ex105913promisenoteaugusta.htm


    EX-10.59.13


     

    PROMISSORY
NOTE

     

     

    


     

    U.S.
$4,087,500.00 April 25, 2008

     Seattle,
Washington

     

    FOR VALUE
RECEIVED, EMERIKEYT FAIRWAYS OF AUGUSTA LLC, a Delaware limited liability
company (“Borrower”),
hereby promises to pay to the order of KEYBANK NATIONAL ASSOCIATION, a national
banking association (“Lender”),
having an address at Key Healthcare Finance, 1301 Fifth Avenue, 23rd Floor,
Mailcode: WA 31-13-2313, Seattle, WA 98101, the principal sum of FOUR MILLION,
EIGHTY SEVEN THOUSAND, FIVE HUNDRED and NO/100 DOLLARS ($4,087,500.00), or so
much thereof as may be advanced from time to time, and interest from the date
hereof on the balance of principal from time to time outstanding, in United
States currency, at the rates and at the times hereinafter
described.

     

    This Note
is issued by Borrower pursuant to that certain Loan Agreement of even date
herewith (the “Loan
Agreement”) entered into between Lender and Borrower and is the Note as
defined in the Loan Agreement.  This Note evidences the Loan (as
defined in the Loan Agreement).  Payment of this Note is governed by
the Loan Agreement, the terms of which are incorporated herein by express
reference as if fully set forth herein.  Capitalized terms used and
not otherwise defined herein shall have the meanings given to them in the Loan
Agreement.

     

    
      	
              1.  

            	
              Interest.  The
      principal amount hereof outstanding from time to time shall bear interest
      until paid in full at the Applicable
Rate.

            


    

     

    
      	
              2.  

            	
              Monthly
      Payments.  Interest only shall be payable in arrears on
      the tenth (10th)
      day of each calendar month after the date hereof up to and including the
      Maturity Date in the amount of all interest accrued during the immediately
      preceding calendar month.  In addition to such monthly interest
      payments, on the tenth (10th)
      day of each calendar month during each Extension Term, Borrower shall also
      make payments of principal in the amount set out in the Loan
      Agreement.  All payments on account of the indebtedness
      evidenced by this Note shall be made to Lender prior to the close of
      business on the day when due in lawful money of the United States and
      shall be first applied to late charges, costs of collection or enforcement
      and other similar amounts due, if any, under this Note and any of the
      other Loan Documents, then to interest due and payable hereunder and the
      remainder to principal due and payable
  hereunder.

            


    

     

    
      	
              3.  

            	
              Maturity
      Date.  The indebtedness evidenced hereby shall mature on
      the Maturity Date.  On the Maturity Date, the entire outstanding
      principal balance hereof, together with accrued and unpaid interest and
      all other sums evidenced by this Note, shall, if not sooner paid, become
      due and payable.  The Maturity Date may be extended on the terms
      and conditions set out in the Loan
Agreement.

            


    


    
      
         


      

      
        1

        
          

        

      

      
         


      

    


     

    
      	
              4.  

            	
              General
      Provisions.

            


    

     

    
      	
              (a)  

            	
              In
      the event (i) the principal balance hereof is not paid when due whether by
      acceleration or upon the Maturity Date or (ii) an Event of Default
      exists, then the principal balance hereof shall bear interest from and
      after the date when due at the Default Rate.  In addition, for
      any monthly installment (exclusive of the payment due upon the Maturity
      Date or earlier date if due by acceleration) which is not paid within five
      (5) days after the due date thereof, a late charge equal to the greater of
      (a) four percent (4%) of the amount of such installment or (b) $25 shall
      be due and payable to the holder of this Note on demand to cover the extra
      expense involved in handling delinquent
  payments.

            


    

     

    
      	
              (b)  

            	
              Borrower
      agrees that the obligation evidenced by this Note is an exempt
      transaction under the Truth-in-Lending Act, 15 U.S.C. § 1601,
      et
      seq.

            


    

     

    
      	
              (c)  

            	
              The
      parties hereto intend and believe that each provision in this Note
      comports with all applicable local, state and federal laws and judicial
      decisions.  However, if any provision or provisions, or if any
      portion of any provision or provisions, in this Note is found by a court
      of law to be in violation of any applicable local, state or federal
      ordinance, statute, law, administrative or judicial decision, or public
      policy, and if such court should declare such portion, provision or
      provisions of this Note to be illegal, invalid, unlawful, void or
      unenforceable as written, then it is the intent of all parties hereto that
      such portion, provision or provisions shall be given force to the fullest
      possible extent that they are legal, valid and enforceable, that the
      remainder of this Note shall be construed as if such illegal, invalid,
      unlawful, void or unenforceable portion, provision or provisions were not
      contained therein, and that the rights, obligations and interest of
      Borrower and the holder or holders hereof under the remainder of this Note
      shall continue in full force and effect.  All agreements herein
      are expressly limited so that in no contingency or event whatsoever,
      whether by reason of advancement of the proceeds hereof, acceleration of
      maturity of the unpaid principal balance hereof, or otherwise, shall the
      amount paid or agreed to be paid to the holders hereof for the use,
      forbearance or detention of the money to be advanced hereunder exceed the
      highest lawful rate permissible under applicable usury
      laws.  If, from any circumstances whatsoever, the fulfillment of
      any provision hereof, at the time performance of such provision shall be
      due, shall involve transcending the limit of validity prescribed by law
      which a court of competent jurisdiction may deem applicable hereto, then,
      ipso facto, the
      obligation to be fulfilled shall be reduced to the limit of such validity
      and if from any circumstance the holder hereof shall ever receive as
      interest an amount which would exceed the highest lawful rate, such amount
      which would be excessive interest shall be applied to the reduction of the
      unpaid principal balance due hereunder and not to the payment of
      interest.

            


    


    
      
         


      

      
        2

        
          

        

      

      
         


      

    


     

    
      	
              (d)  

            	
              This
      Note and all provisions hereof shall be binding upon Borrower and all
      persons claiming under or through Borrower, and shall inure to the benefit
      of Lender, together with its successors and assigns, including each owner
      and holder from time to time of this
Note.

            


    

     

    
      	
              (e)  

            	
              Time
      is of the essence as to all dates set forth herein, provided, however, if
      a payment is due on a date that is not a Business Day, then such payment
      shall not be due until the Business Day immediately following such
      date.

            


    

     

    
      	
              (f)  

            	
              Borrower
      agrees that its liability shall not be in any manner affected by any
      indulgence, extension of time, renewal, waiver, or modification granted or
      consented to by Lender; and Borrower consents to any indulgences and all
      extensions of time, renewals, waivers, or modifications that may be
      granted by Lender with respect to the payment or other provisions of this
      Note, and to any substitution, exchange or release of the collateral, or
      any part thereof, with or without substitution, and agrees to the addition
      or release of any Borrowers, endorsers, guarantors, or sureties, all
      whether primarily or secondarily liable, without notice to Borrower and
      without affecting its liability
hereunder.

            


    

     

    
      	
              (g)  

            	
              Borrower
      hereby waives and renounces for itself, its successors and assigns, all
      rights to the benefits of any statute of limitations and any moratorium,
      reinstatement, marshalling, forbearance, valuation, stay, extension,
      redemption, appraisement, or exemption and homestead laws now provided, or
      which may hereafter be provided, by the laws of the United States and of
      any state thereof against the enforcement and collection of the
      obligations evidenced by this Note.

            


    

     

    
      	
              (h)  

            	
              If
      this Note is placed in the hands of attorneys for collection or is
      collected through any legal proceedings, Borrower promises and agrees to
      pay, in addition to the principal, interest and other sums due and payable
      hereon, all reasonable out-of-pocket costs of collecting or attempting to
      collect this Note, including all reasonable attorneys’ fees and
      disbursements.

            


    

     

    
      	
              (i)  

            	
              Except
      as otherwise specifically provided in this Note or any other Loan
      Document, all parties now or hereafter liable with respect to this Note,
      whether Borrower, principal, surety, guarantor, endorsee or otherwise
      hereby severally waive presentment for payment, demand, notice of
      nonpayment or dishonor, protest and notice of protest.  No
      failure to accelerate the indebtedness evidenced hereby, acceptance of a
      past due installment following the expiration of any cure period provided
      by this Note, any Loan Document or applicable law, or indulgences granted
      from time to time shall be construed (i) as a novation of this Note
      or as a reinstatement of the indebtedness evidenced hereby or as a waiver
      of such right of acceleration or of the right of Lender thereafter to
      insist upon strict compliance with the terms of this Note, or (ii) to
      prevent the exercise of such right of acceleration or any other right
      granted hereunder or by the laws of the State of
      Washington.  Borrower hereby expressly waives
  the

            


    


    
      
         


      

      
        3

        
          

        

      

      
         


      

    


     

    benefit
of any statute or rule of law or equity now provided, or which may hereafter be
provided, which would produce a result contrary to or in conflict with the
foregoing.

     

    THIS NOTE
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
WASHINGTON WITHOUT REGARD TO ITS CONFLICT OF LAWS RULES AND ANY APPLICABLE LAWS
OF THE UNITED STATES OF AMERICA.  Borrower’s principal offices are
located within the State of Washington, and Lender is making the Loan to
Borrower within the State of Washington.  Accordingly, Borrower agrees
that this Note, the other Loan Documents and the Environmental Indemnity shall
be construed, enforced and otherwise governed by the laws of the State of
Washington, except that
the laws of the state of Kansas (the state in which the Property is located)
shall govern the validity and enforcement of the lien of the Mortgage and the
Assignment of Rents.  Borrower agrees that to the fullest extent
permitted by law, Washington law shall apply to all actions, defenses and
remedies under this Note, the other Loan Documents and the Environmental
Indemnity, including without limitation, the existence and calculation of any
deficiency judgment upon foreclosure of the Mortgage.

     

    ORAL
AGREEMENTS OR ORAL COMMITMENTS TO LEND MONEY, EXTEND CREDIT, OR FORBEAR FROM
ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER WASHINGTON
LAW.

     

    Borrower
has delivered this Note as of the day and year first set forth
above.

     

    EMERIKEYT
FAIRWAYS OF AUGUSTA LLC, a Delaware limited liability company

     

         By:  Emeritus
Properties XVI, Inc., a Nevadacorporation, its Member/Manager

    


               By:
_/s/ Eric Mendelsohn ___

    Name: Eric Mendelsohn

    Title: Senior VP Corporate
Development


    
      
         


      

      
        4