offered to accredited investors through the investment bank of J.P. Turner &
Company and/or from any other private placement of equity or debt offered by the
company at any time from the date hereof until all amounts due and owing under
this Note shall be repaid. The Company hereby warrants, covenants and agrees
that it shall use any and all such funds exclusively for the repayment of all
unpaid amounts due and
owing under this Note, in the order of priority set forth in Paragraph 1, above
until all amounts due and owing hereunder have been paid to Holder in full.
(2) Promptly pay and discharge all lawful taxes, assessments and
governmental charges or levies imposed upon the Company or upon its income and
profits, or upon any of its property, before the same shall become in default,
as well as all lawful claims for labor, materials and supplies which, if unpaid,
might become a lien or charge upon such properties or any part thereof;
provided, however, that the Company shall not be required to pay and discharge
any such tax, assessment, charge, levy or claim so long as the validity thereof
shall be contested in good faith by appropriate proceedings, and the Company
shall set aside on its books adequate reserves with respect to any such tax,
assessment, charge, levy or claim so contested.
(3) Do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence, rights and franchises and
comply with all laws applicable to the Company as its counsel may advise;
(4) At all times maintain, preserve, protect and keep its
property used and useful in the conduct of its business in good repair, working
order and conditions, and from time to time make all needful and proper repairs,
renewals, replacements, betterments and improvements thereto, so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times;
(5) Keep adequately insured by financially sound insurers, all
property of a character usually insured by similar corporations and carry such
other insurance as is usually carried by similar corporations;
(6) At all times keep true and correct books, records and
accounts; and
(7) Keep and perform all covenants and obligations which are the
obligations of the Company to keep and observe under the Security Agreement.
4. EVENTS OF DEFAULT.
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(a) The Principal Amount and all interest thereon accrued and unpaid
shall immediately become due and payable upon written demand made by the Holder
if one or more of the following events, herein called "Events of Default," shall
occur:
(1) Default in the payment of the principal or accrued interest
on this Note, when the same shall become due and payable, whether by
acceleration or otherwise;
(2) Default in the due observance or performance of any covenant,
condition or agreement on the part of the Company to be observed or performed
pursuant to the terms hereof involving the payment of money;
(3) Default in the performance of any obligation of the Company
hereunder, not involving the payment of money, which default continues uncured
for five (5) days after notice of such default has been given to the Company by
the Holder;
(4) The occurrence of an Event of Default (after giving effect to
any applicable cure period) under the Security Agreement (as defined below);
(5) Application for, or consent to, the appointment of a
receiver, trustee or liquidator for the Company or its property;
(6) Admission in writing of the Company's inability to pay its
debts as they mature;
(7) General assignment by the Company for the benefit of
creditors;
(8) Filing by the Company of a voluntary petition in bankruptcy
or a petition or an answer seeking reorganization, or an arrangement with
creditors; or
(9) Entry against the Company of a court order approving a
petition filed against it under the federal bankruptcy laws, which order shall
not have been vacated or set aside or otherwise terminated within sixty (60)
days.
(b) The Company agrees that notice of the occurrence of any Event of
Default will be promptly given to the Holder at his registered address by
certified mail.
(c) From and after maturity or acceleration of the Note, whichever
shall first occur, interest shall be payable on the entire unpaid balance, until
paid in full, at an annual rate equal to the lesser of fifteen percent (15%) or
the highest rate permitted by law.
5. COLLATERAL.
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Payment of this Note is secured by certain assets of the Company
pursuant to the security agreement by and among the Company, the Holder, Dan Roc
Limited Partnership and CDKnet.com, Inc. (the "Security Agreement"), all terms,
covenants and conditions of which documents shall be deemed incorporated herein
by reference.
6. MISCELLANEOUS.
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(a) This Note has been issued by the Company pursuant to authorization
of the Board of Directors of the Company.
(b) Upon receipt by the Company of evidence reasonably satisfactory to
it of the loss, theft, destruction or mutilation of this Note, and (in the case
of loss, theft or destruction) of reasonably satisfactory indemnification, and
upon surrender and cancellation of this Note, if mutilated, the Company shall
execute and deliver a new Note of like tenor and date. Any such
new Note executed and delivered shall constitute a contractual obligation on the
part of the Company, in place of this Note so lost, stolen, destroyed or
mutilated.
(c) This Note shall be construed and enforced in accordance with the
laws of the State of New York (without giving effect to the choice of law or
conflict of law principles thereof).
(d) Except as otherwise provided herein, the Company hereby waives
presentment, demand, notice, protest and all other demands and notices in
connection with the delivery, acceptance, performance, default or enforcement
hereof. No delay or omission on the part of the Holder in exercising or
enforcing any of its right, powers, privileges or remedies hereunder
(collectively, "Rights") shall operate as a waiver thereof, and a waiver of any
Rights on any one occasion shall not be construed as a bar to or waiver of any
Rights on any future occasion.
(e) In the event that any court having jurisdiction shall determine
that any covenant or other provision contained in this Note shall be
unreasonable or unenforceable in any respect, then such covenant or other
provision shall be deemed limited to the extent that such court deems it
reasonable and enforceable, and as so limited shall remain in full force and
effect. In the event that such court shall deem any such covenant or other
provision wholly unenforceable, the remaining covenants and other provisions of
this Note shall nevertheless remain in full force and effect.
(f) Any legal action or proceeding with respect to this Note shall be
brought in the courts of New York State, County of Nassau, or of the United
States of America for the Eastern District of New York, and, by execution and
delivery of this Note, the Company hereby accepts for itself and in respect of
its property, generally and unconditionally, the jurisdiction of the aforesaid
courts. The Company and the Holder hereby knowingly, voluntarily, intentionally
and irrevocably waives, in connection with any such action or proceeding: (1)
any objection, including, without limitation, any objection to the laying of
venue or based on the grounds of forum non conveniens, which it may now or
hereafter have to the bringing of any such action or proceeding in such
respective jurisdictions and (2) to the maximum extent not prohibited by law,
any right it may have to a trial by jury in respect of any litigation directly
or indirectly arising out of, under or in connection with this Note. Each of the
Company and the Holder irrevocably consents to the service of process of any of
the aforementioned courts in any such action or proceeding by the mailing of
copies thereof in the manner provided in paragraph (h) of this Section 6.
(g) This Note shall be binding upon the Company and its successor and
permitted assigns and shall inure to the benefit of the Holder and its
successors and permitted assigns. The rights and obligations under this Note
shall not be assigned by the Company without the prior written consent of the
Holder, which may be given or withheld in its sole discretion. The rights and
obligations under this Note shall not be assigned by the Holder without the
prior written consent of the Company, which may be given or withheld in its sole
discretion.
(h) All notices, requests, consents and other communications hereunder
shall be in writing, shall be addressed to the receiving party's address set
forth below or to such other address as a party may designate by notice
hereunder, and shall be either (1) delivered by hand, (2) sent by a nationally
recognized overnight courier service that regularly maintains records of items
picked up and delivered to the parties, by next day, priority delivery, or (3)
sent by registered or certified mail, return receipt requested, postage prepaid.
If to the Holder: Steven A. Horowitz
c/o Moritt, Hock, Hamroff & Horowitz, LLP
400 Garden City Plaza, Suite 202
Garden City, NY 11530
Attn: Steven A. Horowitz, Esq.
With a copy in
each case to: Moritt, Hock, Hamroff & Horowitz, LLP
400 Garden City Plaza, Suite 202
Garden City, NY 11530
Attn: Steven A. Horowitz, Esq.
If to the Company: VALUEFLASH.COM, INC.
250 West 57th Street
New York, New York 10019
Attn: Shai Bar Lavi, Chief Executive Officer
With a copy in
each case to: Moritt, Hock, Hamroff & Horowitz, LLP
400 Garden City Plaza, Suite 202
Garden City, NY 11530
Attn: Steven A. Horowitz Esq.
All notices, requests, consents and other communications hereunder
shall be deemed to have been given either (1) if by hand, at the time of the
delivery thereof to the receiving party at the address of such party set forth
above, (2) if sent by overnight courier, next day priority, on the next business
day following the day such notice is delivered to the courier service, or (3) if
sent by registered or certified mail, return receipt requested, on the fifth
business day following the day such mailing is made.
(l) No provision hereof shall be modified, altered or limited except by
a written instrument expressly referring to this Note and to such provision, and
executed by the parties hereto.
(m) If any date that may at any time be specified in this Note as a
date for the making of any payment of interest under this Note shall fall on
Saturday, Sunday or on a day which in New York State shall be a legal holiday,
then the date for the making of that payment shall be the next subsequent day
which is not a Saturday, Sunday or legal holiday.
IN WITNESS WHEREOF, the Company has caused this Note to be signed in
its name by its Chief Executive Officer effective as of the date first written
above.
VALUEFLASH.COM, INC.
By: /s/ Shai Bar Lavi
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Name: Shai Bar Lavi
Title: Chief Executive Officer