TERM PROMISSORY NOTE
$85,000 Dallas, Texas December 9, 1999
this ("Note")
1. PROMISE TO PAY. FOR VALUE RECEIVED, the undersigned, TANISYS
TECHNOLOGY, INC., a Wyoming corporation, 1ST TECH CORPORATION, a Delaware
corporation, and DARKHORSE SYSTEMS, INC., a Delaware corporation
(collectively, "Maker"), hereby promise to pay to TANISYS OPERATIONS, L.P., a
Texas limited partnership (hereinafter, together with all subsequent holders
of this Note, "Payee"), at its address set forth in the Loan Agreement
referred to below, or order, in lawful money of the United States of America,
the principal sum of $85,000, together with interest from day to day at the
lesser of the highest rate permitted by law and (ii) a percentage equal to
the sum of the prime rate of interest charged from time to time by Bank of
America, N.A. in Dallas, Texas plus two percent (2%) per annum. Interest
shall be computed on the basis of a three hundred sixty (360) day year.
2. PAYMENTS. Payments of accrued but unpaid interest only shall be
due and payable on the first day of each month commencing January 1, 2000 and
continuing on the first day of each month thereafter until the Maturity Date
(hereinafter defined). This Note and all accrued but unpaid interest and all
outstanding principal shall finally become due and payable in its entirety on
March 31, 2000 (the "Maturity Date"). If any installment of principal or
interest on this Note shall become due on a Saturday, Sunday or any other day
on which Payee is not open for business, such payment shall be made on the
next succeeding day on which Payee is open for business; and such extension
of time shall in such case be included in computing interest in connection
with such payment.
4. PREPAYMENTS. This Note may be prepaid, in whole or in part at any
time without notice, premium, penalty or fee.
5. DEFAULT. If default is made in the payment of any installment of
principal or interest under this Note, then in any such event Payee may at
its option, without notice or demand, declare the entire unpaid principal
balance of and accrued but unpaid interest on the indebtedness evidenced by
this Note immediately due and payable without further notice or demand,
foreclose all liens and security interests securing the payment thereof or
any part thereof, all at the option of the holder of this Note. Failure to
exercise any such option shall not constitute a waiver of the right of any
holder hereof to exercise the same at any later time or in the event of any
subsequent default. The acceptance by Payee of any payment hereunder that is
less than payment in full of all amounts due and payable at the time of such
payment shall not constitute a waiver of the right to exercise any of the
foregoing options at that time, or at any subsequent time, or nullify any
prior exercise of any such option, without the express written consent of
Payee.
6. USURY LIMITATIONS. Maker and Xxxxx intend to conform strictly to
the applicable usury laws. Notwithstanding anything to the contrary in this
Note or in any other agreement entered into in connection herewith or
securing the indebtedness evidenced hereby, whether now existing or hereafter
arising and whether written or oral, it is agreed that the aggregate of all
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interest and any other charges constituting interest, or adjudicated as
constituting interest, and contracted for, chargeable or receivable under
this Note or otherwise in connection with this loan transaction shall under
no circumstances exceed the maximum amount of interest permitted by
applicable law. In the event the maturity of this Note is accelerated by
reason of an election by the holder hereof resulting from a default hereunder
or under any other document executed as security herefor or in connection
herewith, or by voluntary prepayment by the Maker, or otherwise, then earned
interest may never include more than the maximum rate of interest permitted
by applicable law, computed from the dates of each advance of the loan
proceeds outstanding until payment. If from any circumstance any holder of
this Note shall ever receive interest or any other charges constituting
interest, or adjudicated as constituting interest, the amount, if any, which
would exceed the maximum rate of interest permitted by applicable law shall
be applied to the reduction of the principal amount owing on this Note or on
account of any other principal indebtedness of the Maker to the holder of
this Note, and not to the payment of interest; or if such excessive interest
exceeds the unpaid balance of principal hereof and such other indebtedness,
the amount of such excessive interest that exceeds the unpaid balance of
principal hereof and such other indebtedness shall be refunded to the Maker.
All sums paid or agreed to be paid to the holder of this Note for the use,
forbearance or detention of the indebtedness of the Maker to the holder of
this Note shall be amortized, prorated, allocated an spread throughout the
full term of such indebtedness until payment in full so that the actual rate
of interest on account of such indebtedness is uniform throughout the term
thereof, and, in conjunction therewith, if the loan evidenced by this Note
should ever be deemed to consist of two or more loans, then any sum paid or
agreed to be paid to the holder hereof for the use, forbearance or detention
of the indebtedness of the Maker to the holder of this Note which is deemed
to be excessive interest with respect to one or more such loans shall be
allocated to the loan(s) for which a maximum lawful rate of interest has not
been contracted for, charged or received or for which no maximum rate of
interest exists. The provisions of this paragraph shall control all existing
and future agreements between Maker and Payee.
7. WAIVERS. Except as expressly provided herein, the Maker and any
sureties, guarantors, endorsers and all other parties liable for payment of
this Note jointly and severally (i) waive demand, notice of intent to demand,
presentment, notice of nonpayment, notice of intent to accelerate, notice of
acceleration, diligence in collecting, grace, protest, notice of protest,
notice of dishonor, notice of application for or actual appointment of a
receiver for the Collateral or any other asset of Maker, bringing of suit,
right to demand a jury trial in any proceeding brought hereunder, and
diligence in taking any action to collect any sums owing hereunder or in
proceeding against any of the rights and properties securing payment of the
indebtedness evidenced by this Note, (ii) consent to all extensions without
notice for any period or periods of time and partial payments, before or
after maturity, without prejudice to the holder; (iii) agree to any
substitution, subordination, exchange or release of any such security or the
release of any party primarily or secondarily liable hereon; (iv) agree that
Payee shall not be required first to institute suit or exhaust its remedies
hereon against Maker or others liable or to become liable hereon or to
enforce its rights against them or any security herefor; and (v) consent to
any extension or postponement of time of payment of this Note or to any other
indulgence with respect hereto without notice to any of them, and without in
any way affecting the personal liability of any party hereunder. If any
efforts are made to collect or enforce this Note or any
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installment due hereunder, the undersigned agrees to pay all collection costs
and fees, including reasonable attorneys' fees.
8. TERMINATION. This Note may not be terminated orally, but only by a
discharge in writing signed by the holder of this Note at the time such
discharge is sought.
9. APPLICABLE LAW. In the event the enforceability or validity of any
provision of this Note or of any document or instrument evidencing, securing
or otherwise related to the indebtedness represented by this Note is
challenged or questioned, such provision shall be governed by, and shall be
construed under the laws of the State of Texas. Venue for any action in
connection with this Note shall be exclusively in Dallas County, Texas.
10. NOTICES. Every notice, demand or other communication (hereafter in
this paragraph referred to collectively as "notices" and referred to singly
as a "notice") which Maker or Payee is required or permitted to give to any
other party pursuant to this Note or at law shall be in writing and, unless
otherwise expressly required by law, shall be delivered personally, by
recognized overnight national courier service (such as Federal Express),
addressed as follows:
If to Maker: 00000 Xxxxxxxxxx Xxxx.
Suite 130
Austin, Texas 78727
If to Payee: c/o All Components, Inc.
00000 Xxxx Xxxx
Farmers Branch, Texas 75244
or at any other address designated by either party by notice to the other
party pursuant to this paragraph. Any notice delivered to a party's
designated address by (a) personal delivery or (b) recognized overnight
national courier service shall be deemed to have been received by such party
at the time the notice is delivered to such party's designated address.
7. MULTIPLE MAKERS AND ENDORSERS. Should this Note be signed or
endorsed by more than one person and/or entity, all of the obligations herein
contained shall be considered the joint and several obligations of each maker
and endorser hereof.
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IN WITNESS WHEREOF, Xxxxx has duly executed this Note as of the day and
year above first written.
MAKER:
TANISYS TECHNOLOGY, INC.,
a Wyoming corporation
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxx
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Title: Pres. & CEO
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1st TECH CORPORATION,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxx
------------------------------------------
Title: Pres. & CEO
-----------------------------------------
DARKHORSE SYSTEMS, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxx
------------------------------------------
Title: Pres. & CEO
-----------------------------------------
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