Exhibit 10.9
NON-NEGOTIABLE
PROMISSORY NOTE
$242,000.00 December 1, 2002
FOR VALUE RECEIVED, the undersigned, CALL COMPUANCE, INC., a New York
corporation ("Maker"), promises to pay to the order of TELE-SERV INC., a New
York corporation ("Payee"), at its office, Suite A, 780 New York Avenue,
Huntington, New York 11743, or at such other place as Payee may designate to
Maker in writing from time to time, the principal amount of Two Hundred Forty
Two Thousand Dollars ($242,000.00), consisting of Two Hundred Thousand Dollars
($200,000.00) of principal indebtedness ("Base Principal") and Forty Two
Thousand Dollars ($42,000.00) reflecting deferred interest on the Prior Note, as
hereinafter defined ("Deferred Interest"), together with interest on the Base
Principal from the date hereof as follows.
This Note shall reflect the amended terms of indebtedness as evidenced in a
certain promissory note dated July 11, 1996 in the principal amount of Two
Hundred Thousand Dollars ($200,000.00), with AMS Network, Inc. and ASN Voice &
Data Corp. as joint and several obligors, and as amended from time to time and
assigned to the Maker ("Prior Note"), and shall substitute and supercede the
terms of such Prior Note.
Interest on the Base Principal shall be at the rate of 21.0% per annum ("Initial
Interest Rate") from the date hereof through May 31, 2003 ("Initial Interest
Period"). Commencing June 1, 2003 through May 31, 2008 ("Second Interest
Period"), interest on the Base Principal shall be at the rate of 18.0% per annum
("Second Interest Rate").
During the five-year term commencing June 1, 2003 this Note is due and payable
in equal and self liquidating monthly installments of Six Thousand One Hundred
Twenty-Eight Dollars and 70/100 ($6,128.70) consisting of amortization of (i)
Deferred Interest, (ii) interest on the Base Principal at the Initial Interest
Rate during the Initial Interest Period, (iii) Base Principal and (iv) interest
on the Base Principal at the Second Interest Rate during the Second Interest
Period. The Maker agrees to make all payments under this Note on the last day of
each month ("Payment Date"). If any payment shall be insufficient, any unpaid
amounts shall be added to the Base Principal and shall be treated in all
respects as additional principal.
The entire outstanding balance of the Base Principal, Deferred Interest and all
accrued but unpaid interest and late charges, if any, shall be become due and
payable at the option of Payee immediately upon the happening of any of the
following events ("Event of Default"):
a. a default in payment of any amount due pursuant to this Note
continuing beyond ten (10) business days after written notice of such
default is given by the Payee to the Maker; or
b. the filing of a petition in voluntary or involuntary bankruptcy
by or against Maker, the general assignment for the benefit of creditors
of Maker, or the appointment of a receiver or trustee of any assets of
Maker.
The Maker shall have the right to prepay this Note, at any time, in whole or in
part, without premium or penalty. Each partial prepayment shall be applied first
to Deferred Interest and thereafter to accrued interest, and then to
installments of current interest and Base Principal, in that order, in the
inverse order of their maturity.
A late charge on any payments due made more than five (5) days after the Payment
Date thereof shall be paid at the rate of one-half of one percent (.5%) per
month or portion thereof that said payment remains unpaid.
It is not intended hereby to charge interest at a rate in excess of the maximum
rate of interest permitted to be charged to Maker hereof under applicable law,
but if, notwithstanding, interest in excess of such maximum legal rate shall be
paid hereunder, the excess shall be retained by Payee as cash collateral for the
payment of the outstanding principal amount and may be applied to pay same.
Maker hereby waives presentment for payment, demand, of non-payment and
dishonor, protest, of protest and any other that may be required under the law
in connection with enforcement of this Note.
If Maker fails to make timely the payments required hereby, Maker shall pay all
costs of collection when incurred, including, without limitation, reasonable
attorney's fees and expenses and court costs. Such costs will be added to the
balance due hereunder.
This Note may not be modified or the face hereof canceled except in a writing,
signed by Maker and by Payee. This Note shall be interpreted and enforced in
accordance with the laws of the State of New York without regard to any
principles of conflicts of law. The parties hereto hereby consent to the
jurisdiction of the Courts of the State of New York and of the United States
District Court for the Eastern District of New York in connection with any and
all actions commenced with respect to this Note and further consent that any
notice, process or notice of motion or other application to either of said
courts or judges thereof may be served in or out of the State of New York by
certified or registered mail return receipt requested, or by personal service,
provided a reasonable time for appearance is allowed, or in such other manner as
may be permiued by either of said courts.
As used herein, the terms "Maker" and "Payee" shall be deemed to include their
respective successors, legal representatives and assigns, whether by voluntary
action of the parties or by operation of law.
CALL COMPLIAN , INC.