REVOLVING NOTE
Exhibit
10.2
| $15,000,000.00 |
November 21,
2008
|
FOR VALUE
RECEIVED, the undersigned, ANCHOR FUNDING SERVICES, LLC,
a North Carolina limited liability company ("Borrower"), hereby unconditionally
promises to pay to the order of TEXTRON FINANCIAL CORPORATION
(herein, together with any subsequent holder hereof, the "Holder") the principal
sum of FIFTEEN MILLION AND NO/100 DOLLARS ($15,000,000) or such lesser sum as
may constitute Holder's Pro Rata Share of the outstanding principal amount of
all Loans pursuant to (and as defined in) the Loan Agreement (as defined below)
on the date on which such outstanding principal amounts become due and payable
pursuant to the Loan Agreement, in strict accordance with the terms
thereof. Borrower likewise unconditionally promises to pay to Holder
interest from and after the date hereof on Xxxxxx's Pro Rata Share of the
outstanding principal amount of Loans at such interest rates, payable at such
times, and computed in such manner as are specified in Section 1.3 of the Loan
Agreement, in strict accordance with the terms thereof.
This
Revolving Note ("Note") is issued pursuant to, and is one of the "Revolving
Notes" referred to in, the Loan and Security Agreement dated of even date
herewith (as at any time amended, restated, supplemented or otherwise modified,
the "Loan Agreement"), among Borrower, Textron Financial Corporation, as
collateral and administrative agent (in such capacity, together with its
successors in such capacity, the "Agent") for itself and the financial
institutions from time to time parties thereto as lenders ("Lenders"), and such
Lenders, and Xxxxxx is and shall be entitled to all benefits thereof and of all
Loan Documents executed and delivered in connection therewith. This
Note is subject to certain restrictions on transfer or assignment as provided in
the Loan Agreement. All capitalized terms used herein, unless
otherwise defined herein, shall have the meanings ascribed to such terms in the
Loan Agreement.
The
repayment of the principal balance of this Note is subject to the provisions of
the Loan Agreement. The entire unpaid principal balance and all
accrued interest on this Note shall be due and payable immediately upon the
termination of the Commitments as set forth in Section 1.6 of the
Loan Agreement.
All
payments of principal and interest shall be made in Dollars in immediately
available funds as specified in the Loan Agreement.
Upon or
after the occurrence of an Event of Default and for so long as such Event of
Default exists, the principal balance and all accrued interest of this Note may
be declared (or shall become) due and payable in the manner and with the effect
provided in the Loan Agreement. Xxxxxxxx agrees to pay, and save
Xxxxxx harmless against, any liability for the payment of, all costs and
expenses, including, but not limited to, reasonable attorneys' fees, if this
Note is collected by or through an attorney-at-law.
All
principal amounts of Loans made by Holder to Borrower pursuant to the Loan
Agreement, and all accrued and unpaid interest thereon, shall be deemed
outstanding under this Note and shall continue to be owing by Borrower until
paid in accordance with the terms of this Note and the Loan
Agreement.
In no
contingency or event whatsoever, whether by reason of advancement of the
proceeds hereof or otherwise, shall the amount paid or agreed to be paid to
Holder for the use, forbearance or detention of money advanced
hereunder exceed the highest lawful rate permissible under any law which a court
of competent jurisdiction may deem applicable hereto; and, in the event of any
such payment inadvertently paid by Borrower or inadvertently received by Holder,
such excess sum shall be credited as a payment of principal and the balance, if
any, returned to Borrower, but shall not be applied to the payment of
interest. It is the intent hereof that Borrower not pay or contract
to pay, and that Holder not receive or contract to receive, directly or
indirectly in any manner whatsoever, interest in excess of that which may be
paid by Borrower under Applicable Law.
Time is
of the essence of this Note. To the fullest extent permitted by
Applicable Law, Borrower, for itself and its legal representatives, successors
and assigns, expressly waives presentment, demand, protest, notice of dishonor,
notice of non-payment, notice of maturity, notice of protest, presentment for
the purpose of accelerating maturity, diligence in collection, and the benefit
of any exemption or insolvency laws.
Wherever
possible each provision of this Note shall be interpreted in such a manner as to
be effective and valid under Applicable Law, but if any provision of this Note
shall be prohibited or invalid under Applicable Law, such provision shall be
ineffective to the extent of such prohibition or invalidity without invalidating
the remainder of such provision or remaining provisions of this
Note. No delay or failure on the part of Holder in the exercise of
any right or remedy hereunder shall operate as a waiver thereof, nor as an
acquiescence in any default, nor shall any single or partial exercise by Holder
of any right or remedy preclude any other right or remedy. Holder, at
its option, may enforce its rights against any Collateral securing this Note
without Agent or Holder enforcing its rights against Borrower, any Guarantor of
the indebtedness evidenced hereby or any other property or indebtedness due or
to become due to Borrower. Xxxxxxxx agrees that, without releasing or
impairing Xxxxxxxx's liability hereunder, Xxxxxx or Agent may at any time
release, surrender, substitute or exchange any Collateral securing this Note and
may at any time release any party primarily or secondarily liable for the
indebtedness evidenced by this Note.
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The
rights of Xxxxxx and obligations of Borrower hereunder shall be construed in
accordance with and governed by the laws (without giving effect to the conflict
of law principles thereof) of the State of Rhode Island. This Note is
intended to take effect as an instrument under seal under Rhode Island
law.
IN
WITNESS WHEREOF, Xxxxxxxx has caused this Note to be executed under seal and
delivered by its duly authorized officers on the date first above
written.
| BORROWER: | |||
| ANCHOR FUNDING SERVICES, LLC | |||
|
|
By:
|
/s/ | |
| Xxxx Xxxxxxxxx | |||
| President | |||
|
[Seal]
|
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