ex1057071stamendloanfretus.htm


    
 

    EX-10.57.07


    FIRST
AMENDMENT TO LOAN AGREEMENT

    (Amended
and Restated)

    


     

    THIS FIRST AMENDMENT TO LOAN
AGREEMENT (Amended and Restated) (this “Amendment”) is made as of April 25, 2008, by and among the twenty-three (23) Delaware
limited liability companies or limited partnerships listed on Schedule A attached
hereto and made a part hereof (together with their respective successors and
assigns, the “Borrowers”, and individually, a “Borrower”), and CAPMARK BANK, a
Utah industrial bank (together with its successors and assigns,
“Lender”).

     

    RECITALS

     

    A.           Borrowers
and other borrower parties obtained forty-eight (48) loans from Lender in the
aggregate principal sum of $90,000,000.00, as evidenced and governed by that
certain Loan Agreement dated August 31, 2005 (the “Original Loan
Agreement”).

     

    B.           Borrowers
subsequently requested that the loans evidenced and governed by the Original
Loan Agreement be consolidated into two (2) loans and increased to an aggregate
of $140,000,000.00, with one note for $132,000,000.00 and the second for
$8,000,000.00, and Lender agreed to such consolidation and increase upon certain
conditions which were set forth in an Amended and Restated Loan Agreement (the
“Loan Agreement”) dated February 28, 2007.

     

    C.           The
$8,000,000.00 note has been paid in full.

     

    D.           Borrower
has requested, and Lender has agreed, to revise such Loan Agreement on the terms
and conditions hereinafter set forth.

     

    AGREEMENT

     

    NOW, THEREFORE, in
consideration of Ten and No/100 Dollars ($10.00) and other good and valuable
consideration, the sufficiency of which is hereby acknowledged, it is hereby
agreed as follows:

     

    1.           Potential Release
of Certain Borrowers and Facilities from Agreement.

     

    Upon
receipt of a principal reduction of $99,260,660.00, resulting in an outstanding
balance of $32,739,340.00 under the $132,000,000.00 note, Lender shall release
the specific Borrowers listed on Exhibit B (the “Released Borrowers”), attached
hereto and incorporated herein by reference, from the Loan Agreement and other
documents relating to the Loan Agreement.  Upon such release, the Loan
Agreement shall be automatically amended so that the term “Borrowers” shall
refer only to the following entities:

     

    a.           Fretus
Investors Houston LLC (Champion Oaks Facility),

     

    b.           Fretus
Investors Greenwood LLC (Greenwood Facility),

     

    c.           Fretus
Investors San Antonio LLC (Woodbridge Estates Facility),

     


    
      
         


      

      
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    d.           Fretus
Investors El Paso LLC (Cielo Vista Facility), and

     

    e.           Fretus
Investors Indianapolis LLC (Meridian Oaks Facility).

     

    All
Mortgages or Deeds of Trust and Security Agreements made by the Released
Borrowers shall be referred to as the “Released
Mortgages”.   Upon such release, all obligations under this Loan
Agreement and the Loan Documents related to the Released Borrowers and the
Released Mortgages shall be deemed fully satisfied and the properties encumbered
shall be fully released from the liens created by the Released Mortgages and
Loan Documents.

     

    2.           Sale of
Certain Facility.  Borrowers have
informed Lender that the Facility known as “Meridian Oaks” in Indianapolis,
Indiana is intended to be sold prior to the Maturity Date under the
Note.  So long as no Event of Default exists at the time of such sale,
Lender shall consent to a sale of Meridian Oaks in consideration of a repayment
of principal to Lender of $3,200,000.00 from the sales proceeds of the
sale.  Upon payment of $3,200,000.00, Lender shall release the
mortgage encumbering Meridian Oaks as well as release the owner of Meridian
Oaks, Fretus Investors Indianapolis LLC, from the Loan Agreement and other
related Loan Documents.

     

    3.           Appraisals.  The following is
hereby added as Section 3.34 of the Loan Agreement:

     

    Lender
has ordered new appraisals on four (4) of the Facilities, namely:

     

    1.           Champion
Oaks Facility,

    2.           Greenwood
Facility,

    3.           Woodbridge
Estates Facility, and

    4.           Cielo
Vista Facility.

     

    Borrowers
shall be responsible for any and all costs associated with such
appraisals.  Should the four (4) appraisals reflect a loan to value
ratio greater than 75%, Borrowers shall pay down the Loan within 15 days of
notice from Lender in an amount sufficient to result in a loan to value ratio of
75% or less.

     

    4.           Incorporation
of Loan Agreement.  Except as amended
herein, the Loan Agreement is in full force and effect and the terms and
conditions of the Loan Agreement are incorporated herein by
reference.

     

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

     

    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.

     


    
      
         


      

      
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    CAPMARK BANK, a Utah
industrial bank

    


    


    By:           ___________________________(Seal)

    Name:                      ___________________________

    Its:           ___________________________

    



    
      
         


      

      
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    FRETUS
Investors Chandler LLC

    FRETUS
Investors Glendale LLC

    FRETUS
Investors Mesa LLC

    FRETUS
Investors Orange Park LLC

    FRETUS
Investors Jacksonville LLC

    FRETUS
Investors Melbourne LLC

    FRETUS
Investors Orlando LLC

    FRETUS
Investors Winter Springs LLC

    FRETUS
Investors Fort Wayne LLC

    FRETUS
Investors Indianapolis LLC

    FRETUS
Investors Greenwood LLC

    FRETUS
Investors Las Vegas LLC

    each a Delaware limited liability
company

    


    By:           FRETUS
Investors LLC, a Washington limited liability company

    Its:           Manager

    


    By:           Emeritus
Corporation, a Washington corporation

    Its:           Administrative
Member

    


    


    


    By:           /s/ Eric
Mendelsohn                                                      

    Eric Mendelsohn

    Its:           Senior
Vice President Corporate Development

    



    
      
         


      

      
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    FRETUS Investors Austin LP, a
Delaware limited partnership

    By:           Duval
Oaks Investors LLC, a Delaware limited liability company

    Its:           General
Partner

    FRETUS Investors Dallas LP, a
Delaware limited partnership

    By:           Kingsley
Oaks Investors LLC, a Delaware limited liability company

    Its:           General
Partner

    FRETUS Investors El Paso LP, a
Delaware limited partnership

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

    Its:           General
Partner

    FRETUS Investors Farmers Branch
LP, a Delaware limited partnership

    By:           Village
Oaks Farmers Branch Investors LLC, a Delaware limited liability
company

    Its:           General
Partner

    FRETUS Investors Fort Worth
LP, a Delaware limited partnership

    By:           Tanglewood
Oaks Investors LLC, a Delaware limited liability company

    Its:           General
Partner

    FRETUS Investors Hollywood Park
LP, a Delaware limited partnership

    By:           Village
Oaks Hollywood Park Investors LLC, a Delaware limited liability
company

    Its:           General
Partner

    FRETUS Investors Houston LP, a
Delaware limited partnership

    By:           Champion
Oaks Investors LLC, a Delaware limited liability company

    Its:           General
Partner

    FRETUS Investors Memorial Oaks
Houston LP, a Delaware limited partnership

    By:           Memorial
Oaks Investors LLC, a Delaware limited liability company

    Its:           General
Partner

    FRETUS Investors Plano LP, a
Delaware limited partnership

    By:           Collin
Oaks Investors LLC, a Delaware limited liability company

    Its:           General
Partner

    FRETUS Investors San Antonio
LP, a Delaware limited partnership

    By:           Northwest
Oaks Investors LLC, a Delaware limited liability company

    Its:           General
Partner

    FRETUS Investors Sugar Land
LP, a Delaware limited partnership

    By:           Sugar
Land 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

    



    
      
         


      

      
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    SCHEDULE
A

    


    [List of
Borrowers]

    


    


    
      	
              FRETUS
      Investors Chandler LLC

            
	
              FRETUS
      Investors Glendale LLC

            
	
              FRETUS
      Investors Mesa LLC

            
	
              FRETUS
      Investors Orange Park LLC

            
	
              FRETUS
      Investors Jacksonville LLC

            
	
              FRETUS
      Investors Melbourne LLC

            
	
              FRETUS
      Investors Orlando LLC

            
	
              FRETUS
      Investors Winter Springs LLC

            
	
              FRETUS
      Investors Fort Wayne LLC

            
	
              FRETUS
      Investors Indianapolis LLC

            
	
              FRETUS
      Investors Greenwood LLC

            
	
              FRETUS
      Investors Las Vegas LLC

            
	
              FRETUS
      Investors Austin LP

            
	
              FRETUS
      Investors Dallas LP

            
	
              FRETUS
      Investors El Paso LP

            
	
              FRETUS
      Investors Farmers Branch LP

            
	
              FRETUS
      Investors Fort Worth LP

            
	
              FRETUS
      Investors Hollywood Park LP

            
	
              FRETUS
      Investors Houston LP

            
	
              FRETUS
      Investors Memorial Oaks Houston LP

            
	
              FRETUS
      Investors Plano LP

            
	
              FRETUS
      Investors San Antonio LP

            
	
              FRETUS
      Investors Sugar Land LP

            


    

    


    



    
      
         


      

      
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    SCHEDULE
B

    


    [List of
Borrowers Being Released]

    


    


    
      	
              FRETUS
      Investors Chandler LLC

            
	
              FRETUS
      Investors Glendale LLC

            
	
              FRETUS
      Investors Mesa LLC

            
	
              FRETUS
      Investors Orange Park LLC

            
	
              FRETUS
      Investors Jacksonville LLC

            
	
              FRETUS
      Investors Melbourne LLC

            
	
              FRETUS
      Investors Orlando LLC

            
	
              FRETUS
      Investors Winter Springs LLC

            
	
              FRETUS
      Investors Fort Wayne LLC

            
	
              FRETUS
      Investors Las Vegas LLC

            
	
              FRETUS
      Investors Austin LP

            
	
              FRETUS
      Investors Dallas LP

            
	
              FRETUS
      Investors Farmers Branch LP

            
	
              FRETUS
      Investors Fort Worth LP

            
	
              FRETUS
      Investors Hollywood Park LP

            
	
              FRETUS
      Investors Memorial Oaks Houston LP

            
	
              FRETUS
      Investors Plano LP

            
	
              FRETUS
      Investors Sugar Land LP

            


    

    



    
      
         


      

      
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