THE HUNTINGTON NATIONAL BANK Amended and Restated Promissory Note (B-[●] Note)
Exhibit
10.3
THE
HUNTINGTON NATIONAL BANK
Amended
and Restated Promissory Note
(B-[●]
Note)
|
$[●]
|
December
28, 2007 (the “Effective
Date”)
|
RECITALS
WHEREAS,
each of the borrowers set forth on Schedule 1 attached
to the Forbearance Agreement (as defined below) (individually a “Borrower” and
collectively, “Borrowers”) has
executed and delivered that certain Forbearance Agreement and Amendment to
Credit Agreements, dated as of the Effective Date, by and among Franklin Credit
Management Corporation (“FCMC”), Borrowers,
and The Huntington National Bank, successor by merger to Sky Bank (“Bank”), (the
“Forbearance
Agreement”), and Borrowers and Bank desire to amend and restate the
original notes as set forth on Schedule 2 to the
Forbearance Agreement (the “Original Notes”);
and
WHEREAS,
Borrowers and Bank intend that (i) this Amended and Restated Promissory Note
(B-[●] Note)
(this "Note")
will not constitute a novation, (ii) this Note will amend and restate a portion
of the indebtedness, obligations and liabilities under the Original Notes and
(iii) from and after the Effective Date, the Original Notes shall be of no
force
or effect, except to evidence the incurrence of Borrowers’ obligations
thereunder; and
WHEREAS,
Borrowers and Bank acknowledge and agree that this Note is the amended and
restated promissory note intended to evidence the indebtedness in respect to
the
Tranche B-[●]
Advance;
NOW
THEREFORE, in consideration of the premises set forth above, the terms and
conditions contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Borrowers hereby
jointly and severally agree as follows:
PROMISE
TO
PAY
FOR
VALUE
RECEIVED, each of Borrowers, jointly and severally, promises to pay to the
order
of Bank, at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, or such other address
as Bank in writing shall provide to FCMC (as defined below), the sum of [●] Dollars
($[●]) (the
“Principal
Sum”),
together with interest as hereinafter provided and payable at the times and
in
the manner hereinafter provided. All payments made with respect to
this Note shall be made to Bank in immediately available funds.
This
Note
is issued pursuant to, and/or is entitled to the benefits of the Forbearance
Agreement; the Credit Agreements; and the Loan Documents.
It
is
expressly understood and agreed by the parties hereto that this Note is not
intended to constitute a novation of the obligations and liabilities of
Borrowers under any Credit Agreement or the Original Notes and is not a payment
of any amounts due from any Borrower.
INTEREST
(a)
Interest shall be calculated and will accrue on the unpaid balance of the
Principal Sum at the applicable Interest Rates as provided in the Forbearance
Agreement.
(b)
The books and records of Bank, absent manifest error, shall constitute binding
and conclusive evidence of the principal balance of the outstanding Principal
Sum and other amounts outstanding hereunder, and the date and amount of each
payment of principal and interest and applicable Interest Rates and other
information with respect thereto.
MANNER
OF PAYMENT; PRINCIPAL
BALANCE
(a)
Beginning on the initial Payment Date and continuing on each Payment Date
thereafter through and including the Tranche B Termination Date (as such terms
are defined in the Forbearance Agreement) Borrower shall pay interest and the
Principal Sum in the amounts, at the times and in the manner set forth in the
Forbearance Agreement.
(b)
In addition to any other amounts due and payable under this Note, Borrowers
shall deliver to Bank any other amounts due and payable from time to time under
the Forbearance Agreement in respect to the Tranche B Advances and Tranche
B
Notes.
(c)
Bank and each Borrower hereby agrees and confirms that the outstanding principal
balances as of December 28, 2007, without giving effect to the forgiveness
of
debt set forth in Section 1(c) of the Forbearance Agreement, in respect to
each
of the Original Notes are as set forth on Schedule 2 to the
Forbearance Agreement.
SECURITY
This
Note
is secured by the security interests, assignments, and mortgages granted or
referenced in the Credit Agreements, the Forbearance Agreement, and the Loan
Documents.
DEFAULT
If
a
Forbearance Default has occurred and is continuing, Borrowers shall be obligated
to pay Bank interest on the outstanding Principal Sum at the Post-Default Rate
(as defined in the Forbearance Agreement). Additionally, upon the
occurrence and continuation of a Forbearance Default, the unpaid balance of
Principal Sum and all accrued interest may be declared to be due and payable
all
in the manner, upon the conditions and with the effect provided in the
Forbearance Agreement.
2
GENERAL
PROVISIONS
Each
Borrower is accepting joint and several liability hereunder in consideration
of
the financial accommodations to be provided by Bank under this Note, for the
mutual benefit, directly and indirectly, of each Borrower and in consideration
of the undertakings of each Borrower to accept joint and several liability
for
all indebtedness, obligations and liabilities evidenced by this
Note. Each Borrower, jointly and severally, hereby irrevocably and
unconditionally accepts, as a surety and as a co-debtor, joint and several
liability with each other Borrower, with respect to the payment and performance
of all of the indebtedness, obligations and liabilities evidenced by this Note,
it being the intention of the parties hereto that all of the indebtedness,
obligations and liabilities evidenced by this Note shall be the joint and
several obligations of each Borrower without preferences or distinction among
them. The obligations of each Borrower under this paragraph shall not
be diminished or rendered unenforceable by any winding up, reorganization,
arrangement, liquidation, reconstruction or similar proceeding with respect
to
any Borrower. The joint and several liability of each Borrower
hereunder shall continue in full force and effect notwithstanding any
absorption, merger, amalgamation or any other change whatsoever in the name,
constitution or place of formation of any other Borrower or Bank. The
provisions of this paragraph are made for the benefit of Bank and its respective
successors and assigns, and may be enforced by it from time to time against
any
or all Borrowers as often as occasion therefore may arise and without
requirement on the part of Bank (or its successors or assigns), first to marshal
any of its claims or to exercise any of its rights against any other Borrower
or
to exhaust any remedies available to it against any other Borrower hereunder
or
to elect any other remedy. The provisions of this paragraph shall
remain in effect until all of the indebtedness, obligations and liabilities
evidenced by this Note shall have been paid in full or otherwise fully
satisfied. If at any time, any payment, or any part thereof, made in
respect to any indebtedness, obligations or liabilities evidenced by this Note,
is rescinded or must otherwise be restored or returned by Bank for any reason,
the provisions of this paragraph will forthwith be reinstated in effect, as
though such payment had not been made. The obligations of each
Borrower under this paragraph constitute the absolute and unconditional, full
recourse obligations of each Borrower enforceable against each such Borrower
to
the full extent of its properties and assets, irrespective of the validity,
regularity or enforceability of this Note or any other circumstances
whatsoever. Each Borrower, and any indorser, surety, or guarantor,
hereby jointly and severally waives notice of acceptance of its joint and
several liability, presentment, notice of dishonor, protest, notice of protest,
and diligence in bringing suit against any party hereto, waives the defenses
of
impairment of collateral for the obligation evidenced hereby, impairment of
a
person against whom Bank has any right of recourse, and any defenses of any
accommodation maker and consent that without discharging any of them, the time
of payment and any other provision of this Note may be extended or modified
an
unlimited number of times before or after maturity without notice to
Borrowers. Each Borrower jointly and severally agrees that it will
pay the obligations evidenced hereby, irrespective of any action or lack of
action on Bank’s part in connection with the acquisition, perfection,
possession, enforcement, disposition, or modification of all the obligations
evidenced hereby or any and all security therefore, and no omission or delay
on
Bank’s part in exercising any right against, or taking any action to collect
from or pursue Bank’s remedies against any party hereto will release, discharge,
or modify the duties of Borrowers, or any of them, to make payments
hereunder. Each Borrower agrees that
3
Bank,
without notice to or further consent from any Borrower, may release or modify
any collateral, security, guaranty or other document now held or hereafter
acquired, or substitute other collateral, security or other guaranties, and
no
such action will release, discharge or modify the duties of Borrowers, or any
of
them, hereunder. Each Borrower waives any claim or other right which
it might now have or hereafter acquire against any other person or entity that
is primarily or contingently liable on the obligations that arise from the
existence or performance of each Borrower’s obligations under this Note,
including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution, indemnification, or any right to participate in
any
claim or remedy of Bank or any collateral security which Bank now has or
hereafter acquires, whether such claim, remedy or right arises in equity, under
contract or statute, at common law, or otherwise.
No
reference herein to the Credit Agreements, the Forbearance Agreement or the
Loan
Documents shall alter or impair the obligations of each Borrower, which is
absolute and unconditional, to pay the principal of and interest on this Note
at
the place and at the respective times herein prescribed. Each
Borrower promises to pay all costs and expenses, including reasonable attorneys’
fees and disbursements incurred in the collection and enforcement of this Note
or any appeal of a judgment rendered thereon.
Capitalized
terms used herein, but not defined herein, shall have the meanings subscribed
to
such terms as set forth in the Forbearance Agreement.
The
captions used herein are for references only and shall not be deemed a part
of
this Note. If any of the terms or provisions of this Note shall be
deemed unenforceable, the enforceability of the remaining terms and provisions
shall not be affected. This Note shall be governed by and construed
in accordance with the law of the State of Ohio.
[SIGNATURE
PAGE FOLLOWS]
4
IN
WITNESS WHEREOF, this Note is
effective as of the date first appearing above notwithstanding the date it
is
actually executed.
BORROWERS:
Each
Borrower listed on Schedule 1 attached
hereto:
By:
/s/
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Jardin
Name:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Jardin
Title:
Chief Executive
Officer, as an authorized officer
of, and on behalf of, each such Borrower listed on
Schedule
1
attached hereto
THE
OBLIGATIONS OF THE BORROWERS UNDER THIS AMENDED AND RESTATED PROMISSORY NOTE
ARE
GUARANTEED BY FRANKLIN CREDIT MANAGEMENT CORPORATION PURSUANT TO A GUARANTY
DATED DECEMBER 28, 2007 IN FAVOR OF THE HUNTINGTON NATIONAL BANK.
5