INTERPRETATION, COLLECTION OR ENFORCEMENT.
25.
GOVERNING LAW.
ALL QUESTIONS CONCERNING THE
CONSTRUCTION, VALIDITY AND INTERPRETATION OF THIS NOTE WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR RULE (WHETHER
OF THE STATE OF NEW YORK OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE
APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK.
26.
HEADINGS.
THE HEADINGS OF THE SECTIONS AND
SUBSECTIONS OF THIS NOTE ARE INSERTED FOR CONVENIENCE ONLY AND DO NOT CONSTITUTE
A PART OF THIS NOTE.
27.
PLACE OF PAYMENT AND NOTICES.
PAYMENTS OF
PRINCIPAL AND INTEREST WILL BE PAID IN ACCORDANCE WITH SECTION 6(B) AND NOTICES
ARE TO BE DELIVERED TO THE HOLDER OF THE NOTE AT THE FOLLOWING ADDRESS:
Aether Systems, Inc.
11500 Cronridge Drive, Suite 110
Owings Mills, MD 21117
Attention:
Chief Financial Officer
with copy to:
Kirkland & Ellis LLP
655 Fifteenth Street, N.W., Suite 1200
Washington, D.C.
20005
Attention:
Mark D. Director
notices are to be delivered to the Makers at the following address:
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BIO-key International, Inc.
1285 Corporate Center Drive
Suite 175
Eagan, MN 55121
or, in each case, to such other address or to the attention of such other Person
as specified by prior written notice to the other party.
28.
CROSS-GUARANTY; MAKERS' OBLIGATIONS JOINT
AND SEVERAL.
EACH MAKER HEREBY AGREES THAT SUCH MAKER IS JOINTLY AND SEVERALLY
LIABLE FOR, AND HEREBY ABSOLUTELY AND UNCONDITIONALLY GUARANTEES TO PAYEE AND
ITS SUCCESSORS AND ASSIGNS, THE FULL AND PROMPT PAYMENT (WHETHER AT STATED
MATURITY, BY ACCELERATION OR OTHERWISE) AND PERFORMANCE OF, ALL OBLIGATIONS AND
LIABILITIES OWED OR HEREAFTER OWING TO PAYEE BY THE OTHER MAKER.
EACH MAKER
AGREES THAT ITS GUARANTY OBLIGATION HEREUNDER IS A CONTINUING GUARANTY OF
PAYMENT AND PERFORMANCE AND NOT OF COLLECTION, THAT ITS OBLIGATIONS UNDER THIS
SECTION 28 SHALL NOT BE DISCHARGED UNTIL PAYMENT AND PERFORMANCE, IN FULL IN
CASH, OF THE OBLIGATIONS HAS OCCURRED, AND THAT ITS OBLIGATIONS UNDER THIS
SECTION 28 SHALL BE ABSOLUTE AND UNCONDITIONAL, IRRESPECTIVE OF, AND UNAFFECTED
BY (A) THE GENUINENESS, VALIDITY, REGULARITY, ENFORCEABILITY OR ANY FUTURE
AMENDMENT OF, OR CHANGE IN, THIS NOTE; (B) THE ABSENCE OF ANY ACTION TO ENFORCE
THIS NOTE OR THE WAIVER OR CONSENT BY PAYEE WITH RESPECT TO ANY OF THE
PROVISIONS THEREOF; (C) THE EXISTENCE, VALUE OR CONDITION OF, OR FAILURE TO
PERFECT ITS LIEN AGAINST, ANY SECURITY FOR THE OBLIGATIONS OR ANY ACTION, OR THE
ABSENCE OF ANY ACTION, BY PAYEE IN RESPECT THEREOF (INCLUDING THE RELEASE OF ANY
SUCH SECURITY); (D) THE INSOLVENCY OF ANY MAKER; OR (E) ANY OTHER ACTION OR
CIRCUMSTANCES (OTHER THAN PAYMENT IN FULL IN CASH OF THE OBLIGATIONS) THAT MIGHT
OTHERWISE CONSTITUTE A LEGAL OR EQUITABLE DISCHARGE OR DEFENSE OF A SURETY OR
GUARANTOR.
EACH MAKER SHALL BE REGARDED, AND SHALL BE IN THE SAME POSITION, AS
PRINCIPAL DEBTOR WITH RESPECT TO THE OBLIGATIONS GUARANTEED HEREUNDER.
[SIGNATURE PAGE FOLLOWS]
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