Agmt 2007 Estabrook Senior Housing LP etc

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SECURED PROMISSORY NOTE $1,978,000 San Leandro, California 2007 FOR VALUE RECEIVED, Estabrook Senior Housing, L.P., a California limited partnership ("Borrower"), promises to pay to the Redevelopment Agency of the City of San Leandro, a public body corporate and politic ("Agency"), in lawful money of the United States of America, the principal sum of One Million Nine Hundred Seventy-Eight Thousand Dollars ($1,978,000) or so much thereof as may be advanced by Agency pursuant to the Owner Participation and Loan Agreement referred to below, together with interest on the outstanding principal balance in accordance with the terms and conditions described herein. Interest shall accrue on the outstanding principal balance at a rate equal to three percent (3%) simple interest per annum, commencing upon the date of disbursement thereof. lnterest shall be calculated on the basis of a year of 365 days, and charged for the actual number of days elapsed. This Secured Promissory Note (this "Note") has been executed and delivered pursuant to and in accordance with an Owner Participation and Loan Agreement executed by and between Borrower, Agency, and the City of San Leandro, a municipal corporation ("City") dated as of , 2007 (the "OPA"), and is subject to the terms and conditions of the OPA, which is by this reference incorporated herein and made a part hereof. Capitalized terms used but not defined herein shall have the meaning ascribed to such terms in the OPA. This Note is secured by a Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing ("Agency Deed of Trust") dated as of the date hereof, executed by Borrower for the benefit of Agency and encumbering the property described therein. Agency shall be entitled to the benefits of the security provided by the Agency Deed of Trust and shall have the right to enforce the covenants and agreements contained herein, in the OPA, and the Regulatory Agreement. The Regulatory Agreement shall remain effective for the full term thereof and shall survive the repayment of this Note. PAYMENTS 1.1 PAYMENT DATES; MATURITY DATE. Annual payments on this Note shall be payable on a residual receipts basis with fifty percent (50%) of all Surplus Cash (defined below) payable to Agency toward principal and accrued interest. Payments shall be credited first to any unpaid late charges and other costs and fees then due, then to accrued interest, and then to principal. In no event shall any amount due under this Note become subject to any rights, offset, deduction or counterclaim on the part of Borrower. The entire outstanding principal balance of this Note, together with interest accrued thereon and any other sums accrued hereunder shall be payable in full on the fifty-fifth (55th) anniversary of the date upon which the City issues a final certificate of occupancy for the Project ("Maturity Date"). Notwithstanding any contrary provision set forth herein, including without limitation, the definition of Surplus Cash, if and for so long as the Property is encumbered by a Use Agreement, Regulatory Agreement, and/or Deed of Trust in favor of the U.S. Department of Housing and Urban Development (HUD) in connection with a 956227-4