**EXHIBIT 10.6**

 

THE SECURITIESREPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,OR APPLICABLE STATE, SECURITIES LAWS, NOR THE SECURITIES LAWS OF ANY OTHERJURISDICTION.  THEY MAY NOT BE SOLD ORTRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THOSESECURITIES LAWS OR PURSUANT TO AN EXEMPTION THEREFROM.

 

AXCESS INC.

 

# SeniorPromissory Note

 

 

| $ 400,000.00 |   | April 12, 2002 |
|--------------|--------|----------------|

 

                AXCESS INC., a Delaware corporation having itsprincipal place of business in Carrollton, Texas (the Company”), for valuereceived, hereby promises to pay to the order of J.P. Morgan InvestmentCorporation, or its transferees or assigns (the “Holder”), on December 31, 2003(the “Final Maturity Date”), the principal sum of FOUR HUNDRED THOUSAND UNITEDSTATES DOLLARS (U.S. $400,000.00), or the aggregate unpaid amount of allprincipal outstanding hereunder, whichever is less, together with interest onthe outstanding principal balance hereunder from time to time, at the rate ofsix and sixty-four-one-hundredths percent (6.64%) per annum, calculated on thebasis of the actual number of days elapsed over a 364- (or 365-) day year (the“Base Interest Rate”).  Each paymentreceived by the Holder hereunder shall be applied first to the interest accruedon and then to the unpaid principal amount of this Note.

 

This Note is givenin extension and partial renewal of that certain Senior Promissory Note, datedJune 25, 1997, made by the Company and payable to the order of the Holder,as extended and modified by Note Payable Conversion Agreement, datedMarch     , 1999, between the Company and Holder (suchSenior Promissory Note, as so extended and modified, being herein referred toas the “Original Note”).  The OriginalNote was one of the Senior Promissory Notes (“Notes”) issued and sold by theCompany under the Note Purchase Agreement, dated as of June 25, 1997, asamended on December 29, 1997 (the “Note Purchase Agreement”), among theCompany, the initial Holder and the other purchaser named therein.

 

                Payment of principal and interest shall be made insuch coin or currency of the United States of America as at the time of paymentshall be legal tender for the payment of public and private debts.  All such payments shall be paid by wiretransfer of Federal funds in accordance with the written instructions of theHolder or, in the absence of such instructions, by check mailed to the Holderat the address last given to the Company by the Holder in writing for suchpurpose.

 

                This Note may be prepaid in whole or in part at anytime at the option of the Company, without premium or penalty, upon not lessthan 20 days’ prior written notice to the Holder.

 

If any time afterthe date hereof the Company or any subsidiary completes (i) an equity orlong-term debt financing, (ii) a sale of assets outside the ordinary course ofbusiness, (iii) a sale-leaseback or similar financing, or (iv) a joint ventureor other strategic partnership (any such transaction, an “ExtraordinaryTransaction”), and such Extraordinary Transaction results in cash proceeds tothe Company (together with the cash proceeds of any other ExtraordinaryTransaction 

 

 

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after the date hereof, tothe extend not previously applied) in excess of $5,000,000 (such excess, the“Available Cash Proceeds”), then a portion of Available Cash Proceeds shall beapplied to prepay this Note as provided herein.

 

The Company herebywaives presentment for payment, demand for payment, notice of nonpayment,protest and notice of protest.

 

This Note may beprepaid in whole or in part (in amounts not less than $50,000) at any time atthe option of the Company, upon not less than 20 days’ prior written notice tothe Holder, without premium or penalty; provide, however, that anyamounts prepaid hereunder on any of the other Notes shall be applied to prepaythis Note and all other Notes issued under the Note Purchase Agreement on a prorata basis, in proportion to the respective aggregate unpaid principalamounts thereof.

 

                This Note shall be binding upon the Company and itssuccessors and assigns and shall inure to the benefit of the Holder and itssuccessors, assigns and transferees.

 

If the Companyfails to pay any amount of principal or interest when due, the entire unpaid principalof and accrued interest on outstanding principal amounts hereunder shallforthwith become absolutely due and payable without any notice, demand, protestor presentment whatsoever, all of which are hereby expressly waived.  Interest on any past due principal amount,whether at the Final Maturity Date or by acceleration, shall accrue at a rateequal to the Base Interest Rate plus five percent (5%) per annum, but in noevent higher than the maximum legal rate of interest permitted under applicablelaw.  In addition, if any amount payablehereunder shall remain unpaid after 3:00 p.m., New York City time, on the FinalMaturity Date, the Company shall pay to the record Holder of this Note at suchtime the Additional Consideration provided for in the Note Purchase Agreement(as such term is defined therein).  TheCompany shall pay to the Holder all costs and expense of collection andenforcement relating to this Note, including without limitation reasonableattorneys’ fees and expenses.

 

                This Note shall begoverned by and construed in accordance with the laws of the State of New York,without reference to its rules as to conflicts of law.  Any judicial proceeding brought against theCompany to enforce, or otherwise in connection with, this Note may be broughtin any court of competent jurisdiction the City of New York, and, by executionand delivery of this Note, the Company (i) accepts, generally andunconditionally, the nonexclusive jurisdiction of such courts and any relatedappellate court and irrevocably agrees to be bound by any final judgmentrendered thereby in connection with this Note and (ii) irrevocably waives anyobjection it may now or hereafter have as to the venue of any such proceedingbrought in such a court or that such a court is in inconvenient forum.

 

                THE COMPANY HEREBYUNCONDITIONALLY AND IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION, SUIT,COUNTERCLAIM OR CROSS CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS NOTE.

 

 

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IN WITNESS WHEREOF, the Company has caused this Noteto be signed by its Vice President and has caused its corporate seal to beaffixed and attested by its Secretary.

 
| [Corporate Seal]            Attested: |   | AXCESS INC. |
|----------------------------------------------------------------------------------------------|--------|-------------|
|                                                                                         |   |        |   |
|                                                                                         |   |        |   |
| /s/ Allan Frank                                                                              |   | By:         | /s/ Allan Griebenow |
|                                                                                         |   |        | Allan Griebenow, Chief Executive Officer |
| Allan Frank, Secretary                                                                       |   |        |   |

 

 

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