ex107008.htm


 










(Loyalton)


THIRD AMENDMENT TO PROMISSORY NOTE


 


THIS THIRD AMENDMENT TO PROMISSORY NOTE (this “Third Amendment”) is executed as of the 1st day of July, 2011 (the “Effective Date”), by and between PHNTUS LO JOLIET SCU LLC, a Delaware limited liability company, 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 executed to the order of Lender that certain Promissory Note dated April 1, 2008, in the principal amount of $8,000,000.00, as amended by that certain First Amendment to Promissory Note dated May 1, 2009, as amended by that certain Second Amendment dated November 18, 2009  (the “Note”).  Unless otherwise defined herein, capitalized terms shall have the meaning assigned to them in the Note.


 


B.           Borrower 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 August 1, 2011, with the following:


 







“The “2011 Note Rate” shall mean an interest rate charged beginning on the Effective Date and continuing through December 31, 2011, 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 (2.50%), plus four percent (4.00%) (“2011 Margin”).  Beginning January 1, 2012, the “2012 Note Rate” charged shall be LIBOR for a term of one month determined solely by Lender on each Note Rate Adjustment Date, but not less than two and one-half percent (2.50%), plus five percent (5.00%) (“2012 Margin”; the 2011 Margin and the 2012 Margin, as then in effect, may be referred to herein as the “Margin”), which combined figure shall be rounded upwards to the nearest one-eighth percent (.125%). The term “Note Rate” shall mean either the 2011 Note Rate or the 2012 Note Rate as applicable at the time the Note Rate is charged.







    2.        Section 4 of the Note, Maturity Date, is hereby amended as of the Effective Date to extend the Maturity Date from October 1, 2011, until November 1, 2012.   All references in the Note to the “Maturity Date” are hereby amended to mean November 1, 2012.


 







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  Section 4.1 of the Note, Extension of Maturity Date, is hereby deleted in its entirety.


 







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







      5.           This Third 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.







  IN WITNESS WHEREOF, Borrower and Lender have each caused this Third Amendment to be duly executed and delivered on its behalf by its duly authorized representatives, on the day and year first above written.


 







                                                                                         BORROWER:


 







                                         PHNTUS LO JOLIET SCU LLC, a Delaware limited liability company


 







 


                                         By:  Emeritus Corporation


 


                                         Its:  Sole Member_____________________                                                      


                                         By:   /s/ Eric Mendelsohn                          


                                         Name:    Eric Mendelsohn


                                                       [Print name]


                                                                   Title:SVP Corporate Development












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Acknowledged by Guarantor


this 27   day of July, 2011







EMERITUS CORPORATION, a


Washington corporation












By: /s/ Eric Mendelsohn                          


       Eric Mendelsohn,


       Senior Vice President Corporate Development







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CAPMARK BANK, a Utah industrial bank







 







 


By: /s/ Laura Y. McDonald         


 


Name:  Laura Y. McDonald        


 


Title:  SVP/Managing Director   


      







 

















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