Exhibit 10.2


 


AMENDED AND RESTATED NOTE


 


	
  $25,763,950.23

  	
  October 29, 2010

  



 


THIS
NOTE (THE “NOTE”) HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE “SECURITIES
ACT”).  NEITHER THIS NOTE
NOR ANY PORTION HEREOF MAY BE OFFERED OR SOLD EXCEPT IN COMPLIANCE WITH THE
REGISTRATION PROVISIONS OF THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM SUCH REGISTRATION PROVISIONS.


 


THIS
NOTE IS NOT PERMITTED TO BE TRANSFERRED, ASSIGNED, EXCHANGED OR OTHERWISE
PLEDGED OR CONVEYED EXCEPT IN COMPLIANCE WITH THE TERMS OF THE CREDIT AGREEMENT
REFERRED TO HEREIN.


 


FOR
VALUE RECEIVED, FCC Investment Trust I, a Delaware statutory trust (the “Borrower”), promises to pay to
Fortress Credit Co LLC, as the administrative agent (the “Administrative
Agent”), on behalf of the Lenders, or their respective assigns,
the principal sum of TWENTY FIVE MILLION, SEVEN HUNDRED SIXTY THREE THOUSAND,
NINE HUNDRED FIFTY DOLLARS AND TWENTY THREE CENTS ($25,763,950.23) (the “Loan”) made by the Lenders to the
Borrower pursuant to the Credit Agreement (as defined below), as set forth on
the attached Schedule, on the dates specified in the Credit Agreement, and to
pay interest on the unpaid principal amount of the Loan on each day that such
unpaid principal amount is outstanding, at the Interest Rate related to such
Loan as provided in the Credit Agreement, on each Payment Date and each other
date specified in the Credit Agreement. 
The unpaid principal amount of the Loan and all accrued interest thereon
shall be due and payable in full on the earlier to occur of the Maturity Date
and the Termination Date.


 


This
Note is issued pursuant to the Credit Agreement, dated as of November 10, 2008
(as amended, modified, supplemented or restated from time to time, the “Credit Agreement”), by and among FCC
Finance, LLC, as the servicer (in such capacity, the “Servicer”),
the Borrower, Fortress Credit Co LLC, as the Administrative Agent, the Lenders
party thereto, Lyon Financial Services, Inc. (d/b/a U.S. Bank Portfolio
Services), as the backup servicer (in such capacity, the “Backup
Servicer”) and U.S. Bank National Association, as the collateral
custodian (in such capacity, the “Collateral Custodian”).  Capitalized terms used but not defined herein
shall have the meanings provided in the Credit Agreement.


 


Notwithstanding
any other provisions contained in this Note, if at any time the rate of
interest payable by the Borrower under this Note, when combined with any and
all other charges provided for in this Note, in the Credit Agreement or in any
other document (to the extent such other charges would constitute interest for
the purpose of any applicable law limiting interest that may be charged on this
Note), exceeds the highest rate of interest permissible under applicable law
(the “Maximum Lawful Rate”), then so long
as the Maximum Lawful Rate would be exceeded, the rate of interest under this
Note shall be equal to the Maximum Lawful Rate. 
If at any time thereafter the rate of interest payable under this Note
is less than the Maximum Lawful Rate, the Borrower shall continue to pay
interest under this Note at the Maximum Lawful Rate until such time as the
total interest paid by the Borrower is equal to the total interest that would 


 

















 


have
been paid had Applicable Law not limited the interest rate payable under this
Note.  In no event shall the total
interest received by the Lenders under this Note exceed the amount which the
Lenders could lawfully have received had the interest due under this Note been
calculated since the date of this Note at the Maximum Lawful Rate.


 


Payments
of the principal of, and interest on, the Loan represented by this Note shall
be made by or on behalf of the Borrower to the holder hereof by wire transfer
of immediately available funds in the manner and at the address specified for
such purpose as provided in the Credit Agreement, or in such manner or at such
other address as the holder of this Note shall have specified in writing to the
Borrower for such purpose, without the presentation or surrender of this Note
or the making of any notation on this Note.


 


If
any payment under this Note falls due on a day that is not a Business Day, then
such due date shall be extended to the next succeeding Business Day and
interest shall be payable on any principal so extended at the applicable
Interest Rate.


 


On
or after the declaration or occurrence of the Termination Date, all amounts due
under the Credit Agreement shall bear interest at a rate per annum that is
equal to the Default Rate, in each case from the date of such non-payment to
(but excluding) the date such amount is paid in full.


 


Except
as provided in the Credit Agreement, the Borrower expressly waives presentment,
demand, diligence, protest and all notices of any kind whatsoever with respect
to this Note.


 


All
amounts evidenced by this Note, the Lenders’ Loan and all payments of the
principal hereof and the respective dates and maturity dates thereof shall be
endorsed by the Administrative Agent, on the schedule attached hereto and made
a part hereof or on a continuation thereof, which shall be attached hereto and
made a part hereof; provided, however, that the failure of the Administrative
Agent to make such a notation shall not in any way limit or otherwise affect
the obligations of the Borrower under this Note as provided in the Credit
Agreement.


 


This
Note is secured by the security interests granted pursuant to Section 9.1 of
the Credit Agreement.  The holder of this
Note is entitled to the benefits of the Credit Agreement and may enforce the
agreements of the Borrower contained in the Credit Agreement and exercise the
remedies provided for by, or otherwise available in respect of, the Credit
Agreement, all in accordance with, and subject to the restrictions contained
in, the terms of the Credit Agreement. 
If an Event of Default shall occur (unless waived in writing by the
Required Lenders), the unpaid balance of the principal of the Loan, together
with accrued interest thereon, may be declared, and become, due and payable in
the manner and with the effect provided in the Credit Agreement.


 


The
Borrower, the Servicer, the Administrative Agent, the Lenders, the Backup
Servicer and the Collateral Custodian each intend, for federal, state and local
income and franchise tax purposes only, that this Note be evidence of indebtedness
of the Borrower secured by the Collateral.


 


This
Note is the “Note” referred to in Section 2.1 of the Credit Agreement and
represents a fractional undivided ownership interest in the Collateral to the
extent provided in the Credit 


 

















 


Agreement.  This Note shall be construed in accordance
with and governed by the laws of the State of New York.


 


This
Note modifies, restates and replaces that certain Note, dated as of November
10, 2008, executed by the Borrower in the original face amount of $34,891,977.97
(the “Existing Note”) and is not
intended to be or operate as a novation or an accord and satisfaction of the
Existing Note or the indebtedness evidenced or secured thereby or provided for
thereunder.


 


[Remainder of Page Intentionally Left Blank]


 

















 


IN WITNESS WHEREOF, the undersigned has
executed this Note as on the date first written above.


 


	
   

  	
  FCC
  INVESTMENT TRUST I,

  
	
   

  	
  as
  the Borrower

  
	
   

  	
   

  
	
   

  	
  BY:

  	
  U.S.
  Bank Trust National Association, not in its individual capacity but solely as
  statutory trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael D. Bengtson

  
	
   

  	
  Name:

  	
  Michael
  D. Bengtson

  
	
   

  	
  Title:

  	
  Assistant
  Vice President

  



 

















 


Schedule
attached to Note dated October 29, 2010 of FCC Investment Trust I payable to
the order of Fortress Credit Co LLC as the Administrative Agent for the Lenders.


 


	
  Date of Loan or

  Repayment

  	
   

  	
  Principal Amount of

  Loan

  	
   

  	
  Principal Amount of

  Repayment

  	
   

  	
  Outstanding Principal

  Amount