ATTACHMENT OF OR
LEVY AGAINST MAKER'S PROPERTY, AND SUCH WRIT FOR A PREJUDGMENT REMEDY WILL NOT
HAVE THE PRIOR WRITTEN APPROVAL OR SCRUTINY OF A COURT OF LAW OR OTHER JUDICIAL
OFFICER AND MAKER WILL NOT HAVE THE RIGHT TO ANY NOTICE OR PRIOR HEARING WHERE
MAKER MIGHT CONTEST SUCH A PROCEDURE. THE INTENT OF MAKER IS TO GRANT TO HOLDER
FOR GOOD AND VALUABLE CONSIDERATION THE RIGHT TO OBTAIN SUCH A PREJUDGMENT
REMEDY AND TO EXPRESS ITS BELIEF THAT ANY SUCH PREJUDGMENT REMEDY OBTAINED IS
VALID AND CONSTITUTIONAL UNLESS A COURT OF COMPETENT JURISDICTION SHOULD
DETERMINE OTHERWISE. FURTHER, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
MAKER HEREBY WAIVES DEMAND, PRESENTMENT FOR PAYMENT, PROTEST, NOTICE OF PROTEST,
NOTICE OF DISHONOR, DILIGENCE IN COLLECTION, NOTICE OF NONPAYMENT OF THIS NOTE
AND ANY AND ALL NOTICES OF A LIKE NATURE. FURTHER, TO THE EXTENT NOT OTHERWISE
EXPRESSLY PROVIDED HEREIN, MAKER EXPRESSLY WAIVES ALL DEFENSES BASED UPON
SURETYSHIP OR IMPAIRMENT OF COLLATERAL. MAKER CERTIFIES THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF HOLDER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT HOLDER
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE ANY OF THE WAIVERS
GRANTED ABOVE. MAKER ACKNOWLEDGES AND STIPULATES THAT THE WAIVERS AND
AUTHORIZATIONS GRANTED ABOVE ARE MADE KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
AND AFTER FULL CONSULTATION WITH COUNSEL AND CONSTITUTE A MATERIAL INDUCEMENT
FOR HOLDER TO MAKE THE LOANS.
(b)
THE FOREGOING (i) WAIVER BY HOLDER OF ITS RIGHT TO A HEARING UNDER
CHAPTER 903(a) OF THE CONNECTICUT GENERAL STATUTES, AS AMENDED, OR UNDER ANY
OTHER FEDERAL OR STATE STATUTE OR STATUTES OR FOREIGN LAWS AFFECTING PREJUDGMENT
REMEDIES, (ii) AUTHORIZATION TO HOLDER'S ATTORNEY TO ISSUE A WRIT FOR A
PREJUDGMENT REMEDY WITHOUT COURT ORDER, AND (iii) WAIVER OF ANY BOND, SURETY OR
SECURITY OR OF ANY DEMAND FOR POSSESSION PRIOR TO THE COMMENCEMENT OF A SUIT OR
ACTION AS DESCRIBED ABOVE, SHALL NOT APPLY (x) IF MAKER OR ANY OTHER MEMBER OF
THE PURCHASER GROUP (AS DEFINED IN THE MERGER AGREEMENT) SHALL HAVE GIVEN
WRITTEN NOTICE OF A CLAIM FOR INDEMNIFICATION BY SELLER PURSUANT TO SECTION
9.1(a)(i) OF THE AGREEMENT AND PLAN OF MERGER DATED AS OF MAY 31, 2007 BY AND
AMONG MAKER, SELLER, Z5 TECHNOLOGIES LLC AND AEGIS MERGER CORPORATION (n/k/a
FORTIFIED DATA COMMUNICATIONS, INC.) (THE "MERGER AGREEMENT") PRIOR TO THE
COMMENCEMENT OF SUCH ACTION BY HOLDER, OR (y) WHILE THE
6
PRINCIPAL OF OR ACCRUED INTEREST ON ANY ONE OR MORE OF THE PROMISSORY NOTES OF
MAKER LISTED ON SCHEDULE A HERETO REMAINS OUTSTANDING (NEITHER PAID IN FULL, NOR
CONVERTED TO EQUITY, NOR A COMBINATION THEREOF) UNLESS HOLDER HAS OBTAINED THE
WRITTEN CONSENT OF THE HOLDER(S) OF SUCH OUTSTANDING NOTE(S).
9.
Jury Trial Waiver. MAKER AND HOLDER MUTUALLY HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF
ANY CLAIM BASED HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE OR
ANY OTHER LOAN DOCUMENTS OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS