Exhibit 10.9

 

AMENDED AND RESTATED PROMISSORY NOTE

 

	
$11,658,500.00
    	
 
    	
Date:   August 14, 2009
    
	
Chicago, Illinois
    	
 
    	
Maturity   Date: August 14, 2011
    


 

1.                                      Agreement to Pay.  FOR VALUE RECEIVED, TEXTURA CORPORATION, A DELAWARE CORPORATION (“Borrower”), hereby promises to pay to the order of FIRST MIDWEST BANK, an Illinois banking corporation, its successors and assigns (“Lender”), the principal sum of ELEVEN MILLION SIX HUNDRED FIFTY-EIGHT THOUSAND FIVE HUNDRED AND 00/100 DOLLARS ($11,658,500.00) (the “Loan”), on or before August 14, 2011 (the “Maturity Date”), at the place and in the manner hereinafter provided, together with interest thereon at the rate or rates described below, and any and all other amounts which may be due and payable hereunder or under any of the Loan Documents (as hereinafter defined) from time to time.

 

2.                                      Interest Rate.

 

2.1                               Interest Prior to Default.  The interest rate the on this Note (the “Interest Rate”) is subject to change from time to time based on changes in an independent index which is the one (1) month London Interbank Offered Rate as shown in the Money Rates section of The Wall Street Journal published on the last day of each month (the “Index”).  The Index is not necessarily the lowest rate charged by Lender on its loans.  If the Index becomes unavailable during the term of the Loan, Lender may designate a substitute index after notice to Borrower.  Lender will tell Borrower the current Index rate upon Borrower’s request.  The Interest Rate change will not occur more often than each month, on the first (1st) day of each month based on the Index described above published on the last day of the prior month.  Borrower understands that Lender may make loans based on other rates as well.  The Interest Rate to be applied to the unpaid principal balance of this Note will be at a rate equal to the greater of (i) five and fifty one-hundredths percent (5.50%), or (ii) three and zero one-hundredths percentage points (3.00%) over the Index.  NOTICE: Under no circumstances will the Interest Rate on this Note be more than the maximum rate allowed by applicable law.

 

2.2                               Interest After Default.  From and after the Maturity Date or upon the occurrence and during the continuance of an Event of Default, interest shall accrue on the unpaid principal balance during any such period at an annual rate (“Default Rate”) equal to five and zero one-hundredths percent (5.00%) plus the Interest Rate, provided, however, in no event shall the Default Rate exceed the maximum rate permitted by law.  The interest accruing under this paragraph shall be immediately due and payable by Borrower to the holder of this Note upon demand and shall be additional indebtedness evidenced by this Note.

 

2.3                               Interest Calculation.  Interest on this Note shall be calculated on the basis of a 360-day year and the actual number of days elapsed in any portion of a month in which interest is due.  If any payment to be made by Borrower hereunder shall become due on a Saturday, Sunday or a legal holiday on which banks are authorized or required to be closed for the conduct of commercial banking business in Chicago, Illinois (a

 











 

“Business Day”) such payment shall be made on the next succeeding Business Day and such extension of time shall be included in computing any interest in respect of such payment.

 

3.                                      Payment Terms.

 

3.1                               Principal and Interest.  Payments of principal and interest due under this Note, if not sooner declared to be due in accordance with the provisions hereof, shall be made as follows:

 

(a)                                 Commencing on September 5, 2009, and continuing on the fifth day of each month thereafter through and including August 5, 2010, principal payments each in the amount of EIGHTEEN THOUSAND SIX HUNDRED TWENTY-FIVE AND 00/100 DOLLARS ($18,625.00), plus all accrued and unpaid interest on the principal balance of this Note outstanding from time to time shall be due and payable.

 

(b)                                 Commencing on September 5, 2010, and continuing on the fifth day of each month thereafter through and including the month in which the Maturity Date occurs, principal payments each in the amount of NINETEEN THOUSAND SIX HUNDRED SEVENTY-FIVE AND 00/100 DOLLARS ($19,675.00), plus all accrued and unpaid interest on the principal balance of this Note outstanding from time to time shall be due and payable.

 

(c)                                  The unpaid principal balance of this Note, if not sooner paid or declared to be due in accordance with the terms hereof, together with all accrued and unpaid interest thereon and any other amounts due and payable hereunder or under any of the Loan Documents shall be due and payable in full on the Maturity Date.

 

3.2                               Application of Payments.  Prior to the occurrence of an Event of Default, all payments and prepayments on account of the indebtedness evidenced by this Note shall be applied as follows: (a) first, to fees, expenses, costs and other similar amounts then due and payable to Lender, including, without limitation any prepayment premium, exit fee or late charges due hereunder, (b) second, to accrued and unpaid interest on the principal balance of this Note, (c) third, to the payment of principal due in the month in which the payment or prepayment is made, (d) fourth, to any escrows, impounds or other amounts which may then be due and payable under the Loan Documents, (e) fifth, to any other amounts then due Lender hereunder or under any of the Loan Documents, and (f) last, to the unpaid principal balance of this Note.  Any prepayment on account of the indebtedness evidenced by this Note shall not extend or postpone the due date or reduce the amount of any subsequent monthly payment of principal and interest due hereunder.  After an Event of Default has occurred and is continuing, payments may be applied by Lender to amounts owed hereunder and under the Loan Documents in such order as Lender shall determine, in its sole discretion.

 











 

3.3                               Method of Payments.  All payments of principal and interest hereunder shall be paid by automatic debit, wire transfer, check or in coin or currency which, at the time or times of payment, is the legal tender for public and private debts in the United States of America and shall be made at such place as Lender or the legal holder or holders of this Note may from time to time appoint in the payment invoice or otherwise in writing, and in the absence of such appointment, then at the offices of Lender at 770 West Dundee Road, Arlington Heights, Illinois 60004-7706.  Payment made by check shall be deemed paid on the date Lender receives such check; provided, however, that if such check is subsequently returned to Lender unpaid due to insufficient funds or otherwise, the payment shall not be deemed to have been made and shall continue to bear interest until collected.  Notwithstanding the foregoing, the final payment due under this Note must be made by wire transfer or other immediately available funds.  Interest, principal payments and any fees and expenses owed Lender from time to time will be deducted by Lender automatically on the due date from Borrower’s account with Lender, as designated in writing by Borrower.  Borrower will maintain sufficient funds in the account on the dates Lender enters debits authorized by this Note.  If there are insufficient funds in the account on the date Lender enters any debit authorized by this Note, the debit will be reversed.  Borrower may terminate this direct debt arrangement at any time by sending written notice to Lender at the address specified above.

 

3.4                               Late Charge.  If any payment of interest or principal due hereunder is not made within ten (10) days after such payment is due in accordance with the terms hereof, then, in addition to the payment of the amount so due, Borrower shall pay to Lender a “late charge” of five cents for each whole dollar so overdue to defray part of the cost of collection and handling such late payment.  Borrower agrees that the damages to be sustained by the holder hereof for the detriment caused by any late payment are extremely difficult and impractical to ascertain, and that the amount of five cents for each one dollar due is a reasonable estimate of such damages, does not constitute interest, and is not a penalty.

 

3.5                               Prepayment.  This Note may be prepaid, either in whole or in part, without penalty or premium at any time and from time to time upon no less than seven (7) days advance notice.

 

3.6                               Loan Fees.  In consideration of Lender’s agreement to modify the Loan in accordance with the First Modification (as hereinafter defined), Borrower shall pay to Lender a non-refundable fee in the amount of FIFTY-EIGHT THOUSAND TWO HUNDRED NINETY-TWO AND 50/100 DOLLARS ($58,292.50), which shall be due and payable in full as a condition precedent to the effectiveness hereof and of the First Modification.

 

4.                                      Security.  This Note is secured by that certain: (i) Construction Mortgage, Security Agreement, Assignment of Rents and Leases and Fixture Filing (“Mortgage”) dated as of August 14, 2007, made by Borrower to and for the benefit of Lender creating a first mortgage lien on certain real property (“Premises”) legally described in Exhibit A attached to the Mortgage, (ii) Assignment of Rents and Leases (“Assignment”) dated as of August 14, 2007, executed by Borrower to and for the benefit of Lender, (iii) Pledge Agreement (“Pledge”)  dated

 











 

as of even date herewith executed by Borrower to and for the benefit of Lender, (iv) Environmental Indemnity Agreement (“Indemnity Agreement”) dated as of even date herewith executed by Borrower to and for the benefit of Lender, and (v) Modification of Loan Documents dated as of even date herewith executed by and between Borrower and Lender (the “First  Modification”; the Loan Agreement, the Mortgage, the Assignment, the Pledge, the Indemnity Agreement, the First Modification and any other document now or hereafter given to evidence or secure payment of this Note or delivered to induce Lender to disburse the proceeds of the Loan, as such documents, may hereafter be amended, restated or replaced from time to time, are hereinafter collectively referred to as the “Loan Documents”).  Reference is hereby made to the Loan Documents (which are incorporated herein by reference as fully and with the same effect as if set forth herein at length) for a statement of the covenants and agreements contained therein, a statement of the rights, remedies, and security afforded thereby, and all matters therein contained.

 

5.                                      Events of Default.  The occurrence of any one or more of the following events shall constitute an “Event of Default” under this Note:

 

(a)                                 the failure by Borrower to pay after any applicable notice and cure periods (i) any installment of principal or interest payable pursuant to this Note within ten (10) days of the date when due, or (ii) any other amount payable to Lender under this Note, the Mortgage or any of the other Loan Documents within ten (10) days after the date when any such payment is due in accordance with the terms hereof or thereof; or

 

(b)                                 the occurrence of any “Event of Default” under the Mortgage or any of the other Loan Documents.

 

6.                                      Remedies.  At the election of the holder hereof, and without notice, the principal balance remaining unpaid under this Note, and all unpaid interest accrued thereon and any other amounts due hereunder, shall be and become immediately due and payable in full upon the occurrence of any Event of Default.  Failure to exercise this option shall not constitute a waiver of the right to exercise same in the event of any subsequent Event of Default.  No holder hereof shall, by any act of omission or commission, be deemed to waive any of its rights, remedies or powers hereunder or otherwise unless such waiver is in writing and signed by the holder hereof, and then only to the extent specifically set forth therein.  The rights, remedies and powers of the holder hereof, as provided in this Note, the Mortgage and in all of the other Loan Documents are cumulative and concurrent, and may be pursued singly, successively or together against Borrower, the Premises and any other security given at any time to secure the repayment hereof, all at the sole discretion of the holder hereof.  If any suit or action is instituted or attorneys are employed to collect this Note or any part hereof, Borrower promises and agrees to pay all costs of collection, including reasonable attorneys’ fees and court costs.

 

7.                                Covenants and Waivers.  Borrower and all others who now or may at any time become liable for all or any part of the obligations evidenced hereby, expressly agree hereby to be jointly and severally bound, and jointly and severally: (i) waive and renounce any and all homestead, redemption and exemption rights and the benefit of all valuation and appraisement privileges against the indebtedness evidenced by this Note or by any extension or renewal hereof;

 











 

(ii) waive presentment and demand for payment, notices of nonpayment and of dishonor, protest of dishonor, and notice of protest; (iii) except as expressly provided in the Loan Documents, waive any and all notices in connection with the delivery and acceptance hereof and all other notices in connection with the performance, default, or enforcement of the payment hereof or hereunder, (iv) waive any and all lack of diligence and delays in the enforcement of the payment hereof; (v) agree that the liability of Borrower any endorser or obligor shall be unconditional and without regard to the liability of any other person or entity for the payment hereof, and shall not in any manner be affected by any indulgence or forbearance granted or consented to by Lender to any of them with respect hereto; (vi) consent to any and all extensions of time, renewals, waivers, or modifications that may be granted by Lender with respect to the payment or other provisions hereof; and to the release of any security at any time given for the payment hereof, or any part thereof, with or without substitution, and to the release of any person or entity liable for the payment hereof; and (vii) consent to the addition of any and all other makers, endorsers, guarantors, and other obligors for the payment hereof, and to the acceptance of any and all other security for the payment hereof; and agree that the addition of any such makers, endorsers, guarantors or other obligors, or security shall not affect the liability of Borrower, any guarantor and all others now liable for all or any part of the obligations evidenced hereby.  This provision is a material inducement for Lender making the Loan to Borrower.

 

8.                                      Other General Agreements.

 

8.1                               Business Purpose Loan.  The Loan is a business loan which comes within the purview of Section 205/4, paragraph (1)(c) of Chapter 815 of the Illinois Compiled Statutes, as amended.  Borrower agrees that the Loan evidenced by this Note is an exempted transaction under the Truth In Lending Act, 15 U.S.C., §1601, et seq.

 

8.2                               Time.  Time is of the essence hereof.

 

8.3                               Governing Law.  This Note is governed and controlled as to validity, enforcement, interpretation, construction, effect and in all other respects by the statutes, laws and decisions of the State of Illinois, without regard to its conflict of laws provisions.

 

8.4                               Amendments.  This Note may not be changed or amended orally but only by an instrument in writing signed by the party against whom enforcement of the change or amendment is sought.

 

8.5                               No Joint Venture.  Lender shall not be construed for any purpose to be a partner, joint venturer, agent or associate of Borrower or of any lessee, operator, concessionaire or licensee of Borrower in the conduct of its business, and by the execution of this Note, Borrower agrees to indemnify, defend, and hold Lender harmless from and against any and all damages, costs, expenses and liability that may be incurred by Lender as a result of a claim that Lender is such partner, joint venturer, agent or associate.

 

8.6                               Disbursement.  This Note has been made and delivered at Chicago, Illinois and all funds disbursed to or for the benefit of Borrower will be disbursed in Chicago, Illinois.

 











 

8.7                          Joint and Several Obligations.  If this Note is executed by more than one party, the obligations and liabilities of each Borrower under this Note shall be joint and several and shall be binding upon and enforceable against each Borrower and their respective successors assigns.  This Note shall inure to the benefit of and may be enforced by Lender and its successors and assigns.

 

8.8                          Severable Loan Provisions.  If any provision of this Note is deemed to be invalid by reason of the operation of law, or by reason of the interpretation placed thereon by any administrative agency or any court, Borrower and Lender shall negotiate an equitable adjustment in the provisions of the same in order to effect, to the maximum extent permitted by law, the purpose of this and the validity and enforceability of the remaining provisions, or portions or applications thereof, shall not be affected thereby and shall remain in full force and effect.

 

8.9                          Interest Limitation.  If the interest provisions herein or in any of the Loan Documents shall result, at any time during the Loan, in an effective rate of interest which, for any month, exceeds the limit of usury or other laws applicable to the Loan, all sums in excess of those lawfully collectible as interest of the period in question shall, without further agreement or notice between or by any party hereto, be applied upon principal immediately upon receipt of such monies by Lender, with the same force and effect as though the payer has specifically designated such extra sums to be so applied to principal and Lender had agreed to accept such extra payment(s) as a premium-free prepayment.  Notwithstanding the foregoing, however, Lender may at any time and from time to time elect by notice in writing to Borrower to reduce or limit the collection to such sums which, when added to the said first-stated interest, shall not result in any payments toward principal in accordance with the requirements of the preceding sentence.  In no event shall any agreed to or actual exaction as consideration for this Loan transcend the limits imposed or provided by the law applicable to this transaction or the makers hereof in the jurisdiction in which the Premises are located for the use or detention of money or for forbearance in seeking its collection.

 

8.10                   Assignability.  Lender may at any time assign its rights in this Note and the Loan Documents, or any part thereof and transfer its rights in any or all of the collateral, and Lender thereafter shall be relieved from all liability with respect to such collateral.  In addition, Lender may at any time sell one or more participations in the Note.  Borrower may not assign its interest in this Note, or any other agreement with Lender or any portion thereof, either voluntarily or by operation of law, without the prior written consent of Lender.

 

9.                                      Notices.  All notices required under this Note will be in writing and will be transmitted in the manner and to the addresses required by the Mortgage, or to such other addresses as Lender and Borrower may specify from time to time in writing.

 

10.                               Consent to Jurisdiction.  TO INDUCE LENDER TO ACCEPT THIS NOTE, BORROWER IRREVOCABLY AGREES THAT, SUBJECT TO LENDER’S SOLE AND ABSOLUTE ELECTION, ALL ACTIONS OR PROCEEDINGS IN ANY WAY ARISING OUT OF OR RELATED TO THIS NOTE WILL BE LITIGATED IN COURTS HAVING

 











 

SITUS IN CHICAGO, ILLINOIS.  BORROWER HEREBY CONSENTS AND SUBMITS TO THE JURISDICTION OF ANY COURT LOCATED WITHIN CHICAGO, ILLINOIS, WAIVES PERSONAL SERVICE OF PROCESS UPON BORROWER, AND AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE BY REGISTERED MAIL DIRECTED TO BORROWER AT THE ADDRESS STATED IN THE MORTGAGE AND SERVICE SO MADE WILL BE DEEMED TO BE COMPLETED UPON ACTUAL RECEIPT.

 

11.                               Waiver of Jury Trial.  BORROWER AND LENDER (BY ACCEPTANCE OF THIS NOTE), HAVING BEEN REPRESENTED BY COUNSEL, EACH KNOWINGLY AND VOLUNTARILY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS (a) UNDER THIS NOTE OR ANY RELATED AGREEMENT OR UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION WITH THIS NOTE OR (b) ARISING FROM ANY BANKING RELATIONSHIP EXISTING IN CONNECTION WITH THIS NOTE, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING WILL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.  BORROWER AGREES THAT IT WILL NOT ASSERT ANY CLAIM AGAINST LENDER ON ANY THEORY OF LIABILITY FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES.

 

12.                               Waiver of Defenses.  OTHER THAN CLAIMS BASED UPON THE FAILURE OF LENDER TO ACT IN A COMMERCIALLY REASONABLE MANNER, BORROWER WAIVES EVERY PRESENT AND FUTURE DEFENSE (OTHER THAN THE DEFENSE OF PAYMENT IN FULL), CAUSE OF ACTION, COUNTERCLAIM OR SETOFF WHICH BORROWER MAY NOW HAVE OR HEREAFTER MAY HAVE TO ANY ACTION BY LENDER IN ENFORCING THIS NOTE OR ANY OF THE LOAN DOCUMENTS.  THIS PROVISION IS A MATERIAL INDUCEMENT FOR LENDER GRANTING ANY FINANCIAL ACCOMMODATION TO BORROWER.

 

13.                               Customer Identification - USA Patriot Act Notice.  Lender hereby notifies Borrower that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56, signed into law October 26, 2001) (the “Act”),  and Lender’s policies and practices, Lender is required to obtain, verify and record certain information and documentation that identifies Borrower, which information includes the name and address of Borrower and such other information that will allow Lender to identify Borrower in accordance with the Act.  In addition, Borrower shall (a) ensure that no person who owns a controlling interest in or otherwise controls Borrower or any subsidiary of Borrower is or shall be listed on the Specially Designated Nationals and Blocked Person List or other similar lists maintained by the Office of Foreign Assets Control (“OFAC”), the Department of the Treasury or included in any Executive Orders, (b) not use or permit the use of the proceeds of the Loan to violate any of the foreign asset control regulations of OFAC or any enabling statute or Executive Order relating thereto, and (c) comply, and cause any of its subsidiaries to comply, with all applicable Bank Secrecy Act laws and regulations, as amended.

 











 

14.                               Expenses and Indemnification.  Borrower shall pay all costs and expenses incurred by Lender in connection with the preparation of this Note and the Loan Documents, including, without limitation, reasonable attorneys’ fees and time chares of attorneys who may be employees of Lender or any affiliate or parent of Lender.  Borrower shall pay any and all stamp and other taxes, UCC search fees, filing fees and other costs and expenses in connection with the execution and delivery of this Note and the other instruments and documents to be delivered hereunder, and agrees to save Lender harmless from and against any and all liabilities with respect to or resulting from any delay in paying or omission to pay such costs and expenses.  Borrower hereby authorizes the Bank to charge any account of Borrower with the Bank for all sums due under this section.  Borrower also agrees to defend (with counsel satisfactory to Lender), protect, indemnify and hold harmless Lender, any parent corporation, affiliated corporation or subsidiary of Lender, and each of their respective officers, directors, employees, attorneys and agents (each an “Indemnified Party”) from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and distributions of any kind or nature (including, without limitation, the disbursements and the reasonable fees of counsel for each Indemnified Party thereto, which shall also include, without limitation, attorneys’ fees and time charges of attorneys who may be employees of Lender, any parent corporation or affiliated corporation of Lender), which may be imposed on, incurred by, or asserted against, any Indemnified Party (whether direct, indirect or consequential and whether based on any federal, state or local laws or regulations, including, without limitation, securities, environmental laws and commercial laws and regulations, under common law or in equity, or based on contract or otherwise) in any manner relating to or arising out of this Note or any of the Loan Documents, or any act, event or transaction related or attendant thereto, the preparation, execution and delivery of this Note and the Loan Documents, the making or issuance and management of the Loan, the use or intended use of the proceeds of this Note and the enforcement of Lender’s rights and remedies under this Note, the Loan Documents any other instruments and documents delivered hereunder, or under any other agreement between Borrower and Lender; provided, however, that Borrower shall not have any obligations hereunder to any Indemnified Party with respect to matters caused by or resulting from the willful misconduct or gross negligence of such Indemnified Party.  To the extent that the undertaking to indemnify set forth in the preceding sentence may be unenforceable because it violates any law or public policy, Borrower shall satisfy such undertaking to the maximum extent permitted by applicable law.  Any liability, obligation, loss, damage, penalty, cost or expense covered by this indemnity shall be paid to each Indemnified Party on demand, and failing prompt payment, together with interest thereon at the Default Rate from the date incurred by each Indemnified Party until paid by Borrower, shall be added to the obligations of Borrower evidenced by this Note and secured by the collateral securing this Note.  The provisions of this section shall survive the satisfaction and payment of this Note.

 

15.                               Amended and Restated Promissory Note.  This Note amends and restates in its entirety the Promissory Note dated August 14, 2007, in the original principal amount of the TWELVE MILLION AND 00/100 DOLLARS ($12,000,000:00) (the “Prior Note”) made payable by Textura, LLC as the predecessor to Borrower to the order of Lender, which Prior Note shall be deemed merged herein.  Nothing herein contained shall constitute the satisfaction of the obligations under the Prior Note except the payment in full of all obligations under this Note.

 











 

IN WITNESS WHEREOF, Borrower has executed and delivered this Note as of the day and year first written above.

 

	
 
    	
TEXTURA   CORPORATION, A
    
	
 
    	
DELAWARE   CORPORATION
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Patrick Allin
    
	
 
    	
 
    	
Patrick   Allin, its Chairman and Chief
    
	
 
    	
 
    	
Executive   Officer