EXHIBIT 10.27
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HSBC BANK USA
and
THE NEW YORK MORTGAGE COMPANY LLC
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FIFTH AMENDMENT
CREDIT NOTE
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Date as of April 29, 2002
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FIFTH AMENDED CREDIT NOTE
$40,000,000.00 As of April 29, 2002
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 000 Xxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the
"Company"), promises to pay to the order of HSBC BANK USA, a banking corporation
organized under the laws of the State of New York, whose address is c/o Mortgage
Warehouse Lending Department, Xxx XXXX Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxx Xxxx
00000 ("HSBC") on or before August 31, 2002, 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 FORTY MILLION
DOLLARS ($40,000,000.00), or the aggregate unpaid principal amount of all
advances by HSBC to the Company pursuant to the Credit and Security Agreement
between HSBC and the Company dated as of March 30, 2001, as amended by First
Amended Credit and Security Agreement dated as of May 24, 2001, Second Amended
Credit and Security Agreement dated as of June 18, 2001, Third Amended Credit
and Security Agreement dated as of November 13, 2001, Fourth Amended Credit and
Security Agreement dated as of January 16, 2002, and Fifth Amended Credit and
Security Agreement dated as of even date herewith (together, the "Credit
Agreement"), plus interest thereon from the date hereof, as follows:
INTEREST: Interest shall accrue at the rate of 1.5% per annum on the
outstanding principal balance hereof which is equal to or less than the balance,
net of service charges and reserve requirements, in non-interest bearing deposit
accounts maintained by the Company or related entities with HSBC. Interest shall
accrue on all other principal amounts outstanding hereon at an annual rate equal
to the rate determined by HSBC to be the average rate per annum offered on the
London Interbank Offering Market for U.S. Dollar deposits in the amount of this
Note or applicable portion thereof and for a term of 30 days ("LIBOR") plus 150
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 first 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 Note ("Maximum Rate"), and if the provisions for
interest contained in this 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 HSBC, returned to the
Company.
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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 convenants, 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 right 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.
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.
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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.
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
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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 Fifth Amended Credit Note renews and replaces the Company's
Fourth Amended Credit Note to HSBC in the maximum principal amount of
$35,000,000.00 dated as of January 16, 2002.
THE NEW YORK MORTGAGE COMPANY LLC
By: /s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx, Member
