Exhibit 10.4
PROMISSORY NOTE
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$150,000.00 ORANGE COUNTY, CALIFORNIA
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APRIL 25, 2002
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FOR VALUE RECEIVED, RAPIDTRON, INC, a Delaware corporation ("Maker"), promises
to pay to the order of XXXXX XXXXXXX, an individual, and XXXX XXXXX, an
individual (collectively, "Holders"), the principal sum of One Hundred Fifty
Thousand Dollars (US $150,000.00), with interest thereon from the date hereof
until this Promissory Note (this "Note") is paid in full at the rate set forth
below.
1. Acknowledgment. Maker and Holders hereby acknowledge that, in
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connection with this Note, Holders have obtained a loan from Commercial
Bank-California in the original principal amount equal to US$150,000.00,
pursuant to that certain Note, dated as of April 25, 2002, as now or hereafter
amended (the "CBC Loan").
2. Maturity. Notwithstanding any provision contained herein to the
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contrary, the entire indebtedness evidenced by this Note, including, without
limitation, the entire principal balance outstanding hereunder, any and all
unpaid interest accrued thereon and any and all other amounts due and owing
hereunder, shall be due and payable on the date on which the CBC Loan becomes
due and payable (including, without limitation, any extension or acceleration of
the maturity date thereunder). All payments made hereunder shall be made in
lawful money of the United States of America without setoff, deduction or
counterclaim of any kind whatsoever.
3. Interest Rate. The outstanding principal balance under this Note
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shall bear interest at the rate payable under the CBC Loan and upon the same
terms and conditions set forth therein.
4. Prepayment. This Note may be prepaid, at any time and from time to
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time, in whole or in part, under the same terms of prepayment as set forth in
the CBC Loan. Any partial prepayment of the principal balance made under this
Note shall be reflected on Schedule 1, attached hereto and incorporated herein
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by this reference, by entry of a credit in the amount of such prepayment.
5. Waivers. Maker and any and all endorsers, guarantors and sureties
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of this Note, if any, (a) severally waive diligence, presentment, protest and
demand and notice of protest, demand, dishonor and nonpayment of this Note, and
(b) consent to the acceptance of security, if any, or the release of security,
if any, for this Note, all without in any way affecting the liability of Maker
and/or the endorsers, guarantors or sureties of this Note, if any. The right to
plead any and all statutes of limitations as a defense to any duty, obligation,
or liability under this Note is expressly waived by Maker and each and every
endorser, guarantor or surety, if any, to the fullest extent permitted by law.
6. Attorneys Fees. If Holders institute any collection effort, of any
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nature whatsoever (expressly including any collection efforts in any bankruptcy
case), for any amount due and payable hereunder, then Maker shall pay to Holders
forthwith any and all reasonable costs and expenses of collection actually
incurred by Holders, including, without limitation, reasonable attorneys' fees,
whether or not suit or other action or proceeding is instituted.
7. Severability. The provisions of this Note are intended by Maker to
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be severable and divisible and the invalidity or unenforceability of a provision
or term herein shall not invalidate or render unenforceable the remainder of
this Note or any part thereof.
8. Notices. All notices under this Note shall be in writing and
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addressed to the party's "Address for Notice" and shall be deemed given (or
received) by a party (a) upon delivery, if hand-delivered (including delivery by
overnight courier service); (b) at the expiration of three (3) days following
deposit in the U.S. Mail, postage prepaid, certified or registered mail, return
receipt requested; or (c) if given by facsimile transmission, when such
facsimile is transmitted and the sender has received a confirmation of such
transmission. The term "Address for Notice" means with respect to any party,
(a) such party's address as set forth in its Address for Notice appearing below
Maker's
signature hereto; and/ or (b) any other or additional address which such party
has advised such other party by written notice.
9. Usury. Notwithstanding any provision of this Note to the contrary,
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the total liability for payments in the nature of interest shall not exceed the
limits imposed by the applicable usury laws of the State of California. If,
from any circumstances whatsoever, fulfillment of any provision hereof or of any
other agreement, evidencing or securing the debt, at the time performance of
such provisions shall be due, shall involve the payment of interest in excess of
that authorized by law, and if from any circumstances, Holders shall ever
receive as interest an amount which would exceed the highest lawful rate
applicable to Maker, such amount which would be excessive interest shall be
applied to the reduction of the principal balance of the debt evidenced hereby
and not to the payment of interest. Maker hereby acknowledges and agrees that
the CBC Loan made to the Holders was for the benefit of Maker, and Maker hereby
agrees to indemnify and hold harmless Holders from and against any liability
that may arise under the CBC Loan over and above the principal and interest due
under this Note, and to the extent that the amount of such liability under the
CBC Loan, whether in the form of interest or otherwise, exceeds the amount of
interest that may be lawfully charged against Maker under this Note, such amount
shall be added to principal due hereunder; provided, however, Holders shall
deliver any amount paid by Maker hereunder to the holder of the CBC Loan.
10. Waiver of Trial by Jury. MAKER XXXXXX XXXXXX, TO THE FULLEST
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EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM, WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR
INDIRECTLY TO THE LOAN EVIDENCED BY THIS NOTE, OR ANY ACTS OR OMISSIONS OF
HOLDERS IN CONNECTION THEREWITH.
11. Governing Law. This Note shall be governed by and interpreted in
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accordance with the laws of the State of California, without giving effect to
any principle or doctrine regarding conflicts of laws.
IN WITNESS WHEREOF, Maker has executed and delivered this Note as of the date
first written above.
RAPIDTRON, INC,
a Delaware corporation
By: /s/ Xxxx Xxxxx
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Xxxx Xxxxx, Chief Executive Officer and President
MAKER'S ADDRESS FOR NOTICE:
Rapidtron, Inc.
0000 Xxxxxx Xxxxxx, xxxxxxxx X
Xxxxx Xxxx, Xxxxxxxxxx 00000
HOLDERS' ADDRESS FOR NOTICE:
Xxxxx Xxxxxxx
Xxxx Xxxxx
0000 Xxxxxx Xxxxxx, xxxxxxxx X
Xxxxx Xxxx, Xxxxxxxxxx 00000
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT") OR UNDER ANY STATE SECURITIES LAWS, AND MAY NOT BE SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER
THE ACT AND/ OR STATE SECURITIES LAWS AND/ OR THE REGULATIONS AND RULES
PROMULGATED THEREUNDER.
SCHEDULE 1
ADJUSTMENTS TO PRINCIPAL BALANCE
OUTSTANDING
DATE: (DECREASES/CREDITS): PRINCIPAL BALANCE:
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04/25/02 $150,000.00
12/30/02 (10,000.00) $140,000.00
4/22/03 (10,000.00) $130,000.00
7/15/03 (7,500.00) $122,500.00
8/11/03 (7,500.00) $115,000.00
