EXHIBIT 10.114(b)
PROMISSORY NOTE
$500,000 FEBRUARY 13, 2004
For valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the undersigned Now Solutions, LLC ("Promissor"), promises to pay
to the order of Robert Farias ("Promissee"), in lawful money of the United
States of America the principal amount of Five hundred thousand Dollars and No
Cents ($500,000 U.S.), together with interest on the amount of such principal
outstanding from time to time at the rate of ten (10%) per annum, calculated on
the basis of a three hundred sixty (360) day year containing twelve (12) months
of thirty (30) days each (the "Basic Interest Rate"), at the times and in the
manner provided herein. "Loan Documents" shall include any related agreements
referencing this promissory note (the "Note").
1. Payment of Principal and Interest; Security Interest. (a) The note shall be
payable as follows: (i) Promissor shall make monthly interest payments for all
interest accrued in the previous month on the 1st day of each month beginning
April 1, 2004 and (ii) beginning on October 1st, 2004 and continuing on the 1st
day of every month thereafter, Promissor shall make monthly principal payments
of $91,500 until the principal has been paid in full.
(b) The security interest in the Note shall be in all tangible and
intangible assets of Promissor, its successors and assigns. The security
interest in the Note shall be junior to (i) Promissor' present indebtedness to
WAMCO 31, Ltd ("WAMCO"), an assignee of Coast Business Credit or its successors
and (ii) Promissor's indebtedness to Arglen Acquisitions, LLC, pursuant to the
settlement agreement, dated December 4, 2003 (as amended). Promissee agrees that
WAMCO will have the right to require, as a condition to its consent to any
security interests provided to Promissee herein, that Promissee, as holder of
the additional security interest or lien sign an intercreditor agreement on
WAMCO's then standard form, acknowledge that the security interest is
subordinate to the security interest in favor of WAMCO. Promissee agrees to
execute any documentation reasonably required by Promissor to ensure that
Promissee' interest is subordinate to WAMCO and/or Arglen's interest, as the
case may be.
2. Interest Rate Upon Default. Should Promissor fail to pay any amount owing
hereunder as and when due, whether the same is due regularly as scheduled or by
reason of acceleration following default or otherwise, then interest shall
accrue on the past due amount at the Basic Interest Rate.
3 Default; Remedies. Each of the following occurrences and conditions shall
constitute an Event of Default upon written notice by Promissee to Promissor:
(a) failure by Promissor to pay within five (5) business days of the date when
due any money, whether principal, interest, or otherwise, under this Note; or
(b) failure of Promissor to perform any obligation other than an obligation to
pay money, as and when performance of such obligation is due under this Note or
Loan Documents which failure continues for fifteen (15) days after notice
thereof from Promissee to Promissor;
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Notwithstanding anything to the contrary herein or any Loan Document, if at any
time following the occurrence of any Event of Default, or following the
occurrence of any event as a consequence of which the obligations evidenced
hereby may be accelerated, then at the election of Promissee and providing that
Promissor has not cured the Event of Default within seven (7) business days
after written notice from Promissee, the entire amount of principal then
outstanding under this Note and all interest, fees, charges, and other amounts
owing and then unpaid hereunder shall become immediately due and payable, and
Promissee may exercise any and all rights that it may have under the Loan
Documents, at law, in equity, and otherwise.
4. Attorneys' Fees. Promissor shall pay to Promissee upon demand all costs and
expenses incurred by Promissee in connection with determination, protection, or
enforcement of any and all of Promissee's rights hereunder or under any of the
Loan Documents.
5. Waiver of Notice. Promissor and each endorser, guarantor and surety of this
Note hereby waive diligence, demand, presentment for payment, notice of
discharge, notice of nonpayment, protest and notice of protest, and specifically
consent to and waive notice of any renewals or extensions of this Note, whether
made to or in favor of Promissor or any other person or persons.
6. Notices. All notices required hereunder or pertaining hereto shall be in
writing and shall be deemed delivered and effective upon the earlier of (i)
actual receipt, or (ii) the date of delivery or refusal of the addressee to
accept delivery if such notice is sent by express courier service or United
States mail, postage prepaid, certified or registered, return receipt requested,
in either case to the applicable address as follows:
To Promissee: Mr. Robert Farias To Promissor: Richard Wade
3436 Verdugo Road, Ste. 250 NOW Solutions, LLC
Glendale, CA 91208 Chase Texas Tower
201 Main Street, Suite 1455
Fort Worth, TX 76102
Notwithstanding the foregoing, any notice under or pertaining to the Loan
Documents or the obligations secured thereby given and effective in accordance
with applicable law shall be effective for purposes hereof. Either party may
change the address at which it is to receive notices hereunder to another
business address within the United States (but not a post office box or similar
mail receptacle) by giving notice of such change of address in accordance
herewith.
7. Exercise of Rights. No single or partial exercise of any of Promissee's
rights or powers under this Note or any of the other Loan Documents shall
preclude any other or further exercise thereof or the exercise of any other
right or power. Each and all rights and remedies of Promissee hereunder and
under the Loan Documents are cumulative and in addition to each and all other
such rights and remedies. No exercise of any right or remedy shall preclude
exercise of any other right or remedy.
8. No Waiver. No failure of Promissee to insist upon strict performance of any
obligation of Promissor or to exercise any right or remedy hereunder or under
the Loan Documents, whether before or after any default, shall constitute or
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give rise to a waiver thereof, and no waiver of any default shall constitute a
waiver of any future default or of any other default.
9. Assignment; Successors and Assigns. Promissee may assign or otherwise
transfer all or any part of its interest herein. Promptly following written
notice of such assignment or other transfer, duly executed by Promissee,
Promissor shall render full and complete performance hereunder as and when due
to the transferee so designated by Promissee. Promissor shall not assign or
transfer all or any of its interests or obligations hereunder, and any attempted
or purported assignment or transfer by Promissor shall be void and of no force
or effect. Subject to the foregoing, the terms of this Note shall apply to, be
binding upon, and inure to the benefit of all parties hereto and their
successors and assigns.
10. Modification. This Note shall not be modified, amended, or terminated,
except by written agreement duly executed and delivered by both Promissee and
Promissor.
11. Conflicts. In the event of any conflict between any provision of this Note
or the Loan Documents, which conflict cannot reasonably be resolved in such a
way as to give effect to all provisions herein and therein contained, this Note
shall govern.
12. Severability. If any provision of this Note or any payments pursuant to the
terms hereof shall be invalid or unenforceable to any extent, the remainder of
this Note and any other payments hereunder shall not be affected thereby and
shall be enforceable to the greatest extent permitted by law.
13. Governing Law. This Note shall be governed by and construed in accordance
with the laws of the State of Texas and subject to the jurisdiction and venue of
the state and federal courts of Fort Worth, Texas.
IN WITNESS WHEREOF, Promissor has executed and delivered this Note as
of the date first written above.
NOW SOLUTIONS, LLC
By
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Richard Wade
Chairman, Now Solutions, LLC
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