ELEVENTH AMENDMENT TO LOAN AGREEMENT AND DOCUMENTS
THIS ELEVENTH AMENDMENT TO LOAN AGREEMENT AND DOCUMENTS, dated as of
May 21, 1999 (this "Amendment"), is entered into by and between BROOKDALE LIVING
COMMUNITIES, INC., a Delaware corporation (the "Borrower"), and LaSALLE NATIONAL
BANK, a national banking association (the "Bank").
WITNESSETH
WHEREAS, Borrower has previously executed and delivered to the Bank a
certain Note dated April 27, 1998 in the original principal amount of up to
Fifteen Million Dollars ($15,000,000.00) (the "Original Note") evidencing a
certain loan (the "Loan") set forth more fully in and governed by a certain Loan
Agreement of that same date to which the Bank is also a party (the "Original
Loan Agreement"); and
WHEREAS, the Loan was subsequently modified and amended by Borrower's
execution and delivery to the Bank of a certain Amended and Restated Note dated
July 16, 1998 increasing the principal amount of the Loan by $10,000,000.00, on
an interim basis only, from $15,000,000.00 to $25,000,000.00 (the "Amended and
Restated Note") and a certain First Amendment to Loan Agreement and Documents of
that same date to which the Bank is also a party (the "First Amendment") that
(a) increased the principal amount of the Loan on an interim basis as aforesaid
and (b) permitted a portion of the Loan to be reserved for the issuance of
standby Letters of Credit by the Bank to and for the benefit of municipalities
and other governmental units in connection with projects developed by Borrower
from time to time as set forth more fully therein; and
WHEREAS, the Loan was subsequently modified and amended by Borrower's
execution and delivery to the Bank of a certain Second Amendment to Loan
Agreement and Documents dated October 14, 1998 to which the Bank is also a party
(the "Second Amendment") wherein (a) the Bank consented to the Borrower's
proposed issuance of a convertible subordinated and unsecured note to OZ Master
Fund, Ltd. in the principal amount of Ten Million Dollars ($10,000,000.00), (b)
the Bank permitted the Borrower to guarantee financing from other financial
institutions to certain Subsidiaries of Borrower in connection with certain
development projects located in ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ (▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇), ▇▇▇▇
Ellyn, Illinois and Raleigh, North Carolina, which projects were to be
originally financed by Nomura Asset Capital Corporation, (c) the Event of
Default set forth in Section 7.01(O) of the Loan Agreement was modified and
restructured, and (d) the Interim Maturity Date was extended to November 3,
1998; and
WHEREAS, the Loan was subsequently modified and amended by Borrower's
execution and delivery to the Bank of a certain Third Amendment to Loan
Agreement and Documents dated October 20, 1998 to which the Bank is also a party
(the "Third Amendment") wherein (a) the Maximum Revolving Loan Commitment was
frozen at $24,953,750.00, (b) the Interim Maturity Date was extended to November
3, 1998, (c) it was agreed that, on the Interim Maturity Date (x) the
outstanding principal balance of the Loan was to be reduced to $10,000,000.00,
and (y) the principal amount of the Loan and Maximum Revolving Loan Commitment
were to be decreased from $25,000,000.00 to an amount not to exceed
$10,000,000.00, (d) the Interim Interest Rate and the Revised Default Rate were
adjusted, and (e) certain additional changes to the Maximum Revolving Loan
Commitment were mandated based upon the Stock Price of the Company from time to
time, all of the foregoing as set forth more fully in and subject to the terms
and conditions of the Third Amendment; and
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WHEREAS, the Loan was subsequently modified and amended by Borrower's
execution and delivery to the Bank of a certain Fourth Amendment to Loan
Agreement and Documents dated November 3, 1998 to which the Bank is also a party
(the "Fourth Amendment") wherein (a) the Interim Maturity Date was extended to a
date certain which was the first to occur of (x) the earlier of November 30,
1998, or (y) the date on which Borrower closed on the Offering (as defined in
the Fourth Amendment), and (b) it was agreed that, on the Interim Maturity Date
(x) the outstanding principal balance of the Loan was to be reduced to zero
($0.00) provided that the Offering had closed, (y) the outstanding principal
balance of the Loan was to be reduced to $10,000,000.00 regardless of whether
the Offering had closed, and (z) the principal amount of the Loan and Maximum
Revolving Loan Commitment were to be decreased from $25,000,000.00 to an amount
not to exceed $10,000,000.00 regardless of whether the Offering had closed, all
of the foregoing as set forth more fully in and subject to the terms and
conditions of the Fourth Amendment; and
WHEREAS, the Loan was subsequently modified and amended by Borrower's
execution and delivery to the Bank of a certain Third Amended and Restated Note
dated December 21, 1998 (the "Third Amended and Restated Note") and a certain
Fifth Amendment to Loan Agreement and Documents of that same date to which the
Bank is also a party (the "Fifth Amendment") wherein the principal amount of the
Loan and the Maximum Revolving Loan Commitment was increased from $10,000,000.00
to $15,000,000.00, as set forth more fully in and subject to the terms and
conditions of the Fifth Amendment; and
WHEREAS, the Loan was subsequently modified and amended by Borrower's
execution and delivery to the Bank of a certain Fourth Amended and Restated Note
dated January 15, 1999 (the "Fourth Amended and Restated Note") and a certain
Sixth Amendment to Loan Agreement and Documents of that same date to which the
Bank is also a party (the "Sixth Amendment") wherein the principal amount of the
Loan and the Maximum Revolving Loan Commitment was increased from $15,000,000.00
to $25,000,000.00, as set forth more fully in and subject to the terms and
conditions of the Sixth Amendment; and
WHEREAS, the Loan was subsequently modified and amended by Borrower's
execution and delivery to the Bank of a certain Seventh Amendment to Loan
Agreement and Documents dated January 25, 1999 (the "Seventh Amendment") wherein
the Bank consented to the Borrower's execution of FBR Loan Documents (as defined
in the Seventh Amendment) to enable the Borrower to obtain the FBR Loan (as
defined in the Seventh Amendment); and
WHEREAS, the Loan was subsequently modified and amended by Borrower's
execution and delivery to the Bank of a certain Eighth Amendment to Loan
Agreement and Documents dated March 24, 1999 (the "Eighth Amendment") wherein
the Bank consented to the Borrower's request to (a) extend the latest date on
which the Bank may issue a Letter of Credit to and for the benefit of
municipalities and other governmental or quasi-governmental units or to and for
the benefit of Battery Park City Authority in connection with projects developed
by Borrower from April 1, 1999 to December 31, 1999, (b) extend the expiry date
of any existing Letters of Credit from April 1, 1999 to a date not later than
December 31, 1999, and (c) permit the expiry date of any Letters of Credit
issued subsequent to the date thereof to be a date not later than December 31,
1999, all as set forth more fully in the Eighth Amendment; and
WHEREAS, the Loan was subsequently modified and amended by Borrower's
execution and delivery to the Bank of a certain Ninth Amendment to Loan
Agreement and Documents dated April 14, 1999 (the "Ninth Amendment") wherein the
Bank consented to the Borrower's request to increase the Loan and the Maximum
Revolving Loan Commitment from Twenty Five Million Dollars ($25,000,000.00) to
Twenty Nine Million Dollars ($29,000,000.00), as further evidenced by Borrower's
execution and delivery to the Bank of a certain Fifth Amended and Restated Note
dated April 14, 1999 (the "Fifth Amended and Restated Note"); and
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WHEREAS, the Loan was subsequently modified and amended by Borrower's
execution and delivery to the Bank of a certain Tenth Amendment to Loan
Agreement and Documents dated April 26, 1999 (the "Tenth Amendment") wherein the
Bank consented to the Borrower's request to extend the Maturity Date from April
26, 1999 to May 21, 1999, all as set forth more fully in the Tenth Amendment
(the Original Loan Agreement, as amended by the First Amendment, the Second
Amendment, the Third Amendment, the Fourth Amendment, the Fifth Amendment, the
Sixth Amendment, the Seventh Amendment, the Eighth Amendment, the Ninth
Amendment, the Tenth Amendment and this Amendment is herein referred to as the
"Loan Agreement"); and
WHEREAS, subject to the terms and conditions of this Amendment,
Borrower has requested the Bank to extend the Maturity Date from May 21, 1999 to
July 30, 1999, which the Bank is willing to do subject to the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the premises, the covenants and
agreements herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
1. Incorporation of Recitals. The above and foregoing recitals are
incorporated into and made a part of this Amendment. All capitalized terms used
herein, if not otherwise specifically defined, shall have the meanings and
definitions prescribed in the Loan Agreement and the Documents referred to
therein.
2. Maturity Date. The term "Maturity Date" is hereby amended and
restated to mean July 30, 1999. On the Maturity Date, the outstanding principal
balance of the Loan together with any accrued but unpaid interest thereon and
any other costs or amounts owed to the Bank hereunder, excluding the aggregate
amount of any LC Reserves outstanding on the Maturity Date which shall be due
and payable on the LC Maturity Date pursuant to the Loan Agreement, shall be due
and paid in full.
3. Interim Maturity Date Stricken. Effective as the of the date of this
Amendment, the Interim Maturity Date is hereby stricken from the Loan Agreement.
4. FBR Loan Repaid. Borrower represents and warrants to the Bank that
on May 14, 1999 the FBR Loan was paid in full and Borrower covenants not to
borrow any amounts from FBR without the consent of the Bank.
5. Designated Senior Debt. Borrower acknowledges and represents and
warrants to the Bank that (a) the Loan and any disbursements of the Loan,
including any amounts of the Loan constituting the LC Reserve, and Borrower's
obligation to repay the amounts of principal and interest due on the Loan (i)
are expressly superior to the Securities (as defined and described in that
certain Indenture dated as of May 14, 1999 between Borrower and State Street
Bank and Trust Company, as Trustee) [the "Indenture"] and to Borrower's
obligation to repay the amounts of principal and interest on the Securities (as
defined and described in the Indenture), and (ii) constitute Designated Senior
Debt for purposes of and as defined in the Indenture, and (b) the Bank shall
have and be entitled to all rights and benefits of the holder of Designated
Senior Debt under and pursuant to the Indenture.
6. Indenture. Borrower further agrees and covenants to the following in
connection with the Indenture:
(a) any Event of Default under the Indenture or any default
under the Transaction Documents (as defined in the Supplemental
Indenture dated as of May 14, 1999 between Borrower and State Street
Bank and Trust Company, as Trustee) shall automatically and
simultaneously constitute an Event of Default under the Loan Agreement
and Loan Documents;
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(b) Borrower shall not amend or be a party to any amendment of
any of the Transaction Documents without the prior written consent of
the Bank;
(c) Borrower shall not directly or indirectly redeem or cause
the redemption of the Securities, in whole or in part, without the
prior written consent of the Bank;
(d) Borrower shall notify the Bank of any Payment Blockage
Notice (as defined in Section 1303 of the Indenture) that Borrower has
received or of which it is aware, within one (1) day after receipt of
the same by Borrower or within one (1) day after Borrower becomes aware
of the same; and
(e) Borrower shall not make any payment of principal, interest
or premium (whether by redemption, purchase, retirement, defeasance or
otherwise) to the Trustee or any Holder (as defined in the Indenture)
with respect to the Securities upon the occurrence and during the
pendency of an Event of Default under the Loan Agreement or Loan
Documents, except for certain payments under the circumstances and to
the extent expressly permitted under the Indenture.
7. Payment of Fees. Borrower shall pay the reasonable legal fees of
Bank counsel in connection with the preparation of this Amendment and matters
related thereto.
8. Reaffirmation. To the extent any term(s) or condition(s) in the Loan
Agreement or any of the Documents shall contradict or be in conflict with the
amended terms of the Loan as set forth herein, such terms and conditions are
hereby deemed modified and amended accordingly, upon the effective date hereof,
to reflect the terms of the Loan as so amended herein. All terms of the Loan
Agreement and the Documents, as amended hereby, shall be and remain in full
force and effect and shall constitute the legal, valid, binding and enforceable
obligations of Borrower to the Bank. As of the date of this Amendment, Borrower
herein restates, ratifies and reaffirms each and every term and condition set
forth in the Loan Agreement and the Documents as amended herein. There are no
other changes to the Documents, including without limitation the Loan Agreement,
except for the changes specifically set forth herein. Notwithstanding the
foregoing, Borrower acknowledges and agrees that in addition to amending certain
terms and conditions of the Loan, this Amendment restates certain terms and
conditions previously set forth in the Loan Agreement. Any terms or conditions
set forth in the Loan Agreement that are not specifically amended or modified by
this Amendment, even if not specifically restated herein, shall remain binding
on the parties hereto.
9. No Waiver. No failure or delay on the part of the Bank in exercising
any right, power or remedy hereunder or under any other Documents shall operate
as a waiver thereof, nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise thereof or the exercise
of any other right, power or remedy hereunder or under any other Document. The
remedies herein provided and under any other Document are cumulative and not
exclusive of any remedies provided by law.
10. Certification. To further induce the Bank to enter into this
Amendment, Borrower represents and warrants to the Bank as follows: (a) Borrower
is empowered to perform all acts and things undertaken and done pursuant to this
Amendment and has taken all corporate or other action necessary to authorize the
execution, delivery and performance of the of this Amendment; (b) the officers
of Borrower executing this Amendment have been duly elected or appointed and
have been fully authorized to execute the same at the time executed; (c) this
Amendment, when executed and delivered, will be the legal, valid and binding
obligation of Borrower, enforceable against it in accordance with its respective
terms; and (d) Borrower is delivering to the Bank contemporaneously herewith, a
certificate of Borrower's Secretary certifying as to the resolutions of the
Executive Committee of Borrower's Board of Directors or the resolutions of
Borrower's Board of Directors approving this Amendment and the incumbency and
signatures of the officers of Borrower signing this Amendment.
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11. Absence Of Claim. To further induce the Bank to enter into this
Amendment, Borrower hereby acknowledges and agrees that, as of the date hereof,
there exists no right of offset, defense, counterclaim or objection in favor of
Borrower as against the Bank with respect to the Obligations to the Bank.
12. Illinois Law To Govern. This Amendment and each transaction
contemplated hereunder shall be deemed to be made under and shall be construed
and interpreted in accordance with the laws of the State of Illinois.
13. Binding Effect. The terms, provisions and conditions of this
Amendment shall be binding upon and inure to the benefit of each respective
party and their respective legal representatives, successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
BORROWER:
BROOKDALE LIVING COMMUNITIES, INC.
By: /s/ R. ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Print Name: R. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President Finance
and Treasurer
ATTEST:
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Print Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President & Controller
BANK:
LaSALLE NATIONAL BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Print Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Commercial Banking Officer
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