AMENDMENT AND RESTATEMENT
OF PROMISSORY NOTE
THIS AMENDMENT AND RESTATEMENT OF PROMISSORY NOTE, effective as of the
21st day of March, 1997, between XXXXXXXX BROS. CONSTRUCTION, INC., a Minnesota
corporation (the "Borrower"), whose post office address is 000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxx, Xxxxxxxxx 00000 and FIRST BANK NATIONAL ASSOCIATION, a
national banking association (the "Bank"), whose post office address is 000
Xxxxxx Xxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000-0000.
PRELIMINARY RECITALS:
A. The Borrower has executed and delivered a Promissory Note ("Note")
dated March 21, 1996 in the original principal amount of One Million and 00/100
Dollars ($1,000,000.00), made payable to the order of the Bank.
B. The parties hereto desire to amend and fully restate the terms of
the Note in its entirety.
NOW, THEREFORE, in consideration of the above recitals and other good
and valuable consideration, the receipt of which is hereby acknowledged, the
Borrower and the Bank do hereby amend and fully restate the terms of the Note in
its entirety as follows:
PROMISSORY NOTE
$1,500,000.00 Minneapolis, Minnesota
March 21, 1997
FOR VALUE RECEIVED, on March 21, 1998, XXXXXXXX BROS. CONSTRUCTION,
INC. (the "Borrower"), promises to pay to the order of FIRST BANK NATIONAL
ASSOCIATION (the "Bank"), at its office in Minneapolis, Minnesota, or at such
other place as any present or future holder of this Note may designate from time
to time, the principal sum of (i) One Million Five Hundred Thousand and 00/100
Dollars ($1,500,000.00), or (ii) the aggregate unpaid principal amount of all
advances of credit made by the Bank to the Borrower pursuant to this Note as
shown in the records of any present or future holder of this Note, whichever is
less, plus interest thereon from the date of each advance in whole or in part
included in such amount until this Note is fully paid, computed on the basis of
the actual number of days elapsed and a 360-day year, at an annual rate that
shall always be 1.00% per annum in excess of the Reference Rate and that shall
change when and as the Reference Rate shall change. Interest is due and payable
on the last day of each month commencing March 31, 1997, and at maturity. The
term "Reference Rate" means the rate established by the Bank from time to time
in its sole discretion as its Reference Rate; the Bank may lend to its customers
at rates that are at, above or below the Reference Rate. Notwithstanding the
foregoing, after an Event of Default this Note shall bear interest until paid at
2% per annum in excess of the rate otherwise then in effect, which rate shall
continue to vary based on further changes in the Reference Rate.
All or any part of the unpaid balance of this Note may be prepaid at
any time without penalty. At the option of the then holder of this Note, any
payment under this Note may be applied first to the payment of other charges,
fees and expenses under this Note and any other agreement or writing in
connection with this Note, second to the payment of interest accrued through the
date of payment, and third to the payment of principal. Amounts may be advanced
and readvanced under this Note, provided the principal balance outstanding shall
not exceed the amount first above written.
This Note is secured by (i) a Pledge Agreement (the "Pledge Agreement")
dated March 21, 1996 between the Borrower and the Bank, and (ii) a Control
Agreement (the "Control Agreement") dated March 21, 1996 between the Borrower,
the Bank and FBS Investment Services, Inc. The terms of the Pledge Agreement and
the Control Agreement are incorporated herein by reference and made a part
hereof.
The occurrence of any of the following events shall constitute an Event
of Default under this Note: (i) any breach or default in the payment of this
Note, and such breach or default continues for a period of 5 days; or (ii) any
breach or default under the terms of any other note, debenture, indenture,
obligation, mortgage, guaranty, other agreement, or other writing heretofore,
herewith or hereafter existing to which any maker, endorser, guarantor or surety
of this Note or any other person providing security for this Note or for any
guaranty of this Note is a party including, but not limited to, the Pledge
Agreement and the Control Agreement; or (iii) the insolvency, death,
dissolution, liquidation, merger or consolidation of any such maker, endorser,
guarantor, surety or other person; or (iv) any appointment of a receiver,
trustee or similar officer of any property of any such maker, endorser,
guarantor, surety or other person; or (v) any assignment for the benefit of
creditors of any such maker, endorser, guarantor, surety or other person; or
(vi) any commencement of any proceeding under any bankruptcy, insolvency,
receivership, dissolution, liquidation or similar law by or against any such
maker, endorser, guarantor, surety or other person; or (vii) the sale, lease or
other disposition (whether in one transaction or in a series of transactions) to
one or more persons of all or a substantial part of the assets of any such
maker, endorser, guarantor, surety or other person; or (viii) any such maker,
endorser, guarantor, surety or other person takes any action to revoke or
terminate any agreement, liability or security in favor of the Bank; or (ix) the
entry of any final judgment or other final order for the payment of money in the
amount of $25,000.00 or more against any such maker, endorser, guarantor, surety
or other person, which judgment or order is not or is no longer subject to a
stay pending appeal; or (x) the issuance or levy of any writ, warrant,
attachment, garnishment, execution or other process against any property of any
such maker, endorser, guarantor, surety or other person; or (xi) the attachment
of any tax lien to any property of any such maker, endorser, guarantor, surety
or other person; or (xii) any statement, representation or warranty made by any
such maker, endorser, guarantor, surety or other person (or any representative
of any such maker, endorser, guarantor, surety or other person) to any present
or future holder of this Note at any time shall be incorrect or misleading in
any material respect when made; or (xiii) there is a material adverse change in
the condition (financial or otherwise), business or property of any such maker,
endorser, guarantor, surety or other person; or (xiv) any present or future
holder of this Note shall in good faith believe that the prospect of due and
punctual payment or performance of this Note or the due and punctual payment or
performance of any other note, obligation, mortgage, guaranty, or other
agreement heretofore, herewith or hereafter given to or acquired by any present
or future holder of this Note in connection with this Note is impaired.
Upon the commencement of any proceeding under any bankruptcy law by or
against any such maker, endorser, guarantor, surety or other person, this Note
automatically shall become immediately due and payable for the entire unpaid
principal balance of this Note plus accrued interest and other charges, fees and
expenses under this Note without any declaration, presentment, demand, protest,
or other notice of any kind. Upon the occurrence of any other Event of Default
and at any time thereafter, the then holder of this Note may, at its option,
declare this Note to be immediately due and payable and thereupon this Note
shall become due and payable for the entire unpaid principal balance of this
Note plus accrued interest and other charges, fees and expenses under this Note
without any presentment, demand, protest or other notice of any kind.
The Borrower (i) waives demand, presentment, protest, notice of
protest, notice of dishonor and notice of nonpayment of this Note; (ii) agrees
to promptly provide all present and future holders of this Note from time to
time with financial statements of the Borrower and such other information
respecting the financial condition, business and property of the Borrower as any
such holder of this Note may request, in form and substance acceptable to such
holder of this Note; (iii) agrees that when or at any time after this Note
becomes due the then holder of this Note may offset or charge the full amount
owing on this Note against any account then maintained by the Borrower with such
holder of this Note without notice; (iv) agrees to pay on demand all fees, costs
and expenses of all present and future holders of this Note in connection with
this Note and any security and guaranties for this Note, and any transactions
and matters relating to this Note and to any security and guaranties for this
Note, including but not limited to audit fees and expenses and reasonable
attorneys' fees and legal expenses, plus interest on such amounts at the rate
set forth in this Note; and (v) consents to the personal jurisdiction of the
state and federal courts located in the State of Minnesota in connection with
any controversy related in any way to this Note or any security or guaranty for
this Note, or any transaction or matter relating to this Note or to any security
or guaranty for this Note, waives any argument that venue in such forums is not
convenient, and agrees that any litigation initiated by the Borrower against the
Bank or any other present or future holder of this Note relating in any way to
this Note or any security or guaranty for this Note, or any transaction or
matter relating to this Note or to any security or guaranty for this Note, shall
be venued in either the District Court of Hennepin County, Minnesota, or the
United States District Court, District of Minnesota, Fourth Division. Interest
on any amount under this Note shall continue to accrue, at the option of any
present or future holder of this Note, until such holder receives final payment
of such amount in collected funds in form and substance acceptable to such
holder.
No waiver of any right or remedy under this Note shall be valid unless
in writing executed by the holder of this Note, and any such waiver shall be
effective only in the specific instance and for the specific purpose given. All
rights and remedies of all present and future holders of this Note shall be
cumulative and may be exercised singly, concurrently or successively. This Note
shall bind the Borrower and the successors and assigns of the Borrower. This
Note shall be governed by and construed in accordance with the laws of the State
of Minnesota.
THE BORROWER REPRESENTS, CERTIFIES, WARRANTS AND AGREES THAT THE
BORROWER HAS READ ALL OF THIS NOTE AND UNDERSTANDS ALL OF THE PROVISIONS OF THIS
NOTE. THE BORROWER ALSO AGREES THAT COMPLIANCE BY ANY PRESENT OR FUTURE HOLDER
OF THIS NOTE WITH THE EXPRESS PROVISIONS OF THIS NOTE SHALL CONSTITUTE GOOD
FAITH AND SHALL BE CONSIDERED REASONABLE FOR ALL PURPOSES.
IN WITNESS WHEREOF, the Borrower and the Bank have executed this
Amendment and Restatement of Promissory Note effective as of the day and year
first above written.
BORROWER: XXXXXXXX BROS. CONSTRUCTION, INC.,
a Minnesota corporation
By:_______________________________________
Its:______________________________________
BANK: FIRST BANK NATIONAL ASSOCIATION,
a national banking association
By:_______________________________________
Its:______________________________________
CONSENT OF GUARANTORS
The undersigned, having each executed a separate Guaranty in favor of
First Bank National Association each dated March 21, 1996 (collectively referred
to as the "Guaranties"), hereby consent to the terms of the attached Amendment
and Restatement of Promissory Note and agree that (a) all indebtedness evidenced
thereby shall become part of the Indebtedness as that term is defined in the
Guaranties, and (b) the undersigned hereby jointly and severally ratify all of
their respective obligations under the terms of the Guaranties.
Effective as of March 21, 1997.
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