Attached files
file | filename |
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8-K - FORM 8-K - CIM Commercial Trust Corp | c18634e8vk.htm |
EX-10.1 - EXHIBIT 10.1 - CIM Commercial Trust Corp | c18634exv10w1.htm |
EX-10.2 - EXHIBIT 10.2 - CIM Commercial Trust Corp | c18634exv10w2.htm |
Exhibit 10.3
FIRST AMENDED AND RESTATED REVOLVING NOTE
$10,000,000 | June 8, 2011 |
FOR VALUE RECEIVED, the undersigned, FIRST WESTERN SBLC, INC., a Florida corporation
(First Western), irrevocably and unconditionally promises to pay to the order of JPMORGAN
CHASE BANK, NATIONAL ASSOCIATION, a national banking association with its office in Dallas, Texas
(Lender, and together with each subsequent holder hereof, Payee), at the
principal banking office of Administrative Agent (hereinafter referenced) at 2200 Ross Avenue,
Dallas, Texas 75201, (i) the principal amount of TEN MILLION AND NO/100 DOLLARS ($10,000,000) (or
such lesser amount as shall equal the aggregate unpaid principal amount of all Borrowings made by
Lender to First Western pursuant to the Credit Agreement hereinafter referenced), on the dates and
in the principal amounts provided for in the Credit Agreement, and (ii) interest on the unpaid
principal amount of each such Borrowing from time to time remaining outstanding and unpaid from the
date of each such Borrowing until it shall be paid in full, at the rates per annum and on the dates
provided for in the Credit Agreement.
All capitalized terms used herein and not otherwise defined herein shall have the same meaning
and effect as used and defined in that certain Amended and Restated Credit Agreement dated as of
December 28, 2010 (as amended and otherwise modified, and in effect, the Credit
Agreement), by and among PMC, First Western, certain Lenders, and JPMorgan Chase Bank,
National Association, as Administrative Agent for those Lenders. Reference is hereby made to the
Credit Agreement for all intents and purposes.
This Note is a Revolving Note executed by First Western and is referred to in, governed by,
and subject to, and is entitled to the benefits of, the terms and provisions of the Credit
Agreement as therein stated and referenced. Reference is hereby made to the Credit Agreement for a
statement of the agreements, rights, remedies, benefits and obligations of Payee and the covenants,
agreements, rights, duties and obligations of First Western in relation hereto, including
provisions for acceleration of the maturity hereof, interest rate and amount limitations and
voluntary and mandatory prepayments hereon; but this reference to the Credit Agreement, or any
provision thereof, shall not affect or impair the irrevocable, absolute and unconditional
obligation of First Western to pay principal of, and interest on, this Note when due. Unless the
maturity of this Note shall have sooner occurred, the outstanding principal balance of this Note
and all accrued and unpaid interest thereon shall be finally and fully payable on the Termination
Date.
The date, amount, Type, and interest rate of each Borrowing made by Lender to First Western,
and each payment made on account of the principal thereof, and accrued interest thereon, shall be
recorded by Payee on its books and records, and prior to any transfer of this Note, endorsed by
Payee on a schedule attached hereto or any continuation thereof; and all recordations and
endorsements made by Payee shall, absent manifest error, be conclusive of all such matters and
binding on all Persons. Payees failure to make or error in making any such recordations or
endorsements shall not diminish, reduce or relieve First Westerns obligation to pay (i) all
Borrowings made by Lender and then outstanding and (ii) all accrued and earned interest on the
amounts thereof from time to time outstanding and unpaid, pursuant to this Note.
Upon the occurrence of an Event of Default, this Note may be declared to be, or shall become,
forthwith due, and immediately payable in the manner, upon the conditions (if any) and with the
effect, provided for and referred to in the Credit Agreement.
If this Note is placed in the hands of an attorney for collection (whether or not any
proceeding is filed in connection therewith), or collected through suit, the Bankruptcy Court or
any other judicial proceeding, First Western irrevocably and unconditionally agrees to pay all
costs, expenses and fees incurred by Payee, including reasonable attorneys fees and expenses, and
any assessed court and related costs, in addition to all other amounts owing hereunder.
First Western and all sureties, endorsers, guarantors and other Persons ever liable for the
payment of any sums payable on this Note, jointly and severally, waive notice, demand, notice of
presentment, presentment, presentment for payment, demand for payment, non-payment, notice of
dishonor, dishonor, notice of intent to accelerate maturity, notice of acceleration of maturity,
notice of intent to demand, protest, notice of protest, grace and all formalities and other notices
of any and every kind, and filing of suit or diligence in collecting this Note or enforcing (in
whole or part) any security or guaranty now or hereafter for the payment of this Note, and consent
and agree to any partial or full substitution, exchange or release of any such security or guaranty
or the partial or full release of any Person primarily or secondarily liable hereon, and consent
and agree that it will not be necessary for any holder hereof, in order to enforce payment by it of
this Note to first institute suit or exhaust its remedies against First Western or any other
Persons liable herefor, or to enforce it rights against any such security herefor or guarantor or
any other Person with respect hereto, and consent to any or all extensions, increases or renewals
or postponements, modifications or rearrangements of time or payment of this Note or any other
indulgence with respect hereto, without notice thereof to, or consent thereto from, any of them.
Each of First Western and Payee hereby agrees that Chapter 346 of the Texas Finance Code, as
amended, shall not apply to this Note or the loan transaction evidenced by, and referred to in, the
Credit Agreement in any manner, including without limitation, to any account or arrangement
evidenced or created by, or provided for in, this Note or the Credit Agreement.
This Note (including its validity, enforceability and interpretation) shall be governed by,
and construed in accordance with, the laws of the State of Texas (without regard to conflict of law
principles) and, to the extent controlling, federal laws of the United States of America. This
Note has been executed, delivered and accepted and is payable at, Dallas, Dallas County, Texas.
THIS NOTE AND THE OTHER CREDIT DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AS
TO THE SUBJECT MATTER HEREOF AND THEREOF AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
The indebtedness evidenced by this Note is given in amendment, restatement, extension and
modification (but not in extinguishment or novation) of the indebtedness evidenced by that certain
Revolving Note dated December 18, 2010 in the original principal amount of $7,500,000 executed by
First Western and payable to the order of Payee.
[Remainder of Page Intentionally Left Blank]
FIRST WESTERN SBLC, INC. |
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By: | /s/ Barry Berlin | |||
Name: | Barry N. Berlin | |||
Title: | Executive Vice President &
Chief Financial Officer |
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