COMMITTED LINE OF CREDIT NOTE
$5,000,000.00 June 21, 2004
FOR VALUE RECEIVED, DATARAM CORPORATION, a New Jersey corporation (the
"Borrower"), with an address at 000 Xxxxxxxxx Xxxx, Xxxx Xxxxxxx, Xxx Xxxxxx
00000, promises to pay to the order of PNC BANK, NATIONAL ASSOCIATION (the
"Bank"), in lawful money of the United States of America in immediately
available funds at its offices located at Two Tower Center Boulevard, East
Brunswick, New Jersey 08816, or at such other location as the Bank may
designate from time to time, the principal sum of FIVE MILLION DOLLARS
($5,000,000.00) (the "Facility") or such lesser amount as may be advanced to
or for the benefit of the Borrower hereunder, together with interest accruing
on the outstanding principal balance from the date hereof, all as provided
below.
1. Advances. The Borrower may request advances, repay and request additional
advances hereunder until the Expiration Date, subject to the terms and
conditions of this Note and the Loan Documents (as hereinafter defined). The
"Expiration Date" shall mean June 21, 2006, or such later date as may be
designated by the Bank by written notice from the Bank to the Borrower. The
Borrower acknowledges and agrees that in no event will the Bank be under any
obligation to extend or renew the Facility or this Note beyond the Expiration
Date. The Borrower may request advances hereunder upon giving oral or written
notice to the Bank by 11:00 a.m. (East Brunswick, New Jersey time) (a) on the
day of the proposed advance, in the case of advances to bear interest under
the Base Rate Option (as hereinafter defined) and (b) three (3) Business Days
prior to the proposed advance, in the case of advances to bear interest under
the LIBOR Option (as hereinafter defined), followed promptly thereafter by
the Borrower's written confirmation to the Bank of any oral notice. The
aggregate unpaid principal amount of advances under this Note shall not
exceed the face amount of this Note.
2. Rate of Interest. Each advance outstanding under this Note will bear
interest at a rate or rates per annum as may be selected by the Borrower from
the interest rate options set forth below (each, an "Option"):
(i) Base Rate Option. A rate of interest per annum which is at all times
equal to the Prime Rate ("Base Rate"). For purposes hereof, the term "Prime
Rate" shall mean the rate publicly announced by the Bank from time to time as
its prime rate. The Prime Rate is determined from time to time by the Bank as
a means of pricing some loans to its borrowers. The Prime Rate is not tied to
any external rate of interest or index, and does not necessarily reflect the
lowest rate of interest actually charged by the Bank to any particular class
or category of customers. If and when the Prime Rate changes, the rate of
interest with respect to any advance to which the Base Rate Option applies
will change automatically without notice to the Borrower, effective on the
date of any such change. There are no required minimum interest periods for
advances bearing interest under the Base Rate Option.
(ii) LIBOR Option. A rate per annum equal to (A) LIBOR plus (B) two
hundred fifty (250) basis points (2.50%), for the applicable LIBOR Interest
Period.
For purposes hereof, the following terms shall have the following meanings:
"Business Day" shall mean any day other than a Saturday or Sunday or a
legal holiday on which commercial banks are authorized or required by law to
be closed for business in East Brunswick, New Jersey.
"LIBOR" shall mean, with respect to any advance to which the LIBOR
Option applies for the applicable LIBOR Interest Period, the interest rate
per annum determined by the Bank by dividing (the resulting quotient rounded
upwards, if necessary, to the nearest 1/16th of 1%) (i) the rate of interest
determined by the Bank in accordance with its usual procedures (which
determination shall be conclusive absent manifest error) to be the eurodollar
rate two (2) Business Days prior to the first day of such LIBOR Interest
Period for an amount comparable to such advance and having a borrowing date
and a maturity comparable to such LIBOR Interest Period by (ii) a number
equal to 1.00 minus the LIBOR Reserve Percentage.
"LIBOR Interest Period" shall mean, as to any advance to which the LIBOR
Option applies, the period of one (1), two (2) or three (3) month/months as
selected by the Borrower in its notice of borrowing or notice of conversion,
as the case may be, commencing on the date of disbursement of an advance (or
the date of conversion of an advance to the LIBOR Option, as the case may be)
and each successive period selected by the Borrower thereafter; provided
that, (i) if a LIBOR Interest Period would end on a day which is not a
Business Day, it shall end on the next succeeding Business Day unless such
day falls in the next succeeding calendar month in which case the LIBOR
Interest Period shall end on the next preceding Business Day, (ii) the
Borrower may not select a LIBOR Interest Period that would end on a day after
the Expiration Date, and (iii) any LIBOR Interest Period that begins on the
last Business Day of a calendar month (or a day for which there is no
numerically corresponding day in the last calendar month of such LIBOR
Interest Period) shall end on the last Business Day of the last calendar
month of such LIBOR Interest Period.
"LIBOR Reserve Percentage" shall mean the maximum effective percentage
in effect on such day as prescribed by the Board of Governors of the Federal
Reserve System (or any successor) for determining the reserve requirements
(including, without limitation, supplemental, marginal and emergency reserve
requirements) with respect to eurocurrency funding (currently referred to as
"Eurocurrency liabilities").
LIBOR shall be adjusted with respect to any advance to which the LIBOR Option
applies on and as of the effective date of any change in the LIBOR Reserve
Percentage. The Bank shall give prompt notice to the Borrower of LIBOR as
determined or adjusted in accordance herewith, which determination shall be
conclusive absent manifest error.
If the Bank determines (which determination shall be final and conclusive)
that, by reason of circumstances affecting the eurodollar market generally,
deposits in dollars (in the applicable amounts) are not being offered to
banks in the eurodollar market for the selected term, or adequate means do
not exist for ascertaining LIBOR, then the Bank shall give notice thereof to
the Borrower. Thereafter, until the Bank notifies the Borrower that the
circumstances giving rise to such suspension no longer exist, (a) the
availability of the LIBOR Option shall be suspended, and (b) the interest
rate for all advances then bearing interest under the LIBOR Option shall be
converted at the expiration of the then current LIBOR Interest Period(s) to
the Base Rate.
In addition, if, after the date of this Note, the Bank shall determine (which
determination shall be final and conclusive) that any enactment, promulgation
or adoption of or any change in any applicable law, rule or regulation, or
any change in the interpretation or administration thereof by a governmental
authority, central bank or comparable agency charged with the interpretation
or administration thereof, or compliance by the Bank with any guideline,
request or directive (whether or not having the force of law) of any such
authority, central bank or comparable agency shall make it unlawful or
impossible for the Bank to make or maintain or fund loans based on LIBOR, the
Bank shall notify the Borrower. Upon receipt of such notice, until the Bank
notifies the Borrower that the circumstances giving rise to such
determination no longer apply, (a) the availability of the LIBOR Option shall
be suspended, and (b) the interest rate on all advances then bearing interest
under the LIBOR Option shall be converted to the Base Rate either (i) on the
last day of the then current LIBOR Interest Period(s) if the Bank may
lawfully continue to maintain advances based on LIBOR to such day, or (ii)
immediately if the Bank may not lawfully continue to maintain advances based
on LIBOR.
The foregoing notwithstanding, the Borrower may select different Options to
apply simultaneously to different portions of the advances and may select up
to five (5) different interest periods to apply simultaneously to different
portions of the advances bearing interest under the LIBOR Option. Interest
hereunder will be calculated based on the actual number of days that
principal is outstanding over a year of 360 days. In no event will the rate
of interest hereunder exceed the maximum rate allowed by law.
3. Interest Rate Election. Subject to the terms and conditions of this Note,
at the end of each interest period applicable to any advance, the Borrower
may renew the Option applicable to such advance or convert such advance to a
different Option; provided that, during any period in which any Event of
Default (as hereinafter defined) has occurred and is continuing, any advances
bearing interest under the LIBOR Option shall, at the Bank's sole discretion,
be converted at the end of the applicable LIBOR Interest Period to the Base
Rate and the LIBOR Option will not be available to Borrower with respect to
any new advances (or with respect to the conversion or renewal of any
existing advances) until such Event of Default has been cured by the Borrower
or waived by the Bank. The Borrower shall notify the Bank of each election of
an Option, each conversion from one Option to another, the amount of the
advances then outstanding to be allocated to each Option and where relevant
the interest periods therefor. In the case of converting to the LIBOR Option,
such notice shall be given at least three (3) Business Days prior to the
commencement of any LIBOR Interest Period. If no interest period is specified
in any such notice for which the resulting advance is to bear interest under
the LIBOR Option, the Borrower shall be deemed to have selected a LIBOR
Interest Period of one month's duration. If no notice of election, conversion
or renewal is timely received by the Bank with respect to any advance, the
Borrower shall be deemed to have elected the Base Rate Option. Any such
election shall be promptly confirmed in writing by such method as the Bank
may require.
4. Advance Procedures. A request for advance made by telephone must be
promptly confirmed in writing by such method as the Bank may require. The
Borrower authorizes the Bank to accept telephonic requests for advances, and
the Bank shall be entitled to rely upon the authority of any person providing
such instructions. The Borrower hereby indemnifies and holds the Bank
harmless from and against any and all damages, losses, liabilities, costs and
expenses (including reasonable attorneys' fees and expenses) which may arise
or be created by the acceptance of such telephone requests or making such
advances. The Bank will enter on its books and records, which entry when made
will be presumed correct, the date and amount of each advance, the interest
rate and interest period applicable thereto, as well as the date and amount
of each payment.
5. Payment Terms. The Borrower shall pay accrued interest on the unpaid
principal balance of this Note in arrears: (a) for the portion of advances
bearing interest under the Base Rate Option, on the first day of each month
during the term hereof, (b) for the portion of advances bearing interest
under the LIBOR Option, on the last day of the respective LIBOR Interest
Period for such advance, (c) if any LIBOR Interest Period is longer than
three (3) months, then also on the three (3) month anniversary of such
interest period and every three (3) months thereafter, and (d) for all
advances, at maturity, whether by acceleration of this Note or otherwise, and
after maturity, on demand until paid in full. All outstanding principal and
accrued interest hereunder shall be due and payable in full on the Expiration
Date.
If any payment under this Note shall become due on a Saturday, Sunday or
public holiday under the laws of the State where the Bank's office indicated
above is located, such payment shall be made on the next succeeding Business
Day and such extension of time shall be included in computing interest in
connection with such payment. The Borrower hereby authorizes the Bank to
charge the Borrower's deposit account at the Bank for any payment when due
hereunder. Payments received will be applied to charges, fees and expenses
(including attorneys' fees), accrued interest and principal in any order the
Bank may choose, in its sole discretion.
6. Late Payments; Default Rate. If the Borrower fails to make any payment of
principal, interest or other amount coming due pursuant to the provisions of
this Note within fifteen (15) calendar days of the date due and payable, the
Borrower also shall pay to the Bank a late charge equal to the lesser of five
percent (5%) of the amount of such payment or $100.00 (the "Late Charge").
Such fifteen (15) day period shall not be construed in any way to extend the
due date of any such payment. Upon maturity, whether by acceleration, demand
or otherwise, and at the Bank's option upon the occurrence of any Event of
Default (as hereinafter defined) and during the continuance thereof, each
advance outstanding under this Note shall bear interest at a rate per annum
(based on the actual number of days that principal is outstanding over a year
of 360 days) which shall be two percentage points (2%) in excess of the
interest rate in effect from time to time under this Note but not more than
the maximum rate allowed by law (the "Default Rate"). The Default Rate shall
continue to apply whether or not judgment shall be entered on this Note. Both
the Late Charge and the Default Rate are imposed as liquidated damages for
the purposes of defraying the Bank's expenses incident to the handling of
delinquent payments, but are in addition to, and not in lieu of, the Bank's
exercise of any rights and remedies hereunder, under the other Loan Documents
or under applicable law, and any fees and expenses of any agents or attorneys
which the Bank may employ. In addition, the Default Rate reflects the
increased credit risk to the Bank of carrying a loan that is in default. The
Borrower agrees that the Late Charge and Default Rate are reasonable
forecasts of just compensation for anticipated and actual harm incurred by
the Bank, and that the actual harm incurred by the Bank cannot be estimated
with certainty and without difficulty.
7. Prepayment. The Borrower shall have the right to prepay any advance
hereunder at any time and from time to time, in whole or in part; subject,
however, to payment of any break funding indemnification amounts owing
pursuant to paragraph 8 below.
8. Yield Protection; Break Funding Indemnification. The Borrower shall pay to
the Bank on written demand therefor, together with the written evidence of
the justification therefor, all direct costs incurred, losses suffered or
payments made by Bank by reason of any change in law or regulation or its
interpretation imposing any reserve, deposit, allocation of capital, or
similar requirement (including without limitation, Regulation D of the Board
of Governors of the Federal Reserve System) on the Bank, its holding company
or any of their respective assets. In addition, the Borrower agrees to
indemnify the Bank against any liabilities, losses or expenses (including,
without limitation, loss of margin, any loss or expense sustained or incurred
in liquidating or employing deposits from third parties, and any loss or
expense incurred in connection with funds acquired to effect, fund or
maintain any advance (or any part thereof) bearing interest under the LIBOR
Option which the Bank sustains or incurs as a consequence of either (i) the
Borrower's failure to make a payment on the due date thereof, (ii) the
Borrower's revocation (expressly, by later inconsistent notices or otherwise)
in whole or in part of any notice given to Bank to request, convert, renew or
prepay any advance bearing interest under the LIBOR Option, or (iii) the
Borrower's payment or prepayment (whether voluntary, after acceleration of
the maturity of this Note or otherwise) or conversion of any advance bearing
interest under the LIBOR Option on a day other than the last day of the
applicable LIBOR Interest Period A notice as to any amounts payable pursuant
to this paragraph given to the Borrower by the Bank shall, in the absence of
manifest error, be conclusive and shall be payable upon demand. The
Borrower's indemnification obligations hereunder shall survive the payment in
full of the advances and all other amounts payable hereunder.
9. Other Loan Documents. This Note is issued in connection with a loan
agreement between the Borrower and the Bank, dated on or before the date
hereof, and the other agreements and documents executed and/or delivered in
connection therewith or referred to therein, the terms of which are
incorporated herein by reference (as amended, modified or renewed from time
to time, collectively the "Loan Documents"), and is secured by the property
(if any) described in the Loan Documents and by such other collateral as
previously may have been or may in the future be granted to the Bank to
secure this Note.
10. Events of Default. The occurrence of any of the following events will be
deemed to be an "Event of Default" under this Note: (i) the nonpayment of any
principal, interest or other indebtedness under this Note when due; (ii)
except as otherwise provided in any other subsection of this Section 10, the
occurrence of any other event of default or any other default and the lapse
of any notice or cure period, or any Obligor's failure to observe or perform
any covenant or other agreement, under or contained in any Loan Document or
any other document now or in the future evidencing or securing any debt,
liability or obligation of any Obligor to the Bank except for the failure or
neglect of any Obligor to observe, perform or keep any term, provision,
condition or covenant in any Loan Document (other than a monetary default)
which is cured within thirty (30) days from the occurrence of such failure or
neglect and such failure or neglect would not, in Bank's sole discretion,
during such thirty (30) day period, be reasonably likely to have a material
adverse effect on the condition, operations, assets, business or prospects of
any Obligor's ability to pay the Obligations (as defined in the Loan
Documents) in accordance with the terms thereof, the value of the Collateral,
or the Bank's liens on or security interest in the Collateral or the priority
of any such liens or security interest of the practical realization of the
benefit of the Bank's rights and remedies under this Note and the other Loan
Documents; (iii) the filing by or against any Obligor of any proceeding in
bankruptcy, receivership, insolvency, reorganization, liquidation,
conservatorship or similar proceeding (and, in the case of any such
proceeding instituted against any Obligor, such proceeding is not dismissed
or stayed within 30 days of the commencement thereof, provided that the Bank
shall not be obligated to advance additional funds hereunder during such
period); (iv) any assignment by any Obligor for the benefit of creditors, or
any levy, garnishment, attachment or similar proceeding is instituted against
any property of any Obligor held by or deposited with the Bank; (v) a default
with respect to any other indebtedness of any Obligor for borrowed money, if
the effect of such default is to cause or permit the acceleration of such
debt; (vi) the commencement of any foreclosure or forfeiture proceeding,
execution or attachment against any collateral securing the obligations of
any Obligor to the Bank unless such proceeding instituted against any Obligor
is dismissed or stayed within thirty (30) days of the commencement thereof,
provided that the Bank shall not be obligated to advance additional funds
hereunder during such period; (vii) the entry of a final judgment against any
Obligor singly or in the aggregate in excess of Two Hundred Fifty Thousand
Dollars ($250,000.00) and the failure of such Obligor to discharge the
judgment within ten (10) days of the entry thereof or to diligently contest
the entry thereof by appropriate proceedings and for which Borrower shall
have established adequate reserves or made other adequate provision with
respect thereto acceptable to the Bank in its sole discretion, provided,
however, execution or attachment against any collateral securing the
Obligations shall be effectively stayed; (viii) any material adverse change
in any Obligor's business, assets, operations, financial condition or results
of operations; (ix) any Obligor ceases doing business as a going concern; (x)
any representation or warranty made by any Obligor to the Bank in any Loan
Document or any other documents now or in the future evidencing or securing
the obligations of any Obligor to the Bank, is false, erroneous or misleading
in any material respect; (xi) the failure of any Obligor to provide the Bank
with additional collateral if in the Bank's opinion at any time or times, the
market value of any of the collateral securing this Note or any guarantee has
depreciated below that required pursuant to the Loan Documents or, if no
specific value is so required, then in an amount deemed material by the Bank;
and (xii) the revocation or attempted revocation, in whole or in part, of any
guarantee by any Obligor. As used herein, the term "Obligor" means any
Borrower and any guarantor of, or any pledgor, mortgagor or other person or
entity providing collateral support for, the Borrower's obligations to the
Bank existing on the date of this Note or
arising in the future.
Upon the occurrence of an Event of Default: (a) the Bank shall be under no
further obligation to make advances hereunder; (b) if an Event of Default
specified in clause (iii) or (iv) above shall occur, the outstanding
principal balance and accrued interest hereunder together with any additional
amounts payable hereunder shall be immediately due and payable without demand
or notice of any kind; (c) if any other Event of Default shall occur, the
outstanding principal balance and accrued interest hereunder together with
any additional amounts payable hereunder, at the Bank's option and without
demand or notice of any kind, may be accelerated and become immediately due
and payable; (d) at the Bank's option, this Note will bear interest at the
Default Rate from the date of the occurrence of the Event of Default; and (e)
the Bank may exercise from time to time any of the rights and remedies
available under the Loan Documents or under applicable law.
11. Right of Setoff. In addition to all liens upon and rights of setoff
against the Borrower's money, securities or other property given to the Bank
by law, the Bank shall have, with respect to the Borrower's obligations to
the Bank under this Note and to the extent permitted by law, a contractual
possessory security interest in and a contractual right of setoff against,
and the Borrower hereby grants the Bank a security interest in, and hereby
assigns, conveys, delivers, pledges and transfers to the Bank, all of the
Borrower's right, title and interest in and to, all of the Borrower's
deposits, moneys, securities and other property now or hereafter in the
possession of or on deposit with, or in transit to, the Bank or any other
direct or indirect subsidiary of The PNC Financial Services Group, Inc.,
whether held in a general or special account or deposit, whether held jointly
with someone else, or whether held for safekeeping or otherwise, excluding,
however, all IRA, Xxxxx, and trust accounts. Every such security interest and
right of setoff may be exercised without demand upon or notice to the
Borrower. Every such right of setoff shall be deemed to have been exercised
immediately upon the occurrence of an Event of Default hereunder without any
action of the Bank, although the Bank may enter such setoff on its books and
records at a later time.
12. Indemnity. The Borrower agrees to indemnify each of the Bank, each legal
entity, if any, who controls, is controlled by or is under common control
with the Bank, and each of their respective directors, officers and employees
(the "Indemnified Parties"), and to hold each Indemnified Party harmless from
and against any and all claims, damages, losses, liabilities and expenses
(including all fees and charges of internal or external counsel with whom any
Indemnified Party may consult and all expenses of litigation and preparation
therefor) which any Indemnified Party may incur or which may be asserted
against any Indemnified Party by any person, entity or governmental authority
(including any person or entity claiming derivatively on behalf of the
Borrower), in connection with or arising out of or relating to the matters
referred to in this Note or in the other Loan Documents or the use of any
advance hereunder, whether (a) arising from or incurred in connection with
any breach of a representation, warranty or covenant by the Borrower, or (b)
arising out of or resulting from any suit, action, claim, proceeding or
governmental investigation, pending or threatened, whether based on statute,
regulation or order, or tort, or contract or otherwise, before any court or
governmental authority; provided, however, that the foregoing indemnity
agreement shall not apply to any claims, damages, losses, liabilities and
expenses solely attributable to an Indemnified Party's gross negligence or
willful misconduct. The indemnity agreement contained in this Section shall
survive the termination of this Note, payment of any advance hereunder and
the assignment of any rights hereunder. The Borrower may participate at its
expense in the defense of any such action or claim.
13. Miscellaneous. All notices, demands, requests, consents, approvals and
other communications required or permitted hereunder ("Notices") must be in
writing (except as may be agreed otherwise above with respect to borrowing
requests) and will be effective upon receipt. Notices may be given in any
manner to which the parties may separately agree, including electronic mail.
Without limiting the foregoing, first-class mail, facsimile transmission and
commercial courier service are hereby agreed to as acceptable methods for
giving Notices. Regardless of the manner in which provided, Notices may be
sent to a party's address as set forth above or to such other address as any
party may give to the other for such purpose in accordance with this
paragraph. No delay or omission on the Bank's part to exercise any right or
power arising hereunder will impair any such right or power or be considered
a waiver of any such right or power, nor will the Bank's action or inaction
impair any such right or power. The Bank's rights and remedies hereunder are
cumulative and not exclusive of any other rights or remedies which the Bank
may have under other agreements, at law or in equity. No modification,
amendment or waiver of, or consent to any departure by the Borrower from, any
provision of this Note will be effective unless made in a writing signed by
the Bank, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. The Borrower agrees to
pay on demand, to the extent permitted by law, all costs and expenses
incurred by the Bank in the enforcement of its rights in this Note and in any
security therefor, including without limitation reasonable fees and expenses
of the Bank's counsel. If any provision of this Note is found to be invalid,
illegal or unenforceable in any respect by a court, all the other provisions
of this Note will remain in full force and effect. The Borrower and all other
makers and indorsers of this Note hereby forever waive presentment, protest,
notice of dishonor and notice of non-payment. The Borrower also waives all
defenses based on suretyship or impairment of collateral. If this Note is
executed by more than one Borrower, the obligations of such persons or
entities hereunder will be joint and several. This Note shall bind the
Borrower and its heirs, executors, administrators, successors and assigns,
and the benefits hereof shall inure to the benefit of the Bank and its
successors and assigns; provided, however, that the Borrower may not assign
this Note in whole or in part without the Bank's written consent and the Bank
at any time may assign this Note in whole or in part.
This Note has been delivered to and accepted by the Bank and will be deemed
to be made in the State of New Jersey. THIS NOTE WILL BE INTERPRETED AND THE
RIGHTS AND LIABILITIES OF THE BANK AND THE BORROWER DETERMINED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW JERSEY, EXCLUDING ITS CONFLICT OF LAWS
RULES. The Borrower hereby irrevocably consents to the exclusive jurisdiction
of any state or federal court in the State of New Jersey; provided that
nothing contained in this Note will prevent the Bank from bringing any
action, enforcing any award or judgment or exercising any rights against the
Borrower individually, against any security or against any property of the
Borrower within any other state or other foreign or domestic jurisdiction.
The Borrower acknowledges and agrees that the venue provided above is the
most convenient forum for both the Bank and the Borrower. The Borrower waives
any objection to venue and any objection based on a more convenient forum in
any action instituted under this Note.
14. WAIVER OF JURY TRIAL. THE BORROWER IRREVOCABLY WAIVES ANY AND ALL RIGHTS
THE BORROWER MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR CLAIM
OF ANY NATURE RELATING TO THIS NOTE, ANY DOCUMENTS EXECUTED IN CONNECTION
WITH THIS NOTE OR ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH DOCUMENTS. THE
BORROWER ACKNOWLEDGES THAT THE FOREGOING WAIVER IS KNOWING AND VOLUNTARY.
The Borrower acknowledges that it has read and understood all the provisions
of this Note, including the waiver of jury trial, and has been advised by
counsel as necessary or appropriate.
WITNESS the due execution of this Committed Line of Credit Note as a document
under seal, as of the date first written above, with the intent to be legally
bound hereby.
DATARAM CORPORATION
XXXX X. XXXXXXXX
By: _________________________________________
Xxxx X. Xxxxxxxx, Vice President, Finance
