Exhibit 10.11
COMMERCIAL NOTE
________________________________________________________________________________
Borrower's name Date
The Buckle, Inc. 05/31/2001
________________________________________________________________________________
Promise to Pay: For value received, the undersigned Borrower (if more than on,
jointly and severally) promise(s) to pay to the order of
Wells Fargo Bank Nebraska, N.A. (the "Bank"), at 21 West 21st Street,
______________________________ ________________________
Kearney, NE 68847 or at any other place designated at any time by the holder
__________________
of this promissory note (the "Note") in lawful money of the United States of
America, the principal sum of Ten Million and 0/100
________________________________________________________________________________
________________________________________________________________________________
Dollars ($10,000,000.00), together with interest on the unpaid principal amount
in accordance with the repayment terms set forth below.
INTEREST: Interest on this Note, calculated on the basis of actual days elapsed
in a 360 day year, will accrue as follows (choose one of the following):
[ ] on the unpaid principal amount of this Note at the Note Rate.
[ ] on the unpaid principle amount of this Note at the __________ of the Note
Rates selected at any time.
[ ] on the unpaid principal amount of this Note:
up to and including $____________________ at the Note Rate.
from $ ___________________ to and including $ ____________________ at the
Note Rate _______ __________%.
from $ ___________________ to and including $ ____________________ at the
Note Rate _______ __________%.
in excess of $___________________ at the Note Rate _______ __________%.
[ ] if the unpaid principal amount of this Note:
is not in excess of $ ___________________ at the Note Rate,
is equal to or greater than $ ___________________ but not in excess of
$ ___________________ at the Note Rate __________ __________%,
is equal to or greater than $ ___________________ but not in excess of
$ ___________________ at the Note Rate __________ __________%,
is equal to or greater than $ ___________________ at the Note Rate _______
__________%.
NOTE RATE: The Note Rate under this Note shall be (choose the applicable
Note Rate(s)):
[ ] an annual rate of _________ % (the "Note Rate"),
[ ] an annual rate [ ] equal to the Index Rate, or [ ] _______ % _____ the Index
Rate, or [ ] ______ % of the Index Rate [ ] from time to time in effect,
each change in the interest rate to become effective on the day the
corresponding change in the Index Rate becomes effective,
or _________________________________________________________________________
____________________________________________________________________________
with an initial interest rate equal to 7.0000 % (the "Note Rate"),
[ ] an annual rate as set forth in the Interest Rate Addendum attached to this
Note (the "Note Rate"), provided that if this Note has a variable rate of
interest, the Note Rate shall at no time be less than an annual rate of
________ %, and
[ ] shall at no time exceed an annual rate of ________ %. In no event shall the
rate of interest applicable to this Note under any term or condition exceed
the maximum rate permitted by law.
[ ] "Index Rate" means the "Base Rate" which is the rate of interest
established by
______________________________________ from time to time as its "base" or
"prime" rate, or
[ ] the "Wall Street Rate" which is the highest "prime" rate of interest
reported in the Wall Street Journal "Money Rates" Table, or
[ ] the ________________________________________________________________________
________________________________________________________________________
REPAYMENT TERMS: Unless payable sooner as a result of its acceleration, the
Borrower promises to pay this Note as follows (choose the applicable Repayment
Term).
PRINCIPAL. Principal shall be payable:
[ ] on the earlier of demand or 05/31/2002 (the "Due Date").
[ ] on _______________________ (the "Due Date").
INTEREST. Interest shall be payable:
[ ] on the Due Date.
[ ] monthly, commencing 06/30/2001 and on the last day of each succeeding
month and on the Due Date.
Unless applicable law requires the Bank to apply amounts in come other
matter, all payments shall be applied first in payment of billed interest,
then to the payment of any outstanding late fees, and the balance thereof
shall be applied in reduction of the principal amount outstanding,
provided however, that if an event of default has occurred then all
payments will be applied as directed by the Bank, in its sole discretion.
"DUE DATE" means the maturity date of this Note whether it is the dated
maturity date or an earlier date by reason of acceleration or demand.
[ ] REVOLVING LINE. The Borrower may borrow, prepay, and reborrow under this
Note until the Due Date within the limits of this Note, and subject to the
terms and conditions in any other agreements between the Borrower and the
Bank.
[ ] LATE FEE: Each time that a scheduled payment is not paid when due or within
________ days afterwards, the Borrower agrees to pay a late fee
equal to [ ] $ _________________ , or [ ] ________ % of the full amount of the
late payment, or [ ] the _________ of $ or _________ % of the full amount of the
late payment. Acceptance by the Bank of any late fee shall not constitute a
waiver of any default hereunder.
[ ] OTHER FEES: [ ] The Borrower shall pay to the Bank [ ] a nonrefundable,
one-time Origination Fee equal to $ ______________________ and/or
[ ] a non-refundable, one-time ___________________________________ equal to
$ ____________________ at any time this Note is signed.
[ ] The Borrower shall by to the Bank a(n) Letter of Credit Fee equal to
[ ] $ ______________________ , or [ ] _____________ % per
annum (calculated on the basis of actual days elapsed in a _____ day year) of
the average daily unused portion, maximum principal amount of the line
evidenced by this Note, payable ____________________ , in arrears, commencing
06/30/2001 and on the last day of each succeeding ______________ and on the
Due Date.
[ ] ADDITIONAL INTEREST BEFORE AND AFTER THE DUE DATE: Each time that a
scheduled payment is not paid when due or within ______ days afterward,
additional interest will begin accruing on the next calendar day on the entire
unpaid principal amount of this Note at an annual rate of _________ % in excess
of the Note Rate ("Additional Interest Rate"). Acceptance by the Bank of
Additional Interest shall not constitute a waiver of any default hereunder. The
unpaid principal and interest due on this Note after the Due Date shall bear
interest until paid at the Additional Interest Rate (except in North Dakota).
PREPAYMENT: The Borrower may at any time prepay this Note, in whole or in part
and any prepayments shall be applied against outstanding principal only after
all billed interest and any outstanding late fees have been paid in full.
SECURITY: In addition to any other collateral interest given to the Bank
previously, now, or in the future, by separate agreements not referenced herein,
which states it is given to secure this Note or all indebtedness of the Borrower
to the Bank, this Note is secured with a(n) __________________________ dated
_______________________
DEFAULT AND ACCELERATION: Borrower will be in default under this Note if:
(i) the Borrower fails to pay when due any principal, interest or other amounts
due under this Note, or (ii)the Borrower fails to perform or observe any term or
covenant of this Note or any related documents or perform under any other
agreement with the Bank, or (iii) the Borrower or any subsidiary fails to
perform or observe any agreement with any other creditor that relates to
indebtedness or contingent liabilities which would allow the maturity of such
indebtedness or obligation to be accelerated. or (iv) the Borrower changes its
legal form of organization, or (v) any representation or warranty made by the
Borrower in applying for the loan evidenced by this Note is untrue in any
material respect, or (vi) a garnishment, levy or writ of attachment, or any
local, state, or federal notice of tax lien or levy is served upon the Bank for
the attachment of property of the Borrower or any subsidiary that is in the
Bank's possession or for indebtedness owed to the Borrower or any subsidiary by
the Bank, or (vii) any Guaranty given in connection herewith may have become, in
the Bank's judgment, unenforceable, or (viii) the Bank at any time, in good
faith, believes that the Borrower will not be able to pay this Note when it is
due; then or at any time thereafter unless such default is cured the Bank may,
at is opinion, declare all unpaid principal, accrued interest, fees and all
other amounts payable under this Note to be immediately due and payable, without
notice or demand to the Borrower, and if this Note evidences a line of credit,
terminate the line of credit without notice to the Borrower. If, however, this
Note is payable on demand, nothing herein contained shall preclude or limit the
Bank from demanding payment of this Note at any time and for any reason, without
notice.
AUTOMATIC ACCELERATION: If, with or without the Borrower's consent, a custodian,
trustee or receiver is appointed for any of the Borrower's or any subsidiary's
properties, or if a petition is filed by or against the Borrower or any
subsidiary under the United States Bankruptcy Code, or if the Borrower is
dissolved or liquidated (if an entity), or dies (if an individual), the unpaid
principal, accrued interest and all other amounts payable under this Note will
automatically become due and payable without notice or demand and, if this Note
evidences a line of credit, the line of credit will automatically terminate.
REMEDIES ON DEFAULT: If the indebtedness evidenced hereby is not paid at
maturity, whether by acceleration or otherwise, the Bank shall have all of the
rights and remedies provided by any law and/or by agreement of the Borrower,
including but not limited to all of the rights and remedies of a secured party
under the Uniform Commercial Code. Any requirement of reasonable notice mandated
by the Uniform Commercial Code shall be met if the Bank sends such notice to the
Borrower at least ten (10) days prior to the date of sale, disposition or other
event giving rise to the required notice. The Borrower shall be liable for any
deficiency remaining after disposition of any property in which the Bank has a
security interest to secure payment of the indebtedness evidenced hereby, and
the computation of such deficiency or of the amount required to redeem such
property shall include, unless otherwise prohibited by law, reasonable
attorney's fees and legal expenses.
WAIVER: Each endorser hereof or any other party liable for the indebtedness
evidenced hereby severally waives demand, presentment, notice of dishonor and
protest of this Note, and consents to any extension or postponement of time of
its payment without limit as to the number or period thereof, to any
substitution, exchange or release of all or any part of any collateral securing
this Note, to the addition of any party hereto, and to the release or discharge
of, or suspension of any rights and remedies against, any person who may be
liable hereon for the payment of the indebtedness evidenced hereby.
AMENDMENT OR MODIFICATION OF TERMS: Any amendment or modification of this Note
must be in writing and singed by the party against whom enforcement of such
amendment or modification is sought. The Bank may change any of the repayment
terms of this Note, including extensions of time and renewals, and release or
add any party liable on this Note, or agree to the substitution or release of
any security collateralizing this Note without notifying or releasing from
liability any accommodation party, endorser, or guarantor. The Bank may suspend
or waive any rights or remedies that it may have against any person who may be
liable for its repayment.
MISCELLANEOUS: No delay on the part of the Bank in the exercise of any right or
remedy shall operate as a waiver thereof, and no single or partial exercise by
the Bank of any right or remedy shall preclude any other future exercise thereof
or the exercise of any other right or remedy. No waiver or indulgence by the
Bank of any default shall be effective unless in writing and singed by the Bank,
nor shall a waiver by the Bank on one occasion be constructed as a bar to, or
waiver of, any such right on any future occasion. Any reference to the Bank
herein shall be deemed to include any subsequent holder of this Note. This Note
is accepted in the stave where the Bank is located, and shall be governed by the
laws of the state where the Bank is located. The Borrower agrees to pay all
costs in connection with the borrowing represented by this Note or security
given, including any taxes, stamp, insurance or otherwise, payable by reason of
the execution and delivery of this Note and any relation documents. In the event
the Bank is required to collect this Note following its Due Date or the
bankruptcy of any maker hereof, the Borrower will pay the Bank such further
amounts as shall be sufficient to cover the costs and expenses incurred in
collecting this Note and liquidating any security or guaranties given in support
hereof, including reasonable attorneys' fees and expenses required to take such
actions in any court, including any bankruptcy court.
FINANCIAL REPORTING: While any amounts are due under this Note, or the Borrower
has the right to request an advance under this Note, the Bank reserves the right
to require that the Borrower deliver to the Bank annual financial statements and
such other financial information as the Bank may request.
ARBITRATION: The Bank and Borrower agree, at the request of either party, to
submit to binding arbitration all claims, disputes and controversies whether in
tort, contract, or otherwise, except "core proceedings" under the U.S.
Bankruptcy Code arising between themselves and their respective employees,
officers, directors, attorneys and other agents, which relate in any way without
limitation to this Note, including by way of example but not by way of
limitation the negotiation, collateralization, administration, repayment,
modification, default, termination and enforcement of the loans or credit
evidenced by this Note. Arbitration under this Agreement will be governed by the
Federal Arbitration Act (Title 9 of the United States Code), except in Colorado
where it will be governed by Colorado law, and proceed in the city where the
Bank's principal office is located, or such other location as the Bank and
Borrower my agree and shall be conducted by the American Arbitration Association
("AAA") in accordance with the AAA's commercial arbitration rules ("AAA Rules").
Arbitration will be conducted before a single neutral arbitrator selected in
accordance with AAA Rules and who shall be an attorney who has practiced
commercial law for at least ten years. The arbitrator will determine whether an
issue is arbitratable and will give effect to applicable statues of limitation.
Judgement upon the arbitrator's award may be entered in any court having
jurisdiction. The arbitrator has the discretion to decide, upon documents only
or with a hearing, any motion to dismiss for failure to state a claim or any
motion for summary judgment. The institution and maintenance of an action for
judicial relief or pursuit of a provisional or ancillary remedy shall not
constitute a waiver of the right of any party, including the plaintiff, to
submit the controversy or claim to arbitration if any other party contests such
action for judicial relief. The arbitrator will award costs and expenses in
accordance with the provisions of this Note. Discovery will be governed by the
rules of civil procedure in effect in the state where the Bank's principal
office is located. Discovery must be completed at least 20 days before the
hearing date and within 180 days of the commencement of arbitration. Each
request for an extension and all other discovery disputes will be determined by
the arbitrator upon a showing that the request is essential for the party's
presentation and that no alternative means for obtaining information are
available during the initial discovery period. This Agreement does not limit the
right of either party to (i) foreclose against real or personal property
collateral; (ii) exercise self-help remedies such as setoff or repossession; or
(iii) obtain provisional remedies such as replevin, injunctive relief,
attachment or the appointment of a receiver during the pendency or before or
after any arbitration proceeding. These exceptions do not constitute a waiver of
the right or obligation of either party to submit any dispute to arbitration,
including those arising from the exercise of these remedies.
STATE LAW REQUIREMENTS:
If the Bank is located in IOWA: IMPORTANT: READ BEFORE SIGNING. THE TERMS OF
THIS NOTE AND AGREEMENT SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN
WRITING ARE ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS
WRITTEN CONTRACT MAY BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF THIS NOTE
AND AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENT. THIS NOTICE ALSO APPLIES TO ANY
OTHER CREDIT AGREEMENTS (EXCEPT CONSUMER LOANS OR OTHER EXEMPT TRANSACTIONS) NOW
IN EFFECT BETWEEN YOU AND THIS LENDER. BY SIGNING THIS NOTE AND AGREEMENT, THE
BORROWER ACKNOWLEDGES RECEIPT OF A COPY OF THIS NOTE AND AGREEMENT.
If the Bank is located in MINNESOTA: This extension of credit is made under (i)
Minn. Stat 47 204 if this Note is from an individual and is secured by a first
lien on residential real estate; (ii) Minn. Stat 334 01, subd. 2, if the initial
advance under this Note is $100,000.00 or more and it is not secured by a first
lien on residential real estate.
If the Bank is located in NEBRASKA: A credit agreement must be in writing to be
enforceable under law. To protect you and us from any misunderstandings or
disappointments, any contract, promise, undertaking or offer to forebear
repayment of money or to make any other financial accommodation in connection
with is loan of money or grant or extension of credit, or any amendment of,
cancellation of, waiver of, or substitution for any or all of the terms or
provisions of any instrument or document executed in connection with this loan
of money or grant or extension of credit, must be in writing to be effective.
If the Bank is located in TEXAS: THIS WRITTEN LOAN AGREEMENTS REPRESENTS THE
FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRIDICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE
NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. CHAPTER 346 OF THE TEXAS
FINANCE COSD OR ANY SUCCESSOR STATUTE WHICH REGULATE CERTAIN REVOLVING LOAN
ACCOUNTS SHALL NOT APPLY TO THIS AGREEMENT.
If the Bank is located in NORTH DAKOTA: In all events the Note Rate shall be the
same rate after the Due Date as was in effect on the Due Date. If this Note is
secured by a mortgage on real property located in North Dakota except a first
mortgage, THIS OBLIGATION MAY BE THE BASIS FOR A PERSONAL ACTION AGAINST THE
PROMISOR OR PROMISORS IN ADDITION TO THE OTHER REMEDIES ALLOWED BY LAW. (The
term "Promisor" or "Promisors" means the Borrower herein). If the Note is
secured by a mortgage on commercial real property located in North Dakota, the
Bank has the right, following an event of default, to proceed to obtain and
collect a deficiency judgment, together with foreclosure of the real property
mortgaged under applicable laws.
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SIGNATURES
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Borrower's Name
The Buckle, Inc.
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Signature Signature
x_______________________________________________________________________________
Name and Title (if applicable) Name and Title (if applicable)
Dennis Nelson, President & CEO
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Signature Signature
x_______________________________________________________________________________
Name and Title (if applicable) Name and Title (if applicable)
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Street address City, State, Zip Code
2407 West 24th Street Kearney, NE 68847
Loan Purpose: [ ] Business, and/or [ ] this Note is given as replacement for,
and not in satisfaction of the promissory note given by the Borrower to the Bank
dated 05/31/2000______________ .