REVOLVING CREDIT NOTE
$1,900,000.00
New York, New York
August 31, 2005
FOR VALUE RECEIVED, SmartServ Online, Inc. a Delaware
corporation
("Debtor"), HEREBY PROMISES TO PAY to the
order of CAMOFI MASTER LDC ("Payee"),
at the offices of Payee, 350 Third Avenue,
New York, New York, or at such other
place as Payee may from time to time
designate, the principal sum equal to the
lesser of (a) ONE MILLION NINE HUNDRED
THOUSAND DOLLARS ($1,900,000.00) or (b)
the aggregate unpaid principal amount of
all Advances made by Payee to Debtor,
which amount shall be payable by Debtor in
lawful money of the United States of
America and in immediately available funds
in accordance with the terms of the
Loan Agreement (as defined below). Debtor
hereby further promises to pay
interest (the "Interest") to the order of
Payee on the unpaid principal balance
hereof at the rates and in the manner and
in accordance with the provisions of
the Loan Agreement, which provisions are
hereby incorporated herein by
reference.
1. For the
purposes hereof, "Loan Agreement" shall mean that certain Loan
Agreement, dated as of the date hereof,
between Payee and Debtor, as the same
now exists or may hereafter be amended,
restated, renewed, replaced,
substituted, supplemented, extended, or
otherwise modified. All capitalized
terms used herein and not otherwise defined
herein shall have the meanings
ascribed to such terms in the Loan
Agreement.
2. This
Note evidences the aggregate outstanding principal balance,
from
time to time, of the Advances made by Payee
to Debtor pursuant to the Loan
Agreement. It is contemplated that there
may be times when no indebtedness is
owing hereunder; but notwithstanding any
such occurrence, this Note shall remain
valid and shall be in full force and effect
as to the Advances made subsequent
to each such occurrence.
3. This
Note is secured by the Collateral and is entitled to all of the
benefits and rights as set forth in the
Loan Agreement and the Transaction
Documents. At the time any payment is due
hereunder, Lender, at its option, may
charge the amount thereof to any account of
Debtor maintained by Lender.
4. If any
Event of Default shall occur, or if the Loan Agreement shall be
terminated, in addition to all rights and
remedies of Payee under the Loan
Agreement and the Transaction Documents,
applicable law or otherwise, all such
rights and remedies being cumulative, not
exclusive and enforceable
alternatively, successively and
concurrently, any or all of the Obligations,
including, without limitation, all amounts
owing under this Note, may, as
provided in the Loan Agreement, be declared
or shall forthwith become due and
payable, together with all interest accrued
thereon and with interest accruing
thereafter at the then applicable interest
rate under the Loan Agreement until
the indebtedness evidenced by this Note is
paid in full, plus the costs and
expenses of collection hereof, including,
but not limited to, reasonable
attorneys' fees and legal expenses.
5. Debtor
hereby (i) waives diligence, demand, presentment, protest and
notice of any kind, (ii) agrees that it
will not be necessary to first institute
suit in order to enforce payment of this
Note and (iii) consents to any one or
more extensions or postponements of time of
payment, release, surrender or
substitution of collateral security, or
forbearance or other indulgence, without
notice or consent. The pleading of any
statute of limitations as a defense to
any demand against Debtor is expressly
hereby waived by Debtor. Upon or after
maturity of this Note, or any Event of
Default or termination of the Loan
Agreement, Payee shall have the right,
subject to the terms of the Loan
Agreement, but not the obligation, to set
off against this Note all money owed
by Payee to Debtor.
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6. No
resort to any Collateral for payment shall be required prior to
the
enforcement hereof against Debtor and any
guarantors or endorsers hereof. None
of the rights of Payee shall be waived or
diminished by any failure or delay in
the exercise thereof.
7. If any
provision of this Note conflicts with any provision of the Loan
Agreement, such provision of the Loan
Agreement shall control. If any provision
of this Note shall be held invalid, illegal
or unenforceable, the validity of
all other provisions hereof shall in no way
be affected thereby.
8. This
Note shall be binding upon the successors and assigns of Debtor
and shall inure to the benefit of Payee and
its successors, endorsees and
assigns. Whenever used herein, the term
"Debtor" shall be deemed to include the
undersigned and its respective successors
and assigns and the terms "Payee"
shall be deemed to include its respective
successors, endorsees and assigns.
9. This
Note shall be governed by and construed in accordance with the
laws
