THIRD AMENDED AND RESTATED NOTE
$15,000,000.00 Chicago, Illinois
December 21, 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 FIFTEEN MILLION DOLLARS
($15,000,000.00), or such lesser amount as Bank advanced to Maker hereunder
which is outstanding as of the Maturity Date, as defined in that certain Fifth
Amendment to Loan Agreement and Documents dated December 21, 1998 by and between
Maker and the Bank (the "Fifth 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, and
further evidenced by a Second Amended and Restated Note dated October 14, 1998
(the "Second Amended and Restated Note"), as amended by a Third Amendment to
Loan Agreement and Documents (the "Third Amendment") with the Bank dated October
20, 1998, and as amended by a Fourth Amendment to Loan Agreement and Documents
(the "Fourth Amendment") with the Bank dated November 3, 1998 (the Original Loan
Agreement, as Amended by the First Amendment, the Second Amendment, the Third
Amendment, the Fourth Amendment and the Fifth Amendment, is herein referred to
as the "Loan Agreement"). The Second Amended and Restated Note is amended,
restated and superseded in its entirety by this Third Amended and Restated Note,
and any amounts outstanding under the Second Amended and Restated Note are
transferred to this Third Amended and Restated Note.
The Loan evidenced by this Third 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 Third 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.
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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.
This Third Amended and Restated Note is issued under the Loan
Agreement, and this Third 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 Third 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 Third
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 Third
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 Third 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 Third 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 Third 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 Third 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 Third 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 Third Amended and Restated Note, including
time for payment, and further agree that any such renewals, extension or
modification of the terms of this Third Amended and Restated Note or the release
or substitution of any security for the indebtedness under this Third Amended
and Restated Note or any other indulgences shall not affect the liability of any
of the parties for the indebtedness evidenced by this
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Third 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 Third Amended and Restated Note, including, without
limitation, reasonable attorneys' fees, as more fully set forth in the Loan
Agreement.
This Third 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.
Print Name: Xxxxxx X. Xxxxxxxx, Xx.
Title: Executive Vice President
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