EX-10.96






Exhibit 10.96



PROMISSORY NOTE




$1,750,000



Issue Date: October 26, 2005 Maturity Date: March 31, 2006



FOR VALUE RECEIVED, Warp Technology Holdings, Inc. (the “Company”) hereby promises to
pay to the order of Platinum Equity, LLC or its successors, assigns and legal representatives (the
“Holder”), at 360 N. Crescent Drive, South Building, Beverly Hills, California 90210, or at
such other location as the Holder may designate from time to time, the aggregate principal sum of
$1,750,000 (One Million Seven Hundred Fifty Thousand Dollars), in lawful money of the United States
of America, together with interest thereon at a rate of 9.0% per annum. This Promissory Note (this
“Note”) is delivered pursuant to that certain Merger Agreement, dated as of September 11,
2005, between the Company, TAC/Halo, Inc. and the Holder, as amended subsequent to the execution
thereof (the “Purchase Agreement”).



1. Maturity Date. Subject to the provisions of Section 5 below, the aggregate
principal amount of this Note and accrued interest thereon shall be due and payable on March 31,
2006 (the “Maturity Date”).



2. Calculation and Payment of Interest. Interest shall be payable in registered
shares of common stock of the Company (“Common Stock”), provided that until such shares are
registered, interest shall be paid in cash. If interest is paid in shares of Common Stock,
interest will be paid in full shares only, with an additional share to be paid for any fractional
share. Interest hereunder shall be calculated on the basis of a 360-day year for the actual number
of days elapsed. Interest shall be calculated on a simple interest basis and shall accrue daily
and be payable in arrears on the Maturity Date.



3. Prepayment. Any prepayments hereunder shall be applied first, to the payment of
any expenses then owed to the Holder, second, to accrued interest on this Note and third, to the
payment of the principal amount outstanding under this Note. The Company shall not have the right
to set off or otherwise deduct from amounts payable by it hereunder any amounts whether liquidated
or unliquidated, which the Holder or any of its Affiliates may owe to the Company, which right is
hereby expressly waived to the maximum extent permitted by applicable law. The Company shall have
the right to prepay all or a portion of this Note.



4. Covenants. The Company agrees that, so long as any amount payable under this Note
remains unpaid, it will not, and will cause its Subsidiaries not to, without the prior written
consent of the Holder:



(a) create, incur, guarantee, issue, assume or in any manner become liable in respect of, any
obligation (i) for borrowed money, other than trade payables incurred in the ordinary course of
business, (ii) evidenced by bonds, debentures, notes, or other similar instruments, (iii) in
respect of letters of credit or other similar instruments (or reimbursement obligations with
respect thereto), except letters of credit or other similar instruments issued to secure payment of
trade payables arising in the ordinary course of business consistent with past practices, (iv) to
pay the deferred purchase price of property or services, except trade payables arising in the
ordinary course of business consistent with past practices, (v) secured by a Lien (as defined
below) on any asset of the Company or a Subsidiary, whether or not such obligation is assumed by
the Company or such Subsidiary and (vi) of any other person or entity, other than (i) indebtedness
for borrowed money under the Credit Agreement, dated August 2, 2005, between Fortress Credit Corp.,
the Company and certain subsidiaries of the Company, as such Credit Agreement may be amended from
time to time (the “Fortress Credit Agreement”); (ii) indebtedness for borrowed money existing on
the date of this Note; (iii) any indebtedness (including under finance or capital leases) relating
to the acquisition of equipment or computers in the ordinary course of business; (iv) indebtedness
incurred as a result of a Company financing consummated through an offering of convertible
subordinated promissory notes of the Company, so long as (x) the maturity date for these
obligations falls after the Maturity Date, and (y) these notes have a priority equal or subordinate
to this Note; and (v) obligations or liabilities incurred in connection with Liens permitted to be
incurred under Section 4(b)(vi), 4(b)(vii) and 4(b)(viii) hereof;



(b) create, incur, assume or suffer to exist any lien, claim, pledge, charge, security
interest or encumbrance of any kind (“Liens”) on any asset now owned or hereafter acquired
by it, except:



(i) Liens existing on the date hereof;



(ii) Liens for taxes or assessments and similar charges either (x) not delinquent or (y)
contested in good faith by appropriate proceedings and as to which the Company shall have set aside
on its books adequate reserves;



(iii) Liens incurred or pledges and deposits in connection with workers’ compensation,
unemployment insurance and other social security benefits, or securing the performance bids,
tenders, leases, contracts (other than for the repayment of borrowed money), statutory obligations,
progress payments, surety and appeal bonds and other obligations of like nature, incurred in the
ordinary course of business;



(iv) Liens imposed by law, such as mechanics’, carriers’, warehousemen’s, materialmen’s and
vendors’ Liens, incurred in good faith in the ordinary course of business;



(v) zoning restrictions, easements, licenses, covenants, reservations, restrictions on the use
of real property or minor irregularities of title incident thereto which do not in the aggregate
materially detract from the value of the property or assets of the Company and its Subsidiaries
taken as a whole or impair the use of such property in the operation of the Company’s or its
Subsidiaries’ businesses; and



(vi) other Liens incidental to the conduct of the business of the Company or a subsidiary
thereof or the ownership of its or their respective property and assets which were not incurred in
connection with the borrowing of money, and which do not in the aggregate materially detract from
the value of its property or assets;



(vii) Liens created by purchase money security interests in equipment or computers acquired by
the Company in the ordinary course of business; or




(viii) Liens incurred under the Fortress Credit Agreement.



(c) declare or make (i) any dividend, distribution or other payment on any capital stock
(other than the payment of dividends on the Company’s Series B Preferred Stock and Series B-2
Preferred Stock, which are payable in shares of Common Stock upon the conversion of such Series B
Preferred Stock and Series B-2 Preferred Stock, and the payment of dividends on the Company’s
Series C Preferred Stock, which are payable in either cash or shares of Common Stock, at the
election of the Company) or (ii) any payment on account of the purchase, redemption, retirement or
acquisition of (A) any capital stock or (B) any option, warrant or other right to acquire capital
stock.



5. Events of Default. Each of the following shall constitute an “Event of Default”
hereunder:



(a) The Company shall fail to pay the principal amount of this Note and accrued interest
thereon when due and payable (whether at the Maturity Date, upon acceleration or otherwise);



(b) The Company shall fail to pay any other amount under this Note when due and payable
(whether at the maturity date therefor, upon acceleration or otherwise) and such failure shall
continue for a period of five (5) business days;



(c) Any representation or warranty made by the Company in the Transaction Documents shall have
been untrue or misleading in any material respect when made;



(d) There shall have occurred an acceleration of the stated maturity of any indebtedness for
borrowed money of the Company or any Subsidiary of Fifty Thousand Dollars ($50,000) or more in
aggregate principal amount (which acceleration is not rescinded, annulled or otherwise cured within
ten (10) days of receipt by the Company or such Subsidiary of notice of such acceleration);



(e) The Company shall sell, transfer, lease or otherwise dispose of all or any substantial
portion of its assets in one transaction or a series of related transactions, participate in any
share exchange, consummate any recapitalization, reclassification, reorganization or other business
combination transaction or adopt a plan of liquidation or dissolution or agree to do any of the
foregoing;



(f) One or more judgments in an aggregate amount in excess of Fifty Thousand Dollars ($50,000)
shall have been rendered against the Company or any subsidiary and such judgment or judgments
remain undischarged or unstayed for a period of sixty (60) days after such judgment or judgments
become or became, as the case may be, final and unappealable;



(g) The Company breaches any covenant set forth in Section 4 hereof.



(h) The Company shall have applied for or consented to the appointment of a custodian,
receiver, trustee or liquidator, or other court-appointed fiduciary of all or a substantial part of
its properties; or a custodian, receiver, trustee or liquidator or other court appointed fiduciary
shall have been appointed with or without the consent of the Company; or the Company is generally
not paying its debts as they become due by means of available assets, or has made a general
assignment for the benefit of creditors; or the Company files a voluntary petition in bankruptcy,
or a petition or an answer seeking reorganization or an arrangement with creditors or seeking to
take advantage of any insolvency law, or an answer admitting the material allegations of a petition
in any bankruptcy, reorganization or insolvency proceeding or has taken action for the purpose of
effecting any of the foregoing; or if, within sixty (60) days after the commencement of any
proceeding against the Company seeking any reorganization, rehabilitation, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under the Federal bankruptcy
code or similar order under future similar legislation, the appointment of any trustee, receiver,
custodian, liquidator, or other court-appointed fiduciary of the Company or of all or any
substantial part of its properties, such order or appointment shall not have been vacated or stayed
on appeal or otherwise or if, within sixty (60) days after the expiration of any such stay, such
order or appointment shall not have been vacated (collectively, “Insolvency Events”); or



(i) Any Insolvency Event shall have occurred with respect to any subsidiary of the Company.



Upon the occurrence of any Event of Default, the Holder may, at its option, declare all
amounts owed hereunder to be due and payable immediately and, upon any such declaration, the same
shall become and be immediately due and payable. If an Insolvency Event occurs with respect to the
Company or any Subsidiary, then all amounts due hereunder shall become immediately due and payable
without any declaration or other act on the part of the Holder. Upon the occurrence of any Event
of Default, the Holder may, in addition to declaring all amounts due hereunder to be immediately
due and payable, pursue any available remedy. If an Event of Default occurs, the Company shall pay
to the Holder the reasonable attorneys’ fees and disbursements and all other reasonable
out-of-pocket costs incurred by the Holder in order to collect amounts due and owing under this
Note or otherwise to enforce the Holder’s rights and remedies hereunder.



6. Waiver of Presentment, Demand and Dishonor. The Company hereby waives presentment
for payment, protest, demand, notice of protest, notice of non-payment and diligence with respect
to this Note, and waives and renounces all rights to the benefit of any statute of limitations or
any moratorium, appraisement, exemption or homestead now provided or that hereafter may be provided
by any federal or applicable state statute, including but not limited to exemptions provided by or
allowed under the Federal Bankruptcy Code, both as to itself and as to all of its property, whether
real or personal, against the enforcement and collection of the obligations evidenced by this Note
and any and all extensions, renewals and modifications hereof.



No failure on the part of the Holder hereof to exercise any right or remedy hereunder with
respect to the Company, whether before or after the happening of an Event of Default, shall
constitute a waiver of any future Event of Default or of any other Event of Default. No failure to
accelerate the debt of the Company evidenced hereby by reason of an Event of Default or indulgence
granted from time to time shall be construed to be a waiver of the right to insist upon prompt
payment thereafter; or shall be deemed to be a novation of this Note or a reinstatement of such
debt evidenced hereby or a waiver of such right of acceleration or any other right, or be construed
so as to preclude the exercise of any right the Holder may have, whether by the laws of the state
governing this Note, by agreement or otherwise; and the Company hereby expressly waives the benefit
of any statute or rule of law or equity that would produce a result contrary to or in conflict with
the foregoing.



7. Amendment; Waiver. Any term of this Note may be amended or waived upon the written
consent of the Company and the Holder hereof. No such waiver or consent on any one instance shall
be construed to be a continuing waiver or a waiver in any other instance unless it expressly so
provides.



8. Transfers. The Holder shall have the right to transfer this Note or any interest
herein in any transaction meeting the requirements of applicable securities laws. The Company may
not transfer any obligations under this Note without the prior written consent of Holder.



9. Governing Law; Consent to Jurisdiction. This Note shall be binding upon the
Company and its successors, assigns and legal representatives. The validity, construction and
interpretation of this Note will be governed, and construed in accordance with, the laws of the
State of California. EACH OF THE COMPANY AND, BY ITS ACCEPTANCE HEREOF, THE HOLDER HEREBY WAIVES
ANY RIGHT TO REQUEST A TRIAL BY JURY IN ANY LITIGATION WITH RESPECT TO THIS NOTE AND REPRESENTS
THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS WAIVER.



All notices under this Note, including any service of process in connection with any suit, action
or proceeding with respect to this Note may be served on the Company and the Holder anywhere in the
world by the same methods as are specified for the giving of notices under Section 10.8 of the
Purchase Agreement.



WARP TECHNOLOGY HOLDINGS, INC.




By: /s/ Ernest C. Mysogland




Name: Ernest C. Mysogland




An authorized officer