EXHIBIT 10.52
INTER-CREDITOR AGREEMENT
THIS INTER-CREDITOR AGREEMENT (the "Agreement") is made and entered
into as of this 25th day of January, 2002, by and between (i) NATIONAL CITY BANK
OF KENTUCKY, a national banking association with principal office and place of
business in Louisville, Kentucky, in its capacity as a Bank ("National City"),
and (ii) HSBC BANK USA, with principal office and place of business at Xxx XXXX
Xxxxxx, 00xx Xxxxx, Xxxxxxx Xxx Xxxx 00000 Attention: Manager, Mortgage
Warehouse Lending ("HSBC").
P R E L I M I N A R Y S T A T E M E N T:
A. Pursuant to the terms of that certain Warehousing Credit
Agreement dated January 25, 2002 (the "National City Credit Agreement") by and
among National City, as bank, The New York Mortgage Company, LLC, a New York
corporation, as borrower, and the guarantor named therein (the "Borrower"),
National City has established a warehouse line of credit in the current maximum
principal amount of $15,000,000.00 in favor of the Borrower (the "National City
Warehouse Line"). The National City Warehouse Line is evidenced by that certain
Warehouse Promissory Note dated as of January 25, 2002, in the maximum principal
amount of $15,000,000.00, made by the Borrower, payable to the order of National
City (the "National City Warehouse Note").
B. Pursuant to the terms of that certain Pledge and Security
Agreement dated January 25, 2002 by and among the Borrower and National City, as
a bank (the "National City Security Agreement"), the Borrower has pledged to
National City all of the collateral described on EXHIBIT A attached hereto and
made a part hereof by this reference (collectively, the "National City
Collateral"), all as collateral security for the Borrower's payment and
performance of all of its obligations under the National City Credit Agreement,
the National City Warehouse Note and each of the other Loan Documents which have
been or may be executed pursuant thereto.
C. Pursuant to the terms of that certain warehouse credit
facility agreement dated March 30, 2001, by and between HSBC and the Borrower,
as amended (the "HSBC Credit Facility Agreement"), HSBC has established a
warehouse line of credit in the maximum principal amount of $30,000,000 in favor
of the Borrower (the "HSBC Warehouse Line"). The HSBC Warehouse Line is
evidenced by that certain warehouse promissory note dated of even date with the
HSBC Credit Facility Agreement, in the maximum principal amount of $30,000,000,
made by the Borrower, payable to the order of HSBC, as amended (the "HSBC
Warehouse Note").
D. The respective payment and performance obligations of the
Borrower under the HSBC Credit Facility Agreement and the HSBC Warehouse Note is
secured by the Borrower's pledge to HSBC of the collateral (collectively, the
"HSBC Collateral") described in EXHIBIT B attached hereto and made a part hereof
by this reference, all pursuant to the HSBC Credit Facility Agreement.
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E. The parties hereto desire to execute and deliver this
Agreement in order to define the respective rights and priorities of each party
in and to the collateral pledged by the Borrower to each party to secure their
respective loans.
NOW, THEREFORE, in consideration of the premises, the mutual
covenants and agreements herein contained and for other good and valuable
consideration, the mutuality, receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. National City Collateral. HSBC hereby consents to Borrower
granting a security interest in the National City Collateral to National City as
more fully described above. HSBC hereby represents, warrants and covenants that
it has no lien on or security interest in, or any right, title or interest in or
to, any of the National City Collateral; provided, however, in the event HSBC is
in any manner deemed to have any such lien, security interest and/or right,
title or interest in or to any of the National City Collateral, HSBC hereby
covenants, agrees and acknowledges that, notwithstanding the terms or provisions
of any agreement or arrangement which HSBC may now or hereafter have with the
Borrower, or any rule of law, and irrespective of the time, order or method of
attachment or perfection, HSBC does hereby fully subordinate all of such lien,
security interest or right, title or interest in and to the National City
Collateral so that National City shall have a first priority security interest
in and to all of the National City Collateral and proceeds thereof under the
National City Security Agreement. HSBC covenants and agrees that it shall not
and will not in any manner assert or seek to enforce, by legal proceedings or
otherwise, any lien or encumbrance of any nature whatsoever against the National
City Collateral or the proceeds therefrom or any payments received by National
City from the Borrower in respect of the National City Warehouse Note, the
National City Credit Agreement or any other document or instrument related
thereto. HSBC further covenants and agrees that in the event that it receives
possession of any National City Collateral or the proceeds therefrom, then such
National City Collateral or proceeds shall be deemed to be held in trust by HSBC
for the benefit of National City and HSBC shall immediately deliver such
National City Collateral or proceeds to National City.
2. HSBC Collateral. National City hereby consents to Borrower
granting a security interest in the HSBC Collateral to HSBC as more fully
described above. National City hereby represents, warrants and covenants that it
has no lien on or security interest in, or any right, title or interest in or
to, any of the HSBC Collateral; provided, however, in the event National City is
in any manner deemed to have any such lien, security interest and/or right,
title or interest in or to any of the HSBC Collateral, National City hereby
covenants, agrees and acknowledges that, notwithstanding the terms or provisions
of any agreement or arrangement which National City may now or hereafter have
with the Borrower, or any rule of law, and irrespective of the time, order or
method of attachment or perfection, National City does hereby fully subordinate
all of such lien, security interest or right, title or interest in and to the
HSBC Collateral so that HSBC shall have a first priority security interest in
and to all of the HSBC Collateral and proceeds thereof under the HSBC Security
Agreement. National City covenants and agrees that it shall not and will not in
any manner assert or seek to enforce, by legal proceedings or otherwise, any
lien or encumbrance of any
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nature whatsoever against the HSBC Collateral or the proceeds therefrom or any
payments received by HSBC from the Borrower in respect of the HSBC Note, the
HSBC Credit Agreement or any other document or instrument related thereto.
National City further covenants and agrees that in the event that it receives
possession of any HSBC Collateral or the proceeds therefrom, then such HSBC
Collateral or proceeds shall be deemed to be held in trust by National City for
the benefit of HSBC and National City shall immediately deliver such HSBC
Collateral or proceeds to HSBC.
3. Modifications to National City Documents. National City may,
at any time and from time to time, without the consent of or notice to HSBC and
without impairing or releasing the covenants and agreements of HSBC hereunder
(a) change the amount of credit extended under, change the manner, place or
terms of payment of, or change or extend the time of payment of, or renew or
alter the National City Warehouse Note, the National City Credit Agreement, the
National City Security Agreement, or any related documents (the "National City
Documents"), (b) extend, modify or amend the National City Documents, (c) sell,
exchange, release or otherwise deal with any of the National City Collateral,
whether now existing or hereafter created, (d) release anyone liable in any
manner for the payment or collection of any of the indebtedness owed by the
Borrower to National City, (e) exercise or refrain from exercising any rights
against the Borrower, the National City Collateral or any other person, or (f)
take or refrain from taking any other action whatsoever, except as otherwise
provided herein.
4. Modifications to HSBC Documents. HSBC may, at any time and
from time to time, without the consent of or notice to National City and without
impairing or releasing the covenants and agreements of National City hereunder
(a) change the amount of credit extended under, change the manner, place or
terms of payment of, or change or extend the time of payment of, or renew or
alter the HSBC Warehouse Note, the HSBC Credit Facility Agreement or any related
documents (the "HSBC Documents"), (b) extend, modify or amend the HSBC
Documents, (c) sell, exchange, release or otherwise deal with any of the HSBC
Collateral, whether now existing or hereafter created, (d) release anyone liable
in any manner for the payment or collection of any of the indebtedness owed by
the Borrower to HSBC, (e) exercise or refrain from exercising any rights against
the Borrower, the HSBC Collateral or any other person, or (f) take or refrain
from taking any other action whatsoever, except as otherwise provided herein.
5. Assignment. No party shall assign any of the indebtedness owed
by the Borrower to either party hereto which is secured by the collateral
described herein, unless such assignment is made expressly subject to the terms
of this Agreement. Each party agrees to execute and file for record a Uniform
Commercial Code Form 3 Amendment, if applicable, stating that its Uniform
Commercial Code Financing Statement is subject to the terms of this Agreement.
6. No Impairment. The provisions of this Agreement are intended
solely for the purpose of defining the relative rights of the parties hereto in
and to the collateral pledged to each such party by the Borrower as collateral
security for the indebtedness owed by the Borrower to such party, and nothing
contained in this Agreement is intended to or shall impair the obligations owed
by the Borrower to any party. The provisions of this Agreement are intended
solely for the benefit of
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the parties hereto and the Borrower shall have no right to rely upon or enforce
the provisions of this Agreement.
7. Effectiveness. The agreements and priorities set forth in this
Agreement shall be applicable and shall remain in full force and effect
irrespective of the time or order of attachment or perfection of each party's
interest in its collateral, or the time or order of any filing or recording of
any such interest, or the giving or failure to give notice of any such interest.
8. Information; Inspection. On an as needed basis, but, except as
provided below, in no event more frequently than monthly, each of HSBC and
National City shall provide to the other at the respective address provided
below, information regarding the specific collateral then pledged to that party
by Borrower, such information to be limited to the name of the debtor of each
mortgage loan then pledged to such party, the loan number for each mortgage
loan, and the original principal amount of the note evidencing each such
mortgage loan. Notwithstanding anything contained in the preceding sentence to
the contrary, in the event that either HSBC or National City at any time
reasonably believes that any of its respective collateral has been pledged by
the Borrower to any other lender as security for any other indebtedness, such
party shall have the right to require the other party to provide the
above-mentioned collateral information more frequently than monthly and such
party shall have the further right to inspect (upon reasonable notice and during
normal business hours), at its own cost and expense, the collateral being held
by such other party.
If to National City: National City Bank of Kentucky
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxx
Senior Vice President
If to HSBC: HSBC Bank USA
Mortgage Warehouse Lending Department
Xxx XXXX Xxxxxx , 00xx Xxxxx
Xxxxxxx, Xxx Xxxx 00000
Attn: Manager, Mortgage Warehouse Lending
9. Miscellaneous.
(a) This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their permitted successors and assigns and
the terms National City and HSBC include their respective permitted successors
and assigns.
(b) This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and all of which shall
constitute one and the same instrument.
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(c) This Agreement has been made, delivered and shall be
performed in, and shall be governed and construed in accordance with the laws
of, the Commonwealth of Kentucky.
(d) This Agreement contains the entire understanding and
agreement among the parties hereto pertaining to its subject matter and
supersedes all other understandings and agreements, both oral and written,
between and among them, respecting the subject matter hereof.
(e) The invalidity or unenforceability of any provision of
this Agreement in any jurisdiction shall not affect the validity or
enforceability of any one or more of the other provisions hereof in such
jurisdiction or cause any of the provisions of this Agreement to be invalid or
unenforceable in any other jurisdiction. The parties hereto hereby agree that
this Agreement shall be so interpreted as to given effect and validity to all
the provisions hereof to the fullest extent permitted by law.
(f) As used herein, the singular includes the plural, and
vice versa, and the use of one gender includes all genders.
(g) The section headings of this Agreement are inserted
herein solely for convenience of reference and do not constitute a part of this
Agreement and shall not affect the interpretation of the provisions hereof.
(h) This Agreement may only be amended or modified by a
written instrument executed by all of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this
Inter-Creditor Agreement as of the day, month and year first above written.
NATIONAL CITY BANK OF KENTUCKY
By: /s/ Xxxxxxx X. Xxxxxxx
______________________________
Title: Vice President
___________________________
("National City")
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HSBC BANK USA
By: /s/ Xxxxx X. Xxxxx
______________________________
Title: Vice President
___________________________
("HSBC")
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