EX-10.62.07
SECOND AMENDMENT TO LOAN
AGREEMENT
This SECOND AMENDMENT TO LOAN AGREEMENT
(this “ Amendment ”), is made and entered into
as of December 29, 2008 (the “Effective Date ”),
among ESC-ARBOR PLACE, LLC , a Washington limited
liability company (the “ Borrower ”), the
Lenders party hereto, and GENERAL ELECTRIC CAPITAL
CORPORATION (“ GE Capital ”), as
administrative agent and collateral agent for the Lenders party to
the Loan Agreement described below (in such capacity, and together
with its successors and permitted assigns, the “ Agent ”).
W I T N E S S E T
H:
WHEREAS, Borrower, Lenders and the Agent are parties to
that certain Loan Agreement, dated June 30, 2006, as amended by
First Amendment thereto dated December 20, 2007 (as amended,
restated, replaced, supplemented or otherwise modified from time to
time, the “ Loan Agreement ”; capitalized terms
used but not defined in this Amendment have the meanings given in
the Loan Agreement), whereby Lenders have committed to make certain
loans and other extensions of credit to Borrower upon the terms and
conditions set forth therein; and
WHEREAS, in connection with the repayment of the Arkansas
Loan, Borrower has requested that the Lenders and the Agent, and
the Lenders and the Agent have agreed to, subject to terms and
conditions set forth herein, make certain modifications to the Loan
Agreement as further set forth herein; and
NOW THEREFORE , in consideration of the premises and mutual
covenants contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1.
Amendments to Loan Agreement . Subject to
the terms and conditions of this Amendment, from and after the
Effective Date the Loan Agreement shall be amended as
follows:
(a)
Section 2.2 of the Loan Agreement is hereby amended by
deleting such section in its entirety and substituting in lieu
thereof, the following:
“Section
2.2
Interest Rate; Late Charge
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The outstanding
principal balance of the Loan (including any amounts added to
principal under the Loan Documents) shall bear interest at a rate
of interest equal to nine and two hundred twenty-nine thousandths
of one percent (9.229%) per annum (the "Interest
Rate"). Interest shall be computed on the basis of a
fraction, the denominator of which is three hundred sixty (360) and
the numerator of which is the actual number of days elapsed from
the date on which the immediately preceding payment was due. If
Borrower fails to pay any installment of interest or principal
within five (5) days after the date on which the same is due,
Borrower shall pay to Agent a late charge on such past due amount,
as liquidated damages and not as a penalty, equal to the greater of
(a) interest at the Default Rate on such amount from the date when
due until paid, and (b) five percent (5%) of such amount, but not
in excess of the maximum amount of interest allowed by applicable
law. While any Event of Default exists, the Loan shall
bear interest at the Default Rate.”
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(b)
Section 2.5 of the Loan Agreement is hereby amended by
deleting such section in its entirety and substituting in lieu
thereof, the following:
“Section
2.5
Prepayment .
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At any time on
or after January 1, 2009, Borrower may prepay any of the
outstanding principal balance of the Loan in full at any
time. If the Loan is accelerated for any reason other
than casualty or condemnation, Borrower shall pay, in addition to
all other amounts outstanding under the Loan Documents, a
prepayment premium (" Prepayment Premium ") equal to one
percent (1%) of the outstanding principal balance of the Loan. Upon
any prepayment of the Loan (regardless of the source of such
prepayment and whether voluntary, by acceleration or otherwise),
Borrower shall pay Lender, for the benefit of Lender the Breakage
Amount . “ Breakage Amount
” means an amount, as reasonably calculated by
Lender, equal to the amount of any losses, expenses, liabilities
(including, without limitation, any loss (including interest paid)
and lost opportunity cost in connection with the re-employment of
such funds) that Lender or its Affiliates may sustain in its
capacity as a counterparty to any swap, collar, hedge or other
instrument relating specifically to the Loan as a result of any
prepayment of the Loan (regardless of the source of such prepayment
and whether voluntary, by acceleration or
otherwise).”
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(c)
Section 2.9 Defeasance of the Loan Agreement is
hereby amended by deleting such section in its entirety and
replacing it with “ Section 2.9 [Reserved]
”.
(d)
Section 7.28 of the Loan Agreement is hereby amended by
deleting such section in its entirety and substituting in lieu of
the following:
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Commencing on
September 30, 2008, and as of the last day of each calendar quarter
thereafter during the term of the Loan, the average daily occupancy
at the Project for the immediately preceding three (3) month period
shall be greater than eighty-five percent (85%) of the average
daily occupancy at both the Project for the three (3) month period
immediately preceding the Closing. “
Occupancy ” under this Section 7.28(a) shall
mean beds occupied by a resident at the Project and paying at least
applicable Medicare, Medicaid or insurance reimbursement
rates.
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Commencing on
September 30, 2008, and as of the last day of each calendar quarter
thereafter during the term of the Loan, the Debt Service Coverage
Ratio (as determined by Agent) for the immediately preceding six
(6) month period shall equal or exceed 0.90:1.00 and the Project
Yield (as determined by Agent) for the immediately p
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