EXHIBIT 10.13
PROMISSORY NOTE
(MEZZANINE LOAN)
$11,500,000.00 New York, New York
August 19, 2003
FOR VALUE RECEIVED, SHG PROPERTY RESOURCES, LLC, a Delaware limited
liability company and SHG INVESTMENTS, LLC, a Delaware limited liability
company, jointly and severally, as maker, each having an address c/o Fountain
View, Inc., 27442 Portola Parkway, Suite 200, Foothill Ranch, California 92610
(collectively, "BORROWER"), hereby unconditionally promise to pay to the order
of CAPITALSOURCE FINANCE LLC, a Delaware limited liability company, having an
address at 31111 Agoura Road, Suite 220, Westlake Village, California 91361
(together with its successors and assigns, "LENDER"), or at such other place as
the holder hereof may from time to time designate in writing, the principal sum
of Eleven Million Five Hundred Thousand Dollars ($11,500,000.00), in lawful
money of the United States of America with interest thereon to be computed from
the date of this Note at the Applicable Interest Rate, and to be paid in
accordance with the terms of this Note and that certain Mezzanine Loan
Agreement, dated as of the date hereof, between Borrower and Lender (as the same
may hereafter be amended, restated, replaced, supplemented renewed, extended or
otherwise modified from time to time, the "LOAN AGREEMENT"). All capitalized
terms not defined herein shall have the respective meanings set forth in the
Loan Agreement.
ARTICLE I: PAYMENT TERMS
Borrower agrees to pay the principal sum of this Note and interest on
the unpaid principal sum of this Note from time to time outstanding at the rates
and at the times specified in Article 2 of the Loan Agreement and the
outstanding balance of the principal sum of this Note and all accrued and unpaid
interest thereon shall be due and payable on the Maturity Date.
ARTICLE II: DEFAULT AND ACCELERATION
The Debt shall without notice become immediately due and payable at the
option of Lender if any payment required in this Note is not paid on or prior to
the date when due or if not paid on the Maturity Date or on the happening of any
other Event of Default.
ARTICLE III: LOAN DOCUMENTS
This Note is secured by the Pledge Agreement and the other Loan
Documents. All of the terms, covenants and conditions contained in the Loan
Agreement, the Pledge Agreement and the other Loan Documents are hereby made
part of this Note to the same extent and with the same force as if they were
fully set forth
herein. In the event of a conflict or inconsistency between the terms of this
Note and the Loan Agreement, the terms and provisions of the Loan Agreement
shall govern.
ARTICLE IV: SAVINGS CLAUSE
Notwithstanding anything to the contrary, (a) all agreements and
communications between Borrower and Lender are hereby and shall automatically be
limited so that, after taking into account all amounts deemed interest, the
interest contracted for, charged or received by Lender shall never exceed the
Maximum Legal Rate, (b) in calculating whether any interest exceeds the Maximum
Legal Rate, all such interest shall be amortized, prorated, allocated and spread
over the full amount and term of all principal indebtedness of Borrower to
Lender and (c) if through any contingency or event Lender receives or is deemed
to receive interest in excess of the Maximum Legal Rate, any such excess shall
be deemed to have been applied toward payment of the principal of any and all
then outstanding indebtedness of Borrower to Lender.
ARTICLE V: NO ORAL CHANGE
This Note may not be modified, amended, waived, extended, changed,
discharged or terminated orally or by any act or failure to act on the part of
Borrower or Lender, but only by an agreement in writing signed by the party
against whom enforcement of any modification, amendment, waiver, extension,
change, discharge or termination is sought.
ARTICLE VI: WAIVERS
Borrower and all others who may become liable for the payment of all or
any part of the Debt do hereby severally waive presentment and demand for
payment, notice of dishonor, notice of intention to accelerate, notice of
acceleration, protest and notice of protest and non-payment and all other
notices of any kind. No release of any security for the Debt or extension of
time for payment of this Note or any installment hereof, and no alteration,
amendment or waiver of any provision of this Note, the Loan Agreement or the
other Loan Documents made by agreement between Lender or any other Person shall
release, modify, amend, waive, extend, change, discharge, terminate or affect
the liability of Borrower, and any other Person who may become liable for the
payment of all or any part of the Debt, under this Note, the Loan Agreement or
the other Loan Documents. No notice to or demand on Borrower shall be deemed to
be a waiver of the obligation of Borrower or of the right of Lender to take
further action without further notice or demand as provided for in this Note,
the Loan Agreement or the other Loan Documents. If Borrower is a partnership,
the agreements herein contained shall remain in force and be applicable,
notwithstanding any changes in the individuals or entities comprising the
partnership, and the term "BORROWER," as used herein, shall include any
alternate or successor partnership, but any predecessor partnership and their
partners shall not thereby be released from any liability. If Borrower is a
corporation, the agreements contained herein shall remain in full force and be
applicable notwithstanding any changes in the shareholders comprising, or the
officers and directors relating to, the corporation, and the term "BORROWER" as
used herein, shall include any alternative or
2
successor corporation, but any predecessor corporation shall not be relieved of
liability hereunder. If any Borrower is a limited liability company, the
agreements herein contained shall remain in force and be applicable,
notwithstanding any changes in the members comprising the limited liability
company, and the term "BORROWER" as used herein, shall include any alternate or
successor limited liability company, but any predecessor limited liability
company and their members shall not thereby be released from any liability.
Nothing in the foregoing three sentences shall be construed as a consent to, or
a waiver of, any prohibition or restriction on transfers of interests in such
partnership, corporation or limited liability company, as applicable, which may
be set forth in the Loan Agreement, the Pledge Agreement or any other Loan
Document.
ARTICLE VII: TRANSFER
Upon the transfer of this Note, Borrower hereby waiving notice of any
such transfer, Lender may deliver all the collateral granted, pledged or
assigned pursuant to the Loan Documents, or any part thereof, to the transferee
who shall thereupon become vested with all the rights herein or under applicable
law given to Lender with respect thereto, and Lender shall thereafter forever be
relieved and fully discharged from any liability or responsibility in the
matter; but Lender shall retain all rights hereby given to it with respect to
any liabilities and the collateral not so transferred.
ARTICLE VIII: INTENTIONALLY DELETED
ARTICLE IX: GOVERNING LAW
This Note shall be governed in accordance with the terms and provisions
of Section 10.3 of the Loan Agreement.
ARTICLE X: NOTICES
All notices or other written communications hereunder shall be
delivered in accordance with Section 10.6 of the Loan Agreement.
ARTICLE XI: JOINT AND SEVERAL
If more than one Person has executed this Note as "Borrower", the
obligations of all such Persons hereunder shall be joint and several.
[NO FURTHER TEXT ON THIS PAGE]
3
IN WITNESS WHEREOF, Borrower has duly executed this Note as of the day
and year first above written.
SHG PROPERTY RESOURCES, LLC
By: /s/ Roland G. Rapp
----------------------------------
Name: Roland G. Rapp
Title: Secretary
SHG INVESTMENTS, LLC
By: /s/ Roland G. Rapp
------------------------------------
Name: Roland G. Rapp
Title: Secretary