Exhibit 10.117
THIRD AMENDMENT TO MULTIFAMILY NOTE
THIS THIRD AMENDMENT TO MULTIFAMILY NOTE (this "Amendment") is made as
of this _____ day of _____________, 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"), as further amended pursuant
to the terms of that certain Second Amendment to Multifamily Note dated as of
February 19, 2002, but effective as of January 1, 2002, between Borrower and
Lender (the "Second Amendment to Note", and together with the Original Note and
the First Amendment to 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
to and for the benefit of the Lender, recorded among the Official Records of
Ventura County, California (the "Land Records") on June 28, 1999 as Instrument
No. 99-122405 (the "Original Deed of Trust"), 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, recorded among the Land Records on September 10, 1999 as Instrument No.
99-173435 (the "First Amendment to Deed of Trust"), 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., recorded among the Land Records on January 31, 2001 as Instrument
No. 2001-0018605-00 (the "Confirmatory Assignment"), as further amended by that
certain Second Amendment to Multifamily Deed of Trust, Assignment of Rents,
Security Agreement and Fixture Filing dated as of February 13, 2002, but
effective as of January 1, 2002, between the Borrower and the Lender, recorded
among the Land Records on February 21, 2002 as Instrument No. 02-040888 (the
"Second Amendment to Deed of Trust", and together with the Original Deed of
Trust, the First Amendment to Deed of Trust and the Confirmatory Assignment, the
"Existing Deed of Trust"); and
WHEREAS, pursuant to the terms of that certain Master Modification
Agreement dated as of February 19, 2002 by and among the Borrower, ARV Assisted
Living, Inc., a Delaware corporation (the "Guarantor"), and the Lender (the
"Modification Agreement"), and the Second Amendment to Note, the Maturity Date
(as such term was defined in the Original Note, as amended by the First
Amendment to Note) of the Loan was extended to July 1, 2003, the principal sum
of the Loan was increased to $11,980,000 and the interest rate of the Loan was
changed to 8.50%; and
WHEREAS, the Borrower has requested and the Lender has agreed pursuant
to the terms and conditions of that certain Second Master Modification Agreement
dated as of the date hereof by and among Borrower, Guarantor, and Lender (the
"Second Modification Agreement") to extend the Maturity Date (as such term is
defined in the Existing Note) of the Loan to January 1, 2004 (the "Extension");
and
WHEREAS, Borrower and Lender have agreed to enter into this Amendment
in accordance with the terms and conditions of the Second Modification
Agreement.
40
NOW, THEREFORE, for and in consideration of the premises, the mutual
entry of the Second Modification Agreement by the parties thereto, the Extension
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 third sentence of Section 3(b) of the Existing Note is
hereby deleted in its entirety and the following is inserted in lieu thereof:
"Subject to Section 20 herein, any remaining principal and interest
shall be due and payable on January 1, 2004 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")."
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 Second 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.
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.
41
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.
42
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:
- -------------------- ------------------------------------
Name: Abdo H. Khoury
Title: Manager
43
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:
- -------------------- ------------------------------------
Name:
Title:
44