EXHIBIT 10.25
--------------------------------------------------------------------------------
HSBC BANK USA
AND
THE NEW YORK MORTGAGE COMPANY LLC
--------------------
FOURTH AMENDED
CREDIT NOTE
--------------------
Dated as of January 16, 2002
--------------------------------------------------------------------------------
- 2 -
MANDATORY PRINCIPAL REDUCTION: The Company agrees to pay to HSBC on
February 15, 2002, the amount by which the principal balance hereof exceeds
THIRTY MILLION DOLLARS ($30,000,000.00). After February 15, 2002, no advances
hereon which cause the principal balance to exceed THIRTY MILLION DOLLARS
($30,000,000.00) will be available.
DUE DATE: All indebtedness evidenced hereby not paid before the
Maturity Date shall be due and payable on the Maturity Date.
PLACE OF PAYMENT: All payments hereon shall be made, and all notices
to HSBC required or authorized hereby shall be given, at the office of HSBC at
the address designated in the heading of this Note, or to such other place as
HSBC may from time to time direct by written notice to the Company.
PAYMENT AND EXPENSES OF COLLECTION: All amounts payable hereunder
are payable in lawful money of the United States. Payments received by HSBC
after 2:30 p.m. HSBC's local time shall be deemed to be received on the next
following business day. Notwithstanding the foregoing, a payment will not be
deemed to have been received unless by 2:30 p.m. HSBC's local time HSBC shall
have received a completed "Repayment Schedule" on HSBC's form, listing the
Qualifying Mortgages (as defined in the Credit Agreement) to which the payment
pertains. The Company agrees to pay all costs of collection when incurred,
including, without limiting the generality of the foregoing, reasonable
attorneys' fees through appellate proceedings, and to perform and comply with
each of the covenants, conditions, provisions and agreements contained in every
instrument now evidencing or securing said indebtedness. If any suit or action
be instituted to enforce this Note, the Company promises to pay, in addition to
the cost and disbursements otherwise allowed by law, such sum as the court may
adjudge reasonable attorneys' fees in such suit or action.
COLLECTION PERIODS: Any check, draft, money order or other
instrument given in payment of all or any portion hereof may be accepted by HSBC
and handled in collection in the customary manner, but the same shall not
constitute payment hereunder or diminish any rights of HSBC except to the extent
that actual cash proceeds of such instrument are unconditionally received by
HSBC; provided, however, that this Note shall not be in default as the result of
normal collection periods on such instruments.
LATE PAYMENT CHARGE: The Company promises to pay to HSBC promptly
upon the accrual thereof a late payment charge of 6% of the amount of any
installment payment not paid within ten days of receipt by the Company of the
xxxx for such payment.
- 3 -
INTEREST AFTER NONPAYMENT: If the principal of this Note is not paid
when due, whether by acceleration or otherwise, all unpaid amounts shall bear
interest following said nonpayment at the rate of 5% per annum above the
otherwise applicable interest rate.
DEFAULTS: Upon the happening of an Event of Default (as defined in
the Credit Agreement), HSBC shall have all rights and remedies set forth in the
Credit Agreement.
The failure to exercise any of the rights and remedies set forth in
the Credit Agreement shall not constitute a waiver of the right to exercise the
same or any other option at any subsequent time in respect of the same event or
any other event. The acceptance by HSBC of any payment hereunder which is less
than payment in full of all amounts due and payable at the time of such payment
shall not constitute a waiver of the right to exercise any of the foregoing
rights and remedies at that time or at any subsequent time or nullify any prior
exercise of any such rights and remedies without the express consent of HSBC,
except as and to the extent otherwise provided by law.
WAIVERS: The Company, and any indorsers or guarantors hereof,
severally waive diligence, presentment, protest and demand and also notice of
protest, demand, dishonor and nonpayment of this Note, and expressly agree that
this Note, or any payment hereunder, may be extended from time to time, and
consent to the acceptance of further collateral, the release of any collateral
for this Note, the release of any party primarily or secondarily liable hereon,
and that it will not be necessary for HSBC, in order to enforce payment of this
Note, to first institute or exhaust HSBC's remedies against the Company or any
other party liable hereon or against any collateral for this Note. None of the
foregoing shall affect the liability of the Company and any indorsers or
guarantors hereof. No extension of time for the payment of this Note, or any
installment hereof, made by agreement by HSBC with any person now or hereafter
liable for the payment of this Note, shall affect the liability under this Note
of the Company, even if the Company is not a party to such agreement; provided,
however, HSBC and the Company, by written agreement between them may affect the
liability of the Company.
TERMINOLOGY: If more than one party joins in the execution of this
Note, the covenants and agreements herein contained shall be the joint and
several obligation of each and all of them and of their respective heirs,
executors, administrators, successor and assigns, and relative words herein
shall be read as if written in the plural when appropriate. Any reference herein
to HSBC shall be deemed to include and apply to every subsequent holder of this
Note. Words of masculine or neuter import shall be read as if written in the
neuter or masculine or feminine when appropriate.
CREDIT AGREEMENT: Reference is made to the Credit Agreement for
provisions as to mandatory principal repayments, collateral and acceleration.
- 4 -
APPLICABLE LAW: This Note shall be governed by and construed under
the laws of the State of New York, whose laws the Company expressly elects to
apply to this Note. The Company agrees that any action or proceeding brought to
enforce or arising out of this Note may be commenced in the New York Supreme
Court for the County of Erie, or in the District Court of the United States for
the Western District of New York, and the Company waives personal service of
process and agrees that a summons and complaint commencing an action or
proceeding in any such court shall be properly served and shall confer personal
jurisdiction if served by registered mail to the Company, or as otherwise
provided by the laws of the State of New York or the United States.
WAIVER OF TRIAL BY JURY: The Company hereby knowingly, voluntarily,
unconditionally and irrevocably waives the right to a trial by jury in every
jurisdiction in any action, proceeding or counterclaim brought by or against the
Company, its successors or assigns, in respect of any matter arising out of this
Note or any document given in connection with or to secure this Note, including
without limitation any exercise of rights under this Note or any such document,
any attempt to cancel, void, or rescind this Note or any such document, and any
course of conduct or course of dealing in connection therewith.
RENEWAL: This Fourth Amended Credit Note renews and replaces the
Company's Third Amended Credit Note to HSBC in the maximum principal amount of
$30,000,000.00 dated as of November 13, 2001, and evidences the availability of
an additional $5,000,000.00 until February 15, 2002, pursuant to the terms and
conditions of the Credit Agreement.
THE NEW YORK MORTGAGE COMPANY LLC
By: /s/ Xxxxxx Xxxxxxx
-------------------------------------
Xxxxxx Xxxxxxx, Member
- 5 -
STATE OF NEW YORK )
) SS.:
COUNTY OF QUEENS )
On the 16 day of January, 2002, before me, the undersigned, a notary public in
and for said state, personally appeared Xxxxxx Xxxxxxx, personally known to me
or proved to me on the basis of satisfactory evidence to be the individual(s)
whose name(s) is (are) subscribed to the within instrument and acknowledged to
me that he/she/they executed the same in his/her/their capacity(ies), and that
by his/her/their signature(s) on the instrument, the individual(s), or the
person upon behalf of which the individual(s) acted, executed the instrument.
/s/ Xxxx Xxxxx
-------------------------------------
Notary Public
Xxxx Xxxxx
Notary Public State of New York
No. 01MA5039882
Qualified in Queens County
Commission Expires March 6, 2003
