EXHIBIT 10.43
FOURTH AMENDMENT TO LOAN DOCUMENTS
THIS FOURTH AMENDMENT TO LOAN DOCUMENTS DOCUMENTS (the "Fourth Amendment")
made and entered into June 15, 2003, by and among THE NEW YORK MORTGAGE COMPANY,
LLC (hereinafter referred to as the "Borrower"), a New York limited liability
company with its principal place of business located at 000 Xxxx Xxxxxx, Xxxxx,
0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 and XXXXXX X. XXXXXXX and XXXXXX X. XXXXXX,
as Guarantors and NATIONAL CITY BANK OF KENTUCKY, a national banking association
with a place of business located at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000 (the "Bank").
WITNESSETH:
Borrower, Guarantors and the Bank recite and agree as follows, which
recitations and agreements constitute a part of this Agreement.
A. All capitalized terms not otherwise defined herein shall have the
meaning ascribed to such terms in the Warehouse Credit Agreement between the
Borrower, the Guarantors and the Bank dated as of January 25, 2002, as amended
by the First Amendment to Loan Documents between the Borrower, the Guarantors
and the Bank dated as of April 18, 2002, the Second Amendment to Loan Documents
between the Borrower, the Guarantors and the Bank dated as of June 3, 2002, and
as amended by the Third Amendment to Loan Documents, dated as of November 15,
2002 (the "Credit Agreement"). The Credit Agreement sets forth the terms and
conditions relative to a $15,000,000.00 Warehouse Credit Facility (the
"Warehouse Credit Facility") and certain subfacilities of the Warehouse Credit
Facility made available by the Bank to the Borrower.
B. The Borrower is in the process of eliminating its borrowings under the
Warehouse Credit Facility. The Borrower desires to extend the Maturity Date of
the Warehouse Credit Facility to complete this process and has requested that
the Warehouse Credit Facility should be modified to reflect such extension. The
Bank has so agreed.
NOW, THEREFORE, the Borrower, the Guarantors and the Bank agree as
follows:
1. Amendments to the Credit Agreement. The Credit Agreement is hereby amended,
modified and restated as follows:
A. 1.1 Definitions. The following definitions are hereby amended and
restated in their entirety as follows:
"Fourth Amendment to Loan Documents" means the Fourth Amendment to
Loan Documents dated as of June 15, 2003.
"Maturity Date" shall mean August 13, 2003; provided that the Bank
shall have the option, in its absolute discretion, either one time
or from time to time, to extend the Maturity Date for an additional
period not to exceed three hundred and sixty four (364) days. If the
Maturity Date is extended, the term Maturity Date shall mean the
date of expiration of such extension.
B. Ratification. Except as specifically amended by the provisions
hereinabove, the Credit Agreement remains in full force and effect. The Borrower
hereby reaffirms and ratifies all of its obligations under the Credit Agreement,
as amended and modified hereby.
C. Ratification of Pledge and Security Agreement. The Borrower hereby
reaffirms and ratifies all of its obligations under the Pledge and Security
Agreement, as amended and modified hereby, dated January 25, 2002 between the
Bank and the Borrower. All references in the Pledge and Security Agreement to
the Credit Agreement and the Notes shall be references to the Credit Agreement
and the Warehouse Promissory Note, as amended hereby.
D. Ratification of the Amended and Restated Warehouse Note. The Borrower
hereby reaffirms and ratifies all of its obligations under the Amended and
Restated Warehouse Note. All references in the Amended and Restated Warehouse
Note to the Credit Agreement and the Note shall be references to the Credit
Agreement and the Warehouse Promissory Note, as amended hereby.
E. Conditions Precedent. The Bank's obligations under this Agreement are
expressly conditioned upon, and subject to the following:
1. the execution and delivery by the Borrower and the Guarantors of
this Agreement;
2. delivery of any and all corporate resolutions of the Borrower
reflecting that all necessary corporate action taken by the Borrower to
authorize the execution, delivery and performance of this Agreement and all
documents thereunder, certified by the secretary of the Borrower to be true,
correct and in full force and effect as of the date of this Amendment;
3. the execution and delivery of the Amended and Restated
Unconditional and Continuing Guaranty of Payment, in substantially the form
attached hereto as Exhibit A, by both of the Guarantors;
4. the delivery to the Bank of a $2000.00 Administrative Fee; and
5. any and all other documents which the Bank may require from the
Borrower.
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F. Representations, Warranties and Covenants of the Borrower. To induce
the Bank to enter into this Agreement, the Borrower represents and warrants to
Bank as follows
1. The Borrower has full power, authority, and capacity to enter
into this Agreement, and this Agreement constitutes the legal, valid and binding
obligations of the Borrower, enforceable against it in accordance with its
terms.
2. No Event of Default under the Note or any of the other Loan
Documents has occurred which continues unwaived by the Bank, and no event which
with the passage of time, the giving of notice or both would constitute an Event
of Default, exists as of the date hereof.
3. The person executing this Agreement on behalf of the Borrower is
duly authorized to do so.
4. The representations and warranties made by the Borrower in any of
the Loan Documents are hereby remade and restated as of the date hereof.
5. There are no material actions, suits, legal, equitable,
arbitration or administrative proceedings pending or threatened against the
Borrower, the adverse determination of which could have a material adverse
effect on the Loan Documents, the business operations or financial condition of
the Borrower or the ability of the Borrower to fulfill its obligations under the
Loan Documents.
G. Affirmation. The Borrower affirms and confirms in all respects its
obligations under the Note and the other Loan Documents (as that term is defined
in the Credit Agreement) and acknowledges that all of the Loan Documents remain
in full force and effect and unchanged except as expressly amended hereby.
H. Miscellaneous.
1. Time shall be of the essence in the performance of the Borrower's
obligations under the Loan Documents.
2. To the extent that assignment is permitted under this Agreement,
the provisions of this Agreement shall bind and benefit the Borrower and the
Bank and their respective heirs, personal representatives, successors and
assigns, including each subsequent holder, if any, of the Note.
3. This Agreement, the other Loan Documents and the related writings
and the respective rights and obligations of the parties hereto shall be
construed in accordance with and governed by the laws (including, without
limitation, the conflicts of laws rules) of the Commonwealth of Kentucky.
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4. The Borrower may not assign its rights under this Agreement to
any other party. This Agreement may be modified only in writing executed by the
Bank and the Borrower.
5. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability or any one or more of
the other provisions hereof. The Borrower and the Bank agree that this Agreement
shall be so interpreted as to give effect and validity to all the provisions
hereof to the fullest extent permitted by law.
6. The Borrower shall sign such financing statements or other
documents or instruments as the Bank may reasonably request from time to time to
more fully create, perfect, continue, maintain or terminate the rights and
security interests intended to be granted or created pursuant to this Agreement
or the other Loan Documents.
7. The headings used in this Agreement are included for ease of
reference only and shall not be considered in the interpretation or construction
of this Agreement.
8. This Agreement may be signed by each party upon a separate copy,
and in such case one counterpart of this Agreement shall consist of enough of
such copies to reflect the signature of each party. This Agreement may be
executed in two or more counterparts, each of which shall be deemed an original,
and it shall not be necessary in making proof of this Agreement or the terms
thereof to produce or account for more than one of such counterparts.
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IN WITNESS WHEREOF, this Agreement has been executed by the parties on the
dates set forth next to their names. This Agreement shall be effective (except
as otherwise provided to the contrary herein) and shall be dated as of the date
first above written.
BORROWER:
THE NEW YORK MORTGAGE
COMPANY, LLC
By /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Title: President
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GUARANTORS:
/s/ Xxxxxx X. Xxxxxxx
------------------------------------
XXXXXX X. XXXXXXX
/s/ Xxxxxx X. Xxxxxx
------------------------------------
XXXXXX X. XXXXXX
NATIONAL CITY BANK
OF KENTUCKY
By /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Title: Vice President
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LOULibrary/202378.2
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