firstamendmstrcredifacphntus.htm











FIRST AMENDMENT


TO MASTER CREDIT FACILITY AGREEMENT


 


THIS FIRST AMENDMENT TO MASTER CREDIT FACILITY AGREEMENT (this “Amendment”) is effective as of the 9th day of December, 2011, by and among (i) (a) PHNTUS ARBOR GARDENS INC., a California corporation, (b) PHNTUS AUSTIN GARDENS INC., a California corporation, (c) PHNTUS BECKETT MEADOWS LLC, a Delaware limited liability company, (d) PHNTUS CANTERBURY WOODS LLC, a Delaware limited liability company, (e) PHNTUS CHARLESTON GARDENS LLC, a Delaware limited liability company, (f) PHNTUS CREEKSIDE LLC, a Delaware limited liability company, (g) PHNTUS DESERT SPRINGS LLC, a Delaware limited liability company, (h) PHNTUS HERITAGE HILLS LLC, a Delaware limited liability company, (i) PHNTUS KP SHREVEPORT LLC, a Delaware limited liability company, (j) PHNTUS LAKES LLC, a Delaware limited liability company, (k) PHNTUS LO CAPE MAY LLC, a Delaware limited liability company, (l) PHNTUS LO FOLSOM INC., a California corporation, (m) PHNTUS LO JOLIET LLC, a Delaware limited liability company, (n) PHNTUS LO ROCKFORD LLC, a Delaware limited liability company, (o) PHNTUS OAK HOLLOW LLC, a Delaware limited liability company, (p) PHNTUS PINEHURST LLC, a Delaware limited liability company, (q) PHNTUS PINE MEADOW LLC, a Delaware limited liability company, (r) PHNTUS PINES AT GOLDSBORO LLC, a Delaware limited liability company, (s) PHNTUS QUAIL RIDGE LLC, a Delaware limited liability company, (t) PHNTUS RICHLAND GARDENS LLC, a Delaware limited liability company, (u) PHNTUS SILVERLEAF MANOR LLC, a Delaware limited liability company, and (v) PHNTUS STONEBRIDGE LLC, a Delaware limited liability company (individually and collectively, “Borrower”), (ii) EMERITUS CORPORATION, a Washington corporation (“Guarantor”; together with Borrower, “Borrower Parties”), (iii) BERKADIA COMMERCIAL MORTGAGE LLC, a Delaware limited liability company (“Lender”), and (iv) FANNIE MAE, the corporation duly organized under the Federal National Mortgage Association Charter Act, as amended, 12 U.S.C. §1716 et seq. and duly organized and existing under the laws of the United States (“Fannie Mae”).


 


RECITALS


A. Borrower Parties entered into that certain Master Credit Facility Agreement, dated as of April 1, 2008 (as amended, restated, modified, or supplemented from time to time, the “Master Agreement”) by and among (i) Borrower Parties and (ii) CAPMARK FINANCE INC., a California corporation (“Original Lender”).


 


B. All of Original Lender’s right, title and interest in the Master Agreement and the Loan Documents executed in connection with the Master Agreement or the transactions contemplated by the Master Agreement have been assigned to Fannie Mae pursuant to that certain Assignment of Master Credit Facility Agreement and other Loan Documents, dated as of even date with the Master Agreement (the “Assignment”).  Lender has acquired certain loan origination and servicing assets of Capmark Financial Group Inc., including, without limitation, the Loan Documents executed in connection with the Master Agreement.  Fannie Mae has not assumed (i) any of the obligations of Lender under the Master Agreement to make Future


 












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Advances or (ii) any of the obligations of Lender which are servicing obligations delegated to Lender as servicer of the Advances.  Fannie Mae has designated Lender as the servicer of the Advances contemplated by the Master Agreement.


 


C. The parties are executing this Amendment pursuant to the Master Agreement to reflect the release of the Mortgaged Property commonly known as Emeritus at Desert Springs located in El Paso County, Texas (the “Release Property”) from the Collateral Pool.


 


NOW, THEREFORE, the parties hereto, in consideration of the mutual promises and agreements contained in this Amendment and the Master Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, hereby agree as follows:


 


Section 1. Recitals.  The recitals set forth above are incorporated herein by reference as if fully set forth in the body of this Amendment.


 


Section 2. Release of Mortgaged Property.  The Release Property is hereby released from the Collateral Pool under the Master Agreement.  Except as otherwise set forth in Section 18 of the Security Instrument, PHNTUS DESERT SPRINGS LLC, a Delaware limited liability company, is hereby released as a Borrower from the Master Agreement and the Loan Documents.


 


Section 3. Exhibit A.  Exhibit A to the Master Agreement is hereby deleted in its entirety and replaced with the Exhibit A attached to this Amendment.


 


Section 4. Capitalized Terms.  All capitalized terms used in this Amendment which are not specifically defined herein shall have the respective meanings set forth in the Master Agreement.


 


Section 5. Full Force and Effect.  Except as expressly modified by this Amendment, all terms and conditions of the Master Agreement shall continue in full force and effect.


 


Section 6. Counterparts.  This Amendment may be executed in counterparts by the parties hereto, and each such counterpart shall be considered an original and all such counterparts shall constitute one and the same instrument.


 


Section 7. Applicable Law.  The provisions of Section 13.06 of the Master Agreement (entitled “Choice of Law; Consent to Jurisdiction; Waiver of Jury Trial”) are hereby incorporated into this Amendment by this reference to the fullest extent as if the text of such provisions were set forth in their entirety herein.












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IN WITNESS WHEREOF, the parties hereto have signed and delivered this Amendment under seal (where applicable) or have caused this Amendment to be signed and delivered under seal (where applicable), each by its duly authorized representative.  Where applicable law so provides, the parties hereto intend that this Amendment shall be deemed to be signed and delivered as a sealed instrument.


 


BORROWER:







PHNTUS ARBOR GARDENS INC., a California corporation








	
  

	
By:

	
Emeritus Corporation, a Washington corporation, its sole shareholder






















By:           /s/  Eric Mendelsohn 


 Eric Mendelsohn


 Senior Vice President Corporate Development












PHNTUS AUSTIN GARDENS INC, a California corporation








	
  

	
By:

	
Emeritus Corporation, a Washington corporation, its sole shareholder






















By:           /s/  Eric Mendelsohn 


 Eric Mendelsohn


 Senior Vice President Corporate Development












PHNTUS BECKETT MEADOWS LLC, a Delaware limited liability company








	
  

	
By:

	
Emeritus Corporation, a Washington corporation, its sole member






















By:           /s/  Eric Mendelsohn 


 Eric Mendelsohn


 Senior Vice President Corporate Development








	
  

	
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PHNTUS CANTERBURY WOODS LLC, a Delaware limited liability company








	
  

	
By:

	
Emeritus Corporation, a Washington corporation, its sole member






















By:           /s/  Eric Mendelsohn                                                       (SEAL)


 Eric Mendelsohn


 Senior Vice President Corporate Development












PHNTUS CHARLESTON GARDENS LLC, a Delaware limited liability company








	
  

	
By:

	
Emeritus Corporation, a Washington corporation, its sole member






















By:           /s/  Eric Mendelsohn 


 Eric Mendelsohn


 Senior Vice President Corporate Development












PHNTUS CREEKSIDE LLC, a Delaware limited liability company








	
  

	
By:

	
Emeritus Corporation, a Washington corporation, its sole member






















By:           /s/  Eric Mendelsohn 


 Eric Mendelsohn


 Senior Vice President Corporate Development








	
  

	
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PHNTUS DESERT SPRINGS LLC, a Delaware limited liability company








	
  

	
By:

	
Emeritus Corporation, a Washington corporation, its sole member






















By:           /s/  Eric Mendelsohn 


 Eric Mendelsohn


 Senior Vice President Corporate Development












PHNTUS HERITAGE HILLS LLC, a Delaware limited liability company








	
  

	
By:

	
Emeritus Corporation, a Washington corporation, its sole member






















By:           /s/  Eric Mendelsohn                                                       (SEAL)


 Eric Mendelsohn


 Senior Vice President Corporate Development












PHNTUS KP SHREVEPORT LLC, a Delaware limited liability company








	
  

	
By:

	
Emeritus Corporation, a Washington corporation, its sole member






















By:           /s/  Eric Mendelsohn 


 Eric Mendelsohn


 Senior Vice President Corporate Development








	
  

	
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PHNTUS LAKES LLC, a Delaware limited liability company








	
  

	
By:

	
Emeritus Corporation, a Washington corporation, its sole member






















By:           /s/  Eric Mendelsohn 


 Eric Mendelsohn


 Senior Vice President Corporate Development












PHNTUS LO CAPE MAY LLC, a Delaware limited liability company








	
  

	
By:

	
Emeritus Corporation, a Washington corporation, its sole member






















By:           /s/  Eric Mendelsohn 


 Eric Mendelsohn


 Senior Vice President Corporate Development












PHNTUS LO FOLSOM INC, a California corporation








	
  

	
By:

	
Emeritus Corporation, a Washington corporation, its sole shareholder






















By:           /s/  Eric Mendelsohn 


 Eric Mendelsohn


 Senior Vice President Corporate Development








	
  

	
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PHNTUS LO JOLIET LLC, a Delaware limited liability company








	
  

	
By:

	
Emeritus Corporation, a Washington corporation, its sole member






















By:           /s/  Eric Mendelsohn 


 Eric Mendelsohn


 Senior Vice President Corporate Development












PHNTUS LO ROCKFORD LLC, a Delaware limited liability company








	
  

	
By:

	
Emeritus Corporation, a Washington corporation, its sole member






















By:           /s/  Eric Mendelsohn 


 Eric Mendelsohn


 Senior Vice President Corporate Development












PHNTUS OAK HOLLOW LLC, a Delaware limited liability company








	
  

	
By:

	
Emeritus Corporation, a Washington corporation, its sole member






















By:           /s/  Eric Mendelsohn 


 Eric Mendelsohn


 Senior Vice President Corporate Development








	
  

	
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PHNTUS PINEHURST LLC, a Delaware limited liability company








	
  

	
By:

	
Emeritus Corporation, a Washington corporation, its sole member






















By:           /s/  Eric Mendelsohn 


 Eric Mendelsohn


 Senior Vice President Corporate Development












PHNTUS PINE MEADOW LLC, a Delaware limited liability company








	
  

	
By:

	
Emeritus Corporation, a Washington corporation, its sole member






















By:           /s/  Eric Mendelsohn 


 Eric Mendelsohn


 Senior Vice President Corporate Development












PHNTUS PINES AT GOLDSBORO LLC, a Delaware limited liability company








	
  

	
By:

	
Emeritus Corporation, a Washington corporation, its sole member






















By:           /s/  Eric Mendelsohn                                                       (SEAL)


 Eric Mendelsohn


 Senior Vice President Corporate Development








	
  

	
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PHNTUS QUAIL RIDGE LLC, a Delaware limited liability company








	
  

	
By:

	
Emeritus Corporation, a Washington corporation, its sole member






















By:           /s/  Eric Mendelsohn 


 Eric Mendelsohn


 Senior Vice President Corporate Development












PHNTUS RICHLAND GARDENS LLC, a Delaware limited liability company








	
  

	
By:

	
Emeritus Corporation, a Washington corporation, its sole member






















By:           /s/  Eric Mendelsohn 


 Eric Mendelsohn


 Senior Vice President Corporate Development












PHNTUS SILVERLEAF MANOR LLC, a Delaware limited liability company








	
  

	
By:

	
Emeritus Corporation, a Washington corporation, its sole member






















By:           /s/  Eric Mendelsohn 


 Eric Mendelsohn


 Senior Vice President Corporate Development








	
  

	
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PHNTUS STONEBRIDGE LLC, a Delaware limited liability company








	
  

	
By:

	
Emeritus Corporation, a Washington corporation, its sole member






















By:           /s/  Eric Mendelsohn 


 Eric Mendelsohn


 Senior Vice President Corporate Development












 



	
  

	
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GUARANTOR


 


EMERITUS CORPORATION, a Washington corporation


 







 


By:           /s/  Eric Mendelsohn 


 Eric Mendelsohn


 Senior Vice President Corporate Development























	
  

	
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LENDER:







BERKADIA COMMERCIAL MORTGAGE LLC, a Delaware limited liability company


 







 


By:           /s/  Allen Sullivan                                                                


Name:     Allen Sullivan 


Title:       Authorized Representative 


 













	
  

	
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FANNIE MAE:







FANNIE MAE, the corporation duly organized under the Federal National Mortgage Association Charter Act, as amended, 12 U.S.C. §1716 et seq. and duly organized and existing under the laws of the United States

















By:           /s/  Michael W. Dick 


Name:      Michael W. Dick 


Title:        Asst. Vice President 







 







 







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EXHIBIT A


 


SCHEDULE OF MORTGAGED PROPERTIES


AND INITIAL VALUATIONS








	
Borrower

	
Property Name & Address

	
Initial Valuation


	
PHNTUS ARBOR GARDENS INC., a California corporation

	
Arbor Gardens at Corona


2005 Kellogg Avenue


Corona, California  92870


(Riverside County)

	
$4,465,000


 


	
PHNTUS AUSTIN GARDENS INC, a California corporation

	
Austin Gardens


2150 W. Kettleman Lane


Lodi, California  95242


(San Joaquin County)

	
$5,840,000


 


	
PHNTUS BECKETT MEADOWS LLC, a Delaware limited liability company

	
Beckett Meadows


7709 Beckett Road


Austin, Texas  78749


(Travis County)

	
$16,400,000


 


	
PHNTUS CANTERBURY WOODS LLC, a Delaware limited liability company

	
Canterbury Woods


100 Garfield Avenue


Attleboro, Massachusetts  02703


(Bristol County)

	
$29,610,000


 


	
PHNTUS CHARLESTON GARDENS LLC, a Delaware limited liability company

	
Charleston Gardens


800 Association Drive


Charleston, West Virginia  25311


(Kanawha County)

	
$22,970,000


 


	
PHNTUS CREEKSIDE LLC, a Delaware limited liability company

	
Creekside


2000 West Spring Creek Parkway


Plano, Texas  75023


(Collin County)

	
$9,000,000


 


	
PHNTUS HERITAGE HILLS LLC, a Delaware limited liability company

	
Heritage Hills


3607 Weems Road


Columbus, Georgia  31909


(Muscogee County)

	
$7,800,000


 


	
PHNTUS KP SHREVEPORT LLC, a Delaware limited liability company

	
Kingsley Place Shreveport


7110 University Drive


Shreveport, Louisiana  71105


(Caddo Parish)

	
$8,700,000


 


	
PHNTUS LAKES LLC, a Delaware limited liability company

	
The Lakes


7460 Lake Breeze Drive


Fort Meyers, Florida  33907


(Lee County)

	
$45,400,000


 


	
PHNTUS LO CAPE MAY LLC, a Delaware limited liability company

	
Loyalton of Cape May


591 Route 9 South


Cape May, New Jersey  08210


(Cape May County)

	
$14,126,000


 


	
PHNTUS LO FOLSOM INC, a California corporation

	
Loyalton of Folsom


780 Harrington Way


Folsom, California  95630


(Sacramento County)

	
$28,720,000


 


	
PHNTUS LO JOLIET LLC, a Delaware limited liability company

	
Loyalton of Joliet


3320 Executive Drive


Joliet, Illinois  60431


(Will County)

	
$12,470,000


 





 


 





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PHNTUS LO ROCKFORD LLC, a Delaware limited liability company

	
Loyalton of Rockford


1545 Temple Lane


Rockford, Illinois  61112


(Winnebago County)

	
$20,340,000


 


	
PHNTUS OAK HOLLOW LLC, a Delaware limited liability company

	
Oak Hollow


2016 L Don Dodson Parkway


Bedford, Texas  76095


(Tarrant County)

	
$10,400,000


 


	
PHNTUS PINEHURST LLC, a Delaware limited liability company

	
Pinehurst


5403 Plantation Drive


Tyler, Texas  75703


(Smith County)

	
$8,640,000


 


	
PHNTUS PINE MEADOW LLC, a Delaware limited liability company

	
Pine Meadows


107 Fox Chase Drive


Hattiesburg, Mississippi  39401


(Forrest County)

	
$5,275,000


 


	
PHNTUS PINES AT GOLDSBORO LLC, a Delaware limited liability company

	
Pines at Goldsboro


380 Country Day Road


Goldsboro, North Carolina  27530


(Wayne County)

	
$18,010,000


 


	
PHNTUS QUAIL RIDGE LLC, a Delaware limited liability company

	
Quail Ridge


5204 Elgin Avenue


Lubbock, Texas  79413


(Lubbock County)

	
$11,100,000


 


	
PHNTUS RICHLAND GARDENS LLC, a Delaware limited liability company

	
Richland Gardens


770 W. Gage Boulevard


Richland, Washington  99352


(Benton County)

	
$16,800,000


 


	
PHNTUS SILVERLEAF MANOR LLC, a Delaware limited liability company

	
Silverleaf Manor


4555 35th Avenue


Meridian, Mississippi  39305


(Lauderdale County)

	
$9,670,000


 


	
PHNTUS STONEBRIDGE LLC, a Delaware limited liability company

	
Stonebridge


9271 White Rock Trail


Dallas, Texas  75238


(Dallas County)

	
$9,200,000


 






















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