Exhibit 10.11
THE SECURITIES REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE, AND HAVE
BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN
CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR
DISTRIBUTION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL IN A FORM
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE APPLICABLE
SECURITIES LAWS OF ANY STATE.
SECURED PROMISSORY
NOTE
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$225,000
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March 30, 2009
Clearwater, Florida
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For value received, Digital
Lightwave, Inc., a Delaware corporation (the “ Company
”), promises to pay to Optel Capital, LLC, a Delaware limited
liability company (the “ Holder ”), or its
registered assigns, the principal sum of Two Hundred Thousand
Dollars and Zero Cents ($225,000.00). Interest shall accrue from
the date of this Note on the unpaid principal amount at a rate
equal to 10.0% per annum, compounded annually. The interest
rate shall be computed on the basis of the actual number of days
elapsed and a year of 360 days. This Note is subject to the
following terms and conditions.
1. Maturity
.
(a) Principal and any accrued but
unpaid interest under this Note shall be due and payable upon
demand by the Holder at any time after May 31,
2009.
(b) Notwithstanding the foregoing,
the entire unpaid principal sum of this Note, together with accrued
and unpaid interest thereon, shall become immediately due and
payable upon demand by the Holder at any time on or following the
occurrence of any of the following events:
(i) the sale of all or substantially
all of the Company’s assets, or any merger or consolidation
of the Company with or into another corporation; other than a
merger or consolidation in which the holders of more than 50% of
the shares of capital stock of the Company outstanding immediately
prior to such transaction continue to hold (either by the voting
securities remaining outstanding or by their being converted into
voting securities of the surviving entity) more than 50% of the
total voting power represented by the voting securities of the
Company, or such surviving entity, outstanding immediately after
such transaction;
(ii) the inability of the Company to
pay its debts as they become due;
(iii) the dissolution, termination
of existence, or appointment of a receiver, trustee or custodian,
for all or any material part of the property of, assignment for the
benefit of creditors by, or the commencement of any proceeding by
the Company under any reorganization, bankruptcy, arrangement,
dissolution or liquidation law or statute of any jurisdiction, now
or in the future in effect;
(iv) the execution by the Company of
a general assignment for the benefit of creditors;
(v) the commencement of any
proceeding against the Company under any reorganization,
bankruptcy, arrangement, dissolution or liquidation law or statute
of any jurisdiction, now or in the future in effect, w
