PROMISSORY NOTE
Loan
No. 07-0004235
$15,930,000______________,
2005
| 1. |
Promise
to Pay.
|
FOR
VALUE
RECEIVED, EMERITUS PROPERTIES-ARKANSAS, LLC, a Delaware limited liability
company ("Borrower")
whose
address is c/o Emeritus Corporation, 0000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxxxxx 00000 promises to pay to the order of GENERAL
ELECTRIC CAPITAL CORPORATION, INC.,
a
Delaware corporation, and its successors and assigns (in its individual
capacity, "GECC",
and as
agent for Lenders (as defined below), "Agent"),
the
sum of Fifteen Million Nine Hundred Thirty Thousand and No/100 Dollars
($15,930,000), together with all other amounts added thereto pursuant to this
Note or otherwise payable to GECC under the Loan Documents (as hereinafter
defined), including, but not limited to, any Prepayment Premium as
defined and set forth in the Loan Agreement of even date herewith among GECC
and
the other financial institutions who are or hereafter become parties to the
Loan
Agreement (together with GECC, collectively or individual, as the context may
require, "Lender"),
Borrower and Agent (as amended, modified, supplemented or restated from time
to
time, the "Loan
Agreement")
(or so
much thereof as may from time to time be outstanding), together with interest
thereon as hereinafter set forth, all payable in lawful money of the United
States of America. Payments shall be made at the offices of Agent at GEMSA,
Xxxx
00000, Xxx Xxxxxxx, Xxxxxxxxxx 00000-9229 (or such other address as Agent may
hereafter designate in writing to Borrower). Except as otherwise provided
herein, capitalized terms used in this Note shall have the same meanings as
are
assigned to such terms in the Loan Agreement.
This
Note
is evidenced and secured by, among other things, the Loan Documents and
those certain
Security Documents encumbering, among other things, the Projects. ". Reference
is hereby made to the Loan Agreement for a statement of all of the terms and
conditions under which the Loan evidenced hereby is made and to be
repaid.
| 2. |
Payments.
|
The
principal amount of the indebtedness evidenced hereby shall be payable in the
amounts and on the dates specified in the Loan Agreement, the terms of which
are
hereby incorporated herein by reference. Interest thereon shall be paid until
such principal amount is paid in full at such interest rates and at such times,
and pursuant to such calculations, as are specified in the Loan Agreement.
If
any payment on this Note becomes due and payable on a day other than a Business
Day, the maturity thereof shall be extended to the next succeeding Business
Day,
and, with respect to payments of principal, interest thereon shall be payable
at
the then applicable rate during such extension. Payments will be applied in
accordance with the terms of the Loan Agreement. Borrower may prepay or defease
this Note, if at all, only to the
extent
permitted by and in accordance with the provisions of the Loan Agreement,
including the payment of any applicable Prepayment Premium then due.
| 3. |
Default.
|
Upon
and
after the occurrence of and during the continuance of any Event of Default,
this
Note may, as provided in the Loan Agreement, and without demand, notice or
legal
process of any kind, be declared, and immediately shall become, due and payable.
| 4. |
APPLICABLE
LAW; SEVERABILITY.
|
THIS
NOTE
SHALL BE GOVERNED BY AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH
THE
INTERNAL LAWS OF THE STATE OF ILLINOIS, WITHOUT REGARD TO CONFLICTS OF LAW
PRINCIPLES. THE INVALIDITY, ILLEGALITY OR UNENFORCEABILITY OF ANY PROVISION
OF
THIS NOTE SHALL NOT AFFECT OR IMPAIR THE VALIDITY, LEGALITY OR ENFORCEABILITY
OF
THE REMAINDER OF THIS NOTE, AND TO THIS END, THE PROVISIONS OF THIS NOTE ARE
DECLARED TO BE SEVERABLE.
| 5. |
Waiver.
|
Borrower,
for itself and all endorsers, guarantors and sureties of this Note, and their
heirs, legal representatives, successors and assigns, hereby waives presentment
for payment, demand, notice of nonpayment, notice of dishonor, protest of any
dishonor, notice of protest and protest of this Note, and all other notices
in
connection with the delivery, acceptance, performance, default or enforcement
of
the payment of this Note, and agrees that their respective liability shall
be
unconditional and without regard to the liability of any other party and shall
not be in any manner affected by any indulgence, extension of time, renewal,
waiver or modification granted or consented to by Agent. Borrower, for itself
and all endorsers, guarantors and sureties of this Note, including but not
limited to Guarantor,
and their heirs, legal representatives, successors and assigns, hereby consents
to every extension of time, renewal, waiver or modification that may be granted
by Agent with respect to the payment or other provisions of this Note, and
to
the release of any makers, endorsers, guarantors or sureties, and their
respective heirs, legal representatives, successors and assigns, and of any
collateral given to secure the payment hereof, or any part hereof, with or
without substitution, and agrees that additional makers, endorsers, guarantors
or sureties and their heirs, legal representatives, successors and assigns,
may
become parties hereto without notice to Borrower or to any endorser, guarantor
or surety and without affecting the liability of any of them.
| 6. |
Miscellaneous.
|
6.1. Amendments.
This
Note
may not be terminated or amended orally, but only by a termination or amendment
in writing signed by Agent.
6.2. Lawful
Rate of Interest.
In
no
event whatsoever shall the amount of interest paid or agreed to be paid pursuant
to this Note or any of the Loan Documents exceed the highest lawful rate of
interest permissible under applicable law. If, from any circumstances
whatsoever, fulfillment of any provision of this Note and the other Loan
Documents shall involve exceeding the lawful rate of interest which a court
of
competent jurisdiction may deem applicable hereto ("Excess
Interest"),
then
ipso
facto,
the
obligation to be fulfilled shall be reduced to the highest lawful rate of
interest permissible under such law and if, for any reason whatsoever, Agent
or
Lender shall receive, as interest, an amount which would be deemed unlawful
under such applicable law, such interest shall be applied to the Loan (whether
or not due and payable), and not to the payment of interest, or refunded to
Borrower if such Loan has been paid in full. None of Xxxxxxxx, Guarantor, nor
any guarantor, endorser or surety nor their heirs, legal representatives,
successors or assigns shall have any action against Agent or Lender for any
damages whatsoever arising out of the payment or collection of any such Excess
Interest.
6.3. Captions.
The
captions of the Paragraphs of this Note are for convenience of reference only
and shall not be deemed to modify, explain, enlarge or restrict any of the
provisions hereof.
6.4. Notices.
Notices
shall be given under this Note in conformity with the terms and conditions
of
the Loan Agreement.
6.5. Time
of Essence.
Time
is
of the essence of this Note and the performance of each of the covenants and
agreements contained herein.
| 7. |
Sale
of Loan.
|
Subject
to the terms and conditions set forth in the Loan Agreement, Agent
or
Lender, at any time and without the consent of Borrower, may grant
participations in or sell, transfer, assign and convey all or any portion of
its
right, title and interest in and to the Loan, this Note, the Security Documents
and the other Loan Documents, any guaranties given in connection with the Loan
and any collateral given to secure the Loan.
IN
WITNESS WHEREOF, Xxxxxxxx has executed this Senior Note or has caused the same
to be executed by its duly authorized representatives as of the date first
set
forth above.
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BORROWER:
EMERITUS
PROPERTIES-ARKANSAS, LLC,
a
Delaware limited liability company
By:EMERITUS
CORPORATION, a Washington corporation, its sole member
By:
/s/ Xxxxxxx X. Xxxxxxxxxx
Name:
Xxxxxxx X. Xxxxxxxxxx
Its: Vice
President of Finance
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