EXHIBIT 10.10
DEVELOPMENT NOTE
$6,100,000.00 Minneapolis, Minnesota
July _____, 1998
FOR VALUE RECEIVED, the undersigned, XXXXXXXX BROS. CONSTRUCTION, INC.,
a Minnesota corporation (the "Borrower"), promises to pay to the order of U.S.
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 Six Million One Hundred Thousand
and 00/100 Dollars ($6,100,000.00), 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 the variable annual rate as
provided for in Section 1.2 of the Loan Agreement. 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.
This Note is the Development 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 August 1,
1998, until all indebtedness evidenced hereby is paid in full. Advances of
principal shall be disbursed for individual Development 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 the third anniversary of the date hereof (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 Development Project Loan or
Development Project Loans as provided for in 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 the Default Rate as provided for in Section 1.2 of the Loan
Agreement, 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 and Assignment of Leases and Rents 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, and (iii) other collateral security
agreements (the "Security Documents") given by Borrower 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:
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Its:
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STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this _____ day of
July, 1998, by _______________________________, the _________________________ of
Xxxxxxxx Bros. Construction, Inc., a Minnesota corporation, on behalf of the
corporation.
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Notary Public
