Exhibit 10.105
SECOND AMENDMENT TO MULTIFAMILY DEED OF TRUST,
ASSIGNMENT OF RENTS, SECURITY AGREEMENT
AND FIXTURE FILING
(CALIFORNIA)
THIS SECOND AMENDMENT TO MULTIFAMILY DEED OF TRUST, ASSIGNMENT OF RENTS,
SECURITY AGREEMENT AND FIXTURE FILING (this "Amendment") is made as of the 19th
day of February, 2002 and effective as between the parties hereto as of January
1, 2002, by and between RETIREMENT INNS III, LLC, a Delaware limited liability
company ("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 ("Lender").
WHEREAS, Lender has previously made a loan to Borrower in the original
principal sum of Eight Million Two Hundred Nine Thousand Nine Hundred Dollars
($8,209,900) pursuant to the terms of that certain Multifamily Note dated as of
June 27, 1999 by the Borrower to the order of Lender (the "Original Note"), as
amended by that certain First Amendment to Multifamily Note dated as of December
28, 2000 between Borrower and Lender (the "First Amendment to Note" together
with the Original Note, the "Existing Note"), and is secured by a first mortgage
lien on the real property described on Exhibit A attached hereto pursuant to
that certain Multifamily Deed of Trust, Assignment of Rents, Security Agreement
and Fixture Filing dated as of June 27, 1999 by Borrower for the benefit of
Lender (the "Original Deed of Trust") and recorded among the Land Records of
Ventura County 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 Borrower and
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.
0000-0000000-00; 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, Lender and ARV Assisted Living, Inc.,
a Delaware corporation ("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
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WHEREAS, the Borrower and the 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 and this Amendment, 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. Amendment to Existing Deed of Trust. Paragraph 3 of the Existing
Deed of Trust is hereby amended to change the amount of "Indebtedness" (as
defined therein) secured thereby from $8,209,900 to $11,980,000.
Section 2. Ratification. Except as may be amended or modified hereby, the
terms of the Existing Deed of Trust are hereby ratified, affirmed and confirmed
and shall otherwise remain in full force and effect.
Section 3. Amendments. This Amendment may be amended or supplemented by and
only by an instrument executed and delivered by each party hereto.
Section 4. 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 5. Governing Law. This Agreement shall be given effect and
construed by application of the law of the State of California.
Section 6. 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 7. 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.
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Section 8. 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 9. 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 10. 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 11. 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.
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IN WITNESS WHEREOF, the undersigned parties have signed and delivered this
instrument or have caused this instrument to be signed and delivered by its duly
authorized representative.
BORROWER:
RETIREMENT INNS III, LLC,
a Delaware limited liability company
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Manager
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:
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