AMENDED AND RESTATED NOTE
$25,000,000.00 Chicago, Illinois
July 16, 1998
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 First
Amendment to Loan Agreement and Documents dated the date hereof by and between
Maker and the Bank.
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 has entered into a certain First
Amendment to Loan Agreement and Documents (the "First Amendment") with the Bank
dated the date hereof amending certain terms of the Original Loan Agreement and
Documents (as defined in the Original Loan Agreement). This Amended and Restated
Note is issued pursuant to the Original Loan Agreement and Documents, as amended
by the First Amendment (the Original Loan Agreement, as amended by the First
Amendment, is herein referred to as the "Loan Agreement"). The Original Note is
amended, restated and superseded in its entirety by this Amended and Restated
Note, and any amounts outstanding under the Original Note are transferred to
this Amended and Restated Note.
The Loan evidenced by this 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
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 Amended and Restated Note is issued under the Loan Agreement, and
this 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 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
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 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 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 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 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 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 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 Amended and Restated Note, including time for
payment, and further agree that any such renewals, extension or modification of
the terms of this Amended and Restated Note or the release or substitution of
any security for the indebtedness under this Amended and Restated Note or any
other indulgences shall not affect the liability of any of the parties for the
indebtedness evidenced by this Amended and Restated Note. Any such renewals,
extensions or modifications may be made without notice to any of said parties.
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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 Amended and Restated Note, including, without limitation,
reasonable attorneys' fees, as more fully set forth in the Loan Agreement.
This 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:
Print Name:
Title:
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