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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q/A-1
(X) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended September 29, 1996
OR
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
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Commission File number 0-24502
ROCK BOTTOM RESTAURANTS, INC.
(Exact name of the registrant as specified in its charter)
Delaware 84-1265838
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
1050 Walnut Street
Suite # 402
Boulder, Colorado 80302
(Address of principal executive offices) (Zip Code)
(303) 417-4000
(Registrant's telephone number
including area code)
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15 (d) of the Securities
Exchange Act of 1934 during the preceding twelve months (or for such
shorter period that the Registrant was required to file such reports),
and (2) has been subject to such filing requirements for the past
ninety days.
Yes X No
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As of November 11, 1996, the Registrant had outstanding 7,905,451
shares of common stock, par value $.01 per share.
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PART II - OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
Exhibit
Number Description
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10 Real Estate Mortgage, dated June 27, 1996, between
the Company and Lakeside Bank, together with
Promissory Note*
27 Financial Data Schedule**
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* Filed herewith.
** Filed previously.
(b) Reports on Form 8-K
A current report on Form 8-K dated July 2, 1996 was filed to
announce the closing of a $20 million revolving credit
facility with Norwest Bank, and the execution of a Stock
Purchase Agreement between the Company, Trolley Barn, TBB
Acquisition Group, Inc., TBB Holding Company, and the TBB
shareholders.
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SIGNATURES
-----------
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this amendment to be signed on its
behalf by the undersigned, thereunto duly authorized.
ROCK BOTTOM RESTAURANTS, INC.
(Registrant)
November 22, 1996 By: /s/ WILLIAM S. HOPPE
-------------------------------
William S. Hoppe
Chief Financial Officer and
Vice President
(Principal Financial Officer)
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EXHIBIT INDEX
Exhibit
Number Description
10 Real Estate Mortgage, dated
June 27, 1996, between the
Company and Lakeside Bank,
together with Promissory Note*
27 Financial Data Schedule
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* Filed herewith.
** Filed previously.
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THIS DOCUMENT WAS PREPARED BY: EXHIBIT 10
LAKESIDE BANK
55 WEST WACKER DRIVE
CHICAGO, ILLINOIS 60601
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(Space above this line for recording purposes)
ONE WEST GRAND AVENUE
CHICAGO, ILLINOIS 60610
PIN: #17-09-248-008-0000 AND
#17-09-248-009-0000
REAL ESTATE MORTGAGE
To Secure a Loan
From LAKESIDE BANK
1. DATE AND PARTIES. The date of this Real Estate Mortgage (Mortgage)
is June 27, 1996, and the parties and their mailing addresses are
the following:
MORTGAGOR:
ROCK BOTTOM RESTAURANTS, INC.
a DELAWARE corporation
1050 WALNUT STREET, SUITE 402
BOULDER, COLORADO 80302
Tax I.D. # 84-1265838
BANK:
LAKESIDE BANK
an ILLINOIS banking corporation
55 WEST WACKER DRIVE
CHICAGO, ILLINOIS 60601
Tax I.D. # 36-2583514
(as Mortgagee)
2. MAXIMUM OBLIGATION LIMIT. The total principal amount of the
Obligations secured by this Mortgage, not including, however, any
sums advanced for the protection of the Property or Bank's interest
therein, nor interest, attorneys' fees, paralegal fees, costs and
other legal expenses, shall not exceed the sum of $5,000,000.00,
provided, however, that nothing contained herein shall constitute a
commitment to make additional or future loans or advances in any
amounts.
3. OBLIGATIONS DEFINED. The term "Obligations is defined as and
includes the following:
A. A promissory note, No. 305, (Note) dated June 27, 1996,
and executed by ROCK BOTTOM RESTAURANTS, INC. (Borrower)
payable in monthly payments to the order of Bank, which
evidences a loan (Loan) to Borrower in the amount of
$2,500,000.00, plus interest, and all extensions, renewals,
modifications or substitutions thereof.
B. All future advances by Bank to Borrower, to Mortgagor, to
any one of them or to any one of them and others (and all
other obligations referred to in the subparagraph(s) below,
whether or not this Mortgage is specifically referred to in
the evidence of indebtedness with regard to such future and
additional indebtedness).
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C. All additional sums advanced, and expenses incurred, by Bank
for the purpose of insuring, preserving or otherwise protecting
the Property (as herein defined) and its value, and any other
sums advanced, and expenses incurred by Bank pursuant to this
Mortgage, plus interest at the same rate provided for in the
Note computed on a simple interest method.
D. All other obligations, now existing or hereafter arising,
by Borrower owing to Bank to the extent the taking of the
Property (as herein defined) as security therefor is not
prohibited by law, including but not limited to liabilities
for overdrafts, all advances made by Bank on Borrower's,
and/or Mortgagor's, behalf as authorized by this Mortgage
and liabilities as guarantor, endorser or surety, of
Borrower to Bank, due or to become due, direct or indirect,
absolute or contingent, primary or secondary, liquidated or
unliquidated, or joint, several, or joint and several.
E. Borrower's performance of the terms in the Note or Loan,
Mortgagor's performance of any terms in this Mortgage, and
Borrower's and Mortgagor's performance of any terms in any
deed of trust, any trust deed, any trust indenture, any
other mortgage, any deed to secure debt, any security
agreement, any assignment, any construction loan agreement,
any loan agreement, any assignment of beneficial interest,
any guaranty agreement or any other agreement which
secures, guaranties or otherwise relates to the Note or
Loan.
However, this Mortgage will not secure another debt:
A. if Bank fails to make any disclosure of the existence of
this Mortgage required by law for such other debt.
4. CONVEYANCE. In consideration of the Loan and Obligations, and to
secure the Obligations (which includes the Note according to its
specific terms and the obligations in this Mortgage), Mortgagor
hereby bargains, grants, mortgages, sells, conveys and warrants to
Bank, as Mortgagee, the following described property (Property)
situated in COOK County, ILLINOIS, to-wit:
LOT 1 IN BLOCK 14 IN KINZIES' ADDITION TO CHICAGO IN
SECTION 10, TOWNSHIP 39 NORTH, RANGE 14 EAST OF THE THIRD
PRINCIPAL MERIDIAN, IN COOK COUNTY, ILLINOIS. AND LOT 15
AND 16 IN BLOCK 9 IN WOLCOTT'S ADDITION TO CHICAGO IN
SECTION 9, TOWNSHIP 39 NORTH, RANGE 14 EAST OF THE THIRD
PRINCIPAL MERIDIAN, IN COOK COUNTY,ILLINOIS. PIN: #17-09-
248-008-0000 AND 17-09-248-009-0000
THE PROPERTY MAY BE COMMONLY REFERRED TO AS ONE WEST GRAND
AVENUE, CHICAGO, ILLINOIS 60610
such property not constituting the homestead of Borrower, together
with all buildings, improvements, fixtures and equipment now or
hereafter attached to the Property, including, but not limited to,
all heating, air conditioning, ventilation, plumbing, cooling,
electrical and lighting fixtures and equipment; all landscaping; all
exterior and interior improvements; all easements, issues, rights,
appurtenances, rents, royalties, oil and gas rights, privileges,
proceeds, profits, other minerals, water, water rights, and water
stock, crops, grass and timber at any time growing upon said land,
including replacements and additions thereto, all of which shall be
deemed to be and remain a part of the Property. All of the foregoing
Property shall be collectively hereinafter referred to as the
Property. To have and to hold the Property, together with the rights,
privileges and appurtenances thereto belonging, unto Bank forever to
secure the Obligations. Mortgagor does hereby warrant and defend the
Property unto Bank forever, against any claim or claims, of all
persons claiming or to claim the Property or any part thereof.
Mortgagor further releases and waives all rights under and by virtue
of the homestead laws and exemption laws of the state of ILLINOIS.
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5. INTEREST AND REPAYMENT OF THE OBLIGATIONS. The Note accrues
interest from June 27, 1996, on the unpaid principal balance at the
rate of 9% per annum (Contract Rate) until the Note matures or the
obligation is accelerated. After maturity or acceleration, the
unpaid balance shall bear interest at the rate specified in the Note
until paid. The Loan and the Note are limited to the maximum lawful
amount of interest (Maximum Lawful Interest) permitted under federal
and state laws. If the interest accrued and collected exceeds the
Maximum Lawful Interest as of the time of collection, such excess
shall be applied to reduce the principal amount outstanding, unless
otherwise required by law. If or when no principal amount is
outstanding, any excess interest shall be refunded to Borrower
according to the actuarial method. Interest shall be computed on the
basis of a 360-day year and the actual number of days elapsed.
PRINCIPAL AND ACCRUED INTEREST ARE DUE AND PAYABLE IN 59 EQUAL
MONTHLY PAYMENTS OF $25,614.90 ON THE 1ST DAY OF EACH MONTH,
BEGINNING AUGUST 1, 1996, OR THE DAY FOLLOWING IF THE PAYMENT
DAY IS A HOLIDAY OR IS A NON-BUSINESS DAY FOR BANK. UNLESS PAID
PRIOR TO MATURITY, THE LAST SCHEDULED PAYMENT PLUS ALL OTHER
UNPAID PRINCIPAL, ACCRUED INTEREST, COSTS AND EXPENSES ARE DUE
AND PAYABLE ON JULY 1, 2001, WHICH IS THE DATE OF MATURITY.
THESE PAYMENT AMOUNTS ARE BASED UPON TIMELY PAYMENT OF EACH
INSTALLMENT. ALL AMOUNTS SHALL BE PAID IN LEGAL U.S. CURRENCY.
ANY PAYMENT MADE WITH A CHECK WILL CONSTITUTE PAYMENT ONLY WHEN
COLLECTED.
6. LIENS AND ENCUMBRANCES. Mortgagor warrants and represents that the
Property is free and clear of all liens and encumbrances whatsoever.
Mortgagor agrees to pay all claims when due that might result, if
unpaid, in the foreclosure, execution or imposition of any lien,
claim or encumbrance on or against the Property or any part thereof.
Mortgagor may in good faith contest any such lien, claim or
encumbrance by posting any bond in an amount necessary to prevent
such claim from becoming a lien, claim or encumbrance or to prevent
its foreclosure or execution.
7. CORPORATE WARRANTIES AND REPRESENTATIONS. If Mortgagor is a
corporation, Mortgagor makes to Bank the following warranties and
representations which shall be continuing so long as the Obligations
remain outstanding:
A. Mortgagor is a corporation which is duly organized and
validly existing in Mortgagor's state of incorporation as represented
in the DATE AND PARTIES paragraph above; Mortgagor is in good
standing under the laws of all states in which Mortgagor transacts
business; Mortgagor has the corporate power and authority to own the
Property and to carry on its business as now being conducted;
Mortgagor is qualified to do business in every jurisdiction in which
the nature of its business or its property makes such qualification
necessary; and Mortgagor is in compliance with all laws, regulations,
ordinances and orders of public authorities applicable to it.
B. The execution, delivery and performance of this Mortgage by
Mortgagor and the borrowing evidenced by the Note: (1) are
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within the corporate powers of Mortgagor; (2) have been duly
authorized by all requisite corporate action; (3) have received all
necessary governmental approval; (4) will not violate any provision
of law, any order of any court or other agency of government or
Mortgagor's Articles of Incorporation or Bylaws; and (5) will not
violate any provision of any indenture, agreement or other instrument
to which Mortgagor is a party or to which Mortgagor is or any of
Mortgagor's property is subject, including but not limited to any
provision prohibiting the creation or imposition of any lien, charge
or encumbrance of any nature whatsoever upon any of Mortgagor's
property or assets. The Note and this Mortgage when executed and
delivered by Mortgagor will constitute the legal, valid and binding
obligations of Mortgagor, and of the other obligors named therein, if
any, in accordance with their respective terms.
C. All other information, reports, papers and data given to
Bank with respect to Mortgagor or to others obligated under the terms
of this Mortgage are accurate and correct in all material respects
and complete insofar as completeness may be necessary to give Bank a
true and accurate knowledge of the subject matter.
D. Mortgagor has not changed its name within the last six
years, unless otherwise disclosed in writing; other than the trade
names or fictitious names actually disclosed to Bank prior to
execution of this Mortgage, Mortgagor uses no other names; and until
the Obligations shall have been paid in full, Mortgagor hereby
covenants and agrees to preserve and keep in full force and effect
its existing name, corporate existence, rights, franchises and trade
names, and to continue the operation of its business in the ordinary
course.
8. EVENTS OF DEFAULT. Mortgagor shall be in default upon the occurrence
of any of the following events, circumstances or conditions (Events
of Default):
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A. Failure by any party obligated on the Obligations to make
payment when due; or
B. A default or breach by Borrower, Mortgagor or any co-
signer, endorser, surety, or guarantor under any of the terms of
this Mortgage, the Note, any construction loan agreement or
other loan agreement, any security agreement, mortgage, deed to
secure debt, deed of trust, trust deed, or any other document or
instrument evidencing, guarantying, securing or otherwise
relating to the Obligations; or
C. The making or furnishing of any verbal or written
representation, statement or warranty to Bank which is or
becomes false or incorrect in any material respect by or on
behalf of Mortgagor, Borrower, or any co-signer, endorser,
surety or guarantor of the Obligations; or
D. Failure to obtain or maintain the insurance coverages
required by Bank, or insurance as is customary and proper for the
Property (as herein defined); or
E. The death, dissolution or insolvency of, the
appointment of a receiver by or on behalf of, the assignment for
the benefit of creditors by or on behalf of, the voluntary or
involuntary termination of existence by, or the commencement of
any proceeding under any present or future federal or state
insolvency, bankruptcy, reorganization, composition or debtor
relief law by or against Mortgagor, Borrower, or any co-signer,
endorser, surety or guarantor of the Obligations; or
F. A good faith belief by Bank at any time that Bank is
insecure with respect to Borrower, or any co-signer, endorser,
surety or guarantor, that the prospect of any payment is
impaired or that the Property (as herein defined) is impaired;
or
G. Failure to pay or provide proof of payment of any tax,
assessment, rent, insurance premium, escrow or escrow deficiency
on or before its due date; or
H. A material adverse change in Mortgagor's business,
including ownership, management, and financial conditions, which
in Bank's opinion, impairs the Property or repayment of the
Obligations; or
I. A transfer of a substantial part of Mortgagor's money
or property; or
J. If all or any part of the Property or any interest
therein is sold, leased or transferred by Mortgagor except as
permitted in the paragraph below entitled "DUE ON SALE OR
ENCUMBRANCE".
9. REMEDIES ON DEFAULT. At the option of Bank, all or any part of the
principal of, and accrued interest on, the Obligations shall become
immediately due and payable without notice or demand, upon the
occurrence of an Event of Default or at any time thereafter. In
addition, upon the occurrence of any Event of Default, Bank, at its
option, may immediately commence foreclosure proceedings and may
immediately invoke any or all other remedies provided in the Note,
this Mortgage or related documents. Bank is entitled to all rights
and remedies provided at law or equity whether or not expressly
stated in this Mortgage. By choosing any remedy, Bank does not waive
its right to an immediate use of any other remedy if the event of
default continues or occurs again.
10. DUE ON SALE OR ENCUMBRANCE. Bank may, at Bank's option, declare
the entire balance with all accrued interest on the Obligations to be
immediately due and payable upon the contract for, or creation of,
any lien, encumbrance, transfer or sale of the Property, or any
portion thereof, by Mortgagor. Lapse of time or the acceptance of
payments by Bank after such creation of any lien, encumbrance,
transfer or sale, or contract for any of the foregoing, shall not be
deemed a waiver or estoppel of Bank's right to accelerate the
Obligations. If Bank exercises such option to accelerate, Bank shall
mail, by certified mail
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or otherwise, Mortgagor notice of acceleration to the address of
Mortgagor shown on Bank's records; the notice shall provide for a
period of not less than 30 days from the date the notice is mailed
within which Mortgagor shall pay the sums declared due. If Mortgagor
fails to pay such sums prior to the expiration of such period, Bank
may, without further notice or demand on Mortgagor, invoke any
remedies permitted on Default. This covenant shall run with the
Property and shall remain in effect until the Obligations and this
Mortgage are fully paid.
In the preceding paragraph. the phrase "transfer or sale" includes
the conveyance of any right, title or interest in the Property,
whether voluntary or involuntary, by outright sale, deed, installment
contract sale, land contract, contract for deed, leasehold interest
with a term greater than three years, lease-option contract or any
other method of conveyance of the Property interests; the term
"interest" includes, whether legal or equitable, any right, title,
interest, lien, claim, encumbrance or proprietary right, choate or
inchoate, any of which is superior to the lien created by this
Mortgage.
11. POSSESSION ON FORECLOSURE. If an action is brought to foreclose
this Mortgage for all or any part of the Obligations, Mortgagor
agrees that the Bank shall be entitled to immediate possession as
Mortgagee in possession of the Property to the extent not prohibited
by law, or the court may appoint, and Mortgagor hereby consents to
such appointment, a receiver to take possession of the Property and
to collect and receive rents and profits arising therefrom. Any
amounts so collected shall be used to pay taxes on, provide insurance
for, pay costs of needed repairs and for any other expenses relating
to the Property or the foreclosure proceedings, sale expenses or as
authorized by the court. Any sum remaining after such payments will
be applied to the Obligations.
12. PROPERTY OBLIGATIONS. Mortgagor shall promptly pay all taxes,
assessments, levies, water rents, other rents, insurance premiums and
all amounts due on any encumbrances, if any, as they become due.
Mortgagor shall provide written proof to Bank of such payment(s).
13. INSURANCE. Mortgagor shall insure and keep insured the Property
against loss by fire, and other hazard, casualty and loss, with
extended coverage including but not limited to the replacement value
of all improvements, with an insurance company acceptable to Bank and
in an amount acceptable to Bank. Such insurance shall contain the
standard "Mortgagee Clause" and where applicable, "Loss Payee
Clause", which shall name and endorse Bank as mortgagee and loss
payee. Such insurance shall also contain a provision under which the
insurer shall give Bank at least 30 days notice before the
cancellation, termination or material change in coverage.
If an insurer elects to pay a fire or other hazard loss or damage
claim rather than to repair, rebuild or replace the Property lost or
damaged, Bank shall have the option to apply such insurance proceeds
upon the Obligations secured by this Mortgage or to have said
Property repaired or rebuilt. Mortgagor shall deliver or cause to
deliver evidence of such coverage and copies of all notices and
renewals relating thereto. Bank shall be entitled to pursue any
claim under the insurance if Mortgagor fails to promptly do so.
Mortgagor shall pay the premiums required to maintain such insurance
in effect until such time as the requirement for such insurance
terminates. In the event Mortgagor fails to pay such
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premiums, Bank may, at its option, pay such premiums. Any such
payment by Bank shall be repayable upon demand of Bank or if no
demand is made, in accordance with the paragraph below titled 'BANK
MAY PAY'.
14. WASTE. Mortgagor shall not alienate or encumber the Property to
the prejudice of Bank, or commit, permit or suffer any waste,
impairment or deterioration of the Property, and regardless of
natural depreciation, shall keep the Property and all its
improvements at all times in good condition and repair. Mortgagor
shall comply with and not violate any and all laws and regulations
regarding the use, ownership and occupancy of the Property.
Mortgagor shall perform and abide by all obligations and restrictions
under any declarations, covenants and other documents governing the
use, ownership and occupancy of the Property.
15. CONDITION OF PROPERTY. As to the Property, Mortgagor shall:
A. keep all buildings occupied and keep all buildings, structures
and improvements in good repair.
B. refrain from the commission or allowance of any acts of waste or
impairment of the value of the Property or Improvements thereon.
C. not cut or remove, or permit to be cut or removed, any wood or
timber from the Property, which cutting or removal would
adversely affect the value of the Property.
D. prevent the spread of noxious or damaging weeds, preserve and
prevent the erosion of the soil and continuously practice
approved methods of farming on the Property if used for
agricultural purposes.
16. ENVIRONMENTAL LAWS AND HAZARDOUS SUBSTANCES.
A. As used in this paragraph:
(1) "Environmental Law" means, without limitation, the
Comprehensive Environmental Response, Compensation, and
Liability Act ("CERCLA", 42 U.S.C. 9601 et seq.), all federal,
state and local laws, regulations, ordinances, court orders,
attorney general opinions or interpretive letters concerning the
public health, safety, welfare, environment or a Hazardous
Substance (as defined herein).
(2) "Hazardous Substance" means any toxic, radioactive or
hazardous material, waste, pollutant or contaminant which has
characteristics which render the substance dangerous or
potentially dangerous to the public health, safety, welfare or
the environment. The term includes, without limitation, any
substances defined as "hazardous material," "toxic substances,"
"hazardous waste" or "hazardous substance" under any
Environmental Law.
B. Mortgagor represents, warrants and agrees that:
(1) Except as previously disclosed and acknowledged in writing
to Bank, no Hazardous Substance has been, is or will be located,
transported, manufactured, treated, refined, or handled by any
person on, under or about the Property except in the ordinary
course of business and in strict compliance with all applicable
Environmental Law.
(2) Except as previously disclosed and acknowledged in writing
to Bank, Mortgagor has not and shall not cause, contribute to or
permit the release of any Hazardous Substance on the Property,
(3) Mortgagor shall immediately notify Bank If: (a) a release
or threatened release of Hazardous Substance occurs on, under or
about the Property or migrates or threatens to migrate from
nearby property; or (b) there is a violation of any
Environmental Law concerning the Property. In such an event,
Mortgagor shall take all necessary remedial action in accordance
with any Environmental Law.
(4) Except as previously disclosed and acknowledged in writing
to Bank, Mortgagor has no knowledge of or reason to believe
there is any pending or
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threatened investigation, claim, or proceeding of any kind
relating to (a) any Hazardous Substance located on, under or
about the Property or (b) any violation by Mortgagor or any
tenant of any Environmental Law. Mortgagor shall immediately
notify Bank in writing as soon as Mortgagor has reason to
believe there is any such pending or threatened investigation,
claim, or proceeding. In such an event, Bank has the right, but
not the obligation, to participate in any such proceeding
including the right to receive copies of any documents relating
to such proceedings.
(5) Except as previously disclosed and acknowledged in writing
to Bank, Mortgagor and every tenant have been, are and shall
remain in full compliance with any applicable Environmental Law.
(6) Except as previously disclosed and acknowledged in writing
to Bank, there are no underground storage tanks, private dumps
or open wells located on or under the Property and no such tank,
dump or well shall be added unless Bank first agrees in writing.
(7) Mortgagor will regularly inspect the Property, monitor the
activities and operations on the Property, and confirm that all
permits, licenses or approvals required by any applicable
Environmental Law are obtained and complied with.
(8) Mortgagor will permit, or cause any tenant to permit, Bank
or Bank's agent to enter and inspect the Property and review all
records at any reasonable time to determine: (a) the existence,
location and nature of any Hazardous Substance on, under or
about the Property; (b) the existence, location, nature, and
magnitude of any Hazardous Substance that has been released on,
under or about the Property; (c) whether or not Mortgagor and
any tenant are in compliance with any applicable Environmental
Law.
(9) Upon Bank's request, Mortgagor agrees, at Mortgagor's
expense, to engage a qualified environmental engineer to prepare
an environmental audit of the Property and to submit the results
of such audit to Bank. The choice of the environmental engineer
who will perform such audit is subject to the approval of Bank.
(10) Bank has the right, but not the obligation, to perform any
of Mortgagor's obligations under this paragraph at Mortgagor's
expense. As a consequence of any breach of any representation,
warranty or promise made in this paragraph, (a) Mortgagor will
indemnify and hold Bank and Bank's successors or assigns
harmless from and against all losses, claims, demands,
liabilities, damages, cleanup, response and remediation costs,
penalties and expenses, including without limitation all costs
of litigation and reasonable attorneys' fees, which Bank and
Bank's successors or assigns may sustain; and b) at Bank's
discretion, Bank may release this Mortgage and in return
Mortgagor will provide Bank with collateral of at least equal
value to the Property secured by this Mortgage without prejudice
to any of Bank's rights under this Mortgage.
(12) Notwithstanding any of the language contained in this
Mortgage to the contrary, the terms of this paragraph shall
survive any foreclosure or satisfaction of any deed of trust,
mortgage or any obligation regardless of any passage of title to
Bank or any disposition by Bank of any or all of the Property.
Any claims and defenses to the contrary are hereby waived.
17. INSPECTION BY BANK. Bank or its agents may make or cause to be
made reasonable entries upon the Property and inspect the Property
provided that Bank shall make reasonable efforts to give Mortgagor
prior notice of any such inspection. THE FOREGOING LANGUAGE
NOTWITHSTANDING, THE BANK SHALL TAKE NO ACTION UNDER THIS PARAGRAPH
WHICH MATERIALLY INTERFERES WITH MORTGAGOR'S BUSINESS OPERATIONS ON
THE PROPERTY.
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18. PROTECTION OF BANK'S SECURITY. If Mortgagor fails to perform any
covenant, obligation, or agreement contained in the Note, this
Mortgage or any loan documents or if any action or proceeding is
commenced which materially affects Bank's interest in the Property,
including, but not limited to, foreclosure, eminent domain,
insolvency, housing or Environmental Law or law enforcement, or
arrangements or proceedings involving a bankrupt or decedent, then
Bank, at Bank's sole option, may make such appearances, disburse such
sums, and take such action as is necessary to protect Bank's
interest. Mortgagor hereby assigns to Bank any right Mortgagor may
have by reason of any prior encumbrance on the Property or by law or
otherwise to cure any default under said prior encumbrance. Without
Bank's prior written consent, Mortgagor will not partition or
subdivide the Property.
19. COLLECTION EXPENSES. In the event of any default or action by Bank
for collection of the Obligations, for protection of the Property or
for foreclosure, Mortgagor agrees to pay all fees and expenses
incurred by Bank. Such fees and expenses include but are not limited
to filing fees, stenographer fees, witness fees, costs of
publication, foreclosure minutes, and other expenses of collecting
and enforcing the Obligations and protecting the Property. Any such
collection expenses shall be added to the principal amount of the
Obligations, shall accrue interest at the same rate as the
Obligations and shall be secured by this Mortgage.
20. ATTORNEYS' FEES. In the event of any default or action by Bank
for collection of the Obligations, for protection of the Property or
for foreclosure, Mortgagor agrees to pay reasonable attorneys' fees,
paralegal fees and other legal expenses incurred by Bank. Any such
reasonable attorneys' fees shall be added to the principal amount of
the Obligations, shall accrue interest at the same rate as the
Obligations and shall be secured by this Mortgage.
21. CONDEMNATION. In the event all or any part of the Property
(including but not limited to any easement therein) is sought to be
taken by private taking or by virtue of the law of eminent domain,
Mortgagor will promptly give written notice to Bank of the
institution of such proceedings. Mortgagor further agrees to notify
Bank of any attempt to purchase or appropriate the Property or any
easement therein, by any public authority or by any other person or
corporation claiming or having the right of eminent domain or
appropriation. Mortgagor further agrees and directs that all
condemnation proceeds or purchase money which may be agreed upon or
which may be found to be due shall be paid to Bank as a prepayment
under the Note. Mortgagor also agrees to notify the Bank of any
proceedings instituted for the establishment of any sewer, water,
conservation, ditch, drainage, or other district relating to or
binding upon the Property or any part thereof. All awards payable
for the taking of title to, or possession of, or damage to all or any
portion of the Property by reason of any private taking,
condemnation, eminent domain, change of grade, or other proceeding
shall, at the option of Bank, be paid to Bank. Such awards or
compensation are hereby assigned to Bank, and judgment therefor shall
be entered in favor of Bank. THE PREPAYMENT PENALTY WILL NOT BE
ENFORCED SHOULD A PREPAYMENT OCCUR DUE TO A CONDEMNATION.
When paid, such awards shall be used, at Bank's option,
toward the payment of the Obligations or payment of taxes,
assessments, repairs or other items provided for in this
Mortgage, whether due or not, all in such order and manner as
Bank may determine. Such application or release shall not cure
or waive any default. In the event Bank deems it necessary to
appear or answer in any condemnation action, hearing or
proceeding, Mortgagor shall hold Bank harmless
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from and pay all legal expenses, including but not limited to
reasonable attorneys' fees and paralegal fees, court costs and other
expenses.
22. OTHER PROCEEDINGS. If any action or proceeding is commenced to
which Bank is made or chooses to become a party by reason of the
execution of the Note, this Mortgage, any loan documents or the
existence of any Obligations or in which Bank deems it necessary to
appear or answer in order to protect its interests, Mortgagor agrees
to pay and to hold Bank harmless for all liabilities, costs and
expenses paid or incurred by Bank in such action or proceedings,
including but not limited to reasonable attorneys' fees, paralegal
fees, court costs and all other damages and expenses.
23. WAIVER BY MORTGAGOR. To the extent not specifically prohibited by
law, Mortgagor hereby waives and releases any and all rights and
remedies Mortgagor may now have or acquire in the future relating to:
A. homestead;
B. exemptions as to the Property;
C. redemption;
D. right of reinstatement;
E. appraisement;
F. marshalling of liens and assets; and
G. statutes of limitations.
In addition, redemption by Mortgagor after foreclosure sale
is expressly waived to the extent not prohibited by law.
24. PARTIAL FORECLOSURE. In case of default in the payment of the
Obligations or in case of payment by Bank of any tax, insurance
premium, cost or expense or the filing, imposition or attachment of
any lien, judgment or encumbrance, Bank shall have the right, without
declaring the whole indebtedness due and payable, to foreclose
against the Property or any part thereof on account of such specific
default. This Mortgage shall continue as a lien on any of the
property not sold on foreclosure for such unpaid balance of the
Obligations.
25. BANK MAY PAY. If Mortgagor fails to pay when due any of the items
it is obligated to pay or fails to perform when obligated to perform,
Bank may, at its option:
A. pay, when due, installments of principal,
interest or other obligations, in accordance
with the terms of any mortgage or assignment of
beneficial interest senior to that of Bank's
lien interest;
B. pay, when due, installments of any real estate
tax imposed on the Property; or
C. pay or perform any other obligation relating to
the Property which affects, at Bank's sole
discretion, the interest of Bank in the
Property.
Mortgagor agrees to indemnify Bank and hold Bank harmless for
all the amounts so paid and for Bank's costs and expenses, including
reasonable attorneys' fees and paralegal fees.
Such payments when made by Bank shall be added to the
principal balance of the Obligations and shall bear interest at
the rate provided for by the Note as of the date of such
payment. Such payments shall be a part of this lien and shall
be secured by this Mortgage, having the benefit of the lien and
its priority. Mortgagor agrees to pay and to reimburse Bank for
all such payments.
26. GENERAL PROVISIONS.
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A. TIME IS OF THE ESSENCE. Time is of the essence in
Mortgagor's performance of all duties and obligations
imposed by this Mortgage.
B. NO WAIVER BY BANK. Bank's course of dealing, or Bank's
forbearance from, or delay in, the exercise of any of
Bank's rights, remedies, privileges or right to insist upon
Mortgagor's strict performance of any provisions contained
in this Mortgage, or other loan documents, shall not be
construed as a waiver by Bank, unless any such waiver is in
writing and is signed by Bank. The acceptance by Bank of
any sum in payment or partial payment on the Obligations
after the balance is due or is accelerated or after
foreclosure proceedings are filed shall not constitute a
waiver of Bank's right to require full and complete cure of
any existing default for which such actions by Bank were
taken or its right to require prompt payment when due of
all other remaining sums due under the Obligations, nor
will it cure or waive any default not completely cured or
any other defaults, or operate as a defense to any
foreclosure proceedings or deprive Bank of any rights,
remedies and privileges due Bank under the Note, this
Mortgage, other loan documents, the law or equity.
C. AMENDMENT. The provisions contained in this Mortgage may
not be amended, except through a written amendment which is
signed by Mortgagor and Bank.
D. INTEGRATION CLAUSE. This written Mortgage and all documents
executed concurrently herewith, represent the entire
understanding between the parties as to the Obligations and
may not be contradicted by evidence of prior,
contemporaneous, or subsequent oral agreements of the
parties.
E. FURTHER ASSURANCES. Mortgagor agrees, upon request of Bank
and within the time Bank specifies, to provide any
information, and to execute, acknowledge, deliver and
record or file such further instruments or documents as may
be required by Bank to secure the Note or confirm any lien.
F. GOVERNING LAW. This Mortgage shall be governed by the laws
of the State of ILLINOIS, provided that such laws are not
otherwise preempted by federal laws and regulations.
G. FORUM AND VENUE. In the event of litigation pertaining to
this Mortgage, the exclusive forum, venue and place of
jurisdiction shall be in the State of ILLINOIS, unless
otherwise designated in writing by Bank or otherwise
required by law.
H. SUCCESSORS. This Mortgage shall inure to the benefit of and
bind the heirs, personal representatives, successors and assigns
of the parties; provided however, that Mortgagor may not assign,
transfer or delegate any of the rights or obligations under this
Mortgage.
I. NUMBER AND GENDER. Whenever used, the singular shall
include the plural, the plural the singular, and the use of
any gender shall be applicable to all genders.
J. DEFINITIONS. The terms used in this Mortgage, if not
defined herein, shall have their meanings as defined in the
other documents executed contemporaneously, or in
conjunction, with this Mortgage.
K. PARAGRAPH HEADINGS. The headings at the beginning of any
paragraph, or any subparagraph, in this Mortgage are for
convenience only and shall not be dispositive in
interpreting or construing this Mortgage.
L. IF HELD UNENFORCEABLE. If any provision of this Mortgage
shall be held unenforceable or void, then such provision to
the extent not otherwise limited by law shall be severable
from the remaining provisions and shall in no way affect
the enforceability of the remaining provisions nor the
validity of this Mortgage.
M. CHANGE IN APPLICATION. Mortgagor will notify Bank in
writing prior to any change in Mortgagor's name, address,
or other application information.
N. NOTICE. All notices under this Mortgage must be in
writing. Any notice given by Bank to Mortgagor hereunder
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will be effective upon personal delivery or three days after
mailing by first class United States mail, postage prepaid,
addressed to Mortgagor at the address indicated below
Mortgagor's name on page one of this Mortgage. Any notice given
by Mortgagor to Bank hereunder will be effective upon receipt by
Bank at the address indicated below Bank's name on page one of
this Mortgage. Such addresses may be changed by written notice
to the other party.
0. FILING AS FINANCING STATEMENT. Mortgagor agrees and
acknowledges that this Mortgage also suffices as a
financing statement and as such, may be filed of record as
a financing statement for purposes of Article 9 of the
ILLINOIS Uniform Commercial Code. A carbon, photographic
or other reproduction of this Mortgage is sufficient as a
financing statement.
27. ACKNOWLEDGMENT. By the signature(s) below, Mortgagor acknowledges
that this Mortgage has been read and agreed to and that a copy of
this Mortgage has been received by the Mortgagor.
MORTGAGOR:
ROCK BOTTOM RESTAURANTS, INC.
a DELAWARE corporation
[Corporate Seal*]
By: /s/ WILLIAM S. HOPPE
BY:
WILLIAM S. HOPPE
BY:
/s/ JOHN M. BANMAN
Attest
(*Corporate seal may be affixed, but failure
to affix shall not affect validity or reliance.)
STATE OF Colorado
----------
COUNTY OF Boulder
----------
On this 3rd day of July, 1996, I, John M. Banman notary public,
certify that William S. Hoppe, Vice President and Chief Financial Officer
of Rock Bottom Restaurants, Inc., a Delaware corporation, personally known
to me to be the same persons whose names are subscribed to the foregoing
instrument, appeared before me this day in person, and acknowledged that
they signed and delivered the instrument as their free and voluntary act,
for the uses and purposes set forth.
My commission expires: JOHN M. BANMAN
---------------------- --------------------------
4/9/98 NOTARY PUBLIC
THIS IS THE LAST PAGE OF A 10 PAGE DOCUMENT. EXHIBITS AND/OR ADDENDA MAY
FOLLOW.
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PROMISSORY NOTE
(Business Loan pursuant to 815 ILCS 205/4)
LAKESIDE BANK
1. DATE AND PARTIES. The date of this Promissory Note (Note) is June
27, 1996. This Note evidences a loan which includes all extensions,
renewals, modifications and substitutions (Loan). The parties to
this Note and Loan are:
BORROWER:
ROCK BOTTOM RESTAURANTS, INC.
a DELAWARE corporation
1050 WALNUT STREET, SUITE 402
BOULDER, COLORADO 80302
Tax I.D. #84-1265838
BANK:
LAKESIDE BANK
an ILLINOIS banking corporation
55 WEST WACKER DRIVE
CHICAGO, ILLINOIS 60601
Tax I.D. #36-2583514
2. PROMISE TO PAY. For value received, Borrower promises to pay to
Bank's order at its office at the above address, or such other place
as Bank may designate, the sum of $2,500,000.00 (Principal) plus
interest from June 27, 1996, on the unpaid principal balance at the
rate of 9% per annum (Contract Rate) until this Note matures or the
obligation is accelerated. After maturity or acceleration, the
unpaid balance shall bear interest at the rate specified in the
paragraph in this Note entitled "DEFAULT RATE OF INTEREST" until paid
in full. The Loan and this Note are limited to the maximum lawful
amount of interest (Maximum Lawful Interest) permitted under federal
and state laws. If the interest accrued and collected exceeds the
Maximum Lawful Interest as of the time of collection, such excess
shall be applied to reduce the principal amount outstanding, unless
otherwise required by law. If or when no principal amount is
outstanding, any excess interest shall be refunded to Borrower
according to the actuarial method. Interest shall be computed on the
basis of a 360-day year and the actual number of days elapsed.
Principal and accrued interest are due and payable in 59 equal monthly
payments of $25,614.90 on the 1st day of each month, beginning August 1,
1996, or the day following if the payment day is a holiday or is a non-
business day for Bank. Unless paid prior to maturity, the last scheduled
payment plus all other unpaid principal, accrued interest, costs and
expenses are due and payable on July 1, 2001, which is the date of
maturity. These payment amounts are based upon timely payment of each
installment. All amounts shall be paid in legal U.S. currency. Any
payment made with a check will constitute payment only when collected.
3. EFFECT OF PREPAYMENT. Borrower may prepay this Loan in full.
However, no partial prepayment shall excuse or defer Borrower's
subsequent payments or entitle Borrower to release of any collateral.
Interest will cease to accrue on the amounts prepaid on the day
actually credited by Bank.
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4. RIGHT TO PREPAY. Borrower may prepay in whole or part at any time
subject to the prepayment/acceleration premium as further described
in attached Exhibit "A".
5. LATE CHARGE. Borrower agrees to pay Bank a late charge equal to 5%
of the unpaid installment, if payment is not made in full on or
before 10 days after the scheduled due date.
6. RETURNED CHECK CHARGE. To the extent not prohibited by law, Borrower
agrees to pay Bank $10.00 for each check presented for payment and
dishonored because of insufficient funds or no account.
7. EVENTS OF DEFAULT. Borrower shall be in default upon the occurrence
of any of the following events, circumstances or conditions (Events
of Default):
A. Failure by any party obligated on this Note or any other
obligations Borrower has with Bank to make payment when due; or
B. A default or breach by Borrower or any co-signer, endorser,
surety, or guarantor under any of the terms of this Note,
any construction loan agreement or other loan agreement,
any security agreement, mortgage, deed to secure debt, deed
of trust, trust deed, or any other document or instrument
evidencing, guarantying, securing or otherwise relating to
this Note or any other obligations Borrower has with Bank;
or
C. The making or furnishing of any verbal or written
representation, statement or warranty to Bank which is or
becomes false or incorrect in any material respect by or on
behalf of Borrower, or any co-signer, endorser, surety or
guarantor of this Note or any other obligations Borrower
has with Bank; or
D. Failure to obtain or maintain the insurance coverages
required by Bank, or insurance as is customary and proper
for any collateral (as herein defined); or
E. The death, dissolution or insolvency of, the appointment of
a receiver by or on behalf of, the assignment for the
benefit of creditors by or on federal or state insolvency,
bankruptcy, reorganization, composition or debtor relief
law by or against Borrower, or any co-signer, endorser,
surety or guarantor of this Note or any other obligations
Borrower has with Bank; or
F. A good faith belief by Bank at any time that Bank is insecure
with respect to Borrower, or any co-signer, endorser, surety or
guarantor, that the prospect of any payment is impaired; or
G. Failure to pay or provide proof of payment of any tax,
assessment, rent, insurance premium, escrow or escrow
deficiency on or before its due date; or
H. A material adverse change in Borrower's business, including
ownership, management, and financial conditions, which in Bank's
opinion, impairs any collateral or repayment of the Obligations;
or
I. A transfer of a substantial part of Borrower's money or
property.
8. LOAN FEE. Borrower has agreed to pay Bank a non-refundable loan fee
of $25,000.00, which will either be paid in cash upon execution of
this Note, or be financed as a portion of the Principal.
9. DEFAULT RATE OF INTEREST. If there is a default in this Note, the
rate of interest, at Bank's option, shall immediately be increased by
3 percentage points whether or not Bank accelerates the maturity, and
interest shall accrue thereafter at the resulting rate until all
obligations under this Note are paid in full.
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Unless Bank has accelerated the maturity, Bank shall, within 10 days
following the effective date of such interest rate increase, notify
Borrower of the fact that the interest rate has been increased
pursuant to this provision.
10. REMEDIES ON DEFAULT. On or after the occurrence of an Event of
Default, at the option of Bank, all or any part of the Principal and
accrued interest on this Note, the Loan and all other obligations
which Borrower owes Bank shall become immediately due and payable
without notice or demand. Bank may exercise all rights and remedies
provided by law, equity, this Note, any mortgage, deed of trust or
similar instrument and any other security, loan, guaranty or surety
agreements pertaining to this Note and all other obligations of
Borrower to Bank. Bank is entitled to all rights and remedies
provided at law or equity whether or not expressly stated in this
Note. By choosing any remedy, Bank does not waive its right to an
immediate use of any other remedy if the event of default continues
or occurs again.
11. SET-OFF. Borrower agrees that Bank may exercise Bank's right of set-
off to pay any or all of the outstanding Principal and accrued
interest, costs and expenses, attorneys' fees, and advances due and
owing on this Note against any obligation Bank may have, now or
hereafter, to pay money, securities or other property to Borrower.
This includes, without limitation:
A. any deposit account balance, securities account balance or
certificate of deposit balance Borrower has with Bank whether
general, special, time, savings or checking;
B. any money owing to Borrower on an item presented to Bank or in
Bank's possession for collection or exchange; and
C. any repurchase agreement or any other non-deposit obligation or
credit in Borrower's favor.
If any such money, securities or other property is also owned by some
other person who has not agreed to pay this Note (such as another
depositor an a joint account) Bank's right of set-off will extend to the
amount which could be withdrawn or paid directly to Borrower on Borrower's
request, endorsement or instruction alone. In addition, where Borrower
may obtain payment from Bank only with the endorsement or consent of
someone who has not agreed to pay this Note, Bank's right of set-off will
extend to Borrower's interest in the obligation. Bank's right of set-off
will not apply to an account or other obligation if it clearly appears
that Borrower's rights in the obligation are solely as a fiduciary for
another, or to an account, which by its nature and applicable law (for
example an IRA or other tax-deferred retirement account), must be exempt
from the claims of creditors. Borrower hereby appoints Bank as Borrower's
attorney-in-fact and authorizes Bank to redeem or obtain payment on any
certificate of deposit in which Borrower has an interest in order to
exercise Bank's right of set-off. Such authorization applies to any
certificate of deposit even if not matured. Borrower further authorizes
Bank to withhold any early withdrawal penalty without liability in the
event such penalty is applicable as a result of Bank's set-off against a
certificate of deposit prior to its maturity.
Bank's right of set-off may be exercised:
A. without prior demand or notice;
B. without regard to the existence or value of any Collateral
securing this Note; and
C. without regard to the number or creditworthiness of any other
persons who have agreed to pay this Note.
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Bank will not be liable for dishonor of a check or other request
for payment where there are insufficient funds in the account
(or other obligation) to pay such request because of Bank's
exercise of Bank's right of set-off. Borrower agrees to
indemnify and hold Bank harmless from any person's claim and the
costs and expenses, including without limitation, attorneys'
fees and paralegal fees, incurred as a result of such claims or
arising as the result of Bank's exercise of Bank's right of set-
off.
12. COLLECTION EXPENSES. On or after an Event of Default, Bank may
recover from Borrower all fees and expenses in collecting, enforcing
and protecting liabilities and reasonable expenses in realizing on any
security incurred by Bank, plus expenses of collecting and enforcing
this Note. Such fees and expenses shall include, but are not limited
to, filing fees, publication expenses, deposition fees, stenographer
fees, witness fees and any other court costs. Any such fees and
expenses shall be added to the Principal of this Note and shall accrue
interest at the same rate as provided for in this Note.
13. ATTORNEYS' FEES. Upon default of this Note, Bank may recover from
Borrower reasonable attorneys' fees incurred by Bank. Such reasonable
attorneys' fees shall include, without limitation, paralegal fees.
Any such reasonable attorneys' fees shall be added to the principal
amount of this Note and shall accrue interest at the same rate as this
Note. Such recovery will be to the extent not prohibited by law.
14. NO DUTY BY BANK. Bank is under no duty to preserve or protect any
Collateral until Bank is in actual, or constructive, possession of the
Collateral. For purposes of this paragraph, Bank shall only be
considered to be in "actual" possession of the Collateral when Bank
has physical, immediate and exclusive control over the Collateral and
has affirmatively accepted such control. Bank shall only be
considered to be in "constructive" possession of the Collateral when
Bank has both the power and the intent to exercise control over the
Collateral.
15. WAIVER AND CONSENT BY BORROWER AND OTHER SIGNERS. Regarding this
Note, to the extent not prohibited by law, Borrower and any other
signers:
A. waive protest, presentment for payment, demand, notice of
acceleration, notice of intent to accelerate and notice of
dishonor.
B. consent to any renewals and extensions for payment on this Note,
regardless of the number of such renewals or extensions.
C. consent to Bank's release of any borrower, endorser, guarantor,
surety, accommodation maker or any other consignor.
D. consent to the release, substitution or impairment of any
collateral.
E. consent that Borrower is authorized to modify the terms of this
Note or any instrument securing, guarantying or relating to this
Note.
F. consent to Bank's right of set-off as well as any right of set-
off of any bank participating in the Loan.
G. consent to any and all sales, repurchases and
participations of this Note to any person in any amounts
and waive notice of such sales, repurchases or
participations of this Note.
16. SECURITY. This Note is secured by the following type(s) (or items)
of property (Collateral):
Accounts
Equipment
Inventory
Fixtures
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A FIRST MORTGAGE AND ASSIGNMENT OF RENTS
ON PROPERTY LOCATED AT ONE WEST GRAND AVENUE,
CHICAGO, ILLINOIS 60610
which includes (but is not limited to) the following described property:
LIABILITIES EVIDENCED BY THIS NOTE ARE SECURED PURSUANT TO THE
PROVISIONS OF A SECURITY AGREEMENT BETWEEN THE UNDERSIGNED AND
LAKESIDE BANK, DATED JUNE 27,1996 AS AMENDED AND SUPPLEMENTED
FROM TIME TO TIME.
The real property portion of the Collateral includes the following
described property (Property) situated in COOK County, ILLINOIS, to-wit:
LOT 1 IN BLOCK 14 IN KINZIES' ADDITION TO CHICAGO IN SECTION 10,
TOWNSHIP 39 NORTH, RANGE 14 EAST OF THE THIRD PRINCIPAL
MERIDIAN, IN COOK COUNTY, ILLINOIS. AND LOT 15 AND 16 IN
BLOCK 9 IN WOLCOTT'S ADDITION TO CHICAGO IN SECTION 9,
TOWNSHIP 39 NORTH, RANGE 14 EAST OF THE THIRD PRINCIPAL
MERIDIAN, IN COOK COUNTY, ILLINOIS. PIN: #17-09-248-008-
0000 AND 17-09-248-009-0000
The property may be commonly referred to as ONE WEST GRAND
AVENUE, CHICAGO, ILLINOIS 60610
The term "Collateral" further includes, but is not limited
to, the following property, whether now owned or hereafter
acquired, and whether or not held by a bailee for the benefit of
the Owner or owners, all: accessions, accessories, additions,
fittings, increases, insurance benefits and proceeds, parts,
products, profits, renewals, rents, replacements, special facts
and substitutions, together with all books and records
pertaining to the Collateral and access to the equipment
containing such books and records including computer stored
information and all software relating thereto, plus all cash and
non-cash proceeds and all proceeds of proceeds arising from the
type(s) (items) of property listed above.
17. PAYMENTS APPLIED. All payments, including but not limited to regular
payments or prepayments, received by Bank shall be applied first to
costs, then to accrued interest and the balance, if any, to Principal
except as otherwise required by law.
18. LOAN PURPOSE. Borrower represents and warrants that the proceeds of
this Note shall only be used for business purposes.
19. JOINT AND SEVERAL. Borrower or any other signers shall be jointly
and severally liable under this Note.
20. FINANCIAL STATEMENTS. Until this Note is paid in full, Borrower shall
furnish Bank upon Bank's request and in the event of no request, at
least annually a current financial statement which is certified by
Borrower and Borrower's accountant to be true, complete and accurate.
21. GENERAL PROVISIONS.
A. TIME IS OF THE ESSENCE. Time is of the essence in
Borrower's performance of all duties and obligations
imposed by this Note.
B. NO WAIVER BY BANK. Bank's course of dealing, or Bank's
forbearance from, or delay in, the exercise of any of
Bank's rights, remedies, privileges or right to insist upon
Borrower's strict performance of any provisions contained
in this Note, or other loan documents, shall not be
construed as a waiver by Bank, unless any such waiver is in
writing and is signed by Bank.
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C. AMENDMENT. The provisions contained in this Note may not be
amended, except through a written amendment which is signed by
Borrower and Bank.
D. INTEGRATION CLAUSE. This written Note and all documents executed
concurrently herewith, represent the entire understanding
between the parties as to the Obligations and may not be
contradicted by evidence of prior, contemporaneous, or
subsequent oral agreements of the parties.
E. FURTHER ASSURANCES. Borrower agrees, upon request of Bank and
within the time Bank specifies, to provide any information, and
to execute, acknowledge, deliver and record or file such further
instruments or documents as may be required by Bank to secure
this Note or confirm any lien.
F. GOVERNING LAW. This Note shall be governed by the laws of the
State of ILLINOIS, provided that such laws are not otherwise
preempted by federal laws and regulations.
G. FORUM AND VENUE. In the event of litigation pertaining to this
Note, the exclusive forum, venue and place of jurisdiction shall
be in the State of ILLINOIS, unless otherwise designated in
writing by Bank or otherwise required by law.
H. SUCCESSORS. This Note shall inure to the benefit of and bind
the heirs, personal representatives, successors and assigns of
the parties; provided however, that borrower may not assign,
transfer or delegate any of the rights or obligations under this
Note.
I. NUMBER AND GENDER. Whenever used, the singular shall include
the plural, the plural the singular, and the use of any gender
shall be applicable to all genders,
J. DEFINITIONS. The terms used in this Note, if not defined
herein, shall have their meanings as defined in the other
documents executed contemporaneously, or in conjunction, with
this Note.
K. PARAGRAPH HEADINGS. The headings at the beginning of any
paragraph, or any subparagraph, in this Note are for convenience
only and shall not be dispositive in interpreting or construing
this Note.
L. IF HELD UNENFORCEABLE. If any provision of this Note shall be
held unenforceable or void, then such provision to the extent
not otherwise limited by law shall be severable from the
remaining provisions and shall in no way affect the
enforceability of the remaining provisions nor the validity of
this Note.
M. CHANGE IN APPLICATION. Borrower will notify Bank in writing
prior to any change in Borrower's name, address, or other
application information.
N. NOTICE. All notices under this Note must be in writing. Any
notice given by Bank to Borrower hereunder will be effective
upon personal delivery or three days after mailing by first
class United States mail, postage prepaid, addressed to Borrower
at the address indicated below borrower's name on page one of
this Note. Any notice given by Borrower to Bank hereunder will
be effective upon receipt by Bank, at file address indicated
below Bank's name on page one of this Note. Such addresses may
be changed by written notice to the other party.
O. HOLDER. The term "Bank" shall include any transferee and
assignee of Bank or other holder of this Note.
P. BORROWER DEFINED. The term "Borrower" includes each and every
person signing this Note as a Borrower and any co-signers.
22. RECEIPT OF COPY. By signing below, Borrower acknowledges that
Borrower has read and received a copy of this Note.
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BORROWER: Corporate Seal
ROCK BOTTOM RESTAURANTS, INC.
a DELAWARE corporation
By: /s/ WILLIAM S. HOPPE, VP & CFO
By: WILLIAM S. HOPPE
Attest /s/ JOHN M. BANMAN
(*Corporate seal may be affixed, but failure
to affix shall not affect validity or reliance.)
BANK:
LAKESIDE BANK
an ILLINOIS banking corporation
By:/s/ DAVID V. PINKERTON
DAVID V. PINKERTON, VICE PRESIDENT
Attest
(*Corporate seal may be affixed, but failure
to affix shall not affect validity or reliance.)
THIS IS THE LAST PAGE OF A 4 PAGE DOCUMENT. EXHIBITS AND/OR
ADDENDA MAY FOLLOW.
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Promissory Note-Business (c) 1984, Bankers Systems, Inc. St. Cloud, MN IL-34-053095-2.8Initials _____
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