FOURTH AMENDED AND RESTATED NOTE
$25,000,000.00 Chicago, Illinois
January 15, 1999
FOR VALUE RECEIVED, BROOKDALE LIVING COMMUNITIES, INC., a Delaware
corporation (the "Maker"), with its principal place of business at 00 Xxxx
Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, hereby promises to pay to the
order of LaSALLE NATIONAL BANK, a national banking association (the "Bank"), at
its office at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, or such other
place as Bank may direct from time to time, in lawful money of the United States
and in available funds, the principal amount of TWENTY-FIVE MILLION DOLLARS
($25,000,000.00), or such lesser amount as Bank advanced to Maker hereunder
which is outstanding as of the Maturity Date, as defined in that certain Sixth
Amendment to Loan Agreement and Documents dated January 15, 1999 by and between
Maker and the Bank (the "Sixth Amendment").
Maker previously executed and delivered to the Bank a certain Note
dated April 27, 1998 in the original principal amount of $15,000,000.00 (the
"Original Note") pursuant to a Loan Agreement dated April 27, 1998 (the
"Original Loan Agreement") evidencing a Loan made by the Bank to the Maker
pursuant to such Original Loan Agreement. Maker subsequently executed and
delivered to the Bank a certain Xxxxxxx and Restated Note dated July 16, 1998 in
the principal amount of $25,000,000.00 (the "Restated Note") pursuant to a
certain First Amendment to Loan Agreement and Documents of the same date (the
"First Amendment"), as amended by a Second Amendment to Loan Agreement and
Documents (the "Second Amendment") with the Bank dated October 14, 1998, as
amended by a Third Amendment to Loan Agreement and Documents (the "Third
Amendment") with the Bank dated October 20, 1998, as amended by a Fourth
Amendment to Loan Agreement and Documents (the "Fourth Amendment") with the Bank
dated November 3, 1998, as amended by a Fifth Amendment to Loan Agreement and
Documents (the "Fifth Amendment") with the Bank date December 21, 1998, and
further evidenced by a Third Amended and Restated Note of the same date (the
"Third Amended and Restated Note") (the Original Loan Agreement, as Amended by
the First Amendment, the Second Amendment, the Third Amendment, the Fourth
Amendment, the Fifth Amendment and the Sixth Amendment, is herein referred to as
the "Loan Agreement"). The Third Amended and Restated Note is amended, restated
and superseded in its entirety by this Fourth Amended and Restated Note, and any
amounts outstanding under the Third Amended and Restated Note are transferred to
this Fourth Amended and Restated Note.
The Loan evidenced by this Fourth Amended and Restated Note constitutes
a revolving credit under applicable Laws and Maker may repay and reborrow
hereunder subject to the terms and conditions of the Loan Agreement and
Documents. All advances under this Fourth Amended and Restated Note shall bear
interest in accordance with and be governed by the terms and provisions of the
Loan Agreement. All payments received from the Maker hereunder shall be applied
by the Bank in accordance with the terms of the Loan Agreement.
The Borrower may prepay the outstanding amounts of the Loan from time
to time in whole or in part on any business day without penalty or premium.
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This Fourth Amended and Restated Note is issued under the Loan
Agreement, and this Fourth Amended and Restated Note and the Bank are entitled
to all of the benefits, rights and remedies provided for by the Loan Agreement
or referred to therein, to which Loan Agreement reference is made for a
statement thereof. All capitalized terms used herein which are not defined
herein, but which are defined in the Loan Agreement, shall have the meaning
prescribed in the Loan Agreement.
All unpaid amounts owing on this Fourth Amended and Restated Note or on
any other Obligations under the Loan Agreement or the other Documents
immediately shall become due and payable at the option of the Bank, without
notice or demand, upon the occurrence of any Event of Default.
In the event of default in the payment of any sums due under this
Fourth Amended and Restated Note, the Maker hereby agrees that the Bank may
offset all of Maker's money, bank or other deposits or credits now or hereafter
held by the Bank or owed by the Bank to the Maker against all amounts due under
this Fourth Amended and Restated Note or against any other amounts which may be
due the Bank from the Maker.
No clause or provision contained in this Fourth Amended and Restated
Note or any documents related hereto shall be construed or shall so operate (a)
to raise the interest rate set forth in this Fourth Amended and Restated Note
above the lawful maximum, if any, in effect from time to time in the applicable
jurisdiction for loans to borrowers of the type, in the amount, for the
purposes, and otherwise of the kind contemplated, or (b) to require the payment
or the doing of any act contrary to law, but if any clause or provision
contained shall otherwise so operate to invalidate this Fourth Amended and
Restated Note, in whole or in part, then (i) such clauses or provisions shall be
deemed modified to the extent necessary to be in compliance with the law, or
(ii) to the extent not possible, shall be deemed void as though not contained
and the remainder of this Fourth Amended and Restated Note and such document
shall remain operative and in full force and effect.
All makers and any endorsers, guarantors, sureties, accommodation
parties and all other persons liable or to become liable for all or any part of
the indebtedness evidenced by this Fourth Amended and Restated Note, jointly and
severally waive, to the extent permitted by law, except as otherwise provided in
the Loan Agreement or the other Documents, diligence, presentment, protest and
demand, and also notice of protest, of demand, of nonpayment, of dishonor and of
maturity and also recourse or suretyship defenses generally; and they also
jointly and severally hereby consent to any and all renewals, extensions or
modifications of the terms of this Fourth Amended and Restated Note, including
time for payment, and further agree that any such renewals, extension or
modification of the terms of this Fourth Amended and Restated Note or the
release or substitution of any security for the indebtedness under this Fourth
Amended and Restated Note or any other indulgences shall not affect the
liability of any of the parties for the indebtedness evidenced by this Fourth
Amended and Restated Note. Any such renewals, extensions or modifications may be
made without notice to any of said parties.
The Maker shall be liable to the Bank for all costs and expenses
incurred in connection with collection, whether by suit or otherwise, of any
amount due under this Fourth Amended and Restated Note, including, without
limitation, reasonable attorneys' fees, as more fully set forth in the Loan
Agreement.
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This Fourth Amended and Restated Note shall be governed by and
construed in accordance with the laws of the State of Illinois.
BROOKDALE LIVING COMMUNITIES, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxxx, Xx.
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Print Name: Xxxxxx X. Xxxxxxxx, Xx.
Title: Executive Vice President
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