FIFTH AMENDED AND RESTATED
REVOLVING NOTE
(DEMAND)
$4,250,000.00 Minneapolis, Minnesota
___________, 1997
1. FOR VALUE RECEIVED, XXXXXXXX BROS. CONSTRUCTION, INC., a Minnesota
corporation ("Borrower"), hereby promises to pay to the order of NORWEST BANK
MINNESOTA, NATIONAL ASSOCIATION, a national banking association ("Lender"), at
its banking house located at 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx,
ON DEMAND the principal sum of FOUR MILLION TWO HUNDRED FIFTY THOUSAND AND
00/100 DOLLARS ($4,250,000.00), or so much thereof as may be advanced by the
Lender to or for the benefit of the Borrower pursuant to that certain Xxxxxxx
and Restated Demand Discretionary Revolving Credit Agreement dated March 18,
1994 by and between the Borrower and the Lender ("Credit Agreement"), as amended
by that certain Amendment, Extension and Reaffirmation Agreement dated March 14,
1995 by and among the Lender, the Borrower and the Guarantors (the "First
Amendment") and as amended by that certain Second Amendment, Extension and
Reaffirmation Agreement of even date herewith by and among the Lender, the
Borrower and the Guarantors (the ASecond Amendment@), and which remains unpaid,
in lawful money of the United States and immediately available funds, together
with interest on the unpaid balance accruing as of the date hereof at the per
annum rates, subject to adjustment as hereinafter set forth, equal to (i) as to
all principal at any one time outstanding in an aggregate amount equal to or
less than the Aggregate Net Cash Surrender Value, one-half percent (0.50%) in
excess of the "Base Rate of Interest" (as that term is defined below) as the
same changes from time to time, and (ii) as to all principal at any one time
outstanding in excess of the Aggregate Net Cash Surrender Value, one and
one-quarter percent (1.25%) in excess of the Base Rate of Interest, as the same
changes from time to time, all such changes to be made and become effective on
the same day the Base Rate of Interest changes. Interest hereunder shall be
computed on the basis of a 360-day year but charged for actual days principal is
unpaid.
2. The principal balance hereof shall be due and payable ON DEMAND. The
principal balance hereof shall also be due and payable in full on the Expiration
Date.
3. Accrued interest shall be payable monthly on the first (1st) day of each
calendar month so long as all or any portion of the principal balance hereof
remains unpaid. Accrued interest shall also be payable at the time principal is
due hereunder.
4. The term "Base Rate of Interest" shall mean the rate of interest set and
publicly announced from time to time by the Lender as its "prime" or "base" rate
(or equivalent successor rate), whether or not the Lender makes loans to its
customers at rates at, above or below said Base Rate of Interest.
5. All payments and prepayments shall, at the option of the Lender, be applied
first to costs of collection, second to any late charges, third to accrued
interest and the remainder thereof to principal.
6. If any installment or payment of principal is not paid within ten (10) days
of the due date thereof, Borrower shall pay to Lender a late charge equal to
five percent (5%) of the amount of such installment or payment.
7. This Fifth Amended and Restated Revolving Note is issued pursuant to the
terms and conditions of the Credit Agreement, as amended pursuant to the First
Amendment and the Second Amendment, is secured by the First Life Insurance
Assignment, the Second Life Insurance Assignment, the Third Life Insurance
Assignment and the Guarantor Life Insurance Assignments, is guaranteed by the
Guarantors pursuant to the Guaranty and is entitled to all of the benefits
provided for in each of said agreements.
8. Upon demand for payment hereunder, the outstanding principal balance hereof
and accrued interest herein shall become immediately due and payable without
notice.
9. Upon demand for payment hereunder, the Lender shall have the immediate right
to set off any and all amounts due hereunder by the Borrower to the Lender
against any indebtedness or obligation of the Lender to the Borrower.
10. The outstanding principal balance of this Fifth Amended and Restated
Revolving Note may be prepaid at any time, in whole or in part, without premium
or penalty. This Fifth Amended and Restated Revolving Note is also subject to
mandatory partial prepayment at any time to the extent that the outstanding
principal balance hereunder exceeds the Maximum Loan Amount.
11. The Borrower promises to pay all costs of collection of this Fifth Amended
and Restated Revolving Note, including but not limited to attorneys' fees, paid
or incurred by the Lender on account of such collection, whether or not suit is
filed with respect thereto and whether or not such costs are paid or incurred,
or to be paid or incurred, prior to or after the entry of judgment.
12. Demand, presentment, protest and notice of nonpayment and dishonor of this
Fifth Amended and Restated Revolving Note are hereby waived.
13. THIS FIFTH AMENDED AND RESTATED REVOLVING NOTE IS PAYABLE ON DEMAND. THE
RIGHT OF THE LENDER TO MAKE SUCH DEMAND SHALL BE UNQUALIFIED AND ABSOLUTE AND,
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SUCH RIGHT MAY BE EXERCISED BY
THE LENDER EVEN IF THE BORROWER HAS COMPLIED AND IS THEN COMPLYING WITH THE
VARIOUS COVENANTS SET FORTH HEREIN, IN THE CREDIT AGREEMENT, THE FIRST
AMENDMENT, THE SECOND AMENDMENT AND IN THE OTHER BORROWER DOCUMENTS.
14. This Fifth Amended and Restated Revolving Note shall be governed by and
construed in accordance with the laws of the State of Minnesota.
15. This Fifth Amended and Restated Revolving Note constitutes a complete
amendment and restatement of, and supersedes in its entirety, that certain
$3,500,000 Fourth Amended and Restated Revolving Note dated March 14, 1995
executed by Xxxxxxxx and made payable to the order of Lender, and does not
constitute payment or satisfaction of the indebtedness evidenced thereby.
16. As used herein, the terms Expiration Date, First Life Insurance Assignment,
Second Life Insurance Assignment, Third Life Insurance Assignment, Aggregate Net
Cash Surrender Value, Guaranty, Guarantor Life Insurance Assignments,
Guarantors, Maximum Loan Amount, and Borrower Documents shall have the meanings
assigned to such terms in the Credit Agreement, the First Amendment and/or the
Second Amendment, as the case may be.
XXXXXXXX BROS. CONSTRUCTION,
INC.
By:_______________________________
Its President
STATE OF MINNESOTA )
) ss
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this _____ day of ________,
1997, by Xxxxx Xxxxxx, the President of XXXXXXXX BROS. CONSTRUCTION, INC., a
Minnesota corporation, for and on behalf of said corporation.
__________________
Notary Public
