EXHIBIT 6.5
GRID NOTE
$300,000.00 Port Washington, New York
April 11, 2001
FOR VALUE RECEIVED, e-Data Corporation (the "Borrower"), with an office at
00 Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, XX 00000, promises to pay to Xxxx X.
Xxxxxxx (the "Lender") or order, when due as provided herein at 00 Xxxxxx Xxxx
Xxxxx, Xxxx Xxxxxxxxxx, Xxx Xxxx, 00000, the aggregate unpaid principal amount
of all advances made by the Lender to the Borrower from time to time (each an
"Advance" and collectively the "Advances") as evidenced by the inscriptions made
on Exhibit A attached hereto ("Exhibit A"), together with interest thereon at
ten percent (10%) simple interest per annum. Interest shall accrue on a daily
basis on the basis of the number of days outstanding of each Advance, based on a
365-day year, and shall be payable on April 1, 2002 and April 1, 2003, on which
latter date the then-outstanding balance of all Advances shall also be due and
payable hereunder. The aggregate amount of all Advances outstanding hereunder
shall not at any time exceed $300,000.00
All Advances and all payments of principal made on this Note may be
inscribed by the Lender on Exhibit A. All Advances shall be repayable on April
1, 2003, or as otherwise provided below.
Borrower may request an Advance by calling in a request to the Lender not
later than 11:00 a.m. (Port Washington, New York time) on the fifth business day
before the date of the proposed Advance. Advances shall be made in increments of
$25,000.
Xxxxxxxx acknowledges and agrees that twenty five percent (25%) of all
revenues which it receives in the course of its business from the licensing of
patents, and from those against whom the Borrower has asserted infringement
claims, whether or not such claims were the subject of any formal action or
proceeding (the aggregate of revenues received from licensing and infringement
claims hereinafter "Revenues") shall be applied exclusively to the payment of
any amounts due hereunder. Such repayments shall be made on the first business
day of each month following the receipt of said Revenues. The remainder of such
Revenues shall be applied to the payment of the business obligations enumerated
in exhibit B hereof, until such obligations enumerated in exhibit B have been
paid in full. Should any amounts due under this Note remain unpaid following the
payment in full of the obligations enumerated in exhibit B, thereafter fifty
percent (50%) of Revenues shall be applied exclusively to payment of amounts due
under this Note, until the earlier of (i) the date all such amounts shall have
been paid or (ii) April 1, 2003, on which date the then-outstanding Advances,
plus all accrued interest, shall be due and payable.
The Lender may elect (but shall be under no obligation) to send to the
Borrower written confirmation of the date and amount of each Advance, but any
failure to do so shall not relieve the Borrower of the obligation to repay the
Advance, with interest as hereinabove provided, when due. Unless the Borrower
shall object to such confirmation in writing within five (5) days after receipt
thereof, such confirmation shall be prima facie evidence of the facts stated
therein.
Each entry set forth on Exhibit A shall be prima facie evidence of the
facts so set forth, except for any such facts as to which the Lender has sent to
the Borrower a written confirmation and the Borrower has timely objected as
provided herein. No failure by the Lender to make, and no error by the Lender in
making, any inscription on Exhibit A shall affect the Borrower's obligation to
repay the full principal amount advanced by the Lender to or for the account of
the Borrower, or the Borrower's obligation to pay interest thereon at the agreed
upon rate.
If any of the following events or conditions shall happen or occur (in any
case an "Event of Default"): (1) a default by the Borrower in the due and
punctual payment of the whole of any amount due hereunder (except as
specifically contemplated by the fourth paragraph in this Note); (ii) the sale
of all or substantially all of the assets of the Borrower; (iii) the sale of any
assets of the Borrower out of the ordinary course of business or for less than
fair consideration; (iv) the merger, sale, consolidation or liquidation of the
Borrower; (v) the application by the Borrower for, or consent by the Borrower
to, the appointment of a receiver, trustee or liquidator of itself or of its
property; (vi) the admission in writing by the Borrower of its inability to pay
its debts as they mature; (vii) a general assignment by the Borrower for the
benefit of creditors; (viii) the adjudication of the Borrower as a bankrupt or
insolvent; (ix) the filing by the Borrower of a voluntary petition in bankruptcy
or a petition or an answer seeking reorganization or an arrangement with
creditors; (x) the Borrower's taking advantage of any bankruptcy,
reorganization, insolvency, readjustment of debt, dissolution or liquidation law
or statute or the Borrower's filing an answer admitting the material allegations
of a petition filed against it in any proceeding under any such law; or (xi) the
Borrower having an involuntary petition in bankruptcy filed against it which is
not dismissed or discharged within ninety (90) days, and which is not being
actively challenged by the debtor, then and in each and every such Event of
Default, the Lender may, without notice to the Borrower, declare the entire
unpaid principal amount of this Note then outstanding plus accrued interest to
be forthwith due and payable whereupon the same shall become forthwith due and
payable.
This Note may not be waived, changed, modified or discharged orally, but
only by an agreement in writing, signed by the party against whom enforcement of
any waiver, change, modification or discharge is sought.
No failure by the holder hereof to exercise, and no delay in exercising,
any right or remedy hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise by such holder of any right or remedy hereunder
preclude any other or further exercise thereof or the exercise of any other
right or remedy. The rights and remedies of the holder hereof as herein
specified are cumulative and not exclusive of any other rights or remedies which
such holder may otherwise have.
Should the indebtedness represented by this Note or any part thereof be
collected at law or in equity, or in bankruptcy, receivership or any other court
proceeding (whether at the trial or appellate level), or should this Note be
placed in the hands of any agent or attorneys for collection upon default or
maturity, the Borrower agrees to pay, in addition to all other amounts due and
payable hereunder, all cost and expenses of collection or attempting to collect
this Note, including reasonable attorneys' fees.
The Borrower and any endorsers hereof, for themselves and their respective
representatives, successors and assigns, expressly (a) waive presentment,
demand, protest, notice of dishonor, notice of non-payment, notice of maturity,
notice of protest, diligence in collection, any and all counterclaims and / or
rights of set off and trial by jury and (b) consent that the Lender may release
or surrender, exchange or substitute any property or other collateral or
security now held or which may hereafter be held as security for the payment of
this Note, and may release any guarantor, and may extend the time for payment or
otherwise modify the terms of payment of any part or the whole of the debt
evidenced hereby.
Any notice, demand or request relating to any matter set forth herein shall
be in writing and shall be deemed effective when hand delivered, when mailed,
postage prepaid, by registered or certified mail, return receipt requested, or
by overnight mail or nationally recognized overnight courier to the Borrower or
the Lender at its address stated herein or at such other address of which it
shall have notified the party giving such notice in writing as aforesaid.
The Lender shall be entitled to assign all or any portion of its right,
title and interest in this Note at its sole discretion without notice to
Xxxxxxxx, provided that the Borrower shall continue to make payments required
hereunder to the Lender until it has received notice of change of address for
payments as provided herein.
Notwithstanding any other provision of this Note, all payments made
hereunder shall be applied first to payment of sums payable hereunder other than
interest and principal, second to any interest on the principal balance
outstanding hereunder, and third to principal.
This Note may be prepaid in whole or in part upon three (3) days' prior
written notice to Lender without penalty together with interest thereon up to
and including the date of such prepayment (notwithstanding that interest
hereunder is otherwise calculated on a monthly basis). All prepayments of
principal hereunder shall be made in multiples of $25,000. In the event that the
Borrower shall prepay this Note in part, then the principal amount of such
prepayment in part shall be applied to the then unpaid principal balance of each
Advance in the inverse order of the dates of such Advances.
This Note shall be governed by the laws of the State of New York, excluding
choice of law principles thereof. In the event any clause or part of this Note
shall be held or declared to be void, illegal or invalid for any reason, all
other clauses or parts of this Note which can be effected without such void,
illegal or invalid clause or part shall nevertheless continue in full force and
effect.
E-data Corporation
By: /s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx,
President
EXHIBIT A
SCHEDULE OF ADVANCES AND PAYMENTS
----------------------- --------------------- -------------------- --------------------- --------------------
Date of Amount of Amount of Aggregate Approval
----------------------- --------------------- -------------------- --------------------- --------------------
----------------------- --------------------- -------------------- --------------------- --------------------
Advance Advance Principal Outstanding Of Lender
----------------------- --------------------- -------------------- --------------------- --------------------
----------------------- --------------------- -------------------- --------------------- --------------------
Or Payment Paid or Principal
----------------------- --------------------- -------------------- --------------------- --------------------
----------------------- --------------------- -------------------- --------------------- --------------------
PREPAID BALANCE
----------------------- --------------------- -------------------- --------------------- --------------------
----------------------- --------------------- -------------------- --------------------- --------------------
----------------------- --------------------- -------------------- --------------------- --------------------
----------------------- --------------------- -------------------- --------------------- --------------------
----------------------- --------------------- -------------------- --------------------- --------------------
----------------------- --------------------- -------------------- --------------------- --------------------
----------------------- --------------------- -------------------- --------------------- --------------------
----------------------- --------------------- -------------------- --------------------- --------------------
----------------------- --------------------- -------------------- --------------------- --------------------
----------------------- --------------------- -------------------- --------------------- --------------------
----------------------- --------------------- -------------------- --------------------- --------------------
----------------------- --------------------- -------------------- --------------------- --------------------
----------------------- --------------------- -------------------- --------------------- --------------------
----------------------- --------------------- -------------------- --------------------- --------------------
----------------------- --------------------- -------------------- --------------------- --------------------
----------------------- --------------------- -------------------- --------------------- --------------------
----------------------- --------------------- -------------------- --------------------- --------------------
----------------------- --------------------- -------------------- --------------------- --------------------
----------------------- --------------------- -------------------- --------------------- --------------------
----------------------- --------------------- -------------------- --------------------- --------------------
----------------------- --------------------- -------------------- --------------------- --------------------
----------------------- --------------------- -------------------- --------------------- --------------------
----------------------- --------------------- -------------------- --------------------- --------------------
----------------------- --------------------- -------------------- --------------------- --------------------
----------------------- --------------------- -------------------- --------------------- --------------------
----------------------- --------------------- -------------------- --------------------- --------------------
----------------------- --------------------- -------------------- --------------------- --------------------
----------------------- --------------------- -------------------- --------------------- --------------------
----------------------- --------------------- -------------------- --------------------- --------------------
Exhibit B
Qualified Corporate Obligations
Obligations due, owing and fully payable as of April 1, 2001:
CPA firm: $14,000
General Patent Corp. 40,000
OTC Inc. (Stock xfer. agent) 3,400
Caviour Grp. (Media services) 16,000
$73,400
Urgent expenditures as of April 1, 2001:
Dir. & Officers Insurance $22,000 (balance of $36,000 @ $6,000 monthly)
Intecap (Retainer) 20,000 (Infringement claim valuation)
Patent law firm 20,000 (Replace current counsel)
Website development 9,000 (Reference info for infringers)
Laptop computers/dock stations 5,000 (2 executives)
$76,000
Recurrent monthly operating costs:
Consultant compensation $13,00
D&O Insurance payment 6,000
General Patent 20,000
Intecap 5,000
Misc. Professional 5,000 (CPA, Corp. legal, Stock transfer)
Travel, car rent 1,000
Infringer support costs 12,000 (Direct bill expense, mailing, filing)
Misc. corp. 4,000
$66,000 Recurring
