EX-10.75.02
THIRD AMENDMENT TO LOAN
AGREEMENT
THIS THIRD AMENDMENT TO LOAN
AGREEMENT (this “
Agreement ”) is made as of October 22, 2008 by and
between EMERITUS CORPORATION , a Washington corporation
(“ Borrower ”), and NATIONWIDE HEALTH
PROPERTIES, INC. , a Maryland corporation (“
Lender ”), with respect to the following:
RECITALS:
A.
Borrower and Lender (as successor to
Healthcare Realty Trust Incorporated, a Maryland corporation
(“ HRT ”)) are parties to that certain Second
Amended and Restated Loan Agreement dated as of March 3, 2005, as
amended by that certain Amendment to Loan Agreement dated as of
August 6, 2007 and that certain Second Amendment to Loan Agreement
dated as of March 3, 2008 (as amended, the “ Loan
Agreement ”), pursuant to the terms and conditions of
which a loan in the principal amount of Twenty-One Million Four
Hundred Twenty-Six Thousand Dollars ($21,426,000) is due from
Borrower to Lender (the “ Loan
”). Unless otherwise defined herein, all
initially-capitalized terms herein shall have the same meanings
given to such terms in the Loan Agreement.
B.
The Loan is evidenced by that
certain Second Amended and Restated Note dated March 3, 2005, in
the original principal amount of the Loan, executed by Borrower in
favor of HRT (the “ Note ”), which Note has been
assigned from HRT to Lender pursuant to that certain Allonge dated
as of April 26, 2007.
C.
Borrower has requested that Lender
extend the Maturity Date of the Note and modify certain other terms
of the Loan. Lender is willing to grant Borrower’s
request upon the terms and subject to the conditions set forth in
this Agreement.
NOW, THEREFORE , in consideration of the foregoing Recitals,
the mutual covenants and agreements contained herein, and for other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Lender and Borrower hereto agree as
follows:
1.
Modification to Loan
Documents . Effective as of the Third Amendment
Effective Date (as defined below), the Loan Documents shall be
deemed amended as follows:
(a)
The term “ Maturity
Date ” as defined in Section 1 of the Note shall
mean March 31, 2012.
(b)
Section 2(a)
of the Note shall be deleted in its
entirety and the following substituted therefor:
“Interest shall accrue on the principal
amount outstanding hereunder at the rate of eight and one-half
percent (8.5%) per annum through March 3, 2009. From and
after March 4, 2009, Interest shall accrue on the principal amount
outstanding hereunder at the rate of nine percent (9%) per
annum.”
(c)
The following shall be added
immediately following Section 5 of the Note:
“Notwithstanding the foregoing, Borrower
shall have the right to prepay the Loan in whole, but not in part,
provided, however, that to prepay the Loan, Borrower must give
Lender written notice of Borrower’s election to prepay the
Loan by no later than December 1 st of
the calendar year immediately preceding the year in which the
prepayment is to occur (e.g. by December 1, 2009 in the event
Borrower elects to prepay the Loan in 2010) and therein
specifying the calendar quarter within which the prepayment shall
occur. Further, Borrower must give Lender not less than thirty (30)
days prior written notice specifying the date within the calendar
quarter identified by Borrower on which such prepayment will occur.
If Borrower elects to prepay the Loan but fails to do so on the
required date, Borrower shall have no further right to prepay the
Loan prior to the Maturity Date.”
(d)
All of the other Loan Documents not
specifically described in this Section 1 shall be
deemed amended to reflect the amendments described
herein.
2.
Amendment
Conditions . Notwithstanding Lender’s
negotiation, preparation or execution of this Agreement or any of
the instruments or documents required herein and notwithstanding
anything else to the contrary, no modification or amendment to the
Loan, the Note or the Loan Documents shall
