EX-10.71.05
NOTE
$50,000,000.00
June 30, 2008
FOR VALUE
RECEIVED, EMERITUS CORPORATION , a corporation organized
under the laws of the State of Washington (“Borrower”),
shall pay to the order of HEALTH CARE REIT, INC. , a
corporation organized under the laws of the State of Delaware
(“Lender”), the principal sum of Fifty Million and
00/100 Dollars ($50,000,000.00), or so much thereof as shall have
been advanced to Borrower, with interest on so much thereof as
shall from time to time be outstanding at the rate of interest set
forth below, until fully paid.
“Asset
Purchase Agreement” means that certain agreement between
Lender, as seller, and Borrower, as buyer, dated as of June 9,
2008.
“Business
Day” means any day which is not a Saturday or Sunday or a
public holiday under the laws of the United States of America or
the State of Ohio or a day which national banking institutions are
not open.
“Closing
Date” means the date of this note.
“Collateral Document” means the
Master Lease 1 Mortgage, the Master Lease 2 Mortgage, the
Master Lease 1, the Master Lease 2, or any other document
providing security for or guarantee of repayment of this
note.
“Commencement Date” means
[i] the Closing Date if the Closing Date occurs on the first
day of a month or [ii] the first day of the month after the
Closing Date if the Closing Date occurs on any day other than the
first day of the month.
“Commitment Fee” means the
commitment fee payable to Lender in an amount equal to 1% of the
Loan Amount.
“Default
Rate” means 18.50%.
“Event of
Default” has the meaning set forth in §8.
“Initial
Rate” means a rate equal to 8%.
“Interest
Rate” means [i] the Initial Rate from after the Closing
Date and for 12 months after the Commencement Date, and
[ii] commencing on the first anniversary of the Commencement
Date and each anniversary of the Commencement Date thereafter, the
Interest Rate shall increase by adding the Increaser to the then
current Interest Rate.
“Loan” means the loan from Lender
to Borrower in the Loan Amount.
“Loan Amount” means
$50,000,000.00.
“Master Lease 1” means that
certain Amended and Restated Master Lease Agreement between Lender
and certain affiliates of Lender, as landlord, and Borrower, as
tenant, dated as of September 30, 2003, as
amended.
“Master Lease 1 Mortgage”
means the Leasehold Mortgage/Deed of Trust, Security Agreement,
Assignment of Leases and Rents, Financing Statement and Fixture
Filing, which will be made by Borrower in favor of Lender to secure
repayment of this note as of the Effective Date of the Master
Lease 1 Mortgage (as such date is defined therein) and which
is secured by, among other things, the Leasehold estate of Borrower
arising under Master Lease 1.
“Master Lease 2” means that
certain Master Lease Agreement between Lender and certain
affiliates of Lender, as landlord, and Borrower, as tenant, dated
as of September 30, 2004.
“Master Lease 2 Mortgage”
means the Leasehold Mortgage/Deed of Trust, Security Agreement,
Assignment of Leases and Rents, Financing Statement and Fixture
Filing, which is made by Borrower in favor of Lender to secure
repayment of this note as of the Effective Date of the Master
Lease 2 Mortgage (as such date is defined therein), and which
is secured by, among other things, the leasehold interest of
Borrower arising under Master Lease 2.
“Maturity Date” means the third
anniversary of the Commencement Date.
“State” means the State of
Ohio.
“Term” means the period commencing
on the Closing Date and ending on the Maturity
Date.
(a)
Initial Rate . Interest shall accrue on the
principal amount outstanding from time to time after the Closing
Date until the Maturity Date at the Interest
Rate.
(b)
Post-Maturity Rate . If the outstanding balance
of this note has not been paid in full by the Maturity Date,
interest on this note shall accrue at the Default
Rate.
(c)
Default Rate . After the occurrence and during
the continuance of an Event of Default, Borrower shall pay interest
on this note, and on any judgment on this note, at the Default
Rate.
(d)
Computation Method . All interest rates shall be
calculated based on the actual number of days elapsed over a
360-day year (365/360 method).
3.
Payments . Borrower shall make payments in
arrears in accordance with the following:
(a)
On the
Commencement Date and on the first day of each consecutive month
thereafter, Borrower shall pay to Lender accrued interest on this
note at the then current Interest Rate. If the Closing
Date occurs on the first day of a month, no payment of interest is
due on the Closing Date.
(b)
On the
Maturity Date or upon prepayment of this note in full, Borrower
shall pay the outstanding balance of this note, including the
outstanding principal balance, all accrued and unpaid interest and
all charges, expenses and other amounts payable by Borrower to
Lender hereunder or under the Master Lease 1 Mortgage or the
Master Lease 2 Mortgage.
(c)
On the
Closing Date, Borrower shall pay to Lender the Commitment
Fee.
(d)
In the
event that the Lender sells, assigns, transfers, negotiates, or
grants participations in all or any part of, or any interest in the
Loan to any person or entity (a “Lender Transferee”)
and [i] such Lender Transferee (or, if such Lender Transferee
is a disregarded entity for United States federal income tax
purposes, the Person treated, for United States federal income tax
purposes, as the owner of the assets of such Lender Transferee) is
not organized under the laws of the United States or a state
thereof and [ii] such Lender Transferee fails to establish to
the reasonable satisfaction of Borrower that payments to such
Lender Transferee are exempt from United Stated withholding taxes,
Borrower shall not be required to “gross-up” payments
made to such Lender Transferee for United States withholding taxes
withheld by Borrower. Any amounts withheld shall be
remitted to the applicable taxing authority and treated, for
purposes of this note and any Collateral Document, as if they were
paid to such Lender Transferee
4.
Method and Place of Payment . Borrower shall make
all payments on this note by electronic wire transfer in accordance
with wiring instructions set forth in Exhibit A attached
hereto subject to change in accordance with other written
instructions provided by Lender from time to
time.
5.
Prepayment . Borrower, at its sole discretion,
may prepay all or any portion of the outstanding principal balance
of this note, all accrued and unpaid interest, and all charges,
expenses and other amounts payable by Borrower to Lender at any
time without payment of any prepayment fee.
6.
Late Charge . Borrower acknowledges that any
default in any payment due under this note, other than the
outstanding principal balance of this note due on the Maturity
Date, will result in loss and additional expense to Lender in
handling such delinquent payments and meeting Lender’s other
financial obligations. Because such loss and additional
expense are extremely difficult and impractical to ascertain,
Borrower agrees that if any payment hereunder, other than the
outstanding principal balance of this note due on the Maturity
Date, is not paid within 10 days after the due date, Borrower
shall pay, as a reasonable estimate of such loss
and
expense, a late charge equal to the lesser of
[i] 5% of the amount of the overdue payment, or [ii] the
maximum amount permitted by applicable law.
7.
Application of Payments . Unless Lender elects
otherwise, in its sole discretion, all payments and other amounts
received by Lender shall be credited as
follows: [i] first to any charges, costs, expenses
and fees payable by Borrower under this note or the Mortgage, or
incurred by Lender for the protection of any collateral securing
the payment of this note, if not paid by Borrower by the due date;
[ii] second to interest on the foregoing amounts at the
Defaul
