THAT CERTAIN AMENDED AND RESTATED PROMISSORY NOTE SECURED
BY DEED OF TRUST ("AMENDED AND RESTATED NOTE"), IN THE FORM OF EXHIBIT A
ATTACHED HERETO AND DATED AS OF EVEN DATE HEREWITH.
THE NOTE IS HEREBY REPLACED
BY THE AMENDED AND RESTATED NOTE AND SHALL BE EFFECTIVE AS OF THE DATE HEREOF.
THE TERMS, COVENANTS AND CONDITIONS OF THE AMENDED AND RESTATED NOTE SHALL
SUPERSEDE THE NOTE, AND ALL REFERENCES TO THE NOTE OR NOTES IN THE LOAN
DOCUMENTS ARE HEREBY AMENDED TO MEAN THE AMENDED AND RESTATED NOTE.
3.4
NOTWITHSTANDING ANY LANGUAGE TO THE CONTRARY CONTAINED HEREIN,
ADMINISTRATIVE AGENT HEREBY WAIVES ALL THE DEFAULTS OF BORROWER OR ANY OF
BORROWER'S GUARANTORS, INDEMNITORS OR AFFILIATES TO THE EXTENT THE SAME OCCURRED
PRIOR TO THE DATE HEREOF AND IS SPECIFICALLY LISTED ON SCHEDULE 3.4 ATTACHED
HERETO.
4.
MODIFICATION OF LOAN AGREEMENT.
THE LOAN AGREEMENT IS HEREBY
SUPPLEMENTED AND MODIFIED TO INCORPORATE THE FOLLOWING, WHICH SHALL SUPERSEDE
AND PREVAIL OVER ANY CONFLICTING PROVISIONS OF THE LOAN AGREEMENT:
4.1
THE FIRST SENTENCE OF RECITAL B OF THE LOAN AGREEMENT IS HEREBY
DELETED IN ITS ENTIRETY AND REPLACED WITH THE FOLLOWING:
"Borrower has begun construction on the Property of
certain improvements consisting of:
an approximately 99 unit assisted living
facility (the "Facility") together with all appurtenances, fixtures, and tenant
improvements now or hereafter located on the Property ("Improvements")."
4.2
THE DEFINITIONS OF "APPLICABLE LIBO RATE", "FIXED RATE PERIOD" AND
"OTHER RELATED DOCUMENTS", SET FORTH IN SECTION 1.1 OF THE LOAN AGREEMENT, ARE
HEREBY DELETED IN THEIR ENTIRETY AND
REPLACED WITH THE FOLLOWING:
"'Applicable LIBO Rate' - is the rate of interest, rounded upward to the nearest
whole multiple of one-hundredth of one percent (.01%), equal to the sum of:
(a)
three percent (3.0%) plus (b) the LIBO Rate, which rate is divided by one (1.00)
minus the Reserve Percentage:
Applicable LIBO Rate = 3.0%
+
LIBO RATE
(1-
Reserve Percentage)"
"'Fixed Rate Period' - means the period of one (1) month; provided that no such
period shall extend beyond the Maturity Date."
"'Other Related Documents' - means (i) the Guaranty Deed of Trust, (ii) the
Secured Repayment and Performance Guaranty and (iii) those documents, as
hereafter amended, supplemented, replaced or modified from time to time,
properly executed and in recordable form, if necessary, listed on Exhibit B as
Other Related Documents."
4.3
THE FOLLOWING DEFINITIONS ARE HEREBY ADDED TO SECTION 1.1 OF THE LOAN
AGREEMENT:
"'Gross Revenues' means the sum of any and all amounts, payments, fees, rentals,
additional rentals, income, interest and other monies directly or indirectly
received by or on behalf of or credited to Borrower from any person with respect
to Borrower's ownership, use, development, operation, leasing, franchising,
marketing or licensing of the Property and Improvements including any payment
Page 3 of 25
Loan No. 105706
to Borrower of insurance proceeds.
Notwithstanding anything to the contrary
contained in the foregoing, Gross Revenues shall exclude (1) security deposits
until and unless forfeited by the depositor; (2) lump sum payments to Borrower
for