Exhibit 10.65
--------------------------------------------------------------------------------
HSBC BANK USA
and
THE NEW YORK MORTGAGE COMPANY LCC
-----------------------------------
FOURTH AMENDED
GUARANTY
XXXXXX X. XXXXXX
-----------------------------------
Dated as of January 16, 2002
--------------------------------------------------------------------------------
FOURTH AMENDED GUARANTY
XXXXXX X. XXXXXX
In consideration of any extension of credit whether heretofore or
hereafter made by HSBC BANK USA, a banking corporation organized under the laws
of the State of New York ("Secured Party") to THE NEW YORK MORTGAGE COMPANY
LLC, a New York limited liability company (the "Company"), the undersigned
hereby guarantees (a) the full and prompt payment to Secured Party when due,
whether by acceleration or otherwise, of any and all indebtedness and other
liabilities of the Company to Secured Party arising out of a Fourth Amended
Credit and Security Agreement between Secured Party and the Company dated as of
even date herewith ("Credit Agreement") governing a mortgage warehousing line
of credit in the maximum principal amount of THIRTY-FIVE MILLION DOLLARS
(35,000,000.00) until February 15, 2002, and THIRTY MILLION DOLLARS
($30,000,000.00) thereafter, whether now existing or hereinafter incurred, of
every kind and character, direct or indirect, and whether such indebtedness is
from time to time reduced and thereafter increased, or entirely extinguished
and thereafter reincurred ("Indebtedness"), and (b) the full and complete
performance of all the Company's obligations and compliance with all the
Company's covenants set forth in the Credit Agreement. The undersigned further
agrees to pay all costs and expenses, including, without limitation, attorneys'
fees, at any time paid or incurred by Secured Party in endeavoring to collect
the Indebtedness or any part thereof and in enforcing this Guaranty.
This Guaranty is, and is intended to be, a continuing guaranty of the
payment of the Indebtedness (irrespective of the aggregate amount thereof)
independent of and in addition to any other guaranty, indorsement or collateral
held by Secured Party therefor whether or not furnished by the undersigned. The
undersigned shall have no right of subrogation with respect to any payments made
by the undersigned hereunder until all of the Indebtedness is paid in full.
If any default shall be made in the payment of any Indebtedness, the
undersigned hereby agrees to pay the same to the extent above specified: (i)
without requiring protest or notice of nonpayment or notice of default to the
undersigned, to the Company, or to any other person; (ii) without proof of
demand, (iii) without requiring Secured Party to resort first to the Company or
to any other guaranty or any collateral which Secured Party may hold; (iv)
without requiring notice of acceptance hereof or assent hereto by Secured Party;
and (v) without requiring notice that any indebtedness has been incurred, all of
which the undersigned hereby waives.
The undersigned authorizes Secured Party, without notice or demand and
without releasing, impairing or affecting the undersigned's obligations
hereunder, from time to time: (i) to take from any party and hold collateral
for the payment of the Indebtedness or any part thereof, and to exchange,
enforce or release such collateral or any part thereof; (ii) to accept and hold
any indorsement or guaranty of payment of the Indebtedness or any part thereof
and to release or substitute any such indorser or guarantor, or any party who
has given any security interest in any collateral as security for the payment
of the Indebtedness or any part thereof, or any other party in any way
obligated to pay the Indebtedness or any part thereof; (iii) to direct the
order or manner
- 2 -
of the disposition of any and all collateral and the enforcement of any and all
indorsements and guaranties relating to the Indebtedness or any part thereof as
Secured Party, in its sole discretion, may determine; and (iv) to determine how,
when and what application of payments and credits, if any, shall be made on the
Indebtedness or any part thereof, and to apply the same upon principal or
interest or the portion thereof, if any, in excess of the amount of this
Guaranty.
No delay or omission by Secured Party in exercising any right or remedy
hereunder shall operate as a waiver thereof or of any other right or remedy,
and no single or partial exercise thereof shall preclude any other or further
exercise thereof or the exercise of any other right or remedy. All rights and
remedies of Secured Party hereunder are cumulative.
This Guaranty is absolute and unconditional and shall not be affected
by any act or thing whatsoever, except as herein provided. No modification or
amendment of any provision of this Guaranty shall be effective unless in
writing and subscribed by a duly authorized officer of Secured Party.
This Guaranty shall be governed by and construed under the laws of the
State of New York, whose laws the undersigned expressly elects to apply to this
Guaranty. The undersigned agrees that any action or proceeding brought to
enforce or arising out of this Guaranty may be commenced in the Yew 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 undersigned 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 undersigned, or as otherwise
provided by the laws of the State of New York or the United States.
The undersigned 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 undersigned, its
personal representatives, successors or assigns, in respect of any matter
arising out of this Guaranty or the Indebtedness, including without limitation
any exercise of rights hereunder, any attempt to cancel, void, or rescind this
Guaranty, and any course of conduct or course of dealing in connection herewith.
Secured Party and the undersigned as used herein shall include the
estates, executors or administrators, or successors or assigns, of those
parties.
This Fourth Amended Guaranty replaces the Third Amended Guaranty by the
undersigned dated as of November 13, 2001.
- 3 -
IN WITNESS WHEREOF, this Guaranty has been signed by the undersigned
at 000 Xxxx Xxxxxx Xxxxx this 16th day of January, 2002.
Signature of Guarantor Address
/s/ Xxxxxx X. Xxxxxx 000 Xxxx 00xx Xxxxxx
------------------------------- Xxx Xxxx, XX 00000
XXXXXX X. XXXXXX
- 4 -
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 X. Xxxxxx, personally known to
me or proved to me on the basis of satisfactory evidence to be the individual
whose name is subscribed to the within instrument and acknowledged to me that he
executed the same in his capacity, and that by his signature on the instrument,
the individual, or the person upon behalf of which the individual 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
