PROMISSORY NOTE
$150,000.00 August 28, 2000 Las Vegas, Nevada
-----------------------------------------------------------------------
1. FOR VALUE RECEIVED, ONECAP, a Nevada corporation
("Borrower") promises to pay to the order of BANK OF AMERICA, NATIONAL
ASSOCIATION, a national banking association (the "Bank") the principal
sum of One Hundred Fifty Thousand and No/100 Dollars ($150,000.00) (the
"Maximum Loan Amount"), or so much of that sutra as tnay be advanced
under this promissory note ("Note"), plus interest as specified in this
Note. This Note evidences a loan ("Loan") from Bank to Borrower.
2. The Loan Agreement is governed by that certain Business
Loan Agreement (the "Loan Agreement") even date herewith between
Borrower and Lender. The Loan Agreement contains a provision for the
acceleration of the maturity of this Note.
3. Interest Rate. Interest shall be calculated at a fixed rate
equal to the Three-Year Treasury bill plus three and Thirty-One
hundredths (3.30%) percentage points. As defined on August 18, 2000 in
the Wall Street Journal, equal to a fixed rate of nine and one-half
percent (9.5 %) per annum.
4. Equal payments of principal and interest during the loan
shall be payable on the 28th day of each month in arrears commencing on
the September 28, 2000 hereunder until the Initial Maturity Date, upon
which date the entire outstanding principal balance of this Note,
together with all accrued unpaid interest thereon shall be immediately
due and payable. All payments hereunder shall be applied first to
accrued unpaid interest, then to principal. Interest shall be
calculated on the basis of a 360-day year and actual days elapsed,
which results in more interest than if a 365-day year were used. If at
any time the monthly payments to be paid by Borrower under this
paragraph 4 are not sufficient to pay the accrued interest calculated
in accordance with this paragraph, Borrower shall immediately pay to
Bank the amount of the deficiency.
5. Bank shall not be required to make any advance if that
would cause the outstanding principal of-this Note to exceed the
Maximum Loan Amount.
6. All principal and accrued and unpaid interest shall
be due and payable on August 28, 2003, the maturity date.
7. Borrower may prepay some or all of the principal
under this Note, without penalty or premium.
8. If Xxxxxxxx fails to make any payment required hereunder
within fifteen (15) days after it becomes due and payable, a late
charge of five percent (5.0%) of each overdue payment may be charged
for the purpose of defraying the expenses incident to handling said
delinquent payments and as an inducement to Borrower to make timely
1
payment. Acceptance of a scheduled payment fifteen (15) days after its
due date shall not waive any appropriate late charge, nor shall it
constitute a waiver of any event of default under any Loan Document.
9. Upon the occurrence and during the continuance of any Event
of Default hereunder, the outstanding principal balance of this Note
will, at the option of Bank, bear interest at an annual rate of three
percent (3.0%) in excess of the applicable rate of interest then in
effect under this Note (the "Default Rate").
10. From and after maturity of this Note, whether by
acceleration or otherwise, all sums then due and payable under this
Note, including all principal and all accrued and unpaid interest,
shall bear interest until paid in full at the Default Rate.
11. If any of the following "Events of Default" occur, any
obligation of the holder to make advances under this Note shall
terminate, and at the holder's option, exercisable in its sole
discretion, all sums of principal and interest under this Note shall
become immediately due and payable without notice of default,
presentment or demand for payment, protest or notice of nonpayment or
dishonor, or other notices or demands of any kind or character:
(a) Borrower fails to perform any obligation
under this Note to pay principal or interest when due; or
(b) Xxxxxxxx fails to perform any other
obligation under this Note to pay money when due; or
(c) Under any of the Loan Documents, an Event of
Default (as defined in that document) occurs, except as provided in
Section 12 below.
12. It shall be an "Event of Default" under this Note if
Borrower becomes the subject of any bankruptcy or other voluntary or
involuntary proceeding, in or out of court, for the adjustment of
debtor-creditor relationships ("Insolvency Proceeding"). If that
happens, any obligation of the holder to make advances under this Note
and the Loan Agreement shall terminate, and all sums of principal and
interest under this Note shall automatically become immediately due and
payable without notice of default, presentment or demand for payment,
protest or notice of nonpayment or dishonor, or other notices or
demands of any kind or character.
13. All amounts payable under this Note are payable in lawful
money of the United States during normal business hours on a Banking
Day, as defined below. Checks constitute payment only when collected.
14. If any lawsuit or arbitration is commenced which arises
out of or relates to this Note, the Loan Documents or the Loan, the
prevailing party shall be entitled to recover from each other party
such sums as the court or arbitrator may adjudge to be reasonable
attorneys' fees in the action or arbitration, in addition to costs and
expenses otherwise allowed by law. In all other situations, including
any matter arising out of or relating to any Insolvency Proceeding,
2
Xxxxxxxx agrees to pay all of Bank's costs and expenses, including
attorneys' fees, which may be incurred in enforcing or protecting
Bank's rights or interests. From. the time(s) incurred until paid in
full to Bank, all such sums shall bear interest at the Default Rate.
15. Whenever Borrower is obligated to pay or reimburse Bank
for any attorneys' fees, those fees shall include the allocated costs
for services of in-house counsel.
16. This Note is governed by the laws of the State of
Nevada, without regard to the choice of law rules of that State.
17. Xxxxxxxx agrees that the holder of this Note may accept
additional or substitute security for this Note, or release any
security or any party liable for this Note, or extend or renew this
Note, all without notice to Borrower and without affecting the
liability of Borrower.
18. If Bank delays in exercising or fails to exercise any of
its rights under this Note, that delay or failure shall not constitute
a waiver of any of Bank's rights, or of any breach, default or failure
of condition of or under this Note. No waiver by Bank of any of its
rights, or of any such breach, default or failure of conditions shall
be effective, unless the waiver is expressly stated in a writing signed
by Bank. All of Bank's remedies in connection with this Note or under
applicable law shall be cumulative, and Bank's exercise of any one or
more of those remedies shall not constitute an election of remedies.
19. This Note inures to and binds the heirs, legal
representatives, successors and assigns of Borrower and Bank; provided,
however, that Borrower may not assign this Note or any Loan funds, or
assign or delegate any of its rights or obligations, without the prior
written consent of Bank in each instance. Bank in its sole discretion
may transfer this Note, and may sell or assign participation's or other
interests in all or part of the Loan, on the terms and subject to the
conditions of the Loan Documents, all without notice to or the consent
of Borrower. Also without notice to or the consent of Borrower, Bank
may disclose to any actual or prospective purchaser of any securities
issued or to be issued by Bank, and to any actual or prospective
purchaser or assignee of any participation or other interest in this
Note, the Loan or any other loans made by Bank to Borrower (whether
evidenced by this Note or otherwise), any financial or other
information, data or material in Bank's possession relating to
Borrower, the Loan or the Property, including any improvements on it.
If Bank so requests. Borrower shall sign and deliver a new note to be
issued in exchange for this Note.
20. As used in this Note, the terms "Bank," "holder" and
"holder of this Note" are interchangeable. As used in this Note, the
word "include(s)" means "include(s), without limitation," and the word
"including" means "including, but not limited to." The term "Banking
Day" is defined to mean a day other than a Saturday or Sunday, on which
Bank is open for business in Las Vegas, Nevada.
3
21. If more than one person or entity are signing this Note as
Borrower, their obligations under this Note shall be joint and several.
Borrower: Mail Address:
ONECAP, a Nevada corporation 0000 X. Xxxxxx Xxxxxx 0xx Xxxxx
Xxx Xxxxx, XX 00000
By: Tax ID No.: 00-0000000
-------------------------------
XXXXXX X. XXXXXXX
Title: CHIEF EXECUTIVE OFFICER
