ex105712amend1capmarknote.htm


    EX-10.57.12

     

    
 

    FIRST
AMENDMENT TO PROMISSORY NOTE

     

    (AMENDED
AND RESTATED)

     

    THIS FIRST AMENDMENT TO PROMISSORY
NOTE (AMENDED AND RESTATED) (this “First Amendment”) is executed as of
the 31st day of
December, 2008 (the “Effective Date”), by and between FRETUS INVESTORS EL PASO LP, a
Delaware limited partnership, having an address at 3131 Elliott Avenue, Suite
500, Seattle, Washington 98121 (the “Borrower”), and CAPMARK BANK, a Utah
industrial bank, having an address at 6955 Union Park Center, Suite 330,
Midvale, Utah 84047, together with its successors and assigns (the
“Lender”).

     

    RECITALS

     

    A.           Borrower
and certain other borrower parties executed to the order of Lender that certain
Promissory Note (Amended and Restated) dated May 1, 2008, in the original
principal amount of $16,800,000.00 (the “Note”).  Unless otherwise
defined herein, capitalized terms shall have the meaning assigned to them in the
Note.

     

    B.           Concurrently
herewith the outstanding principal balance of the Note has been reduced to
$4,350,000.00 and all of the borrower parties, other than Borrower, have been
released from further liability under the Note.

     

    C.           Borrower,
as the sole remaining Borrower under the Note, has requested that Lender modify
certain terms of the Note, and Lender has so agreed, on the terms and conditions
contained herein.

     

    AGREEMENT

     

    NOW, THEREFORE, in
consideration of the above Recitals and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Borrower and
Lender hereby amend the Note as follows:

     

    1. Section
1.4 of the Note, Note
Rate and Note Rate Adjustment Dates, is hereby amended by deleting the
first sentence thereof and replacing it, as of the Effective Date, with the
following:

     

    “The
“Note Rate” shall mean
an interest rate which is the average of London Interbank Offered Rates (“LIBOR”), in U.S. dollar
deposits, for a term of one month determined solely by Lender on each Note Rate
Adjustment Date (defined below), but not less than two and one-half percent
(2.5%), plus
four percent (4.00%) (“Margin”), which combined
figure shall be rounded upwards to the nearest one-eighth percent (.125%);
provided that in no event shall the Note Rate be less than six and one-half
percent (6.5%).”

     

    2.           Except
as expressly amended herein, the Note shall remain in full force and effect in
accordance with its terms and conditions.


    
      
         


      

      
        1

        
          

        

      

      
         


      

    


    3.           This
First Amendment may be executed in counterparts, each of which shall be deemed
to be an original but all of which taken together shall constitute but one and
the same instrument.

    


    PLEASE BE ADVISED THAT ORAL
AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND CREDIT, OR FORBEAR FROM
ENFORCING REPAYMENT OF A DEBT ARE UNENFORCEABLE UNDER WASHINGTON
LAW.

     

    


    


    [REMAINDER
OF THIS PAGE IS INTENTIONALLY LEFT BLANK]

     

    



    
      
         


      

      
        2

        
          

        

      

      
         


      

    


    IN WITNESS WHEREOF, Borrower
and Lender have caused this First Amendment to be properly executed by their
respective duly authorized representatives as of the date first above
written.

    


    


    FRETUS Investors El Paso LP, a
Delaware limited partnership

    


    By:           Village
Oaks Cielo Vista Investors LLC, a Delaware limited liability
company

    Its:           General
Partner

    


    By:           FRETUS
Investors LLC, a Washington limited liability company

    Its:           Managing
Member

    


    By:           Emeritus
Corporation, a Washington corporation

    Its:           Administrative
Member

    


    


    


    By:           /s/
Eric
Mendelsohn                                           

    Eric Mendelsohn

    Its:           Senior Vice President Corporate
Development

    



    
      
         


      

      
        3

        
          

        

      

      
         


      

    


    CAPMARK BANK, a Utah
industrial bank

    


    


    By:           /s/
Malana C. Bryant____(Seal)

    Name:            Malana
C. Bryant __________

    Its:           Authorized
Signer_______

    


    



    
      
         


      

      
        4