PROMISSORY NOTE
$200,000 November 1, 2000
ACCU-SEARCH, INC., a New Jersey corporation (the "Debtor"), with its
principal place of business at 25 East Front Street, Keyport, New Jersey 07735
for value received, hereby promises to pay to PIPELINE DATA INC. and its
successors and permitted assigns (the "Payee"), at 250 East Hartsdale Avenue,
Suite 21, Hartsdale, New York 10530, or such other address as the Payee may
designate to the Debtor, the sum of Two Hundred Thousand ($200,000) Dollars,
with simple interest at a rate of 12% per annum. All interest and principal
under this Note shall be due and payable on May 31, 2001.
The principal and interest hereunder may be prepaid without premium or
penalty. The Payee shall maintain its records to reflect the amount and date of
any payment.
If any of the following events shall occur for any reason whatsoever (and
whether such occurrence shall be voluntary or involuntary or come about or be
affected by operation of law or otherwise) (each, an "Event of Default") and
such Event of Default has not been cured within ten (10) days after Payee has
provided Debtor with notice of Debtor's Event of Default:
1. If the Debtor shall fail to make payment within five (5) days of when
due and payable hereunder; or
2. If the Debtor shall (a) commence a voluntary case under the Federal
Bankruptcy Code or similar law, (b) file a petition seeking to take advantage of
any other law relating to bankruptcy, insolvency, composition or readjustment of
debts, (c) fail to controvert in a timely and appropriate manner, or acquiesce
in writing to, any petition filed against it in an involuntary case under the
Federal Bankruptcy Code or similar law, or (d) take any action for the purpose
of affecting any of the foregoing;
then, subject to the last paragraph of this Note, the Payee or its successors or
assigns may, by notice to the Debtor, take any or all of the following actions:
(1) declare all amounts in respect of this Note to be due and payable, whereupon
the same shall become accelerated and forthwith due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Debtor, and (2) exercise any remedies available at law or
in equity, either by suit in equity, either by suit in equity or by action at
law, or both, whether for specific performance of any covenant or other
agreement contained in this Note, or in aid of the exercise of any power granted
in this Note; provided, that upon the occurrence of any Event of Default
referred to in Paragraph 2 in the Event of Default section of this Note, then
automatically, without notice, demand or any other act by the Payee, all amounts
payable under this Note shall, except as otherwise set forth in this Note,
become immediately due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby expressly waived by the Debtor. No
remedy conferred in this Note upon Payee is intended to be exclusive of any
other remedy, and each and every such remedy shall be cumulative and shall be in
addition to every other remedy conferred herein or now or hereinafter existing
at law or in equity or by statute or otherwise.
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The failure by the Payee at any time to exercise any such right shall not
be deemed a waiver thereof, nor shall it bar the exercise of any such right at a
later date. Each and every right and remedy of the Payee may be exercised by the
Payee from time to time and as often as may be necessary in the sole and
absolute discretion of the Payee.
Without limiting the Payee's rights hereunder, except as expressly
permitted herein to the contrary, any notice or communication required or
permitted in connection with this Note shall be given in writing by personal
delivery or by reputable overnight courier, registered or certified mail, return
receipt requested, postage prepaid to the addresses set forth in this Note or at
such other address or in case of such other person as hereafter may be
determined in writing.
Any notice, request or communication hereunder shall be deemed to have been
given when made, if sent by telecopier, or upon dispatch, if made by hand,
within one business day if sent by reputable overnight courier or within five
(5) business days of dispatch if sent by registered or certified mail, return
receipt requested. Any party may change the person or address to whom or which
the notices are to be given hereunder, but any such notice shall be effective
only when actually received by the party to whom it is addressed. Payment sent
by registered mail, return receipt requested shall be deemed delivered three
days after posting.
EACH OF THE DEBTOR AND THE PAYEE HERETO WAIVES TRIAL BY JURY IN ANY
LITIGATION IN ANY COURT WITH RESPECT TO, IN CONNECTION WITH, OR ARISING OUT OF
THIS NOTE, THE OTHER DOCUMENTS OR THE VALIDITY, PROTECTION, INTERPRETATION,
COLLECTION OR ENFORCEMENT THEREOF, OR ANY OTHER CLAIM OR DISPUTE HOWSOEVER
ARISING, BETWEEN THE DEBTOR AND THE PAYEE.
EACH OF THE DEBTOR AND THE PAYEE IRREVOCABLY CONSENTS THAT ANY LEGAL ACTION
OR PROCEEDING AGAINST IT UNDER, ARISING OUT OF OR IN ANY MANNER RELATING TO THIS
NOTE OR ANY OTHER DOCUMENT MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT LOCATED
IN THE STATE OF NEW YORK. THE DEBTOR, BY ITS EXECUTION AND DELIVERY OF THIS
NOTE, EXPRESSLY AND IRREVOCABLY ASSENTS AND SUBMITS TO THE NONEXCLUSIVE PERSONAL
JURISDICTION OF ANY OF SUCH COURTS IN ANY SUCH ACTION OR PROCEEDING BY
REGISTERED MAIL, RETURN RECEIPT REQUESTED. THE DEBTOR HEREBY EXPRESSLY AND
IRREVOCABLY WAIVES ANY CLAIM OR DEFENSE IN ANY SUCH ACTION OR PROCEEDING IN
EITHER SUCH COURT BASED UPON IMPROPER VENUE OR FORUM NON CONVIENS OR ANY SIMILAR
BASIS; PROVIDED HOWEVER, THAT NOTHING IN THIS NOTE SHALL AFFECT OR IMPAIR IN ANY
MANNER OR TO ANY EXTENT THE RIGHT OF THE PAYEE TO COMMENCE LEGAL PROCEEDINGS OR
OTHERWISE PROCEED AGAINST THE DEBTOR IN ANY OTHER JURISDICTION OR TO SERVE
PROCESS IN ANY MANNER PERMITTED BY LAW.
The Payee shall not, by any act, delay, omission or otherwise, be deemed to
have waived any of its rights and/or remedies hereunder. No change, amendment,
modification, termination, waiver or discharge, in whole or in part, of any
provision of this Note shall be effective unless in writing and signed by the
Payee, and if so given by the Payee, shall be effective only in the specific
instance in which given. Except as set forth in the last paragraph of this Note,
the Debtor acknowledges that this Note and the Debtor's obligations under this
Note are, and shall be at all times continue to be, absolute and unconditional
in all respects, and shall at all times be valid and enforceable. Except as set
forth in the last paragraph of this Note, the Debtor absolutely, unconditionally
and irrevocably waives any and all right to assert any setoff, offset,
counterclaim, cross claim or claim of nature whatsoever with respect to this
Note or the Debtor"s obligations hereunder. This Note may not be assigned by
Payee except with Maker's prior written consent.
In the event any one or more of the provisions contained in this Note
should be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby.
The Debtor shall pay upon demand all of the Payee's costs of collection in
connection with the successful enforcement of this Note, including, without
limitation, reasonable attorneys' fees and costs unless the Payee is
unsuccessful in any such enforcement, in which case the Payee shall cover all of
Debtor's costs in connection with the attempted enforcement of this Note,
including, without limitation, reasonable attorneys' fees and costs.
The Debtor hereby waives presentment, demand for payment, protest and
notice of dishonor in connection with the delivery, acceptance, performance,
default, or enforcement of this Note.
This Note shall be construed in accordance with and governed by the
laws of the state of New York without giving effect to conflict of law
principles.
Set-offs, defenses and/or counterclaims may only be asserted with
respect to amounts owing under this Note or the exercise of remedies hereunder
if such set-offs, defenses and/or counterclaims arise out of this Note if, as a
precondition and condition subsequent to asserting and continuing to assert such
set-offs, defenses, and/or counterclaims the Debtor pays all of the outstanding
amounts due and owing hereunder until the amount sought in connection with such
set-offs, defenses and/or counterclaims equal the outstanding aggregate
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principal balance of this Note and the Debtor establishes an escrow arrangement
reasonably satisfactory to Debtor and Payee and deposits into escrow, when due,
all other amounts due under this Note, with such amounts plus interest to be
released to the person entitled to such funds after the relevant claims have
been resolved pursuant to final non-appealable judgements.
ACCU-SEARCH, INC.
By: /s/ Philip Davis
Philip Davis
Its: President
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