Secured Promissory Note
Datametrics Corporation
25B Hanover Road
#305
Florham Park, New Jersey 07932
$___________ July 31, 2000
FOR VALUE RECEIVED, the undersigned (the ``Maker'') promises to pay to the
order of ______________________, c/o Burnham Securities, 1325 Avenue of
the Americas, 26th Floor, New York City, New York (hereinafter, with any
subsequent holder, the "Payee") the principal sum of
_________________________
DOLLARS ($________), or so much thereof as may have been funded as set forth
below and be outstanding, with interest thereon accruing at the rate of 12%
per annum.
All principal and interest on this Note shall be repaid on the earlier of:
(a) January 20, 2001; or
(b) Ten (10) days following the closing by the undersigned of any other
borrowing, sale of loan participation, offering of debt or equity,
or other financing of any nature, in one or more installments, in
excess of $3,500,000, regardless of the source or nature thereof.
Upon the first to occur of (i) maturity of this Note, or (ii) an Event of
Default (as hereinafter defined), interest shall accrue on the outstanding
principal balance of this Note at the aggregate of the annual rate of fifteen
percent (15%) per annum.
The undersigned may prepay this Note from time to time in whole or in part
without premium or penalty in accordance with the terms set forth above.
Any payments received by the Payee on account of this Note prior to demand
or acceleration shall be applied first to any costs, expenses, or charges
then
owed the Payee by the undersigned, second to accrued and unpaid interest, and
third to the unpaid principal balance hereof. Any payments so received after
demand or acceleration shall be applied in such manner as the Payee may
determine. The undersigned hereby authorizes the Payee to charge any deposit
account which the undersigned may maintain with the Payee for any payment
required hereunder.
The Payee, at its option, may declare the entire unpaid principal balance
of this Note to be immediately due and payable without demand, notice or
protest
(which are hereby waived) upon the occurrence of any one or more of the
following
events (herein, "Events of Default"):
(a) The failure by the undersigned to pay any amount due under this Note
when due;
(b) The failure by the undersigned to promptly, punctually, and
faithfully perform, discharge, or comply with any of the undersigned's
liabilities, obligations, indebtedness or covenants to the Payee pursuant
to this Note or that certain Pledge Agreement between the parties of even
date;
(c) (1) Any act by, against, or relating to the undersigned, or its
property or assets, which act constitutes the application for or consent
to the appointment of a receiver, trustee, or other person, pursuant to
court action or otherwise, over all or any part of the undersigned's
property; (2) the granting of any trust mortgage or execution of an
assignment for the benefit of the creditors of the undersigned; (3)
adjudication of bankruptcy or insolvency relative to the undersigned or
the entry of an order for relief or similar order
with respect to the undersigned in any proceeding pursuant to the
Bankruptcy Reform Act of 1978 (commonly referred to as the Bankruptcy
Code) or any other federal bankruptcy law;
(d) The entry of any judgment against the undersigned, which judgment is
not satisfied or appealed from (with execution or similar process stayed)
within twenty-eight (28) days of its entry; or
(e) The termination of existence, dissolution, winding up, or
liquidation of the undersigned.
No delay or omission by the Payee in exercising or enforcing any of the
Payee's powers, rights, privileges, remedies, or discretions hereunder shall
operate as a waiver thereof on that occasion nor on any other occasion. No
waiver of any default hereunder shall operate as a waiver of any other
default
hereunder, nor as a continuing waiver.
The undersigned agrees to and will pay on demand, all attorneys'
reasonable
fees, out-of-pocket expenses incurred by the Payee's attorneys and all costs
incurred by the Payee, including, without limitation, costs and expenses
associated with travel on behalf of the Payee, which costs and expenses are
directly or indirectly related to the preservation, protection, collection or
enforcement of any of the Payee's rights against the undersigned or any
collateral given the Payee to secure this Note or any other Liabilities of
the
undersigned to the Payee (whether or not suit is instituted by or against the
Payee).
The undersigned waives presentment, demand, notice, and protest, and
also
waives any delay on the part of the holder hereof. The undersigned assents to
any
extension or other indulgence (including, without limitation, the release or
substitution of collateral) permitted the undersigned by the Payee with
respect
to this Note and/or any collateral given to secure this Note or any extension
or
other indulgence, as described above, with respect to any other liability or
any
collateral given to secure any other liability of the undersigned to the
Payee.
This Note shall be binding upon the undersigned and upon its
successors,
assigns, and representatives, and shall inure to the benefit of the Payee and
its
successors, endorsees, and assigns.
The undersigned 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 undersigned,
whether
now or in the future, is relying on such waiver. THE UNDERSIGNED 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 UNDERSIGNED OR ANY OTHER PERSON AND
THE
HOLDER.
i) 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.
ii) 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.
MAKER: ("the undersigned")
Datametrics Corporation
By: /s/ Daniel P. Ginns
Daniel P. Ginns, CEO
This Note is secured by a pledge in and to all of Makers' stock of
MadeMyWay.com Inc.
STATE OF NEW JERSEY
___________ County
July ___, 2000
Then personally appeared the above-named Daniel P. Ginns, 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:
4
Document #: 11968v4
