REVOLVING REAL ESTATE NOTE
(CONSTRUCTION)
$3,000,000 Minneapolis, Minnesota
November __, 1997
1. FOR VALUE RECEIVED, LUNDREN BROS. CONSTRUCTION, INC., a Minnesota corporation
(the "Borrower"), hereby promises to pay to the order of NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION, a national banking association, its successors and assigns
(the "Lender"), at its banking house located in Minneapolis, Minnesota, the
principal sum of Three Million and 00/100 Dollars ($3,000,000), or so much
thereof as may have been disbursed to or for the benefit of the Borrower in
lawful money of the United States and immediately available funds under and
pursuant to that certain Loan Agreement dated November __, 1997, by and between
the Borrower and the Lender (as the same may be amended and/or restated from
time to time, the "Loan Agreement"), together with interest on the unpaid
balance accruing as of the date hereof at a rate equal at all times to one
percent (1%) per annum in excess of the "Base Rate of Interest" (as that term is
defined herein), as the same may change from time to time and be adjusted in the
manner set forth herein. Subject to the terms and conditions set forth in the
Loan Agreement, the proceeds of this Note may be advanced, repaid and readvanced
hereunder so long as no Event or Event of Default (as those terms are defined in
the Loan Agreement) shall have occurred and be then continuing.
2. Accrued interest hereon shall be payable monthly commencing on November 1,
1997, and continuing on the first (1st) day of each calendar month thereafter
until this Note is paid in full. Accrued interest shall also be due and payable
on the Expiration Date (as defined in the Loan Agreement). The principal balance
of this Note shall be due and payable in full on the Expiration Date.
3. In all cases interest on this Note shall be calculated on the basis of a 360
day year but charged for actual days principal is unpaid.
4. As used herein, the term "Base Rate of Interest" shall mean the base rate of
interest (or equivalent successor rate) set or announced from time to time by
the Lender as its base rate, whether or not the Lender makes loans to other
borrowers at, above or below said rate.
5. The rate of interest due hereunder shall initially be determined as of the
date hereof and shall thereafter be adjusted, as and when, and on the same day
that, the Base Rate of Interest changes (each such day hereinafter being
referred to as an "Adjustment Date"). All such adjustments to said rate shall be
made and become effective as of the Adjustment Date and said rate as adjusted
shall remain in effect until and including the day immediately preceding the
next Adjustment Date.
6. The outstanding principal balance of this Note may be prepaid at any time at
the option of the Borrower, in whole or in part, without premium or penalty. All
payments made by the
Borrower using proceeds derived by any insurance policy covering any property
securing this Note or from any condemnation award with respect thereto or from
the sale of any collateral securing this Note (whether or not with the consent
of the Lender) shall, unless otherwise agreed in writing, be deemed a prepayment
for purposes of this Note.
7. All payments and prepayments shall, at the option of the Lender, be applied
first to any costs of collection, second to any late charges, third to accrued
interest on this Note, and lastly to principal (and, with respect to
prepayments, to installments of principal in the inverse order of their
maturity).
8. Notwithstanding anything to the contrary contained herein, if the rate of
interest, or any other charges or fees due hereunder are determined by a court
of competent jurisdiction to be usurious, then said interest rate, fees and/or
charges shall be reduced to the maximum amount permissible under applicable
Minnesota law.
9. This Note is issued pursuant to the terms of the Loan Agreement, is
guaranteed by the Personal Guarantors (as defined in the Loan Agreement)
pursuant to certain Personal Guaranties of even date herewith executed by the
respective Personal Guarantors in favor of the Lender, and is secured by the
Mortgage (as defined in the Loan Agreement), and the Lender is entitled to all
of the benefits provided for in said documents.
10. Upon the occurrence of an Event of Default or at any time thereafter, the
outstanding principal balance hereof and accrued interest and all other amounts
due hereon shall, at the option of the Lender, become immediately due and
payable, without notice or demand.
11. Upon the occurrence of an Event of Default or any time thereafter, the
Lender shall have the right to set off any and all amounts due hereunder by the
Borrower to the Lender against any indebtedness or obligation of the Lender to
the Borrower.
12. Upon the occurrence at any time of an Event of Default or at any time
thereafter, the Borrower promises to pay all costs of collection of this Note,
including but not limited to attorneys' fees, paid or incurred by the Lender on
account of such collection, whether or not suit is filed with respect thereto
and whether such cost or expense is paid or incurred, or to be paid or incurred,
prior to or after the entry of judgment.
13. Demand, presentment, protest and notice of nonpayment and dishonor of this
Note are hereby waived.
14. This Note shall be governed by and construed in accordance with the laws of
the State of Minnesota.
15. The Borrower hereby irrevocably submits to the jurisdiction of any Minnesota
state or federal court over any action or proceeding arising out of or relating
to this Note, the Mortgage and any instrument, agreement or document related
thereto, and the Borrower hereby irrevocably agrees that all claims in respect
of such action or proceeding may be heard and determined in
such Minnesota state or federal court. The Borrower hereby irrevocably waives,
to the fullest extent it may effectively do so, the defense of an inconvenient
forum to the maintenance of such action or proceeding. The Borrower irrevocably
consents to the service of copies of the summons and complaint and any other
process which may be served in any such action or proceeding by the mailing by
United States certified mail, return receipt requested, of copies of such
process to the Borrower's last known address. The Borrower agrees that judgment
final by appeal, or expiration of time to appeal without an appeal being taken,
in any such action or proceeding shall be conclusive and may be enforced in any
other jurisdictions by suit on the judgment or in any other manner provided by
law. Nothing in this Paragraph shall affect the right of the Lender to serve
legal process in any other manner permitted by law or affect the right of the
Lender to bring any action or proceeding against the Borrower or its property in
the courts of any other jurisdiction to the extent permitted by law.
BORROWER:
XXXXXXXX BROS. CONSTRUCTION, INC.
By: ____________________________
Its President
STATE OF MINNESOTA )
) ss
COUNTY OF )
The foregoing instrument was acknowledged before me this ____ day of November,
1997, by Xxxxx Xxxxxx, the President of XXXXXXXX BROS. CONSTRUCTION, INC., a
Minnesota corporation, for and on behalf of such corporation.
_____________________________
Notary Public
