Exhibit 10.200
PROMISSORY NOTE
_______________________________________________________________________________________________________
PRINCIPAL LOAN DATE MATURITY LOAN NO. CALL/COLL ACCOUNT OFFICER INITIALS
$600,000.00 10-29-2002 10-29-2003 9001 7326653 01447
_______________________________________________________________________________________________________
References in the shaded area are for Lender's use only and do not limit the applicability of this
document to any particular loan or item. Any item above containing "***" has been omitted
due to text length limitations.
_______________________________________________________________________________________________________
BORROWER: Ready Mix, Inc. Lender: Nevada State Bank
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇ Corporate Lending Department
Las Vegas, NV 89121 ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
________________________________________________________________________________
PRINCIPAL AMOUNT: $600,000.00 DATE OF NOTE: OCTOBER 29, 2002
INITIAL RATE: 7.750%
PROMISE TO PAY. READY MIX, INC. ("BORROWER") PROMISES TO PAY TO NEVADA STATE
BANK ("LENDER"), OR ORDER, IN LAWFUL MONEY OF THE UNITED STATES OF AMERICA, THE
PRINCIPAL AMOUNT OF SIX HUNDRED THOUSAND & 00/100 DOLLARS ($600,000.00),
TOGETHER WITH INTEREST ON THE UNPAID PRINCIPAL BALANCE FROM OCTOBER 29, 2002,
UNTIL PAID IN FULL. THE INTEREST RATE WILL NOT INCREASE ABOVE 25.000%.
PAYMENT. BORROWER WILL PAY THIS LOAN IN ONE PRINCIPAL PAYMENT OF $600,000.00
PLUS INTEREST ON OCTOBER 29, 2003. THIS PAYMENT DUE ON OCTOBER 29, 2003, WILL
BE FOR ALL PRINCIPAL AND ALL ACCRUED INTEREST NOT YET PAID. IN ADDITION,
▇▇▇▇▇▇▇▇ WILL PAY REGULAR MONTHLY PAYMENTS OF ALL ACCRUED UNPAID INTEREST DUE AS
OF EACH PAYMENT DATE, BEGINNING NOVEMBER 29, 2002, WITH ALL SUBSEQUENT INTEREST
PAYMENTS TO BE DUE ON THE SAME DAY OF EACH MONTH AFTER THAT. UNLESS OTHERWISE
AGREED OR REQUIRED BY APPLICABLE LAW, PAYMENTS WILL BE APPLIED FIRST TO ANY
UNPAID COLLECTION COSTS AND ANY LATE CHARGES, THEN TO ANY UNPAID INTEREST, AND
ANY REMAINING AMOUNT TO PRINCIPAL. THE ANNUAL INTEREST RATE FOR THIS NOTE IS
COMPUTED ON A 365/360 BASIS; THAT IS, BY APPLYING THE RATIO OF THE ANNUAL
INTEREST RATE OVER A YEAR OF 360 DAYS, MULTIPLIED BY THE OUTSTANDING PRINCIPAL
BALANCE, MULTIPLIED BY THE ACTUAL NUMBER OF DAYS THE PRINCIPAL BALANCE IS
OUTSTANDING. ▇▇▇▇▇▇▇▇ WILL PAY LENDER AT ▇▇▇▇▇▇'S ADDRESS SHOWN ABOVE OR AT
SUCH OTHER PLACE AS ▇▇▇▇▇▇ MAY DESIGNATE IN WRITING.
VARIABLE INTEREST RATE. The interest rate on this Note is subject to change from
time to time based on changes in an independent index which is the Nevada State
Bank's prime rate shall be deemed to mean an index which is determined daily by
Nevada State Bank on the basis of the published commercial loan variable rate
index held by two of the following banks: ▇. ▇. ▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇ Fargo
Bank N.A. and Bank of America N.A. In the event no two of the above banks gave
the same published rate, the bank having the median rate will establish Nevada
State Bank's Prime rate. If, for any reason beyond the control of Nevada State
Bank, any of the aforementioned banks becomes unacceptable as a reference for
the purpose of determining the prime rate used herein, Nevada State Bank may,
five days after posting notice in the bank, substitute another comparable bank
for the one determined unacceptable. As used in this paragraph, "comparable
bank" shall mean one of the ten largest banks headquartered in the United States
of America. This definition of prime rate is to be strictly interpreted and is
not intended to serve any purpose other than providing an index to determine
the variable interest rate used in this agreement. The undersigned acknowledges
that prime rate is not the lowest rate at which Nevada State Bank has made or
may make loans to any of its customers, either past, present or future.
Additionally, Nevada State Bank does not imply nor can any conclusions be drawn
that the published rate of any of the aforementioned banks is the lowest rate
at which those banks will loan money to any customers, either now or in the
future. Whenever there is a default by Borrower under this Note, the interest
rate on the unpaid balance shall, at the option of the Bank, be at the Default
Rate set forth below. (the "Index"). The Index is not necessarily the lowest
rate charged by Lender on its loans. If the Index becomes unavailable during
the term of this loan, Lender may designate a substitute index after notice to
Borrower. Lender will tell Borrower the current Index rate upon ▇▇▇▇▇▇▇▇'s
request. The interest rate change will not occur more often than each Day.
Borrower understands that Lender may make loans based on other rates as well.
THE INDEX CURRENTLY IS 4.750% PER ANNUM. THE INTEREST RATE TO BE APPLIED TO THE
UNPAID PRINCIPAL BALANCE OF THIS NOTE WILL BE AT A RATE OF 3.000 PERCENTAGE
POINTS OVER THE INDEX, RESULTING IN AN INITIAL RATE OF 7.750% PER ANNUM.
NOTWITHSTANDING THE FOREGOING, THE VARIABLE INTEREST RATE OR RATES PROVIDED FOR
IN THIS NOTE WILL BE SUBJECT TO THE FOLLOWING MAXIMUM RATE. NOTICE: Under no
circumstances will the interest rate on this Note be more than (except for any
higher default rate shown below) the lesser of 25.000% per annum or the
maximum rate allowed by applicable law.
PREPAYMENT; MINIMUM INTEREST CHARGE. ▇▇▇▇▇▇▇▇ agrees that all loan fees and
other prepaid finance charges are earned fully as of the date of the loan and
will not be subject to refund upon early payment (whether voluntary or as a
result of default), except as otherwise required by law. In any event, even
upon full prepayment of this Note, Borrower understands that Lender is entitled
to a MINIMUM INTEREST CHARGE OF $50.00. Other than Borrower's obligation to pay
any minimum interest charge, Borrower may pay all or a portion of the amount
owed earlier than it is due. Early payments will not, unless agreed to by
▇▇▇▇▇▇ in writing, relieve ▇▇▇▇▇▇▇▇ of ▇▇▇▇▇▇▇▇'s obligation to continue to
make payments under the payment schedule. Rather, early payments will reduce
the principal balance due. ▇▇▇▇▇▇▇▇ agrees not to send Lender payments marked
"paid in full", "without recourse", or similar language. If Borrower sends
such a payment, ▇▇▇▇▇▇ may accept it without losing any of ▇▇▇▇▇▇'s rights
under this Note, and Borrower will remain obligated to pay any further amount
owed to Lender. All written communications concerning disputed amounts,
including any check or other payment instrument that indicates that the payment
constitutes "payment in full" of the amount owed or that is tendered with other
conditions or limitations or as full satisfaction of a disputed amount must be
mailed or delivered to: Nevada State Bank, Commercial Loan Servicing Department
3800-VS1, P. O. Box 990 Las Vegas, NV 89125.
LATE CHARGE. If a payment is 10 days or more late, Borrower will be charged
5.000% OF THE REGULARLY SCHEDULED PAYMENT OR $25.00, WHICHEVER IS GREATER.
INTEREST AFTER DEFAULT. Upon default, including failure to pay upon final
maturity, Lender, at its option, may, if permitted under applicable law,
increase the variable interest rate on this Note to 6.000 percentage points
over the Index. The interest rate will not exceed the maximum rate permitted by
applicable law.
DEFAULT. Each of the following shall constitute an event of default ("Event of
Default") under this Note:
PAYMENT DEFAULT. Borrower fails to make any payment when due under this
Note.
OTHER DEFAULTS. Borrower fails to comply with or to perform any other term,
obligation, covenant or condition contained in this Note or in any of the
related documents or to comply with or to perform any term, obligation,
covenant or condition contained in any other agreement between Lender and
Borrower.
DEFAULT IN FAVOR OF THIRD PARTIES. Borrower or any Grantor defaults under
any loan, extension of credit, security agreement, purchase or sales
agreement, or any other agreement, in favor of any other creditor or person
that may materially affect any of Borrower's property or Borrower's ability
to repay this Note or perform Borrower's obligations under this Note or any
of the related documents.
FALSE STATEMENTS. Any warranty, representation or statement made or
furnished to Lender by Borrower or on Borrower's behalf under this Note or
the related documents is false or misleading in any material respect,
either now or at the time made or furnished or becomes false or misleading
at any time thereafter.
INSOLVENCY. The dissolution or termination of ▇▇▇▇▇▇▇▇'s existence as a
going business, the insolvency of ▇▇▇▇▇▇▇▇, the appointment of a receiver
for any part of ▇▇▇▇▇▇▇▇'s property, any assignment for the benefit of
creditors, any type of creditor workout, or the commencement of any
proceeding under any bankruptcy or insolvency laws by or against Borrower.
CREDITOR OR FORFEITURE PROCEEDINGS. Commencement of foreclosure or
forfeiture proceedings, whether by judicial proceeding, self-help,
repossession or any other method, by any creditor of Borrower or by any
governmental agency against any collateral securing the loan. This includes
a garnishment of any of ▇▇▇▇▇▇▇▇'s accounts, including deposit accounts,
with Lender. However, this Event of Default shall not apply if there is a
good faith dispute by ▇▇▇▇▇▇▇▇ as to the validity or reasonableness of the
claim which is the basis of the creditor or forfeiture proceeding and if
Borrower gives ▇▇▇▇▇▇ written notice of the creditor or forfeiture
proceeding and deposits with Lender monies or a surety bond for the
creditor or forfeiture proceeding, in an amount determined by Lender, in
its sole discretion, as being an adequate reserve or bond for the dispute.
EVENTS AFFECTING GUARANTOR. Any of the preceding events occurs with respect
to any Guarantor of any of the indebtedness or any Guarantor dies or
becomes incompetent, or revokes or disputes the validity of, or liability
under, any guaranty of the indebtedness evidenced by this Note. In the
event of a death, Lender, at its option, may, but shall not be required to,
permit the Guarantor's estate to assume unconditionally the obligations
arising under the guaranty in a manner satisfactory to Lender, and, in
doing so, cure any Event of Default.
CHANGE IN OWNERSHIP. Any change in ownership of twenty-five percent (25%)
or more of the common stock of Borrower.
ADVERSE CHANGE. A material adverse change occurs in Borrower's financial
condition, or ▇▇▇▇▇▇ believes the prospect of payment or performance of
this Note is impaired.
CURE PROVISIONS. If any default, other than a default in payment is curable
and if Borrower has not been given a notice of a breach of the same
provision of this Note within the preceding twelve (12) months, it may be
cured (and no event of default will have occurred) if Borrower, after
receiving written notice from Lender demanding cure of such default: (1)
cures the default within ten (10) days; or (2) if the cure requires more
than ten (10) days, immediately initiates steps which Lender deems in
▇▇▇▇▇▇'s sole discretion to be sufficient to cure the default and
thereafter continues and completes all reasonable and necessary steps
sufficient to produce compliance as soon as
PROMISSORY NOTE
LOAN NO: 9001 (CONTINUED) PAGE 2
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reasonably practical.
LENDER'S RIGHTS. Upon default, ▇▇▇▇▇▇ may declare the entire unpaid
principal balance on this Note and all accrued unpaid interest immediately
due, and then Borrower will pay that amount.
ATTORNEYS' FEES; EXPENSES. Lender may hire or pay someone else to help
collect this Note if Borrower does not pay. Borrower will pay Lender that
amount. This includes, subject to any limits under applicable law, ▇▇▇▇▇▇'s
attorneys' fees and ▇▇▇▇▇▇'s legal expenses, whether or not there is a
lawsuit, including attorneys' fees, expenses for bankruptcy proceedings
(including efforts to modify or vacate any automatic stay or injunction),
and appeals. If not prohibited by applicable law, ▇▇▇▇▇▇▇▇ also will pay
any court costs, in addition to all other sums provided by law.
GOVERNING LAW. THIS NOTE WILL BE GOVERNED BY, CONSTRUED AND ENFORCED IN
ACCORDANCE WITH FEDERAL LAW AND THE LAWS OF THE STATE OF NEVADA. THIS NOTE
HAS BEEN ACCEPTED BY ▇▇▇▇▇▇ IN THE STATE OF NEVADA.
CHOICE OF VENUE. If there is a lawsuit, ▇▇▇▇▇▇▇▇ agrees upon ▇▇▇▇▇▇'s
request to submit to the jurisdiction of the courts of ▇▇▇▇▇ County, State
of Nevada. (Initial Here )
DISHONORED ITEM FEE. Borrower will pay a fee to Lender of $20.00 if
Borrower makes a payment on Borrower's loan and the check or preauthorized
charge with which Borrower pays is later dishonored.
RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves
a right of setoff in all Borrower's accounts with Lender (whether checking,
savings, or some other account). This includes all accounts Borrower holds
jointly with someone else and all accounts Borrower may open in the future.
However, this does not include any IRA or ▇▇▇▇▇ accounts, or any trust
accounts for which setoff would be prohibited by law. Borrower authorizes
▇▇▇▇▇▇, to the extent permitted by applicable law, to charge or setoff all
sums owing on the indebtedness against any and all such accounts, and, at
▇▇▇▇▇▇'s option, to administratively freeze all such accounts to allow
Lender to protect ▇▇▇▇▇▇'s charge and setoff rights provided in this
paragraph.
COLLATERAL. ▇▇▇▇▇▇▇▇ acknowledges this Note is secured by a Deed of Trust
of even date.
ARBITRATION DISCLOSURES.
1. ARBITRATION IS FINAL AND BINDING ON THE PARTIES AND SUBJECT TO ONLY
VERY LIMITED REVIEW BY A COURT.
2. IN ARBITRATION THE PARTIES ARE WAIVING THEIR RIGHT TO LITIGATE IN
COURT, INCLUDING THEIR RIGHT TO A JURY TRIAL.
3. DISCOVERY IN ARBITRATION IS MORE LIMITED THAN DISCOVERY IN COURT.
4. ARBITRATORS ARE NOT REQUIRED TO INCLUDE FACTUAL FINDINGS OR LEGAL
REASONING IN THEIR AWARDS. THE RIGHT TO APPEAL OR SEEK MODIFICATION
OF ARBITRATORS' RULINGS IS VERY LIMITED.
5. A PANEL OF ARBITRATORS MIGHT INCLUDE AN ARBITRATOR WHO IS OR WAS
AFFILIATED WITH THE BANKING INDUSTRY.
6. ARBITRATION WILL APPLY TO ALL DISPUTES BETWEEN THE PARTIES, NOT
JUST THOSE CONCERNING THE AGREEMENT.
7. IF YOU HAVE QUESTIONS ABOUT ARBITRATION, CONSULT YOUR ATTORNEY OR
THE AMERICAN ARBITRATION ASSOCIATION.
(a) Any claim or controversy ("Dispute") between or among the
parties and their employees, agents, affiliates, and assigns,
including but not limited to, Disputes arising out of or relating
to this agreement, this arbitration provision ("arbitration
clause"), or any related agreements or instruments relating hereto
or delivered in connection herewith ("Related Agreements"), and
including, but not limited to, a Dispute based on or arising from
an alleged tort, shall at the request of any party be resolved by
binding arbitration in accordance with the applicable arbitration
rules of the American Arbitration Association (the
"Administrator"). The provisions of this arbitration clause shall
survive any termination, amendment, or expiration of this agreement
or Related Agreements. The provisions of this arbitration clause
shall supersede any prior arbitration agreement between or among
the parties.
(b) The arbitration proceedings shall be conducted in a city
mutually agreed by the parties. Absent such an agreement,
arbitration will be conducted in Las Vegas, Nevada or such other
place as may be determined by the Administrator. The Administrator
and the arbitrator(s) shall have the authority to the extent
practicable to take any action to require the arbitration
proceeding to be completed and the arbitrator(s)' award issued
within 150 days of the filing of the Dispute with the
Administrator. The arbitrator(s) shall have the authority to impose
sanctions on any party that fails to comply with time periods
imposed by the Administrator or the arbitrator(s), including the
sanction of summarily dismissing any Dispute or defense with
prejudice. The arbitrator(s) shall have the authority to resolve
any Dispute regarding the terms of this agreement, this arbitration
clause, or Related Agreements, including any claim or controversy
regarding the arbitrability of any Dispute. All limitations periods
applicable to any Dispute or defense, whether by statute or
agreement, shall apply to any arbitration proceeding hereunder and
the arbitrator(s) shall have the authority to decide whether any
Dispute or defense is barred by a limitations period and, if so, to
summarily enter an award dismissing any Dispute or defense on that
basis. The doctrines of compulsory counterclaim, res judicata, and
collateral estoppel shall apply to any arbitration proceeding
hereunder so that a party must state as a counterclaim in the
arbitration proceeding any claim or controversy which arises out of
the transaction or occurrence that is the subject matter of the
Dispute. The arbitrator(s) may in the arbitrator(s)' discretion and
at the request of any party: (1) consolidate in a single
arbitration proceeding any other claim arising out of the same
transaction involving another party to that transaction that is
bound by an arbitration clause with ▇▇▇▇▇▇, such as borrowers,
guarantors, sureties, and owners of collateral; and (2) consolidate
or administer multiple arbitration claims or controversies as a
class action in accordance with Rule 23 of the Federal Rules of
Civil Procedure.
(c) The arbitrator(s) shall be selected in accordance with the
rules of the Administrator from panels maintained by the
Administrator. A single arbitrator shall have expertise in the
subject matter of the Dispute. Where three arbitrators conduct an
arbitration proceeding, the Dispute shall be decided by a majority
vote of the three arbitrators, at least one of whom must have
expertise in the subject matter of the Dispute and at least one of
whom must be a practicing attorney. The arbitrator(s) shall award
to the prevailing party recovery of all costs and fees (including
attorneys' fees and costs, arbitration administration fees and
costs, and arbitrator(s)' fees.) The arbitrator(s), either during
the pendency of the arbitration proceeding or as part of the
arbitration award, also may grant provisional or ancillary remedies
including but not limited to an award of injunctive relief,
foreclosure, sequestration, attachment, replevin, garnishment, or
the appointment of a receiver.
(d) Judgement upon an arbitration award may be entered in any court
having jurisdiction, subject to the following limitation: the
arbitration award is binding upon the parties only if the amount
does not exceed Four Million Dollars ($4,000,000.00); if the award
exceeds that limit, either party may demand the right to a court
trial. Such a demand must be filed with the Administrator within
thirty (30) days following the date of the arbitration award; if
such a demand is not made with that time period, the amount of the
arbitration award shall be binding. The computation of the total
amount of an arbitration award shall include amounts awarded for
attorneys' fees and costs, arbitration administration fees and
costs, and arbitrator(s)' fees.
(e) No provision of this arbitration clause, nor the exercise of
any rights hereunder, shall limit the right of any party to: (1)
judicially or non-judicially foreclose against any real or personal
property collateral or other security; (2) exercise self-help
remedies, including but not limited to repossession and setoff
rights; or (3) obtain from a court having jurisdiction thereover
any provisional or ancillary remedies including but not limited to
injunctive relief, foreclosure, sequestration, attachment,
replevin, garnishment, or the appointment of a receiver. Such
rights can be exercised at any time, before or after initiation of
an arbitration proceeding, except to the extent such action is
contrary to the arbitration award. The exercise of such rights
shall not constitute a waiver of the right to submit any Dispute to
arbitration, and any claim or controversy related to the exercise
of such rights shall be a Dispute to be resolved under the
provisions of this arbitration clause. Any party may initiate
arbitration with the Administrator. If any party desires to
arbitrate a Dispute asserted against such party in a complaint,
counterclaim, cross-claim, or third-party complaint thereto, or in
an answer or other reply to any such pleading, such party must make
an appropriate motion of the trial court seeking to compel
arbitration, which motion must be filed with the court within 45
days of service of the pleading, or amendment thereto, setting
forth such Dispute. If arbitration is compelled after commencement
of litigation of a Dispute, the party obtaining an order compelling
arbitration shall commence arbitration and pay the Administrator's
filing fees and costs within 45 days of entry of such order.
Failure to do so shall constitute an agreement to proceed with
litigation and waiver of the right to arbitrate. In any arbitration
commenced by a consumer regarding a consumer Dispute, Lender shall
pay one half of the Administrator's filing fee, up to $250.
(f) Notwithstanding the applicability of any other law to this
agreement, the arbitration clause, or Related Agreements between or
among the parties, the Federal Arbitration Act, 9 U.S.C. Section 1
et seq., shall apply to the construction and interpretation of this
arbitration clause. If any provision of this arbitration clause
should be determined to be unenforceable, all other provisions of
this arbitration clause shall remain in full force and effect.
SUCCESSOR INTERESTS. The terms of this Note shall be binding upon
▇▇▇▇▇▇▇▇, and upon ▇▇▇▇▇▇▇▇'s heirs, personal representatives,
successors and assigns, and shall inure to the benefit of Lender and
its successors and assigns.
NOTIFY US OF INACCURATE INFORMATION WE REPORT TO CONSUMER REPORTING
AGENCIES. Please notify us if we report any inaccurate information
about your account(s) to a consumer reporting agency. Your written
notice describing the specific inaccuracy(ies) should be sent to us at
the following address: Nevada State Bank, Corporate Lending
Department, ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
GENERAL PROVISIONS. Lender may delay or forgo enforcing any of its
rights or remedies under this Note without losing them. Borrower and
any other person who signs, guarantees or endorses this Note, to the
extent allowed by law, waive presentment, demand for payment, and
notice of dishonor. Upon any change in the terms of this Note, and
unless otherwise expressly stated in writing, no party who signs this
Note.
PROMISSORY NOTE
LOAN NO: 9001 (CONTINUED) PAGE 2
================================================================================
reasonably practical.
LENDER'S RIGHTS. Upon default, ▇▇▇▇▇▇ may declare the entire unpaid principal
balance on this Note and all accrued unpaid interest immediately due, and then
Borrower will pay that amount.
ATTORNEY'S FEES; EXPENSES. Lender may hire or pay someone else to help collect
this Note if Borrower does not pay. Borrower will pay Lender that amount. This
includes, subject to any limits under applicable law, ▇▇▇▇▇▇'s attorneys' fees
and ▇▇▇▇▇▇'s legal expenses, whether or not there is a lawsuit, including
attorneys' fees, expenses for bankruptcy proceedings (including efforts to
modify or vacate any automatic stay or injunction), and appeals. If not
prohibited by applicable law, ▇▇▇▇▇▇▇▇ also will pay any court costs, in
addition to all other sums provided by law.
GOVERNING LAW. THIS NOTE WILL BE GOVERNED BY, CONSTRUED AND ENFORCED IN
ACCORDANCE WITH FEDERAL LAW AND THE LAWS OF THE STATE OF NEVADA. THIS NOTE HAS
BEEN ACCEPTED BY ▇▇▇▇▇▇ IN THE STATE OF NEVADA.
CHOICE OF VENUE. If there is a lawsuit, ▇▇▇▇▇▇▇▇ agrees upon ▇▇▇▇▇▇'s request to
submit to the jurisdiction of the courts of ▇▇▇▇▇ County, State of Nevada.
(Initial Here )
DISHONORED ITEM FEE. Borrower will pay a fee to Lender of $20.00 if Borrower
makes a payment on Borrower's loan and the check or preauthorized charge with
which Borrower pays is later dishonored.
RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a
right of setoff in all Borrower's accounts with Lender (whether checking,
savings, or some other account). This includes all accounts Borrower holds
jointly with someone else and all accounts Borrower may open in the future.
However, this does not include any IRA or ▇▇▇▇▇ accounts, or any trust accounts
for which setoff would be prohibited by law. Borrower authorizes ▇▇▇▇▇▇, to the
extent permitted by applicable law to charge or setoff all sums owing on the
indebtedness against any and all such accounts, and, at ▇▇▇▇▇▇'s option, to
administratively freeze all such accounts to allow Lender to protect ▇▇▇▇▇▇'s
charge and setoff rights provided in this paragraph.
COLLATERAL. ▇▇▇▇▇▇▇▇ acknowledges this Note is secured by a Deed of Trust of
even date.
ARBITRATION DISCLOSURES.
1. ARBITRATION IS FINAL AND BINDING ON THE PARTIES AND SUBJECT TO ONLY
VERY LIMITED REVIEW BY A COURT.
2. IN ARBITRATION THE PARTIES ARE WAIVING THEIR RIGHT TO LITIGATE IN
COURT, INCLUDING THEIR RIGHT TO A JURY TRIAL.
3. DISCOVERY IN ARBITRATION IS MORE LIMITED THAN DISCOVERY IN COURT.
4. ARBITRATORS ARE NOT REQUIRED TO INCLUDE FACTUAL FINDINGS OR LEGAL
REASONING IN THEIR AWARDS. THE RIGHT TO APPEAL OR SEEK MODIFICATION
OF ARBITRATORS' RULINGS IS VERY LIMITED.
5. A PANEL OF ARBITRATORS MIGHT INCLUDE AN ARBITRATOR WHO IS OR WAS
AFFILIATED WITH THE BANKING INDUSTRY.
6. ARBITRATION WILL APPLY TO ALL DISPUTES BETWEEN THE PARTIES, NOT JUST
THOSE CONCERNING THE AGREEMENT.
7. IF YOU HAVE QUESTIONS ABOUT ARBITRATION, CONSULT YOUR ATTORNEY OR THE
AMERICAN ARBITRATION ASSOCIATION.
(a) Any claim or controversy ("Dispute") between or among the parties and
their employees, agents, affiliates, and assigns, including, but not
limited to, Disputes arising out of or relating to this agreement, this
arbitration provision ("arbitration clause"), or any related agreements or
instruments relating hereto or delivered in connection herewith ("Related
Agreements"), and including, but not limited to, a Dispute based on or
arising from an alleged tort, shall at the request of any party be
resolved by binding arbitration in accordance with the applicable
arbitration rules of the American Arbitration Association (the
"Administrator"). The provisions of this arbitration clause shall survive
any termination, amendment, or expiration of this agreement or Related
Agreements. The provisions of this arbitration clause shall supercede any
prior arbitration agreement between or among the parties.
(b) The arbitration proceedings shall be conducted in a city mutually
agreed by the parties. Absent such an agreement, arbitration will be
conducted in Las Vegas, Nevada or such other place as may be determined by
the Administrator. The Administrator and the arbitrator(s) shall have the
authority to the extent practicable to take any action to require the
arbitration proceedings to be completed and the arbitrator(s)' award
issued within 150 days of the filing of the Dispute with the Administrator.
The arbitrator(s) shall have the authority to impose sanctions on any
party that fails to comply with time periods imposed by the Administrator
or the arbitrator(s), including the sanction of summarily dismissing any
Dispute or defense with prejudice. The arbitrator(s) shall have the
authority to resolve any Dispute regarding the terms of this agreement,
this arbitration clause, or Related Agreements, including any claim or
controversy regarding the arbitrability of any Dispute. All limitations
periods applicable to any Dispute or defense, whether by statute or
agreement, shall apply to any arbitration proceeding hereunder and the
arbitrator(s) shall have the authority to decide whether any Dispute or
defense is barred by a limitations period and, if so, to summarily enter
an award dismissing any Dispute or defense on that basis. The doctrines of
compulsory counterclaim, res judicata, and collateral estoppel shall apply
to any arbitration proceeding hereunder so that a party must state as a
counterclaim in the arbitration proceeding any claim or controversy which
arises out of the transaction or occurrence that is the subject matter of
the Dispute. The arbitrator(s) may in the arbitrator(s)' discretion and at
the request of any party: (1) consolidate in a single arbitration
proceeding any other claim arising out of the same transaction involving
another party to that transaction that is bound by an arbitration clause
with ▇▇▇▇▇▇, such as borrowers, guarantors, sureties, and owners of
collateral; and (2) consolidate or administer multiple arbitration claims
or controversies as a class action in accordance with Rule 23 of the
Federal Rule of Civil Procedure.
(c) The arbitrator(s) shall be selected in accordance with the rules of
the Administrator from panels maintained by the Administrator. A single
arbitrator shall have expertise in the subject matter of the Dispute.
Where three arbitrators conduct an arbitration proceeding, the Dispute
shall be decided by a majority vote of the three arbitrators, at least one
of whom must have expertise in the subject matter of the Dispute and at
least one of whom must be a practicing attorney. The arbitrator(s) shall
award to the prevailing party recovery of all costs and fees (including
attorney's fees and costs, arbitration administration fees and costs, and
arbitrator(s)' fees). The arbitrator(s), either during the pendency of the
arbitration proceeding or as part of the arbitration award, also may
grant provisional or ancillary remedies including but not limited to an
award of injunctive relief, foreclosure, sequestration, attachment,
replevin, garnishment, or the appointment of a receiver.
(d) Judgement upon an arbitration award may be entered in any court having
jurisdiction, subject to the following limitation: the arbitration award
is binding upon the parties only if the amount does not exceed Four
Million Dollars ($4,000,000.00); if the award exceeds that limit, either
party may demand the right to a court trial. Such a demand must be filed
with the Administrator within thirty (30) days following the date of the
arbitration award; if such a demand is not made with that time period, the
amount of the arbitration award shall be binding. The computation of the
total amount of the arbitration award shall include amounts awarded for
attorney's fees and costs, arbitration administration fees and costs, and
arbitrator(s)' fees.
(e) No provision of this arbitration clause, nor the exercise of any
rights hereunder, shall limit the right of any party to: (1) judicially or
non-judicially foreclose against any real or personal property collateral
or other security; (2) exercise self-help remedies, including but not
limited to repossession and setoff rights; or (3) obtain from a court
having jurisdiction thereover any provisional or ancillary remedies
including but not limited to injunctive relief, foreclosure, sequestration,
attachment, replevin, garnishment, or the appointment of a receiver. Such
rights can be exercised at any time, before or after initiation of an
arbitration proceeding, except to the extent such action is contrary to
the arbitration award. The exercise of such rights shall not constitute a
waiver of the right to submit any Dispute to arbitration, and any claim or
controversy related to the exercise of such rights shall be a Dispute to
be resolved under the provisions of this arbitration clause. Any party may
initiate arbitration with the Administrator. If any party desires to
arbitrate a Dispute asserted against such party in a complaint,
counterclaim, cross-claim, or third-party complaint thereto, or in an
answer or other reply to any such pleading, such party must make an
appropriate motion to the trial court seeking to compel arbitration, which
motion must be filed with the court within 45 days of service of the
pleading, or amendment thereto, setting forth such Dispute. If arbitration
is compelled after commencement of litigation of a Dispute, the party
obtaining an order compelling arbitration shall commence arbitration and
pay the Administrator's filing fees and costs within 45 days of entry of
such order. Failure to do so shall constitute an agreement to proceed with
litigation and waiver of the right to arbitrate. In any arbitration
commenced by a consumer regarding a consumer Dispute, Lender shall pay one
half of the Administrator's filing fee, up to $250.
(f) Notwithstanding the applicability of any other law to this agreement,
the arbitration clause, or Related Agreements between or among the
parties, the Federal Arbitration Act, 9 U.S.C. Section 1 et seq., shall
apply to the construction and interpretation of this arbitration clause.
If any provision of this arbitration clause should be determined to be
unenforceable, all other provisions of this arbitration clause shall
remain in full force and effect.
SUCCESSOR INTERESTS. The terms of this Note shall be binding upon ▇▇▇▇▇▇▇▇, and
upon ▇▇▇▇▇▇▇▇'s heirs, personal representatives, successors and assigns, and
shall inure to the benefit of Lender and its successors and assigns.
NOTIFY US OF INACCURATE INFORMATION WE REPORT TO CONSUMER REPORTING AGENCIES.
Please notify us if we report any inaccurate information about your account(s)
to a consumer reporting agency. Your written notice describing the specific
inaccuracy(ies) should be sent to us at the following address: Nevada State
Bank, Corporate Lending Department, ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇
GENERAL PROVISIONS. Lender may delay or forgo enforcing any of its rights or
remedies under this Note without losing them. Borrower and any other person who
signs, guarantees or endorses this Note, to the extent allowed by law, waive
presentment, demand for payment, and notice of dishonor. Upon any change in the
terms of this Note, and unless otherwise expressly stated in writing, no party
who signs this Note.
PROMISSORY NOTE
LOAN NO: 9001 (CONTINUED) PAGE 3
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whether as maker, guarantor, accommodation maker or endorser, shall be released
from liability. All such parties agree that Lender may renew or extend
(repeatedly and for any length of time) this loan or release any party or
guarantor or collateral; or impair, fail to realize upon or perfect ▇▇▇▇▇▇'s
security interest in the collateral; and take any other action deemed necessary
by ▇▇▇▇▇▇ without the consent of or notice to anyone. All such parties also
agree that ▇▇▇▇▇▇ may modify this loan without the consent of or notice to
anyone other than the party with whom the modification is made. The obligations
under this Note are joint and several.
PRIOR TO SIGNING THIS NOTE, ▇▇▇▇▇▇▇▇ READ AND UNDERSTOOD ALL THE PROVISIONS OF
THIS NOTE, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS. ▇▇▇▇▇▇▇▇ AGREES TO
THE TERMS OF THE NOTE.
BORROWER ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS
PROMISSORY NOTE.
BORROWER:
READY MIX, INC.
BY:_____________________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇, PRESIDENT OF READY MIX, INC.
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