Exhibit 10.4
RESTATED AND AMENDED
PROMISSORY NOTE
OF
FIVE STAR GROUP, INC.
PAYABLE TO THE ORDER OF
BANK OF AMERICA, N.A.
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Amount
of Note: $35,000,000
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Interest
Rate:
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Set
forth below
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Dated:
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June
26, 2008
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Maturity
Date:
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June 30, 2011 , unless sooner accelerated or terminated as
provided below
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1.
GENERAL
PROMISE TO PAY : FIVE STAR GROUP,
INC. , a corporation organized and existing under the
laws of the State of Delaware with its principal place of
business at 903 Murray Road, East Hanover, Morris County, New
Jersey 07936 with its mailing address at 903 Murray Road, P.O.
Box 357, East Hanover, Morris County, New Jersey 07936 (being
hereinafter referred to as “ BORROWER ”)
hereby promises to pay to the order of BANK OF AMERICA,
N.A. (hereinafter called “ LENDER ”)
the principal sum of THIRTY-FIVE MILLION AND
NO/100 DOLLARS ($35,000,000) , or, if any lesser sum is
outstanding hereunder, the aggregate unpaid principal amount
of all advances, re-advances, loans and re-loans made by
LENDER to BORROWER hereunder, such payment to be made in
lawful money of the United States, together with interest as
hereinafter provided.
2.
NOTE AND
RECORDS OF LENDER TO EVIDENCE LOAN :
(a) This
Note is BORROWER’s “master” Revolving Note
described in that certain Restated and Amended Loan and
Security Agreement by and between LENDER and BORROWER and
dated even date herewith, such
certain Restated and Amended Loan and Security Agreement and
all extensions, modifications (including without limitation
modifications increasing or decreasing the amount of the
Revolving
Loan described below and/or any other financial
accommodation provided thereunder), refinancings, renewals,
substitutions, replacements and/or redatings thereof being
hereinafter called the “ Loan
Agreement” in this Note.
(b) This
Note restates, replaces and substitutes for the $35,000,000
“master” Revolving Note executed by BORROWER in
favor of LENDER (then known as Fleet Capital Corporation) and
dated as of June 1, 2005. This Note evidences the
Revolving Loan described and defined in the Loan
Agreement.
(c) It
is BORROWER’s intention that, in addition to this Note,
the borrowing and the indebtedness owed by BORROWER to LENDER
under the Revolving Loan
shall be evidenced by LENDER’s records described
below.
(d) (1) As
it relates to LENDER’s aforementioned records, BORROWER
hereby authorizes LENDER to record on LENDER’s records
all advances made by LENDER to BORROWER under this Note and
all interest and other amounts due hereon and all payments
made on account of principal and/or interest and/or such other
amounts. The aggregate unpaid principal and/or
interest and/or other amounts entered and shown on
LENDER’s records shall further evidence the principal
and/or interest and/or other amounts owing and unpaid on the
Revolving Loan. LENDER may from time to time render, or cause
LENDER to render, a statement of the aforementioned records.
If BORROWER fails to object to any such statement within sixty
(60) days after it is received by BORROWER, such statement
shall be deemed to be an account stated and binding upon
BORROWER, provided, however, that nothing in the foregoing
shall prevent LENDER or BORROWER from correcting manifest
errors in such statements.
(2) Notwithstanding
the foregoing, the following shall apply:
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(A)
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Any
failure by LENDER to enter on its records the date and amount of
any advance or interest or other amount due on this Note or any
failure by LENDER to render any such statement shall not, however,
limit or otherwise affect the obligations of BORROWER under the
Loan Agreement or under this Note to repay the principal amount of
the advances, re-advances, borrowings and re-borrowings made by
LENDER to BORROWER under the Revolving Loan and this Note, together
with all interest accruing and other amounts due
thereon.
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(B)
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The
failure by LENDER to enter on its records the date and amount of
any payment made by BORROWER shall not, however, limit or otherwise
affect the right of BORROWER under the Revolving Loan or this Note
to demonstrate its payment of any Advance or any interest accruing
and other amounts due thereon.
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3.
LIMITATION ON
OUTSTANDING BORROWINGS : Notwithstanding the
face amount of this Note, the total of all outstanding
borrowings under this Note shall not at any one time exceed
the Lending Formula set forth in the Loan
Agreement.
4.
PROCEDURE FOR
ADVANCES AND DISBURSEMENTS : All requests by
BORROWER for an advance under this Note and all disbursements
made
