AMENDED AND RESTATED
COMMITTED LINE OF CREDIT NOTE
$5,000,000 June 2, 2003
FOR VALUE RECEIVED, AMERICAN BUSINESS FINANCIAL SERVICES, INC. (the
"Borrower"), with an address at 000 Xxxxxxxxxxxx Xxxxxxxxx, Xxxx Xxxxxx, XX
00000, promises to pay to the order of FIRSTRUST SAVINGS BANK (the "Bank"), in
lawful money of the United States of America in immediately available funds at
its offices located at 0000 Xxxxxx Xxxx, Xxxxxxx, XX 00000, or at such other
location as the Bank may designate from time to time, the principal sum of FIVE
MILLION DOLLARS ($5,000,000) or such lesser amount as may be advanced to or for
the benefit of the Borrower hereunder, together with interest accruing on the
outstanding principal balance from the date hereof, as provided below:
1. Rate of Interest. Amounts outstanding under this Note will accrue interest at
a per annum rate (the "Note Rate") equal to the LIBOR Rate (as hereinafter
defined) plus the Applicable Margin, calculated on the basis of a year of 360
days for the actual number of days elapsed. As used herein:
(i) "Applicable Margin" means: (A) 3.25 percentage
points with respect to loan advances supported by the X Note and the R Note, and
(B) 2.50 percentage points with respect to loan advances supported by the B
Note, as each of those terms are defined in the Amendment No. 2 referred to in
Section 7 hereof, provided that the interest rate hereon shall in no event be
less than (A) 5.25% with respect to loan advances supported by the X Note and
the R Note and (B) 4.50% with respect to loan advances supported by the B Note.
(ii) "LIBOR Rate" means, for each calendar month on
and after the date hereof and with respect to the principal outstanding
hereunder during such calendar month, the interest rate per annum determined by
the Bank by dividing (the resulting quotient rounded upwards, if necessary, to
the nearest 1/100th of 1%) (a) the rate of interest determined by the Bank in
accordance with its usual procedures (which determination shall be conclusive
absent manifest error) to be the average of the one (1) month London inter-bank
offered rates for U.S. Dollars quoted by the British Bankers' Association, or
appropriate successor, as set forth on Dow Xxxxx Markets Service (formerly known
as Telerate) display page 3750 (or such other display page on the Dow Xxxxx
Markets Service system as may replace display page 3750), or if British Bankers'
Association or its successor ceases to provide such quote, a comparable
replacement rate determined by the Bank (which determination shall be conclusive
absent manifest error), on the first day of such month by (b) a number equal to
1.00 minus the LIBOR Reserve Percentage;
(iii) "Business Day" means a day on which commercial
banks settle payments in U.S. dollars in New York City and London other than a
Saturday or Sunday or a legal holiday on which commercial banks are authorized
or required to be closed for business in New York, New York; and
(iv) "LIBOR Reserve Percentage" shall mean the
maximum effective percentage in effect on any day as prescribed by the Board of
Governors of the Federal Reserve System (or any successor) for determining the
reserve requirements (including, without limitation, supplemental, marginal and
emergency reserve requirements) with respect to eurocurrency funding (currently
referred to as "Eurocurrency liabilities").
Upon maturity, whether by acceleration, demand or otherwise, and at the Bank's
option upon the occurrence of any Event of Default (as hereinafter defined) and
during the continuance thereof, this Note shall bear interest at a rate per
which shall be 2.5 percentage points in excess of the interest rate in effect
from time to time under this Note but not more than the maximum rate allowed by
law (the "Default Rate"). The Default Rate shall continue to apply whether or
not judgment shall be entered on this Note. The Default Rate is imposed as
liquidated damages for the purpose of defraying the Bank's expenses incident to
the handling of delinquent payments, but is in addition to, and not in lieu of,
the Bank's exercise of any rights and remedies hereunder, under other loan
documents or under applicable law, and any fees and expenses of any agents or
attorneys which the Bank may employ. In addition, the Default Rate reflects the
increased credit risk to the Bank of carrying a loan that is in default. The
Borrower agrees that the Default Rate is a reasonable forecast of just
compensation for anticipated and actual harm incurred by the Bank, and that the
actual harm incurred by the Bank cannot be estimated with certainty and without
difficulty.
If the Bank determines (which determination shall be final and conclusive) that,
by reason of circumstances affecting the eurodollar market generally, deposits
in dollars (in the applicable amounts) are not being offered to banks in the
eurodollar market for the selected term, or adequate means do not exist for
ascertaining LIBOR, then the Bank shall give notice thereof to the Borrower.
Thereafter, until the Bank notifies the Borrower that the circumstances giving
rise to such suspension no longer exist, (a) the availability of LIBOR shall be
suspended, and (b) the interest rate for all amounts outstanding under this Note
shall be immediately converted to a rate of interest per annum equal to the
Bank's variable prime rate ("Prime Rate") as in effect from time to time at Bank
as its prime rate, which rate is not necessarily the best or lowest rate which
Bank makes available to its commercial customers.
In addition, if, after the date of this Note, the Bank shall determine (which
determination shall be final and conclusive) that any enactment, promulgation or
adoption of or any change in any applicable law, rule or regulation, or any
change in the interpretation or administration thereof by a governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by the Bank with any guideline, request or
directive (whether or not having the force of law) of any such authority,
central bank or comparable agency shall make it unlawful or impossible for the
Bank to make or maintain or fund loans bearing interest based on LIBOR, the Bank
shall notify the Borrower in writing. Ten Business Days after receipt of such
notice, until the Bank notifies the Borrower that the circumstances giving rise
to such determination no longer apply, (a) the availability of LIBOR shall be
suspended, and (b) the interest rate on all amounts outstanding under this Note
shall be converted to the Prime Rate either (i) as of the first day of the
immediately preceding month if the Bank may lawfully continue to maintain
amounts outstanding hereunder to such day at a rate of interest based on LIBOR,
or (ii) immediately if the Bank may not lawfully continue to maintain amounts
outstanding hereunder at a rate of interest based on LIBOR.
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2. Advances. The Borrower may borrow, repay and reborrow hereunder until the
Expiration Date, subject to the terms and conditions of this Note and the Loan
Documents (as defined herein). The "Expiration Date" shall mean January 14,
2004, or such later date as may be designated by the Bank by written notice from
the Bank to the Borrower. The Borrower acknowledges and agrees that in no event
will the Bank be under any obligation to extend or renew the Facility or this
Note beyond the Expiration Date. In no event shall the aggregate unpaid
principal amount of advances under this Note exceed the Facility Limit as set
forth in the Loan Agreement referred to in Section 7 hereof.
3. Advance Procedures. A request for advance made by telephone or electronically
must be promptly confirmed in writing by such method as the Bank may reasonably
require. The Borrower authorizes the Bank to accept telephonic requests for
advances, and the Bank shall be entitled to rely upon the authority of any
person providing such instructions. The Borrower hereby indemnifies and holds
the Bank harmless from and against any and all damages, losses, liabilities,
costs and expenses (including reasonable attorneys' fees and expenses) which may
arise or be created by the acceptance of such telephone requests or making such
advances. The Bank will enter on its books and records, which entry when made
will be presumed correct, the date and amount of each advance, as well as the
date and amount of each payment made by the Borrower.
4. Payment Terms. Accrued interest will be due and payable on the first day of
each month, beginning with the payment due on June 1, 2003. The outstanding
principal balance and any accrued but unpaid interest shall be due and payable
on the Expiration Date.
If any payment under this Note shall become due on a Saturday, Sunday or public
holiday under the laws of the State where the Bank's office indicated above is
located, such payment shall be made on the next succeeding business day and such
extension of time shall be included in computing interest in connection with
such payment. Payments received will be applied to charges, fees and expenses
(including reasonable attorneys' fees), accrued interest and principal in any
order the Bank may choose, in its sole discretion.
5. Late Payments. If the Borrower fails to make any payment of principal,
interest or other amount coming due pursuant to the provisions of this Note
within 15 calendar days of the date due and payable, the Borrower also shall pay
to the Bank a late charge equal to the lesser of two percent (2%) of the amount
of such payment or $100.00 (the "Late Charge"). Such 15 day period shall not be
construed in any way to extend the due date of any such payment.
6. Prepayment. The indebtedness evidenced by this Note may be prepaid in whole
or in part at any time without penalty or notice.
7. Other Loan Documents. This Note is issued in connection with a loan agreement
between the Borrower and the Bank dated January 18, 2002 (as amended from time
to time, including by Amendment No. 2 of even date herewith, being herein called
the "Loan Agreement"), and the other agreements and documents executed in
connection therewith or referred to therein, the terms of which are incorporated
herein by reference (as amended, modified or renewed from time to time,
collectively the "Loan Documents"), and is secured by the property described in
the Loan Documents (if any) and by such other collateral as previously may have
been or may in the future be granted to the Bank to secure this Note.
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8. Events of Default. The occurrence of any of the following events will be
deemed to be an "Event of Default" under this Note: (i) the nonpayment of any
principal, interest or other indebtedness under this Note within two (2)
Business Days when due; (ii) the occurrence of any event of default or default
and the lapse of any notice or cure period under any Loan Document or any other
debt, liability or obligation to the Bank of any Obligor; (iii) the filing by or
against any Obligor of any proceeding in bankruptcy, receivership, insolvency,
reorganization, liquidation, conservatorship or similar proceeding (and, in the
case of any such proceeding instituted against any Obligor, such proceeding is
not dismissed or stayed within 60 days of the commencement thereof, provided
that the Bank shall not be obligated to advance additional funds during such
period); (iv) any assignment by any Obligor for the benefit of creditors, or any
levy, garnishment, attachment or similar proceeding is instituted against any
property of any Obligor held by or deposited with the Bank; (v) a default with
respect to any other indebtedness of any Obligor for borrowed money in excess of
$1,000,000 in the aggregate, if the effect of such default is to cause or permit
the acceleration of such debt; (vi) the commencement of any foreclosure or
forfeiture proceeding, execution or attachment against any collateral securing
the obligations of any Obligor to the Bank; (vii) the entry of a final judgment
or judgements in excess of $1,000,000 in the aggregate against any Obligor and
the failure of such Obligor to discharge the judgment within ten days of the
entry thereof; (viii) [intentionally omitted]; (ix) any material adverse change
in any Obligor's business, assets, operations, financial condition or results of
operations; (x) any Obligor ceases doing business as a going concern; (xi) the
revocation or attempted revocation, in whole or in part, of any guarantee by any
Guarantor; (xii) the death, incarceration, indictment or legal incompetency of
any individual Obligor or, if any Obligor is a partnership or limited liability
company, the death, incarceration, indictment or legal incompetency of any
individual general partner or member; (xiii) any representation or warranty made
by any Obligor to the Bank in any Loan Document, or any other documents now or
in the future evidencing or securing the obligations of any Obligor to the Bank,
is false, erroneous or misleading in any material respect; or (xiv) any
Obligor's failure to observe or perform any covenant or other agreement with the
Bank contained in any Loan Document or any other documents now or in the future
evidencing or securing the obligations of any Obligor to the Bank. As used
herein, the term "Obligor" means any Borrower and any Guarantor, and the term
"Guarantor" means any guarantor of the Borrower's obligations to the Bank
existing on the date of this Note or arising in the future.
Upon the occurrence of an Event of Default: (a) the Bank shall be under no
further obligation to make advances hereunder; (b) if an Event of Default
specified in clause (iii) or (iv) above shall occur, the outstanding principal
balance and accrued interest hereunder together with any additional amounts
payable hereunder shall be immediately due and payable without demand or notice
of any kind; (c) if any other Event of Default shall occur, the outstanding
principal balance and accrued interest hereunder together with any additional
amounts payable hereunder, at the Bank's option and without demand or notice of
any kind, may be accelerated and become immediately due and payable; (d) at the
Bank's option, this Note will bear interest at the Default Rate from the date of
the occurrence of the Event of Default; and (e) the Bank may exercise from time
to time any of the rights and remedies available under the Loan Documents or
under applicable law.
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9. Right of Setoff. In addition to all liens upon and rights of setoff against
the Borrower's money, securities or other property given to the Bank by law, the
Bank shall have, with respect to the Borrower's obligations to the Bank under
this Note and to the extent permitted by law, a contractual possessory security
interest in and a contractual right of setoff against, and the Borrower hereby
assigns, conveys, delivers, pledges and transfers to the Bank all of the
Borrower's right, title and interest in and to, all of the Borrower's deposits,
moneys, securities and other property now or hereafter in the possession of or
on deposit with, or in transit to, the Bank, whether held in a general or
special account or deposit, whether held jointly with someone else, or whether
held for safekeeping or otherwise, excluding, however, all IRA, Xxxxx, and trust
accounts. Every such security interest and right of setoff may be exercised
without demand upon or notice to the Borrower. Every such right of setoff shall
be deemed to have been exercised immediately upon the occurrence of an Event of
Default hereunder without any action of the Bank, although the Bank may enter
such setoff on its books and records at a later time.
10. Miscellaneous. All notices, demands, requests, consents, approvals and other
communications required or permitted hereunder must be in writing (except as may
be agreed otherwise above with respect to borrowing requests) and will be
effective upon receipt. Such notices and other communications may be
hand-delivered, sent by facsimile transmission with confirmation of delivery and
a copy sent by first-class mail, or sent by nationally recognized overnight
courier service, to the addresses for the Bank and the Borrower set forth above
or to such other address as either may give to the other in writing for such
purpose. No delay or omission on the Bank's part to exercise any right or power
arising hereunder will impair any such right or power or be considered a waiver
of any such right or power, nor will the Bank's action or inaction impair any
such right or power. No modification, amendment or waiver of any provision of
this Note nor consent to any departure by the Borrower therefrom will be
effective unless made in a writing signed by the Bank. The Borrower agrees to
pay on demand, to the extent permitted by law, all costs and expenses incurred
by the Bank in the enforcement of its rights in this Note and in any security
therefor, including without limitation reasonable fees and expenses of the
Bank's counsel. If any provision of this Note is found to be invalid by a court,
all the other provisions of this Note will remain in full force and effect. The
Borrower and all other Borrowers and indorsers of this Note hereby forever waive
presentment, protest, notice of dishonor and notice of non-payment. The Borrower
also waives all defenses based on suretyship or impairment of collateral. If
this Note is executed by more than one Borrower, the obligations of such persons
or entities hereunder will be joint and several. This Note shall bind the
Borrower and its heirs, executors, administrators, successors and assigns, and
the benefits hereof shall inure to the benefit of the Bank and its successors
and assigns; provided, however, that the Borrower may not assign this Note in
whole or in part without the Bank's written consent and the Bank at any time may
assign this Note in whole or in part except that Bank may not assign it to any
entity or person which it knows or reasonably should know is a competitor or
Borrower.
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This Note has been delivered to and accepted by the Bank and will be deemed to
be made in the State where the Bank's office indicated above is located. THIS
NOTE WILL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE BANK AND THE
BORROWER DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE WHERE THE BANK'S
OFFICE INDICATED ABOVE IS LOCATED, EXCLUDING ITS CONFLICT OF LAWS RULES. The
Borrower hereby irrevocably consents to the exclusive jurisdiction of any state
or federal court in the county or judicial district where the Bank's office
indicated above is located; provided that nothing contained in this Note will
prevent the Bank from bringing any action, enforcing any award or judgment or
exercising any rights against the Borrower individually, against any security or
against any property of the Borrower within any other county, state or other
foreign or domestic jurisdiction. The Borrower acknowledges and agrees that the
venue provided above is the most convenient forum for both the Bank and the
Borrower. The Borrower waives any objection to venue and any objection based on
a more convenient forum in any action instituted under this Note.
11. WAIVER OF JURY TRIAL. THE BORROWER IRREVOCABLY WAIVES ANY AND ALL RIGHTS THE
BORROWER MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR CLAIM OF ANY
NATURE RELATING TO THIS NOTE, ANY DOCUMENTS EXECUTED IN CONNECTION WITH THIS
NOTE OR ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH DOCUMENTS. THE BORROWER
ACKNOWLEDGES THAT THE FOREGOING WAIVER IS KNOWING AND VOLUNTARY.
The Borrower acknowledges that it has read and understood all the provisions of
this Note, including the waiver of jury trial, and has been advised by counsel
as necessary or appropriate.
WITNESS the due execution hereof as a document under seal, as of the
date first written above, with the intent to be legally bound hereby.
WITNESS / ATTEST: AMERICAN BUSINESS FINANCIAL SERVICES, INC.
____________________________________ By:_________________________________
(SEAL)
Print Name:___________________________ Print Name:_________________________
Title:________________________________ Title:______________________________
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