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EXHIBIT 10.2
SENIOR SECURED PROMISSORY NOTE
$5,000,000.00 Orlando, Florida
August 14, 2000
FOR VALUE RECEIVED, the undersigned World Commerce Online, Inc., a Delaware
corporation (hereinafter called the "BORROWER" or the "COMPANY"), promises to
pay to the order of Interprise Technology Partners, LP (hereinafter referred to
as the "LENDER" or the "NOTE HOLDER"), the principal sum hereunder of up to Five
Million Dollars ($5,000,000), all in accordance with the terms of that certain
Loan and Pledge Agreement of even date hereof between the Lender and the
Borrower (the "LOAN AGREEMENT").
This Note is issued pursuant to the Loan Agreement and is entitled to the
benefits of the Loan Agreement, and the provisions of the Loan Agreement are
hereby incorporated herein by reference with the same effect as if they were set
forth in full. The Borrower agrees with the Note Holder that it will perform and
discharge each of the applicable covenants and agreements contained in the Loan
Agreement as from time to time amended or supplemented.
All loans made by the Note Holder to the Borrower under the Loan Agreement and
this Note and all payments of principal with respect thereto shall be recorded
by the Note Holder and endorsed on the schedule attached hereto which is part of
this Note, which endorsement shall constitute prima facie evidence of the
accuracy of the information endorsed absent manifest error; provided, however,
that the failure of the Note Holder to make any such endorsement or to make such
endorsement correctly shall not affect the obligation of the Borrower to repay
any loan made by the Note Holder to the Borrower.
Interest on the outstanding principal shall equal to ten percent (10%) per annum
and shall accrue from the date on which principal was advanced. Interest shall
be calculated on the basis of a three hundred and sixty five (365) day year.
The outstanding principal and interest is payable no later than February 14,
2001 at which time all of the outstanding and unpaid principal and interest
shall be due and payable (the "MATURITY DATE").
Both principal and interest due hereunder shall be payable in lawful money of
the United States to such address that the Lender shall designate.
1. Application of Payments. Payments received for application to this Note shall
be applied first to the payment of accrued interest at the penalty rate
specified below, if any; second, to the payment of accrued interest at the rate
specified above; and, finally, the balance to reduce the principal amount
hereof.
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2. Waivers
(a) Borrower's Waivers. Borrower and all other makers, sureties, guarantors
and endorsers hereof hereby waive presentment, protest, demand, notice or
dishonor, and all other notices, and all defenses and pleas on the grounds of
any extension or extensions of the time of payments or the due dates of this
Note, in whole or in part, before or after maturity, with or without notice. No
renewal or extension of this Note, no release or surrender of any collateral
given as security for this Note (if any), and no delay in enforcement of this
Note or in exercising any right or power hereunder, shall affect the liability
of Borrower.
(b) No Waiver by Lender. No single or partial exercise by Note Holder of any
right hereunder, shall preclude any other or further exercise thereof or the
exercise of any other rights. No delay or omission on the part of Note Holder in
exercising any right hereunder shall operate as a waiver of such right or of any
other right under this Note.
3. Default
(a) Event of Default. The occurrence of any one or more of the following
events, circumstances, or conditions shall constitute a default hereunder
("EVENT OF DEFAULT"): (i) failure of the Borrower to pay to the Lender promptly
when the same shall become due (whether at scheduled maturity, upon acceleration
or otherwise) any of the obligations hereunder including, but not limited to,
any installment of principal or of interest due under this Note (after the
expiration of any grace period), or any fees owing to the Lender; or (ii) the
filing of any petition under the Bankruptcy Act, or any similar federal or state
Borrower-creditor statutes, by Borrower, or the filing of such petition against
Borrower; (iii) an application for the benefit of creditors by or the insolvency
of, Borrower; (iv) the breach of any covenant contained herein.
(b) Grace Period. Borrower shall have a five (5) business day grace period
after the due date of any payment, after the expiration of which this Note shall
be considered in default.
(c) Consequences of Event of Default.
(i) At any time after the occurrence of the Event of Default, the
indebtedness evidenced by this Note and/or any note(s) or other obligation(s)
which may be taken in renewal, extension, substitution, or modification of all
or any part of the indebtedness evidenced hereby or thereby shall, at the option
of the Lender become due and payable without demand upon the Borrower.
(ii) Upon default in the payment of principal and/or interest when due,
all interest and principal outstanding shall, at the discretion of the Lender,
become immediately due and payable. Failure to accelerate shall not constitute a
waiver of the right to exercise the same in the event of a subsequent default.
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4. Security. This Note shall be secured by a pledge and Borrower hereby grants
unto Lender a senior security interest in the Borrower's assets as set forth in
that UCC-1 Financing Statement ("UCC-1") filed with the Secretary of State of
the State of Florida, all of even date herewith (this Note and UCC-1 shall
hereinafter be collectively defined as the "LOAN DOCUMENTS").
5. Penalty Interest. Any amount of principal and/or interest evidenced by this
Note which is not paid when due, and is, therefore, delinquent whether at stated
maturity by acceleration or otherwise shall bear interest from the day when due
until such amount is paid in full payable on demand, at the maximum rate
permitted by law not to exceed eighteen percent (18%) per annum.
6. Transferability. This Note and all rights hereunder are transferable, in
whole or in part without charge to the Lender, with a properly executed
assignment at the principal office of the Borrower.
7. Miscellaneous
(a) Attorneys Fees. The Borrower hereby agrees to pay all reasonable
out-of-pocket costs and expenses, including reasonable attorneys' fees, incurred
by the Lender in the collection of the indebtedness evidenced by this Note or in
enforcing any of the rights powers, remedies, and privileges of the Lender
hereunder. As used in this Note, the term "ATTORNEYS' FEES" shall mean
reasonable charges and expenses for legal services rendered to or on behalf of
the Lender in connection with the collection of the Indebtedness evidenced by
this Note at any time whether prior to the commencement of judicial proceedings
and/or thereafter at the trial and/or appellate level and/or in pre- and post
judgment or bankruptcy proceedings.
(b) Unenforceable Provision. If any provision of this Note shall be deemed
unenforceable under applicable law, such provision shall be ineffective, but
only to the extent of such unenforceability, without invalidating the remainder
of such provision or the remaining provisions of this Note.
(c) Successors and Assigns. This Note shall be binding upon the successors
and assigns of the Borrower and shall inure to the benefit of Note Holder and
its successors and assigns
(d) Amendment. This Note may not be modified, amended, waived, extended,
changed, discharged or terminated orally or by any act or failure to act on the
part of Borrower, but only by an agreement in writing signed by the party
against whom enforcement of any modification, amendment, waiver, extension,
change, discharge or termination is sought.
(e) Replacement Note. Upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this Note,
and (in case of
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loss, theft or destruction) of indemnity reasonably satisfactory to it, and upon
reimbursement to the Company of all reasonable expenses incidental thereto, and
upon surrender and cancellation of any Note, if mutilated, the Company will make
and deliver a new Note of like tenor in the principal amount of this Note then
outstanding in lieu of such Note. Any Note so made and delivered shall be dated
as of the date to which interest shall have been paid on the Note lost, stolen,
destroyed or mutilated.
(f) Notice to Borrower. Any notice to Borrower provided for in this Note
shall be in writing and shall be given and be effective upon (i) delivery to
Borrower, (ii) receipt if sent by facsimile transmission (with confirmation of
such receipt by the sender) or (iii) mailing such notice by certified mail,
return receipt requested, addressed to Borrower at the Borrower's address stated
below, or to such other address as Borrower may designate by written notice to
Note Holder. Any notice to Note Holder shall be in writing and shall be given
and be effective upon (i) delivery to Note Holder, (ii) receipt if sent by
facsimile transmission (with confirmation of such receipt by the sender) or
(iii) by mailing such notice by certified mail, return receipt requested, to
Note Holder at the address stated in the first paragraph of this Note, or to
such other address as Note Holder may designate by written notice to Borrower.
(g) Governing Law. This Note shall be construed and enforced according to the
laws of the State of Delaware without giving effect to its principles of choice
of laws.
LENDER AND BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE
RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE, AND ANY
AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION
World Commerce Online, Inc.
By: /s/ Robert Shaw
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Name: Robert Shaw
Title: Chairman of the Board
Chief Executive Officer
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