SECURED PROMISSORY NOTE
$____________ August ____, 2000
FOR VALUE RECEIVED, the undersigned, DATAMETRICS CORPORATION, a
Delaware corporation, with offices at 00X Xxxxxxx Xxxx, #000, Xxxxxxx Xxxx,
Xxx Xxxxxx 00000 (the "Maker"), hereby unconditionally promises to pay to the
order of ________________ (the "Payee"), c/x Xxxxxxx Securities, 0000
Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, on October 5,
2000 (the "Maturity Date") the principal amount of ______________________
Dollars ($________), in lawful money of the United States of America, and to
pay
interest (computed on the basis of a 365-day per year and the actual number of
days elapsed) on the unpaid principal balance hereto at a rate of twelve
percent (12%) per annum, such interest to be payable on the Maturity Date.
The Maker also promises to pay on demand interest on any overdue portion of
principal and (to the extent permitted by applicable law) on any overdue
installment of interest at the rate of sixteen percent (16%) per annum. Any
amounts paid hereunder in excess of the highest rate permitted under
applicable law shall be applied to principal and not to interest.
Events of Default. The Maker will be in default under this Note
upon the occurrence of any of the following (each an "Event of Default"): (a)
failure to pay when due the amounts required by this Note or amounts owing to
the Payee by the Maker under any other Note or agreement; or (b) suspension or
liquidation by the Maker of its usual business; or (c) filing by or against
the Maker of a petition under any of the provisions of the Bankruptcy Reform
Act of 1978, as amended, or any comparable statute, rule or regulation
applicable to the Maker in any jurisdiction; or (d) application for, or
appointment of, a receiver of the Maker or its properties. In the event of
any Event of Default, the entire remaining unpaid amount of this Note,
together with interest accrued thereon, shall become immediately due and
payable.
Upon an Event of Default, the Payee may accelerate all amounts due
or to become due hereunder and may proceed to protect and enforce its rights
either by suit in equity or by action at law, or both, whether for the
specific performance of any covenant, condition or agreement contained in this
Note, or proceed to enforce the payment of this Note or to enforce any other
legal or equitable right, including, without limitation, a right of set-off,
it possesses, and the Payee may recover all costs of suit and other expenses
in connection therewith, together with attorneys' fees and costs of
collection.
The Maker waives demand, presentment, notice of presentment,
protest and notice of protest, and notice of nonpayment and dishonor of this
Note.
Prepayments. This Note may be prepaid in whole or in part,
together with interest accrued to the date of any such prepayment.
No Set-Off. The obligation of the Maker to make the payments
required hereunder shall be absolute and unconditional without any defense or
right of set-off, counterclaim or recoupment by reason of any indebtedness or
liability which may at any time be owing to the Maker by the Payee.
The Maker hereby makes the following waiver, knowingly,
voluntarily, and intentionally, and understands that the Payee, in entering
into any loan arrangements or making any financial accommodations to the
Maker, whether now or in the future, is relying on such waiver. THE MAKER AND
THE PAYEE HEREBY IRREVOCABLY WAIVE ANY PRESENT OR FUTURE RIGHT TO A JURY IN
ANY TRIAL OF ANY CASE OR CONTROVERSY IN WHICH THE HOLDER IS OR BECOMES A PARTY
(WHETHER SUCH CASE OR CONTROVERSY IS INITIATED BY OR AGAINST THE HOLDER OR IN
WHICH THE HOLDER IS JOINED AS A PARTY LITIGANT), WHICH CASE OR CONTROVERSY
ARISES OUT OF, OR IS IN RESPECT OF, ANY RELATIONSHIP BETWEEN THE MAKER OR ANY
OTHER PERSON AND THE HOLDER.
THIS NOTE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR
CONFLICT PROVISION OR RULE (WHETHER OF THE STATE OF NEW YORK, OR ANY OTHER
JURISDICTION) THAT WOULD CAUSE THE LAWS OF ANY JURISDICTION OTHER THAN THE
STATE OF NEW YORK TO BE APPLIED. IN FURTHERANCE OF THE FOREGOING, THE
INTERNAL LAW OF THE STATE OF NEW YORK WILL CONTROL THE INTERPRETATION AND
CONSTRUCTION OF THIS NOTE, EVEN IF UNDER SUCH JURISDICTION'S CHOICE OF LAW OR
CONFLICT OF LAW ANALYSIS, THE SUBSTANTIVE LAW OF SOME OTHER JURISDICTION WOULD
ORDINARILY APPLY.
THE UNDERSIGNED CONSENTS THAT ANY LEGAL ACTION OR PROCEEDING
AGAINST IT UNDER, ARISING OUT OF OR IN ANY MANNER RELATING TO THIS NOTE, OR
ANY OTHER INSTRUMENT OR DOCUMENT EXECUTED AND DELIVERED IN CONNECTION
HEREWITH, SHALL BE BROUGHT EXCLUSIVELY IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK OR IF SUCH COURT LACKS SUBJECT MATTER
JURISDICTION THEN IN ANY COURT OF THE STATE OF NEW YORK. THE UNDERSIGNED, BY
THE EXECUTION AND DELIVERY OF THIS NOTE, EXPRESSLY AND IRREVOCABLY CONSENTS
AND SUBMITS TO THE PERSONAL JURISDICTION OF ANY OF SUCH COURTS IN ANY SUCH
ACTION OR PROCEEDINGS. THE UNDERSIGNED AGREES THAT TO THE EXTENT PERMITTED BY
APPLICABLE LAW PERSONAL JURISDICTION OVER IT MAY BE OBTAINED BY THE DELIVERY
OF A SUMMONS (POSTAGE PREPAID) TO THE ADDRESS OF THE UNDERSIGNED SET FORTH
ABOVE. ASSUMING SUCH DELIVERY OF THE SUMMONS, THE UNDERSIGNED HEREBY EXPRESSLY
AND IRREVOCABLY WAIVES ANY ALLEGED LACK OF PERSONAL JURISDICTION, IMPROPER
VENUE OF FORUM NON CONVENIENS OR ANY SIMILAR BASIS.
Assignment. This Note shall inure to the benefit of and shall be
binding upon the Maker and the Payee and each of their respective successors,
heirs and assigns, provided that the Maker shall not assign or otherwise
delegate all or any part of its obligations hereunder without the prior
written consent of the Payee.
Notices. Any notice may be sent by United States certified mail,
postage prepaid, to the Maker and Payee at its respective address set forth
above.
Miscellaneous. Headings are inserted solely for convenience of
reference and shall not affect the interpretation of any provision of this
Note. The Maker acknowledges that this Note sets forth the entire agreement
of the Maker and the Payee with respect to the payment of the amount of this
Note and supersedes any and all oral and written statements, representations
or other agreements made prior hereto or contemporaneously herewith.
Security. This Note is secured in the manner set forth in, and is
entitled to the benefits of, (i) that certain Pledge Agreement dated the date
hereof between the Maker and the Payee, (ii) that certain Security Agreement
dated the date hereof between XxxxXxXxx.xxx, Inc. and the Payee and (iii) that
certain Assignment of Life Insurance as Collateral dated the date hereof by
the Maker.
Use of Proceeds. The proceeds of the loan evidenced by this Note
shall be used solely for the purposes disclosed to the Payee simultaneously
with the execution and delivery of this Note.
Special Representation. By acceptance of this Note, the Payee
represents and warrants that he is experienced in investments of the type
represented by this Note, is sophisticated in financial and business affairs
and has had the opportunity to ask questions of and receive answers from the
Maker regarding this investment.
IN WITNESS WHEREOF, the Maker has executed this Note on the date
first set forth above.
DATAMETRICS CORPORATION
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
ATTEST: Title: CEO
/s/
_________________________
STATE OF NEW JERSEY
___________ County August ___, 2000
Then personally appeared the above-named Xxxxxx X. Xxxxx, who did declare that
he is a CEO of Datametrics Corporation and acknowledged the foregoing
instrument to be his free act and deed as such CEO, and the free act and deed
of Datametrics Corporation, before me,
(Seal)
________________________________
Notary Public
My commission expires:
1
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Document #: 12422v4
