Exhibit 10.74
--------------------------------------------------------------------------------
NATIONAL CITY BANK OF KENTUCKY
and
THE NEW YORK MORTGAGE COMPANY LLC
CREDIT NOTE
Dated as of December 15, 2003
--------------------------------------------------------------------------------
CREDIT NOTE
$25,000,000.00 As of December 15, 2003
FOR VALUE RECEIVED, the undersigned, THE NEW YORK MORTGAGE COMPANY LLC, a
limited liability company organized under the laws of the State of New York,
whose address is 1301 Avenue of the Xxxxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000 (the "Company"), promises to pay to the order of NATIONAL CITY BANK OF
KENTUCKY, a national banking association, whose address is 000 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 ("National City") on or before June 30, 2004,
or such earlier date as is provided for in the Credit Agreement as hereinafter
defined ("Maturity Date"), in lawful money of the United States of America, the
principal sum of TWENTY FIVE MILLION DOLLARS ($25,000,000.00), or the aggregate
unpaid principal amount of all advances by National City to the Company pursuant
to the Credit and Security Agreement among National City, HSBC Bank USA ("HSBC),
HSBC as Agent, National City as Documentation Agent, and the Company dated as of
even date herewith (as such agreement may be amended, restated, supplemented or
otherwise modified from time to time, the "Credit Agreement"), plus interest
thereon from the date hereof, as follows:
INTEREST: Interest shall accrue on the principal amount outstanding hereon
at an annual rate equal to the rate determined by National City to be the
average rate per annum offered on the London Interbank Offering Market for U.S.
Dollar deposits in the amount of this Credit Note or applicable portion thereof
and for a term of 30 days ("LIBOR") plus 125 basis points (together, the
"LIBOR-Based Rate"). The LIBOR-Based Rate shall be adjusted at the end of each
calendar month to the rate equal to the LIBOR-Based Rate determined by
reference to the then-current LIBOR. Accrued interest shall be paid monthly on
the tenth business day of each month after the date hereof. Interest shall be
calculated on the basis of 1/360 of the annual interest at the applicable rate
on the outstanding principal balance for each day such balance is outstanding,
thus increasing the effective rate of interest, and shall continue to accrue at
such rate until the principal balance is paid in full, regardless of whether
the principal has become due by reason of default or otherwise, except as
otherwise provided herein.
MAXIMUM RATE OF INTEREST: It is intended that the rate of interest hereon
shall never exceed the maximum rate, if any, which may be legally charged on the
loan evidenced by this Credit Note ("Maximum Rate"), and if the provisions for
interest contained in this Credit Note would result in a rate higher than the
Maximum Rate, interest shall nevertheless be limited to the Maximum Rate and any
amounts which may be paid toward interest in excess of the Maximum Rate shall be
applied to the reduction of principal, or, at the option of National City,
returned to the Company.
DUE DATE: All indebtedness evidenced hereby not paid before the Maturity
Date shall be due and payable on the Maturity Date.
-2-
PLACE OF PAYMENT: All payments hereon shall be made, and all notices to
National City required or authorized hereby shall be given, as set forth in the
Credit Agreement.
PAYMENT AND EXPENSES OF COLLECTION: All amounts payable hereunder are
payable in lawful money of the United States. Payments received by the agent on
behalf of National City after 2:00 p.m. Agent'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 2:00 p.m. Agent's
local time Agent shall have received a completed "Repayment Schedule" on Agent'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 Credit 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 National City and
handled in collection in the customary manner, but the same shall not constitute
payment hereunder or diminish any rights of National City except to the extent
that actual cash proceeds of such instrument are unconditionally received by
National City; provided, however, that this Credit 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 National City 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.
INTEREST AFTER NONPAYMENT: If the principal of this Credit 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), National City 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 National City 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
-3-
of any such rights and remedies without the express consent of National City,
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 Credit Note, and expressly
agree that this Credit 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 Credit Note, the release of any party primarily or
secondarily liable hereon, and that it will not be necessary for National City,
in order to enforce payment of this Credit Note, to first institute or exhaust
National City's remedies against the Company or any other party liable hereon or
against any collateral for this Credit 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 Credit Note, or any installment
hereof, made by agreement by National City with any person now or hereafter
liable for the payment of this Credit Note, shall affect the liability under
this Credit Note of the Company, even if the Company is not a party to such
agreement; provided, however, National City 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
Credit 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 National City shall be deemed to include and apply to every subsequent holder
of this Credit 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.
APPLICABLE LAW: This Credit Note shall be governed by and construed
under the laws of the State of New York, whose laws and Company expressly elects
to apply to this Credit Note. The Company agrees that any action or proceeding
brought to enforce or arising out of this Credit 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
and action of 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
Credit Note or any document given in connection with
or to secure this Credit Note, including without limitation any exercise of
rights under this Credit Note or any such document, any attempt to cancel, void,
or rescind this Credit Note or any such document, and any course of conduct or
course of dealing in connection therewith.
THE NEW YORK MORTGAGE COMPANY LLC
By: /s/ Xxxxxx Xxxxxxx
------------------------------
Xxxxxx Xxxxxxx, Member
