REVOLVING CREDIT NOTE
$5,000,000.00 Minneapolis, Minnesota
April _____, 1997
FOR VALUE RECEIVED, the undersigned, XXXXXXXX BROS. CONSTRUCTION, INC.,
a Minnesota corporation (the "Borrower"), promises to pay to the order FIRST
BANK NATIONAL ASSOCIATION, a national banking association (the "Lender"), its
successors and assigns, at its office at 000 Xxxxxx Xxxxxx Xxxxx, Xxxxxxxxxxx,
Xxxxxxxxx 00000-0000, or such other place as the holder hereof may designate in
writing from time to time, the principal sum of Five Million and 00/100 Dollars
($5,000,000.00), or so much thereof as may be advanced from time to time
pursuant to that certain Revolving Construction and Development Loan Agreement
dated of even date herewith between the Borrower and the Lender (as originally
executed and as may be amended, modified, supplemented or restated from time to
time, the "Loan Agreement"), in lawful money of the United States, together with
interest from the date hereof on the unpaid principal balance hereof from time
to time outstanding at a variable annual rate at all times equal to one and
one-fourth percent (1.25%) per annum plus the prevailing Reference Rate of
interest established and announced by the Lender as the same may change from
time to time. The "Reference Rate" means the rate of interest established and
publicly announced by the Lender from time to time as its reference rate. The
Lender may make loans to its customers at, above or below the Reference Rate. In
the event that the Lender ceases to establish and announce a Reference Rate at
any time during the term of this Note, the Lender shall be entitled to designate
a reasonably comparable substitute index for the calculation of the interest
rate hereon so long as any amount remains outstanding hereunder. All changes in
the rate of interest rate applicable hereto shall become effective on the same
day that a change in the Reference Rate is announced. Interest hereon shall be
computed on the actual number of days elapsed and a 360-day year.
This Note is the Revolving Credit Note issued pursuant to the terms and
provisions of the Loan Agreement and this Note and the Lender are entitled to
all of the benefits provided for in the Loan Agreement. Reference is made to the
Loan Agreement for a statement of the terms and conditions under which this
indebtedness was incurred, is to be advanced and is to be repaid and under which
the due date of this Note may be accelerated. The provisions of the Loan
Agreement are hereby incorporated by reference with the same force and effect as
if fully set forth herein. Capitalized terms used in this Note shall have the
meanings ascribed to them in the Loan Agreement.
Accrued interest on the unpaid principal balance hereof shall be due
and payable on the first (1st) day of each calendar month, commencing May 1,
1997, until all indebtedness evidenced hereby is paid in full. Advances of
principal shall be disbursed for individual Project Loans and shall be repaid,
all in accordance with the terms and conditions of the Loan Agreement. All
outstanding principal and accrued and unpaid interest shall be due and payable
on May 1, 2000 (the "Maturity Date") unless the Maturity Date is extended as set
forth in the Loan Agreement.
Borrower may prepay principal, in whole or in part, at any time after
three (3) Business Days' prior written notice of said prepayment from Borrower
to Lender, without premium or penalty. Any such prepayment must be accompanied
by payment, in full, of all unpaid, accrued interest on the amount prepaid.
Amounts so prepaid shall be applied to such Project Loan or Project Loans as
designated by Borrower unless a default or Event of Default then exists
hereunder, in which event said amounts shall be applied as Lender may elect. If
no default or Event of Default exists hereunder, amounts so prepaid may be
reborrowed from time to time as parts of other Project Loans (but not the same
Project Loan) in accordance with the terms of the Loan Agreement.
Upon the occurrence of an Event of Default hereunder the interest rate
shall thereafter increase and shall be payable on the whole of the unpaid
principal balance at a floating rate equal to five percent (5%) per annum in
excess of the rate which would otherwise be payable under the terms of this Note
(hereinafter referred to as the "Default Rate"), which Default Rate shall be
effective as of the date of the occurrence of such Event of Default. The above
increase in the interest rate upon the occurrence of an Event of Default shall
be applicable whether or not the Lender has exercised its option to accelerate
the maturity of this Note and declared the entire unpaid principal indebtedness
to be due and payable. The Default Rate shall continue until such Event of
Default is cured, payment in full of all indebtedness evidenced by this Note, or
completion of all foreclosure proceedings and redemption periods, whichever
shall occur first.
This Note is secured by (i) a Mortgage and Security Agreement and
Fixture Financing Statement dated of even date herewith (the "Mortgage"), which
Xxxxxxxx has granted to the holder a first mortgage lien on and security
interest in the Premises, as therein defined (the "Premises"), (ii) the Loan
Agreement, (iii) a Guaranty (the "Guaranty") from Xxxxxx Xxxxxxxx, Xxxxx
Xxxxxxxx, Xxxxx Xxxxxx, Xxxxxxx Xxxxx and Xxxxxx Xxxxxxxx (the "Guarantors")
dated of even date herewith guaranteeing Borrower's obligations under this Note,
the Mortgage and the Loan Agreement, and (iv) other collateral security
agreements (the "Security Documents") given by Borrower or the Guarantors to
Lender, all dated of even date herewith.
The occurrence of an Event of Default, as defined in the Loan
Agreement, shall constitute an Event of Default hereunder ("Event of Default"),
and upon the occurrence of such an Event of Default, the entire unpaid principal
balance, together with accrued interest at the Default Rate, shall become,
without notice, immediately due and payable at the option of the Lender.
The Borrower agrees that if, and as often as, this Note is placed in
the hands of an attorney for collection or to defend or enforce any of the
Lender's rights hereunder or under the Mortgage, the Loan Agreement or any other
Security Document securing payment of this Note, the Borrower will pay to the
Lender its attorneys' fees and all court costs (including attorney's fees and
court costs prior to trial, at trial and on appeal, or in any bankruptcy
proceeding) and other expenses incurred in connection therewith.
Time is of the essence. No delay or omission on the part of the Lender
or other holder hereof in exercising any right or remedy hereunder shall operate
as a waiver of such right or of any other right or remedy under this Note or any
other document or agreement executed in connection herewith. All waivers by the
Lender must be in writing to be effective and a waiver on any occasion shall not
be construed as a bar to or a waiver of any similar right or remedy on a future
occasion.
The Borrower, endorsers, sureties, guarantors and all other persons
liable for all or any part of the indebtedness evidenced by this Note jointly
and severally waive presentment for payment, protest, notice of nonpayment and
notice of dishonor. Such parties hereby consent without affecting their
liability to any extension or alteration of the time or terms of payment hereof,
any renewal, any release of all or any part of the security given for the
payment hereof, any acceptance of additional security of any kind, and any
release of, or resort to any party liable for payment hereof and such parties
shall remain bound in the same capacities as prior thereto upon each such event.
Any payment due on any day which is not a Business Day shall be due
upon (and interest shall accrue to) the next Business Day.
This Note represents a loan negotiated, executed and to be performed in
the State of Minnesota and shall be construed, interpreted and governed by the
law of said state.
The Borrower hereby consents to the personal jurisdiction of the state
and federal courts located in the State of Minnesota in connection with any
controversy related to this Note, waives any argument that venue in such forums
is not convenient and agrees that any litigation instigated by the Borrower
against the Lender in connection with this Note shall be venued in either the
District Courts of Hennepin County, Minnesota, or the United States District
Court for the District of Minnesota.
THE LENDER BY ITS ACCEPTANCE HEREOF AND THE BORROWER HEREBY
VOLUNTARILY, KNOWINGLY AND INTENTIONALLY WAIVES ANY AND ALL RIGHTS TO TRIAL BY
JURY IN ANY LEGAL ACTION OR PROCEEDING ARISING UNDER THIS NOTE OR CONCERNING THE
INDEBTEDNESS EVIDENCED THEREBY AND/OR ANY COLLATERAL CONTEMPLATED THEREBY,
REGARDLESS OF WHETHER SUCH ACTION OR PROCEEDING CONCERNS ANY CONTRACTUAL OR
TORTIOUS OR OTHER CLAIM. THE BORROWER ACKNOWLEDGES THAT THIS WAIVER OF JURY
TRIAL IS A MATERIAL INDUCEMENT TO THE LENDER IN EXTENDING CREDIT TO THE
BORROWER, THAT THE LENDER WOULD NOT HAVE EXTENDED SUCH CREDIT WITHOUT THIS JURY
TRIAL WAIVER, AND THAT SUCH XXXXXXXX HAS BEEN REPRESENTED BY AN ATTORNEY OR HAS
HAD AN OPPORTUNITY TO CONSULT WITH AN ATTORNEY IN CONNECTION WITH THIS JURY
TRIAL WAIVER AND UNDERSTANDS THE LEGAL EFFECT OF THIS WAIVER.
IN WITNESS WHEREOF, the Borrower has executed and delivered this Note
to the Lender as of the day and year first above written.
XXXXXXXX BROS. CONSTRUCTION, INC.,
a Minnesota corporation
By: _________________________________
Xxxxx Xxxxxx
Its: President
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this _____ day of
April, 1997, by Xxxxx Xxxxxx, the President of Xxxxxxxx Bros. Construction,
Inc., a Minnesota corporation, on behalf of the corporation.
___________________________
Notary Public
