PROMISSORY NOTE
$16,000,000.00 December 6, 2002
FOR VALUE RECEIVED, the undersigned, Emeritus Realty Corporation, a Nevada
corporation ("Borrower"), promises to pay to Health Care Property Investors,
--------
Inc., a Maryland corporation ("Lender"), the principal amount of Sixteen Million
------
Dollars ($16,000,000.00), pursuant to the terms set forth in the Loan Agreement
dated as of even date herewith by and between Lender and Borrower (as the same
may be amended, restated or otherwise modified from time to time, the "Loan
----
Agreement"). The principal amount of and all interest on this Note shall be due
-----
and payable in accordance with the provisions of the Loan Agreement.
Upon the occurrence of an Event of Default (as defined in the Loan
Agreement) which is not cured within the applicable grace period set forth in
the Loan Agreement, the holder of this Note may, at its option, without notice
to or demand upon Borrower or any other party, declare immediately due and
payable the entire principal balance hereof together with all accrued and unpaid
interest thereon, plus any other amounts then owing pursuant to this Note,
whereupon the same shall be immediately due and payable
No waiver or modification of any of the terms of this Note shall be valid
or binding unless set forth in a writing specifically referring to this Note and
signed by a duly authorized officer of Lender or any holder of this Note, and
then only to the extent specifically set forth therein.
If any Event of Default occurs in any payment due under this Note, Borrower
and all guarantors and endorsers hereof, and their successors and assigns,
promise to pay all costs and expenses, including attorneys' fees, incurred by
each holder hereof in collecting or attempting to collect the indebtedness under
this Note, whether or not any action or proceeding is commenced. None of the
provisions hereof and none of the holder's rights or remedies under this Note on
account of any past or future defaults shall be deemed to have been waived by
the holder's acceptance of any past due installments or by any indulgence
granted by the holder to Borrower.
Borrower and all endorsers hereof, and their successors and assigns, hereby
waive presentment, demand, diligence, protest and notice of every kind, and
agree that they shall remain liable for all amounts due under this Note
notwithstanding any extension of time or change in the terms of payment of this
Note granted by any holder hereof, any change, alteration or release of any
property now or hereafter securing the payment hereof or any delay or failure by
the holder hereof to exercise any rights under this Note. Borrower and all
endorsers hereof, and their successors and assigns, hereby waive the right to
plead any and all statutes of limitation as a defense to a demand under this
Note to the full extent permitted by law.
This Note shall inure to the benefit of Xxxxxx, its successors and assigns
and shall bind the heirs, executors, administrators, successors and assigns of
Xxxxxxxx. Each reference herein to powers or rights of Lender shall also be
deemed a reference to the same power or right of such assignees, to the extent
of the interest assigned to them.
In the event that any one or more provisions of this Note shall be held to
be illegal, invalid or otherwise unenforceable, the same shall not affect any
other provision of this Note and the remaining provisions of this Note shall
remain in full force and effect.
This Note shall be governed by and construed in accordance with the laws of
the State of New York, without giving effect to the principles thereof relating
to conflicts of law; provided, that Lender and each holder hereof reserves any
and all rights it may have under federal law, including without limitation those
relating to the charging of interest.
[Signature Page Follows]
IN WITNESS WHEREOF, Xxxxxxxx has caused this Promissory Note to be duly
executed the day and year first above written.
EMERITUS REALTY CORPORATION,
a Nevada Corporation
By: /s/ Xxxxxxx X. Xxxxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Its: Vice President of Finance
