AMENDED AND RESTATED DEMAND NOTE
$40,000,000.00 Chicago, Illinois
Dated as of August 1, 1995
RECITALS
WHEREAS, the undersigned, XXX/000 XXXX XXXXXX ASSOCIATES, LTD.
("Borrower"), a limited partnership organized and existing under the
laws of the State of Illinois, has heretofore, for good and valuable
consideration, made in favor of JMB REALTY CORPORATION ("JMB"), a Delaware
corporation, that certain Subordinated Demand Note dated December 31, 1993,
in the maximum principal amount of $40,000,000 (the "Original Note"); and
WHEREAS, Borrower and JMB desire to amend and restate the Original Note
in its entirety as set forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Borrower hereby promises to pay to
the order of JMB on demand at 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000 (or at such other place as may be designated by JMB from time to time),
in lawful money of the United States of America and in immediately available
funds, the principal sum of up to FORTY MILLION AND NO/100 DOLLARS
($40,000,000.00), or, if less, the aggregate unpaid principal balance hereof
which is outstanding on the date of such demand which JMB may, in its sole
and absolute discretion, advance to the Borrower from time to time, together
with interest on any and all principal amounts hereunder from time to time
outstanding from and including the date on which the initial advance
hereunder is made to the Business Day (as defined below) on which said
principal amounts are paid in full, at a fluctuating interest rate per
annum equal at all times to one percent (1%) over the Reference Rate (as
defined below), payable on the date of such demand. All computations of
interest shall be made by JMB on the basis of a year of 360 days, in each
case for the actual number of days (including the first day but excluding
the last day) occurring in the period for which such interest is payable.
1. As used in this Note, the following terms shall have the
following meanings (such meanings to be equally applicable to both the
singular and plural forms of the terms defined):
(a) "Reference Rate" means the rate of interest announced publicly
by Bank of America Illinois in Chicago, Illinois from time to time, as its
reference rate.
(b) "Business Day" means a day of the year on which banks are not
required or authorized to close in Chicago, Illinois.
(c) "Restated Promissory Note I" means that certain Second Amended and
Restated Promissory Note dated as of August 1, 1995, in the original principal
amount of $16,042,000 made by Borrower payable to JMB, as amended or restated
from time to time.
(d) "Restated Promissory Note II" means that certain Second Amended
and Restated Promissory Note dated as of August 1, 1995, in the original
principal amount of $25,000,000 made by Borrower payable to JMB, as amended
or restated from time to time.
(e) "Restated Promissory Note III" means that certain Amended and
Restated Promissory Note dated as of August 1, 1995, in the original principal
amount of $2,194,631.25 made by Borrower payable to JMB, as amended or
restated from time to time.
(f) "Restated Promissory Notes" mean collectively, the Restated
Promissory Note I, the Restated Promissory Note II and the Restated Promissory
Note III.
(g) "Third Amended and Restated Security Agreement" means that
certain Third Amended and Restated Security Agreement dated as of August 1,
1995, executed and delivered by Borrower to JMB encumbering Borrower's
48.2467039% interest in 000 Xxxx Xxxxxx Company, a New York general
partnership ("245"), and certain other collateral set forth therein, which
secures the Restated Promissory Notes and this Note, as the same may be
amended or restated from time to time.
2. In no event shall the amount paid or agreed to be paid hereunder
(including all interest and the aggregate of any other amounts taken,
reserved or charged pursuant to this Note or any other document evidencing or
securing the loan hereunder, which under applicable law is deemed to
constitute interest on the indebtedness evidenced by this Note, exceed the
highest lawful rate permissible under applicable law; and if under any
circumstance whatsoever, fulfillment of any provision of this Note, at the
time performance of such provision shall be due, shall involve
transcending the limit of validity prescribed by applicable law, then, ipso
facto, the obligation to be fulfilled shall be reduced to the limit of such
validity, and if from any circumstance the holder of this Note should receive
as interest an amount which would exceed the highest lawful rate allowable
under law, such amount which would be excessive interest shall be applied to
the reduction of the unpaid principal balance due under this Note and not to
the payment of interest, or if such excess interest exceeds
the unpaid balance of principal, the excess shall be refunded to Borrower.
3. Borrower shall repay amounts due under this Note upon receipt,
and to the extent, of any net proceeds received upon the sale, refinancing,
or other disposition of, or any distributions made with respect to, the
Collateral (as defined in the Third Amended and Restated Security Agreement)
in accordance with the following sentence. JMB shall apply any amounts
received from Borrower as repayments as provided in the preceding sentence to
reduce Borrower's outstanding indebtedness under this Note, the Restated
Promissory Note I, the Restated Promissory Note II or the Restated Promissory
Note III, in such order as JMB, in its sole discretion, shall elect.
4. This Note is secured by the Third Amended and Restated Security
Agreement. Reference is made to the Third Amended and Restated Security
Agreement for a description of the property encumbered, the nature and extent
of the security, and the rights of the holder hereof in respect to such
security. The provisions of the Third Amended and Restated Security
Agreement shall be deemed to be incorporated by reference herein as though
set out herein in their entirety.
5. Borrower represents and agrees that the amounts outstanding and
to be outstanding under this Note have been and will be used for purposes
specified in 815 ILCS 205/4(1)(c), and that the indebtedness evidenced hereby
constitutes a business loan which comes within the purview of said 815 ILCS
205/4(1)(c) and is not usurious.
6. The Borrower hereby waives presentment for payment, demand,
notice of dishonor and protest of this Note and further agrees that this Note
shall be deemed to have been made under and shall be governed by the laws of
the State of Illinois in all respects, including matters of construction,
validity and performance, and that none of its terms or provisions may be
waived, altered, modified or amended except as JMB may consent thereto in
writing duly signed for and on its behalf.
IN WITNESS WHEREOF, the Borrower has caused this Note to be executed
and delivered to JMB as of the day and year first above written.
XXX/000 XXXX XXXXXX ASSOCIATES, LTD.
By: JMB Park Avenue, Inc., general partner
By:________________________________
Title:_______________________________
