Exhibit 10.104
SECOND AMENDMENT TO MULTIFAMILY NOTE
THIS SECOND AMENDMENT TO MULTIFAMILY NOTE (this "Amendment") is made as of
this 19th day of February, 2002 and effective as between the parties hereto as
of January 1, 2002, between RETIREMENT INNS III, LLC, a Delaware limited
liability company (the "Borrower"), and RED MORTGAGE CAPITAL, INC., an Ohio
corporation, formerly known as Provident Mortgage Capital, Inc.,
successor-in-interest to Banc One Capital Funding Corporation (the "Lender").
RECITALS
WHEREAS, the Lender has previously made a loan to the Borrower in the
original principal sum of Eight Million Two Hundred Nine Thousand Nine Hundred
Dollars ($8,209,900) (the "Loan") pursuant to the terms of that certain
Multifamily Note dated as of June 27, 1999, by the Borrower to the order of the
Lender (the "Original Note"), as amended pursuant to the terms of that certain
First Amendment to Multifamily Note dated as of December 28, 2000 between
Borrower and Lender (the "First Amendment to Note" and together with the
Original Note, the "Existing Note") and is secured, in part, by a first mortgage
lien on the real property (the "Mortgaged Property") described on Exhibit A to
that certain Multifamily Deed of Trust, Assignment of Rents, Security Agreement
and Fixture Filing dated as of June 27, 1999 by the Borrower and for the benefit
of the Lender (the "Original Deed of Trust"), recorded among the Official
Records of Ventura County, California (the "Land Records") on June 28, 1999 as
Instrument No. 99-122405, as amended by that certain Amendment to Multifamily
Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing dated
as of August 31, 1999 between the Borrower and the Lender (the "First Amendment
to Deed of Trust"), recorded among the Land Records on September 10, 1999 as
Instrument No. 99-173435, as affected by that certain Confirmatory Assignment of
Multifamily Deed of Trust, Assignment of Rents, Security Agreement and Fixture
Filing dated as of December 12, 2000, effective as of October 2, 2000, by Banc
One Capital Funding Corporation, an Ohio corporation to Provident Mortgage
Capital, Inc., now known as Red Mortgage Capital, Inc. (the "Confirmatory
Assignment", and together with the Original Deed of Trust and the First
Amendment to Deed of Trust, the "Existing Deed of Trust"), recorded among the
Land Records on January 31, 2001 as Instrument No. 2001-0018605-00; and
WHEREAS, pursuant to the terms of that certain Confirmatory Agreement dated
as of December 28, 2000 by and among the Borrower, ARV Assisted Living, Inc., a
Delaware corporation (the "Guarantor"), and the Lender (the "Confirmatory
Agreement"), and the First Amendment to Note, the Maturity Date (as such term is
defined in the Original Note) of the Loan was extended to January 1, 2002; and
WHEREAS, the Borrower has requested and the Lender has agreed pursuant to
the terms and conditions of that certain Master Modification Agreement dated as
of the date hereof by and among Borrower, Guarantor, and Lender (the
"Modification Agreement") to (i) increase the principal sum of the Loan to
$11,980,000 (the "Increase"), (ii) extend the Maturity Date (as such term is
defined in the Existing Note) of the Loan to July 1, 2003 (the "Extension"), and
(iii) change the interest rate of the Loan to 8.50% (the "Rate Change"); and
WHEREAS, Borrower and Lender have agreed to enter into this Amendment in
accordance with the terms and conditions of the Modification Agreement.
NOW, THEREFORE, for and in consideration of the premises, the mutual entry
of the Modification Agreement by the parties thereto, the Extension, the
Increase, the Rate Change, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged by each party hereto, the
parties hereby agree as follows:
Section 1. Recitals. The Recitals are hereby incorporated into this
Amendment as a substantive part hereof.
Section 2. Modification to the Existing Note.
(a) The first paragraph of the Existing Note is hereby deleted
in its entirety and the following is inserted in lieu thereof:
"FOR VALUE RECEIVED, the undersigned ("Borrower") promises to pay to the
order of RED MORTGAGE CAPITAL, INC., an Ohio corporation, or any successor
holder of this Multifamily Note, the principal sum of ELEVEN MILLION NINE
HUNDRED EIGHTY THOUSAND and 00/100 DOLLARS (US $11,980,000.00), with
interest on the unpaid principal balance at the annual rate of Eight and
50/100ths percent (8.50%)."
(b) Section 3(b) of the Existing Note is hereby deleted in its
entirety and the following is inserted in lieu thereof:
"Consecutive monthly installments of principal and interest, each in the
amount of Ninety-Six Thousand Three Hundred Eighty-Seven and 22/100 Dollars
(US $96,387.22), shall be payable on the first day of each month beginning
on March 1, 2002 until the Maturity Date or the Extended Maturity Date (as
defined in Section 20 herein), if applicable, until the entire unpaid
principal balance evidenced by this Note is fully paid. Any accrued
interest remaining past due for 30 days or more shall be added to and
become part of the unpaid principal balance and shall bear interest at the
rate or rates specified in this Note, and any reference below to "accrued
interest" shall refer to accrued interest which has not become part of the
unpaid principal balance. Subject to Section 20 herein, any remaining
principal and interest shall be due and payable on July 1, 2003 or on any
earlier date on which the unpaid principal balance of this Note becomes due
and payable, by acceleration or otherwise (the "Maturity Date"). The unpaid
principal balance shall continue to bear interest after the Maturity Date
or the Extended Maturity Date, if applicable, at the Default Rate set forth
in this Note until and including the date on which it is paid in full."
Section 3. Ratification. Except as may be amended or modified hereby, the
terms of the Existing Note are hereby ratified, affirmed and confirmed and shall
otherwise remain in full force and effect.
Section 4. Amendments. This Amendment may be amended or supplemented by and
only by an instrument executed and delivered by each party hereto.
Section 5. Waiver. The Lender shall not be deemed to have waived the
exercise of any right which it holds under the Original Loan Documents (as such
term is defined in the Modification Agreement) unless such waiver is made
expressly and in writing (and no delay or omission by the Lender in exercising
any such right shall be deemed a waiver of its future exercise). No such waiver
made as to any instance involving the exercise of any such right shall be deemed
a waiver as to any other such instance, or any other such right. Without
limiting the operation and effect of the foregoing provisions hereof, no act
done or omitted by the Lender pursuant to the powers and rights granted to it
hereunder shall be deemed a waiver by the Lender of any of its rights and
remedies under any of the provisions of the Original Loan Documents executed in
connection with the Loan, and this Assignment is made and accepted without
prejudice to any of such rights and remedies.
Section 6. Governing Law. This Agreement shall be given effect and
construed by application of the law of the State of California.
Section 7. Headings. The headings of the sections, subsections, paragraphs
and subparagraphs hereof are provided herein for and only for convenience of
reference, and shall not be considered in construing their contents.
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Section 8. References. As used herein, all references made (i) in the
neuter, masculine or feminine gender shall be deemed to have been made in all
such genders and (ii) in the singular or plural number shall be deemed to have
been made, respectively, in the plural or singular number as well.
Section 9. Severability. No determination by any court, governmental body
or otherwise that any provision of this Amendment or any amendment hereof is
invalid or unenforceable in any instance shall affect the validity or
enforceability of (i) any other such provision or (ii) such provision in any
circumstance not controlled by such determination. Each such provision shall be
valid and enforceable to the fullest extent allowed by, and shall be construed
wherever possible as being consistent with, applicable law.
Section 10. Binding Effect. This Amendment shall be binding upon and inure
to the benefit of the Borrower and the Lender and their respective successors
and assigns, except that the Borrower shall not have the right to assign its
rights hereunder or any interest in the Original Loan Documents without the
prior written consent of the Lender.
Section 11. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
shall constitute one and the same instrument.
Section 12. WAIVER OF JURY TRIAL. THE BORROWER AND THE LENDER EACH (i)
AGREES NOT TO ELECT A TRIAL BY JURY WITH RESPECT TO ANY ISSUE ARISING OUT OF
THIS AMENDMENT, THE NOTE, ANY OTHER ORIGINAL LOAN DOCUMENT, OR THE RELATIONSHIP
BETWEEN THE PARTIES, AS LENDER AND BORROWER, THAT IS TRIABLE OF RIGHT BY A JURY
AND (ii) WAIVES ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO SUCH ISSUE TO THE
EXTENT THAT ANY SUCH RIGHT EXISTS NOW OR IN THE FUTURE. THIS WAIVER OF RIGHT TO
TRIAL BY JURY IS SEPARATELY GIVEN BY EACH PARTY, KNOWINGLY AND VOLUNTARILY WITH
THE BENEFIT OF COMPETENT LEGAL COUNSEL.
IN WITNESS WHEREOF, each of the parties hereto have executed and delivered
this Amendment under their respective seals as of the day and year first written
above.
WITNESS: BORROWER:
RETIREMENT INNS III, LLC,
- ---------------------------- a Delaware limited liability company
By: /s/ ABDO H. KHOURY
-----------------------------------
Name: Abdo H. Khoury
Title: Manager
WITNESS: LENDER:
RED MORTGAGE CAPITAL, INC.,
- ---------------------------- an Ohio corporation, formerly known
as Provident Mortgage Capital, Inc.,
successor-in-interest to Banc One
Capital Funding Corporation
By:
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Name:
Title:
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