Case 5:18-md-02834-BLF Document 871-3 Filed 04/21/23 Page 1 of 110
`
`Exhibit H
`(Filed Publicly
`Pursuant to Order)
`
`

`

`Case 5:18-md-02834-BLF Document 871-3 Filed 04/21/23 Page 2 of 110
`Case 5:18-md-02834-BLF Document 871-3 Filed 04/21/23 Page 2 of 110
`
`NATIVE DOCUMENT PLACEHOLDER
`
`Please review the native document BDE159371.msg
`
`Confidential
`
`BDE-00022980
`
`

`

`Case 5:18-md-02834-BLF Document 871-3 Filed 04/21/23 Page 3 of 110
`
`From: Mike Weiss <mw@pweb.com>
`To: Jeffrey Gersh <jgersh@stubbsalderton.com>
`CC: Anthony Neumann <aneumann@brilliantdigital.com>
`BCC:
`Subject: PWEB Amended & Restated Secured Promissory Notes
`Sent: 04/05/2021 05:10 PM
`Received: 04/05/2021 05:10 PM
`Attachments: PersonalWeb - Third Amended and Restated Note (Claria)
`[Executed].pdf;PersonalWeb - Third Amended and Restated Note (ECA)
`[Executed].pdf;PersonalWeb - Second Amended and Restated Note (Claria).pdf;PWeb -
`Amended and Restated Note (Claria).docx;PersonalWeb - Second Amended and Restated
`Note (ECA).pdf;PersonalWeb - Fourth Amended and Restated Note (Monto)
`[Executed].pdf;PersonalWeb - Third Amended and Restated Note (Topodia).pdf;PWeb -
`Amended and Restated Note (ECA).docx;PersonalWeb - Fourth Amended and Restated Note
`(BDE) [Executed].pdf;AR Promissory Note-v3.docx;PersonalWeb - Third Amended and
`Restated Note (BDE).pdf
`
`From: Mike Weiss
`Sent: Monday, April 5, 2021 5:10 PM PDT
`To: Jeffrey Gersh
`CC: Anthony Neumann
`Subject: PWEB Amended & Restated Secured Promissory Notes
`Attachments: PersonalWeb - Fourth Amended and Restated Note (BDE) [Executed].pdf,
`PersonalWeb -
` Fourth Amended and Restated Note (Monto) [Executed].pdf, PersonalWeb -
` Third Amended and Restated Note (Claria) [Executed].pdf, PersonalWeb -
` Third Amended and Restated Note (ECA) [Executed].pdf, PersonalWeb -
` Third Amended and Restated Note (BDE).pdf, PersonalWeb - Third Amended and Restated
`Note (Topodia).pdf,
`PersonalWeb - Second Amended and Restated Note (Claria).pdf, PersonalWeb -
` Second Amended and Restated Note (ECA).pdf, AR Promissory Note-v3.docx, PWeb -
` Amended and Restated Note (Claria).docx, PWeb - Amended and Restated Note
`(ECA).docx
`
`Mike Weiss
`PersonalWeb
`5380 Old Bullard Rd
`Suite 600-322
`Tyler, TX 75703
`mw@pweb.com
`903.884-0777 - office
`Visit us at www.PersonalWeb.com
`The information contained in this message and any attachments is intended for the
`exclusive use
`of the addressee. It may be privileged and confidential. If you are not the
`addressee any
`disclosure, reproduction, distribution, on-transmission, dissemination or use of the
`
`communication is strictly prohibited.
`
`

`

`Case 5:18-md-02834-BLF Document 871-3 Filed 04/21/23 Page 4 of 110
`Case 5:18-md-02834-BLF Document 871-3 Filed 04/21/23 Page 4 of 110
`
`$500,000
`
`Effective as of August 3, 2010
`Amendedand Restated as of December 31, 2019
`Tyler, Texas
`
`PERSONALWEB TECHNOLOGIES, LLC
`
`THIRD AMENDED AND RESTATED
`SECURED REVOLVING
`PROMISSORY NOTE
`
`FOR VALUE RECEIVED,the undersigned, PERSONALWEB TECHNOLOGIES LLC,
`a Texas limited liability company (the “Borrower’”), promises to pay to the order of Claria
`Innovations, LLC, a Delaware limited liability company (hereafter, together with any holder
`hereof, called “Lender”’),
`immediately upon demand by Lender or,
`if no such demand is
`previously made, on December 31, 2022 (the “Maturity Date”) (in accordance with the terms
`herein) at such place as Lender may designate in writing to Borrower, in lawful money of the
`United States of America, and in immediately available funds, such amount as may from time to
`time be advanced by Lender to Borrower pursuant to an Advance (as defined below) hereunder,
`plus interest as hereinafter provided. Such Advances may be endorsed from time to time on the
`Schedule of Advances attached hereto but the failure to make such notations shall not affect the
`validity of Borrower’s obligation to repay unpaid principal and interest hereunder.
`
`in its absolute discretion, but shall not be
`Subject to the terms hereof, Lender may,
`required to, make advances of funds available hereunder (“Advances”) to Borrower, up to a
`maximum principal amount of $500,000 (the “Maximum Amount’). On or prior to the date of
`this Note, Lender has advanced funds to Borrower, which funds constitute Advances within the
`meaning of this Note and shall be subject to repayment by Borrower in accordance with the
`terms of this Note. Borrowershall give Lender irrevocable written notice requesting an Advance
`at least five (5) business days before the date on which Borrower wishes to receive the Advance
`(unless a shorter period is consented to by Lender). Notwithstanding any term or provision of
`this Note that may be construed to the contrary, at no time shall Lender be required to make an
`Advance hereunder if (a) an Event of Default (as defined below) shall have occurred; or (b) the
`Lender determines, in its absolute discretion, not to make such Advance. This Note expressly
`amendsandrestates in its entirety that certain Second Amended and Restated Secured Revolving
`Promissory Note, executed December 18, 2017, and effective as of August 3, 2010, executed by
`the Borrower for the benefit of the Lender, having the Maximum Amount of $500,000, which
`amended and restated that certain Amended and Restated Secured Revolving Promissory Note,
`executed December 16, 2015, and effective as of August 3, 2010, executed by the Borrower for
`the benefit of the Lender, having the Maximum Amount of $500,000, which amended and
`restated that certain Secured Revolving Promissory Note, executed March 18, 2014, and
`effective as of August 3, 2010, executed by the Borrower for the benefit of the Lender, having
`the Maximum Amountof $500,000.
`
`From and after the date hereof (until maturity or default as hereinafter provided), interest
`shall accrue on the principal amountof this Note that is outstanding from time to time at a rate
`per annum equal to ten percent (10%). If, however, an interest rate of 10% is not allowable under
`
`Confidential
`
`BDE-00022981
`
`

`

`Case 5:18-md-02834-BLF Document 871-3 Filed 04/21/23 Page 5 of 110
`Case 5:18-md-02834-BLF Document 871-3 Filed 04/21/23 Page 5 of 110
`
`Texas law, then interest shall accrue on the principal amountof this Note from time to time at a
`rate per annum equal to the highest maximum allowable percentage rate under Texas law.
`Interest shall be computed on the daily outstanding principal balance hereunder on the basis of a
`360-day year, as the case may, counting the numberofactual days elapsed. Interest shall accrue
`and be payable quarterly. The principal balance of all Advances then outstanding, together with
`all accrued but unpaid interest thereon shall be due and payable on the Maturity Date or on such
`earlier date on which the maturity hereof is accelerated pursuant to the provisionshereof.
`
`interest shall accrue on any
`From and after the occurrence of an Event of Default,
`amounts past due hereunder (whether by acceleration, maturity or otherwise) at a rate to five
`percent (5%) per annum in excess of the interest rate otherwise payable hereunder. All such
`interest accruing on amounts past due hereundershall be due and payable on demand.
`
`The loan represented by this Note is a revolving credit line such that, during the term
`hereof, Borrower may borrow (if Lender agrees to loan), repay and re-borrow (if Lender agrees
`to loan) from time to time hereunder, subject to the terms and conditions set forth herein;
`provided, however, that the aggregate principal amount outstanding hereunder may increase or
`decrease, but shall never exceed the Maximum Amount. Borrower, at its option, may repay or
`prepay all or any portion of the outstanding principal amount on the Advances, together with all
`accrued and unpaid interest, at any time without penalty by giving Lender at least one (1)
`business day’s prior written notice of any such prepayment. All payments received by Lender
`shall be applied first, to fees, costs and expenses that may be due to Lender, second, to accrued
`and unpaid interest under the Advances and third, to the outstanding principal balance of the
`Advances.
`
`Notwithstanding any provision to the contrary contained in this Note, Borrower shall not
`be required to pay, and Lendershall not be permitted to collect any amountof interest in excess
`of the maximum amountofinterest permitted by law (‘Excess Interest’). If any Excess Interest
`is provided for or determined by a court of competent jurisdiction to have been provided for in
`this Note, then in such event: (1) the provisions of this paragraph shall govern and control; (2)
`Borrowershall not be obligated to pay any Excess Interest; (3) any Excess Interest that Lender
`may have received hereunder shall be, at Lender’s option, applied as a credit against the
`outstanding principal balance of this Note or the accrued and unpaid interest (not to exceed the
`maximum amount permitted by law), or refunded to the payor thereof, or any combination of the
`foregoing;
`(4) the interest rate provided for herein shall be automatically reduced to the
`maximum lawful rate allowed from time to time under applicable law (the “Maximum Rate’),
`and this Note shall be deemed to have been and shall be, reformed and modified to reflect such
`reduction; and (5) Borrowershall not have any action against Lender for any damagesarising out
`of the payment or collection of any Excess Interest. Notwithstanding the foregoing, if, for any
`period of time, interest on this Note is calculated at the Maximum Rate rather than the applicable
`rate under this Note, and thereafter the Maximum Rate exceeds the applicable rate, the rate of
`interest payable on this Note shall become the Maximum Rate until Lender shall have received
`the amount of interest which Lender would have received during such period on this Note had
`the rate of interest not been limited to the Maximum Rate during such period.
`
`Each of the following events shall constitute an “Event of Default” under this Note: (i)
`failure of Borrower to pay any principal, interest or other amount due hereunder within five (5)
`
`Confidential
`
`BDE-00022982
`
`

`

`Case 5:18-md-02834-BLF Document 871-3 Filed 04/21/23 Page 6 of 110
`Case 5:18-md-02834-BLF Document 871-3 Filed 04/21/23 Page 6 of 110
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`business days of the date due, or Borrower shall in any way fail to comply with the other terms,
`covenants or conditions contained in this Note, when such failure continues for a period of five
`(5) days following notice thereof from Lender; (11) Borrower shall (a) commence a voluntary
`case under the Bankruptcy Code of 1978, as amendedor other federal bankruptcy law (as now or
`hereafter in effect); (b) file a petition seeking to take advantage of any other laws, domestic or
`foreign, relating to bankruptcy,
`insolvency, reorganization, winding up or composition for
`adjustment of debts; (c) consent to or fail to contest in a timely and appropriate manner any
`petition filed against it in an involuntary case under such bankruptcy laws or other laws; (d)
`apply for or consent to, or fail to contest in a timely and appropriate manner, the appointmentof,
`or the taking of possession by, a receiver, custodian, trustee, or liquidator of Borroweror of a
`substantial part of Borrower’s property, domestic or foreign; (e) admit in writing its inability to
`pay its debts as they become due; (f) make a general assignment for the benefit of creditors; or
`(g) make a conveyance fraudulent as to creditors under any state or federal law; or (iii) a case or
`other proceeding shall be commenced against Borrower in any court of competent jurisdiction
`seeking (a) relief under the Bankruptcy Code of 1978, as amended or other federal bankruptcy
`law (as now or hereafter in effect) or under any other laws, domestic or foreign, relating to
`bankruptcy,
`insolvency,
`reorganization, winding up or adjustment of debts or
`(b)
`the
`appointment of a trustee, receiver, custodian, liquidator or the like for Borrower of all or any
`substantial part of its assets, domestic or foreign, and such proceeding shall not have been stayed
`or dismissed within sixty (60) days.
`
`Upon the occurrence of an Event of Default described in clause (1) of the definition
`thereof, any and all of the obligations hereunder, at the option of Lender, exercisable in its sole
`discretion, and without demand or notice of any kind, may be immediately declared, and
`thereupon shall immediately be in default and due and payable and Lender mayexercise any and
`all rights and remedies available to it at law, in equity or otherwise. Upon the occurrence of an
`Event of Default described in clause (11) or (iti) of the definition thereof, any and all of the
`obligations hereunder, without demandor notice of any kind, shall immediately be in default and
`due and payable and Lender may exercise any andall rights and remedies available toit at law,
`in equity or otherwise. Nothing in this paragraph shall limit the right of Lender to make demand,
`at any time, with or without the occurrence of an Event of Default, for paymentin full of all
`amounts due hereunder.
`
`Borrower agrees to pay all costs and expenses (including without limitation attorney’s
`fees) incurred by Lender in connection with or related to this Note, or its enforcement, whether
`or not suit be brought.
`
`All payments of principal, interest and other amounts to be made by Borrowerunderthis
`Note shall be made without any deduction, set-off or counterclaim whatsoever. The receipt of
`any check or other item of payment by Lender shall not be considered a payment on this Note
`until such check or other item of payment is honored at the drawee bank. Lender may delay the
`credit of such payment until the funds become available and interest under this Note shall accrue
`until the funds are in fact collected.
`
`The obligations represented by this Note are secured by, and Lenderis entitled to the
`benefits of, that certain Pledge and General Security Agreement, dated as of March 18, 2014 and
`effective as of August 3, 2010, between Borrower and Lender(the “Security Agreement’). This
`
`Confidential
`
`BDE-00022983
`
`

`

`Case 5:18-md-02834-BLF Document 871-3 Filed 04/21/23 Page 7 of 110
`Case 5:18-md-02834-BLF Document 871-3 Filed 04/21/23 Page 7 of 110
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`Note is the “Secured Note” defined and referenced in the Security Agreement andall references
`in the Security Agreement to the “Secured Note” shall be deemedto refer to this Note. Nothing
`herein shall be deemedto limit any of the terms or provisions of the Security Agreement or any
`other present or future document, instrument or agreement, between Borrower and Lender, and
`all of Lender’s rights and remedies hereunder and thereunder are cumulative.
`
`Time is of the essenceof this Note.
`
`No delay or failure on the part of Lender in the exercise of any right or remedy shall
`operate as a waiver thereof, and no single or partial exercise by Lender of any right or remedy
`shall preclude other or further exercise thereof or the exercise of any other right or remedy.
`
`All amendments to this Note, and any waiver or consent of Lender, must be in writing
`and signed by Lender and Borrower.
`
`Borrower hereby waives notice of default, presentment or demand for payment, protest or
`notice of nonpaymentor dishonor, and all other notices or demandsof any kind or character, and
`to the fullest extent permitted by law, the right to invoke anystatute of limitations as a defense to
`any demand hereunder. No delay or failure on the part of Lender in the exercise of any right or
`remedy shall operate as a waiver thereof and no single or partial exercise of any right or remedy
`shall preclude other or further exercise thereof or the exercise of any other right or remedy.
`Borrower acknowledges that this Note is executed as part of a commercial transaction and that
`the proceeds of this Note will not be used for any personal or consumer purpose.
`
`THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
`WITH THE INTERNAL LAWS (AS OPPOSED TO THE CONFLICTS OF LAW
`PROVISIONS) OF THE STATE OF TEXAS, AS THE SAME MAY FROM TIME TO TIME
`BE IN EFFECT. BORROWER HEREBY (i)
`IRREVOCABLY SUBMITS TO THE
`JURISDICTION OF ANY FEDERAL COURT, OR AT THE OPTION OF LENDER, ANY
`STATE COURT, LOCATED IN SMITH COUNTY, TEXAS OVER ANY CLAIMS OR
`DISPUTES BETWEEN BORROWER AND LENDER, PERTAINING DIRECTLY OR
`INDIRECTLY TO THIS NOTE OR TO ANY MATTER ARISING THEREFROM OR
`RELATING THERETO; (it) WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS
`UPON BORROWER, AND CONSENTS SO THAT ALL SUCH SERVICE OF PROCESS
`MAY BE MADE BY MESSENGER, CERTIFIED MAIL OR REGISTERED MAIL AND
`SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED UPON THE EARLIER OF
`ACTUAL RECEIPT OR THREE (3) DAYS AFTER THE SAME SHALL HAVE BEEN
`POSTED TO BORROWER’S ADDRESS;
`(iii)
`IRREVOCABLY WAIVES, TO THE
`FULLEST EXTENT BORROWER MAY EFFECTIVELY DO SO, THE DEFENSE OF AN
`INCONVENIENT FORUM TO THE MAINTENANCE OF ANY SUCH ACTION OR
`PROCEEDING; (iv) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
`PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN ANY OTHER
`JURISDICTION BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
`PROVIDED BY LAW; AND (v) AGREES NOT TO INSTITUTE ANY LEGAL ACTION OR
`PROCEEDING AGAINST LENDER OR ANY OF LENDER’S EMPLOYEES, AGENTS OR
`PROPERTY, CONCERNING ANY MATTER ARISING OUT OF OR RELATING TO THIS
`NOTE IN ANY COURT OTHER THAN ONE LOCATED IN SMITH COUNTY, TEXAS.
`
`Confidential
`
`BDE-00022984
`
`

`

`Case 5:18-md-02834-BLF Document 871-3 Filed 04/21/23 Page 8 of 110
`Case 5:18-md-02834-BLF Document 871-3 Filed 04/21/23 Page 8 of 110
`
`NOTHING IN THIS PARAGRAPH SHALL AFFECT OR IMPAIR LENDER’S RIGHT TO
`SERVE LEGAL PROCESS IN ANY MANNER PERMITTED BY LAW OR LENDER’S
`RIGHT TO BRING ANY ACTION OR PROCEEDING AGAINST BORROWER OR
`BORROWER’S PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION.
`
`LENDER AND BORROWER EACH HEREBY WAIVE THE RIGHT TO TRIAL BY
`JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING OUT OF, OR IN ANY
`WAY RELATING TO:
`(i) THIS NOTE; OR (ii) ANY OTHER PRESENT OR FUTURE
`INSTRUMENT OR AGREEMENT BETWEEN LENDER AND BORROWER PERTAINING
`TO BORROWED MONEY;OR(iii) ANY CONDUCT, ACTS OR OMISSIONS OF LENDER
`OR BORROWER OR ANY OF THEIR EMPLOYEES, AGENTS, ATTORNEYS OR ANY
`OTHER PERSONS AFFILIATED WITH LENDER OR BORROWERARISING OUT OF THE
`TRANSACTIONS CONTEMPLATED HEREBY; IN EACH OF THE FOREGOING CASES,
`WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE.
`
`THE FOREGOING WAIVERS HAVE BEEN MADE WITH THE ADVICE OF
`COUNSEL AND WITH A FULL UNDERSTANDING OF THE LEGAL CONSEQUENCES
`THEREOF.
`
`In the event any one or moreof the provisions of this Note shall for any reason be held to
`be invalid, illegal or unenforceable, the same shall not affect any other provision of this Note and
`the remaining provisions of this Note shall remain in full force and effect.
`
`This Note inures to and bindsthe heirs, successors and assigns of Borrower and Lender.
`Lender may assign its rights under this Note. However, Borrower may not assign any rights or
`obligations under this Note without Lender’s prior written consent.
`
`All notices and other communications provided for hereunder shall be in writing and
`shall be sent to Lender’s principal place of business or Borrower’s address set forth below its
`signature hereto, as the case may be. All such notices and other communications shall be
`effective when received.
`
`[Signature Page Follows]
`
`Confidential
`
`BDE-00022985
`
`

`

`Case 5:18-md-02834-BLF Document 871-3 Filed 04/21/23 Page 9 of 110
`Case 5:18-md-02834-BLF Document 871-3 Filed 04/21/23 Page 9 of 110
`
`IN WITNESS WHEREOFBorrowerhas executed and delivered this Third Amended and
`Restated Promissory Note as of the date first written above.
`
`PERSONALWEB TECHNOLOGIES, LLC
`
`
`
`y:
`Name: Michael Weiss
`Title: President, CEO and Manager
`
`Address for notices:
`
`PersonalWeb Technologies, LLC
`5380 Old Bullard Rd
`Suite 600-322
`Tyler, TX 75703
`Attn: Manager
`
`Acknowledged and Agreed as
`of the date first written above:
`
`LENDER:
`
`CLARIA INNOVATIONS, LLC
`
`
`
`By:
`Name:
`Title:
`
`Address for notices:
`
`Claria Innovations, LLC
`
`
`
`
`Confidential
`
`BDE-00022986
`
`

`

`Case 5:18-md-02834-BLF Document 871-3 Filed 04/21/23 Page 10 of 110
`Case 5:18-md-02834-BLF Document 871-3 Filed 04/21/23 Page 10 of 110
`
`IN WITNESS WHEREOFBorrowerhas executed and delivered this Third Amended and
`Restated Promissory Note as ofthe date first written above.
`
`PERSONAL WEB TECHNOLOGIES, LLC
`
`By:
`Name: Michael Weis:
`Title: President, CEO and Manager
`
`Address for notices:
`
`PersonalWeb Technologies, LLC
`5380 Old Bullard Rd
`Suite 600-322
`Tyler, TX 75703
`Attn: Manager
`
`Acknowledged and Agreedas
`of the date first written above:
`
`LENDER:
`
`CLARIA INNOVATIONS, LLC
`
` Name: 274
`
`Address for notices:
`
`Claria Innovations, LIC
`
`
`
`Confidential
`
`BDE-00022987
`
`

`

`Case 5:18-md-02834-BLF Document 871-3 Filed 04/21/23 Page 11 of 110
`Case 5:18-md-02834-BLF Document 871-3 Filed 04/21/23 Page 11 of 110
`
`SCHEDULE OF ADVANCES
`
`As of December 31, 2019
`
`
`
`
`
`By:
`
`
`
`
`
`oe|Amanat Amountof Unpaid NotationMade
`
`Principal
`Principal Paid
`Amountof
`Balance
`or Repaid
`Advance
`Date
`
`
`Mike Weiss
`31,400.00
`30,000.00
`08/13/2010
`|osraroi0|15.0000]=|46,400.00|_Mike Weiss
`|ovono10|sooo0.00|=|_96,400.00|__Mike Weiss
`|o927po10|_20.000.00|=|116,400.00|__Mike Weiss
`|sonsro10|5.00000]=|121.400.00|__Mike Weiss
`|1or6ro10|18.00.00]=|_139,400.00|__Mike Weiss
`
`
`11/02/2010 7200.00;=|__146,600.00 Mike Weiss
`
`
`11/10/2010 2400000] ss=|__170,600.00 Mike Weiss
`|iu2aro10|18,000.00]|_188,600.00|__Mike Weiss
`|12032010|soo]=|_97,100.00|__Mike Weiss
`|i2noroio|20,5000]=|_217,600.00|__Mike Weiss
`|12232010|1800000]=|_235,600.00|__Mike Weiss
`|owosror|10,000.00]=|_245,600.00|__Mike Weiss
`|ono|is00000]=|263,600.00|__Mike Weiss
`|ovispou|3,000.00]|_266,600.00|__Mike Weiss
`|oureno1|18,000.00]=|_284,600.00|__Mike Weiss
`
`|sno}=|9.90000]274,700.00] Mike Weiss
`
`Confidential
`
`BDE-00022988
`
`

`

`Case 5:18-md-02834-BLF Document 871-3 Filed 04/21/23 Page 12 of 110
`Case 5:18-md-02834-BLF Document 871-3 Filed 04/21/23 Page 12 of 110
`
`$700,000
`
`Effective as of February 2, 2011
`Amendedand Restated as of December 31, 2019
`Tyler, Texas
`
`PERSONALWEB TECHNOLOGIES, LLC
`
`THIRD AMENDED AND RESTATED
`SECURED REVOLVING
`PROMISSORY NOTE
`
`FOR VALUE RECEIVED,the undersigned, PERSONALWEB TECHNOLOGIES LLC,
`a Texas limited liability company (the “Borrower’), promises to pay to the order of
`EUROPLAY CAPITAL ADVISORS, LLC, a Delaware limited liability company (hereafter,
`together with any holder hereof, called “Lender’), immediately upon demand by Lenderor, if no
`such demand is previously made, on December 31, 2022 (the “Maturity Date”) (in accordance
`with the terms herein) at such place as Lender may designate in writing to Borrower, in lawful
`money of the United States of America, and in immediately available funds, such amount as may
`from time to time be advanced by Lender to Borrower pursuant to an Advance (as defined
`below) hereunder, plus interest as hereinafter provided. Such Advances may be endorsed from
`time to time on the Schedule of Advances attached hereto but the failure to make such notations
`shall not affect the validity of Borrower’s obligation to repay unpaid principal and interest
`hereunder.
`
`in its absolute discretion, but shall not be
`Subject to the terms hereof, Lender may,
`required to, make advances of funds available hereunder (“Advances”) to Borrower, up to a
`maximum principal amount of $700,000 (the “Maximum Amount’). On or prior to the date of
`this Note, Lender has advanced funds to Borrower, which funds constitute Advances within the
`meaning of this Note and shall be subject to repayment by Borrower in accordance with the
`terms of this Note. Borrowershall give Lender irrevocable written notice requesting an Advance
`at least five (5) business days before the date on which Borrower wishes to receive the Advance
`(unless a shorter period is consented to by Lender). Notwithstanding any term or provision of
`this Note that may be construed to the contrary, at no time shall Lender be required to make an
`Advance hereunder if (a) an Event of Default (as defined below) shall have occurred; or (b) the
`Lender determines, in its absolute discretion, not to make such Advance. This Note expressly
`amendsandrestates in its entirety that certain Second Amended and Restated Secured Revolving
`Promissory Note, executed December 18, 2017, and effective as of February 2, 2011, executed
`by the Borrowerfor the benefit of the Lender, having the Maximum Amountof $700,000, which
`amended and restated that certain Amended and Restated Secured Revolving Promissory Note,
`executed December 16, 2015, and effective as of February 2, 2011, executed by the Borrowerfor
`the benefit of the Lender, having the Maximum Amount of $700,000, which amended and
`restated that certain Secured Revolving Promissory Note, executed March 18, 2014, and
`effective as of February 2, 2011, executed by the Borrowerfor the benefit of the Lender, having
`the Maximum Amountof $700,000.
`
`From and after the date hereof (until maturity or default as hereinafter provided), interest
`shall accrue on the principal amountof this Note that is outstanding from time to time at a rate
`
`Confidential
`
`BDE-00022989
`
`

`

`Case 5:18-md-02834-BLF Document 871-3 Filed 04/21/23 Page 13 of 110
`Case 5:18-md-02834-BLF Document 871-3 Filed 04/21/23 Page 13 of 110
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`per annum equal to ten percent (10%). If, however, an interest rate of 10% is not allowable under
`Texas law, then interest shall accrue on the principal amountof this Note from time to time at a
`rate per annum equal to the highest maximum allowable percentage rate under Texas law.
`Interest shall be computed on the daily outstanding principal balance hereunder on the basis of a
`360-day year, as the case may, counting the numberofactual days elapsed. Interest shall accrue
`and be payable quarterly. The principal balance of all Advances then outstanding, together with
`all accrued but unpaid interest thereon shall be due and payable on the Maturity Date or on such
`earlier date on which the maturity hereof is accelerated pursuant to the provisionshereof.
`
`interest shall accrue on any
`From and after the occurrence of an Event of Default,
`amounts past due hereunder (whether by acceleration, maturity or otherwise) at a rate to five
`percent (5%) per annum in excess of the interest rate otherwise payable hereunder. All such
`interest accruing on amounts past due hereundershall be due and payable on demand.
`
`The loan represented by this Note is a revolving credit line such that, during the term
`hereof, Borrower may borrow (if Lender agrees to loan), repay and re-borrow (if Lender agrees
`to loan) from time to time hereunder, subject to the terms and conditions set forth herein;
`provided, however, that the aggregate principal amount outstanding hereunder may increase or
`decrease, but shall never exceed the Maximum Amount. Borrower, at its option, may repay or
`prepay all or any portion of the outstanding principal amount on the Advances, together with all
`accrued and unpaid interest, at any time without penalty by giving Lender at least one (1)
`business day’s prior written notice of any such prepayment. All payments received by Lender
`shall be applied first, to fees, costs and expenses that may be due to Lender, second, to accrued
`and unpaid interest under the Advances and third, to the outstanding principal balance of the
`Advances.
`
`Notwithstanding any provision to the contrary contained in this Note, Borrower shall not
`be required to pay, and Lendershall not be permitted to collect any amountof interest in excess
`of the maximum amountofinterest permitted by law (‘Excess Interest’). If any Excess Interest
`is provided for or determined by a court of competent jurisdiction to have been provided for in
`this Note, then in such event: (1) the provisions of this paragraph shall govern and control; (2)
`Borrowershall not be obligated to pay any Excess Interest; (3) any Excess Interest that Lender
`may have received hereunder shall be, at Lender’s option, applied as a credit against the
`outstanding principal balance of this Note or the accrued and unpaid interest (not to exceed the
`maximum amount permitted by law), or refunded to the payor thereof, or any combination of the
`foregoing;
`(4) the interest rate provided for herein shall be automatically reduced to the
`maximum lawful rate allowed from time to time under applicable law (the “Maximum Rate’),
`and this Note shall be deemed to have been and shall be, reformed and modified to reflect such
`reduction; and (5) Borrowershall not have any action against Lender for any damagesarising out
`of the payment or collection of any Excess Interest. Notwithstanding the foregoing, if, for any
`period of time, interest on this Note is calculated at the Maximum Rate rather than the applicable
`rate under this Note, and thereafter the Maximum Rate exceeds the applicable rate, the rate of
`interest payable on this Note shall become the Maximum Rate until Lender shall have received
`the amount of interest which Lender would have received during such period on this Note had
`the rate of interest not been limited to the Maximum Rate during such period.
`
`Confidential
`
`BDE-00022990
`
`

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`Case 5:18-md-02834-BLF Document 871-3 Filed 04/21/23 Page 14 of 110
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`Each of the following events shall constitute an “Event of Default’ under this Note: (i)
`failure of Borrower to pay any principal, interest or other amount due hereunder within five (5)
`business days of the date due, or Borrower shall in any way fail to comply with the other terms,
`covenants or conditions contained in this Note, when such failure continues for a period of five
`(5) days following notice thereof from Lender; (11) Borrower shall (a) commence a voluntary
`case under the Bankruptcy Code of 1978, as amendedor other federal bankruptcy law (as now or
`hereafter in effect); (b) file a petition seeking to take advantage of any other laws, domestic or
`foreign, relating to bankruptcy,
`insolvency, reorganization, winding up or composition for
`adjustment of debts; (c) consent to or fail to contest in a timely and appropriate manner any
`petition filed against it in an involuntary case under such bankruptcy laws or other laws; (d)
`apply for or consent to, or fail to contest in a timely and appropriate manner, the appointmentof,
`or the taking of possession by, a receiver, custodian, trustee, or liquidator of Borroweror of a
`substantial part of Borrower’s property, domestic or foreign; (e) admit in writing its inability to
`pay its debts as they become due; (f) make a general assignment for the benefit of creditors; or
`(g) make a conveyance fraudulent as to creditors under any state or federal law; or (iii) a case or
`other proceeding shall be commenced against Borrower in any court of competent jurisdiction
`seeking (a) relief under the Bankruptcy Code of 1978, as amended or other federal bankruptcy
`law (as now or hereafter in effect) or under any other laws, domestic or foreign, relating to
`bankruptcy,
`insolvency,
`reorganization, winding up or adjustment of debts or
`(b)
`the
`appointment of a trustee, receiver, custodian, liquidator or the like for Borrower of all or any
`substantial part of its assets, domestic or foreign, and such proceeding shall not have been stayed
`or dismissed within sixty (60) days.
`
`Upon the occurrence of an Event of Default described in clause (1) of the definition
`thereof, any and all of the obligations hereunder, at the option of Lender, exercisable in its sole
`discretion, and without demand or notice of any kind, may be immediately declared, and
`thereupon shall immediately be in default and due and payable and Lender mayexercise any and
`all rights and remedies available to it at law, in equity or otherwise. Upon the occurrence of an
`Event of Default described in clause (11) or (iti) of the definition thereof, any and all of the
`obligations hereunder, without demandor notice of any kind, shall immediately be in default and
`due and payable and Lender may exercise any andall rights and remedies available toit at law,
`in equity or otherwise. Nothing in this paragraph shall limit the right of Lender to make demand,
`at any time, with or without the occurrence of an Event of Default, for paymentin full of all
`amounts due hereunder.
`
`Borrower agrees to pay all costs and expenses (including without limitation attorney’s
`fees) incurred by Lender in connection with or related to this Note, or its enforcement, whether
`or not suit be brought.
`
`All payments of principal, interest and other amounts to be made by Borrowerunderthis
`Note shall be made without any deduction, set-off or counterclaim whatsoever. The receipt of
`any check or other item of payment by Lender shall not be conside