-2-
VCSYNOW NOTE.FINAL-2
EXHIBIT 10.115(b)
PROMISSORY NOTE
SECURED BY SECURITY AGREEMENT
$600,000 Los Angeles, California
February 13, 2004
FOR VALUE RECEIVED, the undersigned, VERTICAL COMPUTER SYSTEMS, INC. and
NOW SOLUTIONS, LLC, JOINTLY AND SEVERALLY (Makers), promise to pay to ARGLEN
ACQUISITIONS, LLC (Payee), or order, the sum of SIX HUNDRED THOUSAND AND 00/100
DOLLARS ($600,000), in the following three installment payments:
1. On or before April 6, 2004, Makers shall pay the sum of TWO HUNDRED
THOUSAND DOLLARS ($200,000) to Payee.
2. On or before June 4, 2004, Borrower shall pay the sum of ONE HUNDRED
THOUSAND DOLLARS ($100,000) to Payee.
3. On or before September 3, 2004, Borrower shall pay the sum of THREE
HUNDRED THOUSAND DOLLARS ($300,000) to Payee.
All payments on this Promissory Note Secured by Security Agreement (Note) are
payable to Payee, in lawful money of the United States of America, by wire
transfer in accordance with the wire transfer instructions herein set forth, or
in such other manner or at such other place as Payee, or other holder hereof,
shall hereafter notify Makers in writing. Payee's wire transfer information and
instructions are:
For the Account of Arglen Acquisitions LLC
Account No. 134 1018841 65
Bank Routing Number ABA # 021-000021
JPMorgan Chase Bank, 401 Madison Avenue, New York, New York 10017
Telephone Number (212) 661-0607; Bank Contact, Ms. Pavlova Shah
All or any portion of the principal or interest due under this Note may at
any time or times be prepaid without premium or penalty.
Makers hereby waive presentment, protest, demand, notice of dishonor and
of nonpayment. Makers hereby further waive any and all rights of setoff,
recoupment and counterclaim with respect to principal and interest due on this
Note, including rights of setoff, recoupment and counterclaim with respect to
this Note which arose from or are based on claims, transactions or events which
occurred on or before the date of this Note.
This Note shall be governed by and construed under the laws of the State
of California. Makers hereby submit to personal jurisdiction and venue in the
State of California, County of Los Angeles, for the enforcement of Makers' joint
and several obligations under this Note.
This Note is secured by that certain Security Agreement executed by NOW
Solutions, LLC, as Debtor, and Payee, as Secured Party.
-1-
In addition to the rights, powers and remedies given in this Note, Payee
may, at any time, and from time to time, exercise any and all rights and powers
and pursue any and all remedies now or hereafter given by law or in equity,
including, but not limited to, any rights and remedies granted by California or
federal case, statutory or regulatory law. The failure to exercise any right or
remedy given Payee in this Note, or by law or equity, shall not waive or be
deemed a waiver of that right or remedy unless Payee has so agreed, expressly
and in writing, and the failure to so exercise any right or remedy, if any event
of default shall occur, shall not preclude Payee from exercising any right or
remedy given in this Note, or by law or equity, in case of one or more
subsequent events of defaults. The written waiver by Payee of any default by
Makers hereunder shall not constitute a continuing waiver or a waiver of any
other events of default or of the same default on any future occasion. No power
or remedy herein conferred is exclusive of or shall prejudice any other power or
remedy of Payee given by law. No course of dealing between the Makers and Payee
and no delay on the part of Payee in exercising its rights under this Note shall
operate as a waiver of the rights of Payee. No covenant or other provision of
this Note or any event of default in connection herewith may be waived, other
than by a written instrument signed by the parties so waiving such covenant or
other provisions of this Note or event of default; provided, however, that no
such waiver shall extend to or impair any obligation not expressly waived, nor
impair any right otherwise consequent on such covenant, provision or event of
default.
It shall be an "Event of Default" under this Note if Makers fail to pay
when due any amounts payable under this Note.
Upon the occurrence of an Event of Default, which remains uncured for five
(5) calendar days after Payee has notified Makers in writing by facsimile
transmission of said failure to pay, at the option of Payee, the entire
remaining amount of principal owing under this Note, together with interest at
the statutory rate of 10% per annum, shall, without further notice, become
immediately due and payable. Makers' facsimile numbers are 512-692-1836
(Vertical Computer Systems, Inc.) and 817-335-7667 (NOW Solutions, LLC). A copy
of such notice shall also be provided to counsel for Makers, Derek A. Wolman of
Wolman, Babitt & King, L.L.P., whose facsimile number is 212-867-3784.
No change, amendment, modification, cancellation or discharge of this Note
shall be valid unless the party to be charged therewith shall have consented
thereto in writing. This Note may be assigned or endorsed in whole or in part by
Payee.
If any provision of this Note is held by a court of law to be in violation
of any law or policy, and if such court should declare such provision of this
Note to be illegal, invalid, unlawful, void, voidable, or unenforceable as
written, then such provision shall be given full force and effect to the fullest
possible extent that it was legal, valid and enforceable, that the remainder of
this Note shall be construed as if such illegal, invalid, unlawful, void,
voidable or unenforceable provision was not contained herein, and that the
rights, obligations and interest of Makers and Payee shall continue in full
force and effect.
-2-
All covenants and agreements herein shall bind each of Makers' respective
successors and assigns, and all such covenants and agreements shall inure to the
benefit of Payee and its nominees, successors and assigns.
No extension of time for the payment of this Note or any installment of
this Note made by agreement with any person now or hereafter liable for payment
of this Note shall operate to release, discharge, modify, change or affect the
original joint and several liability of Makers under this Note, either in whole
or in part.
Makers unconditionally waive, except as may be expressly provided
elsewhere in this Note, any defense to the enforcement of this Note based on an
election of remedies by Payee, including, without limitation, any election of
remedies which destroys or otherwise impairs any subrogation rights Makers may
have for reimbursement. By accepting payment of any sums secured hereby after
their due date, Payee does not waive Payee's rights to require prompt payment
when due of all other sums so secured or evidenced hereby, or to declare a
default for failure to timely pay such sums.
PAYEE AND MAKERS HEREBY WAIVE THE RIGHT TO ANY JURY TRIAL IN ANY ACTION,
CROSS-COMPLAINT, COUNTERCLAIM, OR OTHER PROCEEDING BASED UPON, ARISING OUT OF,
OR IN ANY WAY RELATING TO (1) THIS NOTE, OR (2) ANY OTHER PRESENT OR FUTURE
INSTRUMENT OR AGREEMENT BETWEEN PAYEE AND MAKERS WITH RESPECT TO THIS NOTE, OR
(3) ANY CONDUCT, ACTS OR OMISSIONS OF PAYEE OR MAKERS, OR ANY OF THEIR
RESPECTIVE DIRECTORS, OFFICERS, MEMBERS, EMPLOYEES, AGENTS, ATTORNEYS, OR ANY
OTHER PERSONS AFFILIATED WITH PAYEE OR MAKERS, OR ANY OF THEM, WITH RESPECT TO
THIS NOTE.
Should any payment under this Note not be made when due, or cured within
the period of time for cure, Makers shall pay to Payee the reasonable attorneys'
fees and costs of collection incurred by Payee.
Executed as of the day and year first above stated.
VERTICAL COMPUTER SYSTEMS, INC. NOW SOLUTIONS, LLC,
A Delaware corporation a Delaware limited liability company
By_________________________________ By_________________________________
Authorized Officer Authorized Officer
-3-