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Exhibit 10.2.3
THIRD AMENDMENT TO
UNSECURED REVOLVING CREDIT AGREEMENT
THIS THIRD AMENDMENT TO UNSECURED REVOLVING CREDIT AGREEMENT (the
"Amendment") is made as of November 23, 1998 by and among Xxxxxxx Operating
Limited Partnership, a Delaware limited partnership ("Borrower"), The First
National Bank of Chicago, individually and as "Administrative Agent",
BankBoston, N.A., individually and as "Co-Agent", Bank of America National Trust
& Savings Association, individually and as "Co-Agent", Fleet National Bank,
individually and as "Co-Agent", certain other lenders shown on the signature
pages of the Credit Agreement described below ("Original Lenders"), and the two
(2) additional banks identified on the signature pages of this Amendment ("New
Lenders").
RECITALS
A. Borrower, Administrative Agent, Documentation Agent and Original Lenders, as
described below, entered into an Unsecured Revolving Credit Agreement dated as
of December 23, 1997, as amended by (i) a First Amendment dated as of January
31, 1998 and (ii) a Second Amendment dated as of June 30, 1998 (as so amended,
the "Credit Agreement"). All capitalized terms used herein and not otherwise
defined shall have the meanings given to them in the Credit Agreement.
B. Pursuant to the terms of the Credit Agreement, the Original Lenders agreed to
provide Borrower with a revolving credit facility in an aggregate principal
amount of up to $200,000,000, subject to future increase to $250,000,000. The
parties hereto desire to amend the Credit Agreement in order to, among other
things, (i) increase the Aggregate Commitment to $250,000,000; (ii) admit each
of the New Lenders as a "Lender" under the Credit Agreement; (iii) adjust the
respective Percentages of the Lenders; and (iv) make certain other modifications
to the Credit Agreement.
NOW, THEREFORE, in consideration of the foregoing Recitals and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
AGREEMENTS
1. The foregoing Recitals to this Amendment hereby are incorporated into and
made a part of this Amendment.
2. The "Increase Date" shall be the date on which all of the following
conditions shall have been fulfilled (or waived by the Original Lenders and New
Lenders):
(i) no Default or Event of Default then exists;
(ii) Borrower shall have executed and delivered to the Administrative
Agent for delivery to each New Lender two Notes, one in the form attached
hereto as Exhibit B-1 in the amount of such New Lender's Commitment and one
in the form attached hereto as Exhibit B-2 with respect to Competitive Bid
Loans;
(iii) as applicable, Borrower shall have executed and delivered to the
Administrative Agent for delivery to the Original Lenders an amended and
restated Note in the form attached hereto as Exhibit B-3 in the adjusted
amount of such Original Lender's Commitment and a Note in the form attached
hereto as Exhibit B-2 with respect to the Competitive Bid Loans. Upon the
execution and delivery of the Amended and Restated Notes all corresponding
prior Notes will be superseded and returned to Borrower; and
(iv) Borrower shall have executed and delivered, or caused to be
executed and delivered, to the Administrative Agent (and, upon receipt from
Borrower, the Administrative Agent shall deliver to the other Lenders) (A)
a certificate dated as of the Increase Date signed by Borrower and
Guarantors (i) confirming that no Default or Event of Default exists under
the Loan Documents; and (ii) representing and warranting that the Loan
Documents are then in full force and effect and that, to the best of their
knowledge, Borrower and Guarantors then have no defenses or offsets to, or
claims or counterclaims relating to, their obligations under the Loan
Documents, and (B) an opinion of counsel regarding the due authorization
and enforceability of this Agreement, together with supporting resolutions
and other evidence, all satisfactory to the Administrative Agent. From and
after the Increase Date, each of the Original Lenders and each New Lender
shall be considered a "Lender" under the Credit Agreement and the Loan
Documents. Borrower and the Original Lenders hereby consent to the addition
of each of the New Lenders as a Lender. Each New Lender's Commitment and
Percentage shall be as shown below such New Lender's signature block on
this Amendment. The adjusted Commitments and Percentages for the Original
Lenders are also shown on the signature pages to this Amendment.
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If the Increase Date has not occurred by November 24, 1998, either
Borrower or Administrative Agent may elect to terminate this Amendment which
thereupon shall have no further force or effect and the Credit Agreement shall
continue as if this Amendment had not been executed.
3. From and after the Increase Date the Aggregate Commitment shall equal
Two Hundred Fifty Million Dollars ($250,000,000). Prior to the Increase Date the
Aggregate Commitment shall continue to be Two Hundred Million Dollars
($200,000,000).
4. Section 1.1 of the Credit Agreement is hereby amended by deleting "and
BancBoston Securities, Inc., collectively." from the definition of "Arranger."
Section 1.1 is further amending by inserting the following definitions:
"Majority Lenders" means Lenders in the aggregate having at least 75% of the
Aggregate Commitment or, if the Aggregate Commitment has been terminated,
Lender's in the aggregate holding at least 75% of the aggregate unpaid principal
amount of the outstanding Advances; "Year 2000 Issues" means reasonably
anticipated costs, problems and uncertainties associated with the inability of
certain computer applications to effectively handle data including dates on and
after January 1, 2000, as such inability affects the business, operations and
financial condition of the Borrower and its Subsidiaries and of the Borrower's
and its Subsidiaries' material customers, suppliers and vendors; and "Year 2000
Program" is defined in Section 6.27.
5. All references to "Arrangers" in the Credit Agreement are hereby changed
to "Arranger."
6. Section 2.8 is hereby amended to add the following to the end of that
section "including, but not limited to, that letter agreement dated October 12,
1998."
7. The following is hereby added as a new Section 6.27 to the Credit
Agreement.
6.27 Year 2000.
The Borrower has made a full and complete assessment of the
Year 2000 Issues and has a realistic and achievable program for
remediating the Year 2000 Issues on a timely basis (the "Year 2000
Program"). Based on such assessment and on the Year 2000 Program, the
Borrower does not as of the Increase Date reasonably anticipate that
Year 2000 Issues will have a material adverse effect on the business,
properties, condition or results of operations of the Consolidated
Group taken as a whole.
8. Section 8.3 of the Credit Agreement is hereby amended by deleting
the fifth sentence and replacing it in its entirety with the following:
The total investment in any one of categories (i), (iii) or
(iv) shall not exceed 5% of Capitalization Value, the total investment
in category (ii) shall not exceed 10% of Capitalization Value, the
total investment in (v) shall not exceed 20% of Capitalization Value
and the total investment in all the foregoing investment categories in
the aggregate shall be less than or equal to 20% of Capitalization
Value.
9. Section 8.13 of the Credit Agreement is hereby deleted and replaced
in its entirety with the following:
8.13 Dividends. Provided there is no Monetary Default or Event
of Default then existing, Xxxxxxx Real Estate, Inc. may make
distributions to its shareholders provided that the aggregate amount of
distributions in any period of four consecutive fiscal quarters is not
in excess of 95% of its Funds From Operations for such period and such
distribution would not result in the occurrence of an Event of Default
or a breach of Section 9.7 hereof. Notwithstanding the foregoing,
unless at the time of distribution there is a Monetary Default or Event
of Default then existing, Xxxxxxx Real Estate, Inc. shall be permitted
at all times to distribute whatever amount is necessary to maintain its
tax status as a real estate investment trust.
10. The following is added as a new Section 8.14 to the Credit
Agreement.
8.14 Year 2000 Compliance
Promptly notify the Administrative Agent in the event
Borrower or Guarantors discover or determine that any computer
application (including those of its suppliers and vendors)
that is material to Borrower's or any of Borrower's
Subsidiaries' business and operations will not be Year 2000
compliant on a timely basis, except to the extent that
Borrower does not reasonably anticipate that such failure will
have a material adverse effect on the business, properties,
condition or results of operations of the Consolidated Group
taken as a whole.
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11. Section 14.13(a) of the Credit Agreement is hereby amended by
inserting "(x) amends this Section 14.13(a); or" to the end of Section 14.13(a).
12. Section 14.13 is hereby amended by inserting the following after
subsection (b)
"; or (c) the Majority Lenders, to amend 9.7(c) or 9.7(d) or the
definitions referenced therein, or this 14.13(c)."
13. Except as specifically modified hereby, the Credit Agreement is and
remains unmodified and in full force and effect and is hereby ratified and
confirmed. All references in the Loan Documents to the "Agreement" or the
"Revolving Credit Agreement" henceforth shall be deemed to refer to the Credit
Agreement as amended by this Amendment. The Guarantors hereby consent to this
Amendment and specifically acknowledge and agree that their obligations under
the Guaranty continue in full force and effect with respect to all of the
"Facility Indebtedness" and all "Obligations" (as defined in the Guaranty) which
are now or hereafter due to the Lenders or the Administrative Agent under the
Credit Agreement as amended by this Amendment.
14. This Amendment may be executed in any number of counterparts, all
of which taken together shall constitute one agreement, and any of the parties
hereto may execute this Amendment by signing any such counterpart. This
Amendment shall be construed in accordance with the internal laws (and not the
law of conflicts) of the State of Illinois, but giving effect to federal laws
applicable to national banks. This Amendment shall be effective when it has been
executed by Borrower, Guarantors, the Co-Agents, the Administrative Agent, the
New Lenders and a sufficient number of Original Lenders to constitute Required
Lenders and each such party has notified the Administrative Agent by telecopy or
telephone that it has taken such action.
[NO FURTHER TEXT ON THIS PAGE]
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IN WITNESS WHEREOF, the undersigned have executed and delivered this
Amendment as of the date first above written.
BORROWER: XXXXXXX OPERATING LIMITED PARTNERSHIP
By: XXXXXXX REAL ESTATE, INC., its General Partner
By:
Title:
The undersigned, as Guarantors under the Credit Agreement, hereby
consent to and join in this Amendment and agree that the Guaranty shall continue
in full force and effect.
GUARANTORS: XXXXXXX FINANCING PARTNERSHIP
By: XXXXXXX FINANCING CORP., its General Partner
By:
Title:
XXXXXXX REAL ESTATE, INC.
By:
Its:
ORIGINAL LENDERS: THE FIRST NATIONAL BANK OF CHICAGO
By:
Title:
Commitment: $30,000,000
Percentage of Aggregate Commitment: 12%
Address for Notices:
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Real Estate Finance Division
Telephone: 312/000-0000
Telecopy: 312/732-1117
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BANKBOSTON, N.A.
By:
Title:
Commitment: $27,000,000
Percentage of Aggregate Commitment: 10.8%
Address for Notices:
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx
Telephone: 617/000-0000
Telecopy: 617/434-1337
BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION
By:
Title:
Commitment: $30,000,000
Percentage of Aggregate Commitment: 12%
Address for Notices:
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxx, Xx.
Telephone: 312/000-0000
Telecopy: 312/974-4970
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FLEET NATIONAL BANK
By:
Title:
Commitment: $27,000,000
Percentage of Aggregate Commitment: 10.8%
Address for Notices:
00 Xxxxx Xxxxxx
XX: MABOF11C
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
Telephone: 617/000-0000
Telecopy: 617/346-3220
U.S. BANK NATIONAL ASSOCIATION,
F/K/A AND D/B/A FIRST BANK NATIONAL ASSOCIATION
By:
Title:
Commitment: $20,000,000
Percentage of Aggregate Commitment: 8%
Address for Notices:
One Illinois Center
000 X. Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxx Xxxxx
Telephone: 312/000-0000
Telecopy: 312/228-9402
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FIRST UNION NATIONAL BANK
By:
Title:
Commitment: $18,000,000
Percentage of Aggregate Commitment: 7.2%
Address for Notices:
Xxx Xxxxx Xxxxx Xxxxxx, XX-0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxx X. Xxxxxxxx
Telephone: 704/000-0000
Telecopy: 704/383-6205
KEYBANK NATIONAL ASSOCIATION
By:
Title:
Commitment: $25,000,000
Percentage of Aggregate Commitment: 10%
Address for Notices:
Commercial Real Estate Division
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxx
Telephone: 312/000-0000
Telecopy: 312/251-0687
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LASALLE NATIONAL BANK
By:
Title:
Commitment: $25,000,000
Percentage of Aggregate Commitment: 10%
Address for Notices:
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxx
Telephone: 312/000-0000
Telecopy: 312/904-6467
MELLON BANK, N.A.
By:
Title:
Commitment: $18,000,000
Percentage of Aggregate Commitment: 7.2%
Address for Notices:
Xxx Xxxxxx Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx Xxxxx
Telephone: 412/000-0000
Telecopy: 412/234-8657
NEW LENDERS: AMSOUTH BANK
By:
Title:
Commitment: $15,000,000
Percentage of Aggregate Commitment: 6%
Address for Notices:
0000 0xx Xxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxxx Xxxxx
Telephone: 205/000-0000
Telecopy: 205/326-4075
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COMERICA BANK
By:
Title:
Commitment: $15,000,000
Percentage of Aggregate Commitment: 6%
Address for Notices:
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx Xxxxx
Telephone: 313/000-0000
Telecopy: 313/222-9295
ADMINISTRATIVE AGENT: THE FIRST NATIONAL BANK OF CHICAGO
By:
Title:
Address for Notices:
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Real Estate Finance Division
Telephone: 312/000-0000
Telecopy: 312/732-1117
CO-AGENTS: BANKBOSTON, N.A.
By:
Title:
Address for Notices:
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx
Telephone: 617/000-0000
Telecopy: 617/434-1337
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BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION
By:
Title:
Address for Notices:
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxx, Xx.
Telephone: 312/000-0000
Telecopy: 312/974-4970
FLEET NATIONAL BANK
By:
Title:
Address for Notices:
00 Xxxxx Xxxxxx
XX: MABOF11C
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
Telephone: 617/000-0000
Telecopy: 617/346-3220
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EXHIBIT B-1
FORM OF NOTE
$_______________ ___________________, 1998
On or before the Maturity Date, as defined in that certain Unsecured
Revolving Credit Agreement dated as of December 23, 1997, as amended (the
"Agreement") between XXXXXXX OPERATING LIMITED PARTNERSHIP, a Delaware limited
partnership ("Borrower"), Xxxxxxx Financing Partnership, Xxxxxxx Real Estate,
Inc. and The First National Bank of Chicago, a national bank organized under the
laws of the United States of America, individually and as Administrative Agent
for the Lenders, BankBoston, N.A., a national bank organized under the laws of
the United States of America, individually and as Documentation Agent for the
Lenders and certain other lenders party thereto (as such terms are defined in
the Agreement), Borrower promises to pay to the order of ______________________
_________________________ (the "Lender"), or its successors and assigns, the
principal sum of ____________________ AND NO/100 DOLLARS ($__________) or the
aggregate unpaid principal amount of all Loans (other than Competitive Bid
Loans) made by the Lender to the Borrower pursuant to Section 2.1 of the
Agreement, without set-off or counterclaim in immediately available funds at the
office of the Administrative Agent in Chicago, Illinois, together with interest
on the unpaid principal amount hereof at the rates and on the dates set forth in
the Agreement and all other then due fees or charges as provided herein or in
the Agreement. The Borrower shall pay this Note ("Note") in full on or before
the Maturity Date in accordance with the terms of the Agreement.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Advance and the date and amount of each principal
payment hereunder.
This Note is issued pursuant to, and is entitled to the benefits of,
the Agreement and the other Loan Documents, to which Agreement and Loan
Documents, as they may be amended from time to time, reference is hereby made
for, inter alia, a statement of the terms and conditions under which this Note
may be prepaid or its maturity accelerated. Capitalized terms used herein and
not otherwise defined herein are used with the meanings attributed to them in
the Agreement.
If there is an Event of Default or Default under the Agreement or any
other Loan Document and Lender exercises its remedies provided under the
Agreement and/or any of the Loan Documents, then in addition to all amounts
recoverable by the Lender under such documents, Lender shall be entitled to
receive reasonable attorneys fees and expenses incurred by Lender in exercising
such remedies.
Borrower and all endorsers severally waive presentment, protest and
demand, notice of protest, demand and of dishonor and nonpayment of this Note
(except as otherwise expressly provided for in the Agreement), and any and all
lack of diligence or delays in collection or enforcement of this Note, and
expressly agree that this Note, or any payment hereunder, may be extended from
time to time, and expressly consent to the release of any party liable for the
obligation secured by this Note, the release of any of the security of this
Note, the acceptance of any other security therefor, or any other indulgence or
forbearance whatsoever, all without notice to any party and without affecting
the liability of the Borrower and any endorsers hereof.
This Note shall be governed and construed under the internal laws of
the State of Illinois.
BORROWER AND LENDER, BY ITS ACCEPTANCE HEREOF, EACH HEREBY WAIVE ANY
RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHT UNDER THIS PROMISSORY NOTE OR ANY OTHER LOAN DOCUMENT OR RELATING THERETO
OR ARISING FROM THE LENDING RELATIONSHIP WHICH IS THE SUBJECT OF THIS NOTE AND
AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT
BEFORE A JURY.
XXXXXXX OPERATING LIMITED PARTNERSHIP
By: XXXXXXX REAL ESTATE, INC., its general partner
By:__________________________________________
Its:_________________________________________
12
PAYMENTS OF PRINCIPAL
Unpaid
Principal Notation
Date Balance Made by
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EXHIBIT B-2
FORM OF COMPETITIVE BID NOTE
________________, 1998
On or before the last day of each "Interest Period" applicable to a
"Competitive Bid Loan", as defined in that certain Unsecured Revolving Credit
Agreement dated as of December 23, 1997, as amended (the "Agreement") between
XXXXXXX OPERATING LIMITED PARTNERSHIP, a Delaware limited partnership
("Borrower"), Xxxxxxx Real Estate, Inc., Xxxxxxx Financing Partnership,
BankBoston, N.A., individually and as Documentation Agent for the Lenders,
individually and as Administrative Agent for the Lenders and certain other
lenders party thereto (as such terms are defined in the Agreement), Borrower
promises to pay to the order of _________________________ (the "Lender"), or its
successors and assigns, the unpaid principal amount of such Competitive Bid Loan
made by the Lender to the Borrower pursuant to Section 2.16 of the Agreement,
without set-off or counterclaim in immediately available funds at the office of
the Administrative Agent in Chicago, Illinois, together with interest on the
unpaid principal amount hereof at the rates and on the dates established
pursuant to the Agreement. The Borrower shall pay any remaining unpaid principal
amount of such Competitive Bid Loans under this Competitive Bid Note ("Note") in
full on or before the Maturity Date in accordance with the terms of the
Agreement.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date, amount and due date of each Competitive Bid Loan and the date and
amount of each principal payment hereunder.
This Note is issued pursuant to, and is entitled to the security under
and benefits of, the Agreement and the other Loan Documents, to which Agreement
and Loan Documents, as they may be amended from time to time, reference is
hereby made for, inter alia, a statement of the terms and conditions under which
this Note may be prepaid or its maturity accelerated. Capitalized terms used
herein and not otherwise defined herein are used with the meanings attributed to
them in the Agreement.
If there is an Event of Default or Default under the Agreement or any
other Loan Document and Lender exercises its remedies provided under the
Agreement and/or any of the Loan Documents, then in addition to all amounts
recoverable by the Lender under such documents, Lender shall be entitled to
receive reasonable attorneys fees and expenses incurred by Lender in exercising
such remedies.
Borrower and all endorsers severally waive presentment, protest and
demand, notice of protest, demand and of dishonor and nonpayment of this Note
(except as otherwise expressly provided for in the Agreement), and any and all
lack of diligence or delays in collection or enforcement of this Note, and
expressly agree that this Note, or any payment hereunder, may be extended from
time to time, and expressly consent to the release of any party liable for the
obligation secured by this Note, the release of any of the security of this
Note, the acceptance of any other security therefor, or any other indulgence or
forbearance whatsoever, all without notice to any party and without affecting
the liability of the Borrower and any endorsers hereof.
This Note shall be governed and construed under the internal laws of
the State of Illinois.
BORROWER AND LENDER, BY ITS ACCEPTANCE HEREOF, EACH HEREBY WAIVE ANY
RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHT UNDER THIS PROMISSORY NOTE OR ANY OTHER LOAN DOCUMENT OR RELATING THERETO
OR ARISING FROM THE LENDING RELATIONSHIP WHICH IS THE SUBJECT OF THIS NOTE AND
AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT
BEFORE A JURY.
XXXXXXX OPERATING LIMITED PARTNERSHIP
By: Xxxxxxx Real Estate, Inc., its general partner
By: ________________________________________
Its: ________________________________________
14
PAYMENTS OF PRINCIPAL
Unpaid
Principal Notation
Date Balance Made by
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EXHIBIT B-3
FORM OF AMENDED AND RESTATED NOTE
$_______________ ___________, 1998
On or before the Maturity Date, as defined in that certain Amended and Restated
Unsecured Revolving Credit Agreement dated as of December 23, 1997, as amended
(the "Agreement") between XXXXXXX OPERATING LIMITED PARTNERSHIP, a Delaware
limited partnership ("Borrower"), Xxxxxxx Financing Partnership, Xxxxxxx Real
Estate, Inc. and The First National Bank of Chicago, a national bank organized
under the laws of the United States of America, individually and as
Administrative Agent for the Lenders, BankBoston, N.A., a national bank
organized under the laws of the United States of America, individually and as
Documentation Agent for the Lenders and certain other lenders party thereto (as
such terms are defined in the Agreement), Borrower promises to pay to the order
of _________________________ (the "Lender"), or its successors and assigns, the
principal sum of ____________________ AND NO/100 DOLLARS ($__________) or the
aggregate unpaid principal amount of all Loans (other than Competitive Bid
Loans) made by the Lender to the Borrower pursuant to Section 2.1 of the
Agreement, without set-off or counterclaim in immediately available funds at the
office of the Administrative Agent in Chicago, Illinois, together with interest
on the unpaid principal amount hereof at the rates and on the dates set forth in
the Agreement and all other then due fees or charges as provided herein or in
the Agreement. The Borrower shall pay this Amended and Restated Note ("Note") in
full on or before the Maturity Date in accordance with the terms of the
Agreement.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Advance and the date and amount of each principal
payment hereunder.
This Note amends, restates and supersedes in its entirety that certain
Note dated December 23, 1997 made by Borrower in favor of Lender in the maximum
principal amount of .
This Note is issued pursuant to, and is entitled to the benefits of,
the Agreement and the other Loan Documents, to which Agreement and Loan
Documents, as they may be amended from time to time, reference is hereby made
for, inter alia, a statement of the terms and conditions under which this Note
may be prepaid or its maturity accelerated. Capitalized terms used herein and
not otherwise defined herein are used with the meanings attributed to them in
the Agreement.
If there is an Event of Default or Default under the Agreement or any
other Loan Document and Lender exercises its remedies provided under the
Agreement and/or any of the Loan Documents, then in addition to all amounts
recoverable by the Lender under such documents, Lender shall be entitled to
receive reasonable attorneys fees and expenses incurred by Lender in exercising
such remedies.
Borrower and all endorsers severally waive presentment, protest and
demand, notice of protest, demand and of dishonor and nonpayment of this Note
(except as otherwise expressly provided for in the Agreement), and any and all
lack of diligence or delays in collection or enforcement of this Note, and
expressly agree that this Note, or any payment hereunder, may be extended from
time to time, and expressly consent to the release of any party liable for the
obligation secured by this Note, the release of any of the security of this
Note, the acceptance of any other security therefor, or any other indulgence or
forbearance whatsoever, all without notice to any party and without affecting
the liability of the Borrower and any endorsers hereof.
This Note shall be governed and construed under the internal laws of
the State of Illinois.
BORROWER AND LENDER, BY ITS ACCEPTANCE HEREOF, EACH HEREBY WAIVE ANY
RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHT UNDER THIS PROMISSORY NOTE OR ANY OTHER LOAN DOCUMENT OR RELATING THERETO
OR ARISING FROM THE LENDING RELATIONSHIP WHICH IS THE SUBJECT OF THIS NOTE AND
AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT
BEFORE A JURY.
XXXXXXX OPERATING LIMITED PARTNERSHIP
By: XXXXXXX REAL ESTATE, INC., its general partner
By:___________________________________________
Its:__________________________________________
16
PAYMENTS OF PRINCIPAL
Unpaid
Principal Notation
Date Balance Made by
