EXHIBIT 10.18
HSBC BANK USA
AND
THE NEW YORK MORTGAGE COMPANY LLC
CREDIT AND SECURITY AGREEMENT
Dated as of March 30, 2001
TABLE OF CONTENTS
Page
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ARTICLE I. DEFINITIONS..................................................................... 1
ARTICLE II. THE CREDIT..................................................................... 7
2.1 Agreement to Lend.......................................................... 7
2.2 Term....................................................................... 7
2.3 Disbursement of the Credit ................................................ 7
2.4 Repayments of the Credit................................................... 10
ARTICLE III. CONDITIONS TO ADVANCES........................................................ 13
3.1 Initial Advance............................................................ 13
3.2 Conditions to Subsequent Advances.......................................... 14
3.3 Other Conditions........................................................... 14
ARTICLE IV. SECURITY AGREEMENT............................................................. 14
4.1 Grant of Security Interest................................................. 14
4.2 Rights of HSBC............................................................. 15
4.3 Income from and Interest on Collateral..................................... 16
4.4 Possession of Collateral................................................... 16
ARTICLE V. REPRESENTATIONS AND WARRANTIES................................................. 16
5.1 Good Standing and Authority of the Company................................. 17
5.2 Good Standing and Authority of the Guarantor .............................. 17
5.3 Valid and Binding Obligation............................................... 17
5.4 Guarantys ................................................................. 18
5.5 No Pending Litigation...................................................... 18
5.6 No Consent of Filing ...................................................... 18
5.7 No Violations.............................................................. 18
5.8 Federal Regulations ....................................................... 19
5.9 ERISA Matters.............................................................. 19
5.10 Collateral................................................................. 20
5.11 Subsidiaries............................................................... 20
5.12 Financial Condition........................................................ 21
5.13 Liens...................................................................... 21
5.14 Investment Company Act..................................................... 21
5.15 Corporate Takeovers........................................................ 21
5.16 Insider.................................................................... 21
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ARTICLE VI. COVENANTS...................................................................... 22
6.1 Payments................................................................... 22
6.2 Notice..................................................................... 22
6.3 Taxes...................................................................... 23
6.4 Insurance.................................................................. 23
6.5 Litigation................................................................. 23
6.6 Existence and Eligibility.................................................. 24
6.7 Books and Records.......................................................... 24
6.8 Compliance with Law........................................................ 24
6.9 Access to Records.......................................................... 24
6.10 Maintain Qualifications.................................................... 25
6.11 Financial Reports.......................................................... 25
6.12 Pension Reports............................................................ 25
6.13 Collateral Value; Margin Call.............................................. 26
6.14 Liens...................................................................... 27
6.15 Document Shipping Charges.................................................. 28
6.16 ERISA Contributions........................................................ 28
6.17 VA Guaranties and FHA Insurance............................................ 28
6.18 Financial Covenants........................................................ 28
6.19 Additional Primary or Secondary Indebtedness............................... 28
6.20 Fees....................................................................... 29
6.21 INTENTIONALLY OMITTED...................................................... 29
6.22 Other Acts................................................................. 29
ARTICLE VII. EVENTS OF DEFAULT............................................................. 30
7.1 Nonpayment of Indebtedness................................................. 30
7.2 Assignment or Encumbrance.................................................. 30
7.3 Insolvency Proceedings..................................................... 30
7.4 Misrepresentation.......................................................... 31
7.5 Materially Adverse Changes................................................. 31
7.6 Failure to Perform Obligations............................................. 32
7.7 Pension Default............................................................ 32
7.8 Change in Management....................................................... 33
7.9 Events Affecting Guarantor(s).............................................. 33
ARTICLE VIII. REMEDIES UPON DEFAULT........................................................ 33
8.1 Default Other Than Insolvency.............................................. 33
8.2 Default - Insolvency....................................................... 33
8.3 Enforcement of Agreements.................................................. 33
8.4 Realization on Collateral.................................................. 34
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Page
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ARTICLE IX. INDEMNIFICATION AND EXPENSES................................................... 34
ARTICLE X. MISCELLANEOUS................................................................... 35
10.1 Amendments and Waivers..................................................... 35
10.2 Delays and Omissions....................................................... 35
10.3 Attoney-in-fact............................................................ 35
10.4 Collection................................................................. 36
10.5 Further Security........................................................... 36
10.6 Return of Collateral Under Trust Receipt................................... 37
10.7 Loss of Loan Documents..................................................... 37
10.8 Successors and Assigns..................................................... 37
10.9 Notices.................................................................... 37
10.10 Counterparts............................................................... 37
10.11 Titles..................................................................... 38
10.12 Inconsistent Provisions ................................................. 38
10.13 Participation.............................................................. 38
10.14 Entire Agreement........................................................... 38
10.15 Governing Law.............................................................. 38
10.16 CONSENT TO JURISDICTION.................................................... 38
10.17 WAIVER OF JURY TRIAL....................................................... 39
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CREDIT AND SECURITY AGREEMENT
THIS AGREEMENT, dated as of the Agreement Date between THE NEW YORK
MORTGAGE COMPANY LLC, a New York limited liability company with offices at 000
Xxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Company"), and HSBC BANK USA,
a banking corporation organized under the laws of the State of New York, with
offices at c/o Mortgage Warehouse Lending Department, Xxx XXXX Xxxxxx, 00xx
Xxxxx, Xxxxxxx, Xxx Xxxx 00000 ("HSBC"), evidences:
INTRODUCTION
This Agreement provides for a credit facility to enable the Company to
obtain interim financing with which to fund certain mortgage loans originated by
the Company. This Agreement sets forth the terms and conditions under which the
facility will be advanced, the interest and other charges payable to HSBC,
repayment terms, and warranties, representations and covenants in connection
with the facility.
ARTICLE I. DEFINITIONS
Capitalized terms used in this Agreement and not otherwise defined
shall have the meanings set forth below:
Adjusted Net Worth: Book Net Worth less (a) all intangible assets, and
(b) amounts due from affiliates.
Advance: A disbursement of a portion of the Credit; see Section 2.1.
Agreement Date: March 30, 2001.
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Bailee Agreement: Letter agreement whereby an Investor agrees to hold
one or more Loan Documents as bailee for HSBC subject to the Security Interest.
Book Net Worth: Net worth as determined under GAAP.
Business Day: Any day other than Saturday, Sunday or a day on which
banks in New York State are required or authorized to close by law or
regulation.
Collateral: As defined in Section 4.1.
Collateral Value: As defined in Section 6.13(c).
Commitment: The agreement by an Investor to purchase Qualifying
Mortgages.
Conforming Mortgage Loan: A Qualifying Mortgage the principal balance
of which does not exceed the then-current maximum loan limits for purchase by
FHLMC and FNMA.
Cooperative Loan: A Qualifying Mortgage secured by the pledge of an
interest in a cooperative apartment.
Credit: The loan governed by this Agreement.
Credit Amount: FIFTEEN MILLION AND NO/100 DOLLARS ($15,000,000.00).
Credit Note: The Company's promissory note to HSBC dated the Agreement
Date.
Delivery Period: Five Business Days after an Advance.
"Dry Funding" Advance: An Advance made pursuant to Section 2.3A.
Event of Default: As defined in Article VII.
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Financing Statement: UCC-1 financing statement evidencing the pledge to
the Company of the lessee's interest in a cooperative apartment securing a
Qualifying Mortgage, which financing statement shall have been duly filed in the
appropriate UCC records so as to perfect the Company's security interest, and
assigned of record to Lender.
FHA: United States Federal Housing Administration.
FHLMC: Federal Home Loan Mortgage Corporation.
FNMA: Federal National Mortgage Association.
GAAP: Those generally accepted accounting principles and practices
which are from time to time recognized as such by the Financial Accounting
Standards Board (or any generally recognized successor).
GNMA: Government National Mortgage Association.
Guarantors: Xx. Xxxxxx Xxxxxxx and Xx. Xxxxxx X. Xxxxxx.
Guarantys: The joint and several guarantys of the Guarantors of the
repayment of the Credit to HSBC, when and as due.
Investor: A secondary market purchaser of Qualifying Mortgages, which
purchaser is approved by HSBC.
Loan Documents: The documents relating to a specific Qualifying
Mortgage, namely: (a) original note duly endorsed in blank, (b) a copy of said
note, (c) a certified copy of the mortgage, (d) an unrecorded but recordable
assignment in blank of the mortgage, (e) Investor Commitment in form acceptable
to HSBC, and (f) such other normal and customary documents as HSBC may require.
If the Qualifying Mortgage is a Cooperative Loan, Loan Documents means: (a)
original note duly endorsed in blank; (b) certified copy of the lessee's shares
of stock;
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(c) certified copy of the assignment by lessee to the Company of lessee's
proprietary lease; (d) certified copy of the filed Financing Statement assigned
to Lender; and (e) original UCC-3 assignment of the Financing Statement by
Lender (with assignee blank).
Maximum Advance Amount: 98% of the lesser of (i) the Investor's
purchase price of the Qualifying Mortgage (up to a maximum of par) or (ii) the
outstanding principal balance of the Qualifying Mortgage, for which Qualifying
Mortgage an Advance has not theretofore been made. Notwithstanding the
foregoing, however, the Maximum Advance Amount will increase to 100% at such
time as the Pledged Account is maintained by the Company.
Non-Conforming Mortgage Loan: A Qualifying Mortgage the principal
balance of which exceeds the then-current maximum loan limits for purchase by
FHLMC and FNMA.
Notice Address:
a) With respect to the Company:
The New York Mortgage Company LLC
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Financial Officer
b) With respect to HSBC:
HSBC Bank USA
Mortgage Warehouse Lending Department
Xxx XXXX Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: Manager, Mortgage Warehouse Lending
Pension Plan: Any pension plan as defined in Section 3(2) of the
Employee Retirement Income Security Act of 1974 as amended ("ERISA") which is a
multiemployer plan
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or single employer plan as defined in Section 4001 of ERISA and subject to Title
IV of ERISA and which is (a) a plan maintained by the Company or any Subsidiary
for employees or former employees of the Company or of any Subsidiary, (b) a
plan to which the Company or any Subsidiary contributes or is required to
contribute, (c) a plan to which the Company or any Subsidiary was required to
make contributions at any time during the five calendar years preceding the
Agreement Date, or (d) any other plan with respect to which the Company or any
Subsidiary has incurred or may incur liability, including contingent liability,
under Title IV of ERISA, to such plan or to the Pension Benefit Guaranty
Corporation. For purposes of this definition and for purposes of Sections 5.7,
6.14 and 7.7 hereof, "Company" shall include any trade or business (whether or
not incorporated) which, together with the Company or a Subsidiary, is deemed to
be a "single employer" within the meaning of Section 4001(b)(1) of ERISA.
Pledged Account: A deposit account, certificate of deposit, or liquid
investment management account with HSBC Brokerage (USA), Inc., maintained by the
Company with assets having a fair market value as reasonably determined by HSBC,
equal to or greater than 2% of the Credit Amount. HSBC shall have a first
priority security interest in the Pledged Account as security for the Credit.
Qualifying Mortgage: A fixed or adjustable rate conventional, FHA or VA
mortgage loan secured by a first or second mortgage on a one- to four-family
residence (or, in the case of a Cooperative Loan, by a pledge of an interest in
a cooperative apartment) which loan is also:
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A. Covered by and closed in accordance with a Commitment by an
Investor, (or recommitted for purchase at a price not less than the original
Commitment);
B. In conformance with FHLMC, FNMA, FHA or VA underwriting
standards, as applicable, and the special standards of the respective Investors;
C. Evidenced, secured and assigned by the Loan Documents, which
are delivered to HSBC within the Delivery Period.
Reportable Event: Any event with regard to a Pension Plan described in
Section 4043(b) of ERISA, or in regulations issued thereunder.
Sale Date: The date on which an Investor is required to make payment
pursuant to a Commitment.
Second Mortgage Loan: A Qualifying Mortgage secured by a
second-priority lien.
Security Interest: The security interest granted by the Company to HSBC
in the Collateral.
Subprime Mortgage Loan: A Qualifying Mortgage which is rated "A-minus",
"B", or "C" grade loans by the applicable Investor.
Subsidiary: Any corporation of which at least 50% of the voting stock
is owned by the Company directly, or indirectly through one or more
Subsidiaries. If the Company has no Subsidiaries, the provisions of this
Agreement relating to Subsidiaries shall be inapplicable, without affecting the
applicability of such provisions to the Company alone.
VA: Veterans Administration.
"Wet Funding" Advance: An advance made pursuant to Section 2.3B.
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ARTICLE II. THE CREDIT
2.1 Agreement to Lend. HSBC agrees on the terms and conditions and
relying on the representations and warranties set forth herein to lend to the
Company, and the Company agrees to borrow from HSBC, up to the amount of the
Credit. Individual Advances of the Credit shall be made as requested by the
Company from time to time. The aggregate amount of all Advances shall not exceed
the Credit. Following repayments of Advances, HSBC will make readvances under
the same terms and conditions, provided that Advances outstanding at any time
shall not exceed the lesser of the amount of the Credit or the Maximum Loan
Amount. The Credit will be evidenced by the Credit Note.
2.2 Term. This Agreement will be in effect until 364 days from the
Agreement Date, when all amounts outstanding hereunder and under the Credit Note
shall be due and payable; provided, however, that HSBC may earlier terminate
this Agreement following at least 90 days prior written notice to the Company,
and, at any time subsequent to ninety (90) days from the Agreement Date, the
Company may terminate this Agreement following at least 90 days prior written
notice to HSBC. No such termination shall affect the rights of the parties
hereto as to any Advances previously made, which shall continue to be governed
hereby.
2.3 Disbursement of the Credit. Subject to the terms and
conditions hereof, the Company may request "Dry Funding" Advances and "Wet
Funding" Advances.
A. "Dry Funding" Advances.
(i) Before 12:00 noon HSBC's local time, one
Business Day before a proposed Advance, the Company will request such Advance in
writing by providing to HSBC by telefax (i) the information on HSBC's "Request
For Advance", in the form provided to
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the Company by HSBC which includes: the mortgagors' last names, the property
address, the loan amount, loan number, loan type (FHA, VA or conventional, as
applicable), loan sub-type, interest rate, commitment number, Investor
settlement date and warehousing amount requested.
(ii) Also before 12:00 noon HSBC's local time,
one Business Day before a proposed Advance, the Company shall deliver or cause
to be delivered to HSBC or its designee, the Loan Documents for HSBC's review
and approval.
(iii) Following said approval, on the date of the
Advance HSBC will make an Advance of the requested amount (or so much thereof as
has been approved by HSBC) to the Company up to the Maximum Advance Amount.
Advances shall be made by deposit by HSBC into a HSBC account in the name of the
Company for further disposition as the Company may direct. Each Advance shall be
used only for funding the loans identified on the Request For Advance. If a loan
for which an Advance has been made does not close, the Company will notify HSBC
immediately, and HSBC will charge the account for that Portion of the Advance
attributable to the unclosed loan.
B. "Wet Funding" Advances.
(i) Before 12:00 noon HSBC's local time, one
Business Day before a proposed Advance, the Company will request such Advance in
writing by providing to HSBC by telefax (i) the information on HSBC's "Request
For Advance", in the form provided to the Company by HSBC, which includes: the
mortgagors' last names, the property address, the loan amount, loan number, loan
type (FHA, VA or conventional, as applicable), loan sub-type, interest rate,
commitment number, Investor settlement date and warehousing amount requested.
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(ii) On the date of the requested Advance (but
not earlier than one day prior to the loan closing date) HSBC will make an
Advance of the requested amount (or so much thereof as has been approved by
HSBC) to the Company up to the Maximum Advance Amount. Advances shall be made by
deposit by HSBC into a HSBC account in the name of the Company for further
disposition as the Company may direct. Each Advance shall be used only for
funding the loans identified on the Request For Advance. If a loan for which an
Advance has been made does not close, the Company will notify HSBC immediately,
and HSBC will charge the account for that portion of the Advance attributable to
the unclosed loan.
(iii) Within five Business Days after an Advance,
the Company shall deliver or cause to be delivered to HSBC or its designee, the
Loan Documents for HSBC's review and approval.
C. Sublimits.
(i) Notwithstanding anything to the contrary
herein the aggregate amount of "Wet Funding" Advances outstanding at any one
time shall not exceed (x) 40% of the Credit Amount during the first and last
five (5) Business Days of each calendar month, and (y) 30% of the Credit Amount
at any other time.
(ii) Notwithstanding anything to the contrary
herein, the aggregate amount of Advances outstanding at any one time secured by
Non-Conforming Mortgages shall not exceed 75% of the Credit Amount.
(iii) Notwithstanding anything to the contrary
herein, the aggregate amount of Advances outstanding at any one time secured by
Subprime Loans shall not exceed 15% of the Credit Amount.
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(iv) Notwithstanding anything to the contrary
herein, the aggregate amount of Advances outstanding at any one time secured by
Cooperative Loans shall not exceed 50% of the Credit Amount.
(v) Notwithstanding anything to the contrary
herein, the aggregate amount of Advances outstanding at any one time secured by
Second Mortgages shall not exceed 10% of the Credit Amount.
2.4 Repayments of the Credit.
A. On the earliest of (i) the Sale Date
specified in each Commitment, (ii) seventy-five (75) days after HSBC has made
an Advance for the Qualifying Mortgages listed in said Commitment, (iii) thirty
(30) days after HSBC delivers any Loan Documents pertaining to a Qualifying
Mortgage to an Investor, (iv) the date on which this Agreement expires or
becomes ineffective because of termination, or (v) fourteen (14) days after any
original note evidencing a Qualifying Mortgage has been returned to the Company
under a trust receipt, the amount equal to the Advance made with regard to the
related Qualifying Mortgage shall be repaid. In connection with each repayment
the company shall provide to HSBC a completed "Repayment Schedule" in the form
provided to the Company by HSBC listing the Qualifying Mortgages to which the
repayment pertains. On or prior to the Sale Date for each Commitment, and upon
receipt from the Company of a written request on HSBC's "Request For Delivery",
in the form provided to the Company by HSBC, HSBC shall forward the original
notes evidencing the Qualifying Mortgages, together with a copy of the UCC-3
assignment of the Financing Statement executed by Lender ("UCC-3"), to the
applicable Investor or its designee pursuant to a Bailee Agreement with said
Investor; provided, however that HSBC shall not be required to forward any such
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documents unless the Request For Delivery is received by HSBC prior to 12:00
noon. HSBC's local time, two Business Days prior to the requested delivery, and
HSBC has had the Loan Documents in its possession for at least two Business
Days. If loans are to be sold to FHLMC or FNMA or securitized by GNMA, the
Company will also provide the original and any required copies of all necessary
or appropriate forms to effect delivery and payment for such notes. Prior to the
release of HSBC's Security Interest in the Collateral, the Company shall cause
the Investor to remit the proceeds from the sale of mortgage loans via wire
transfer directly into a HSBC account set up for the administration of the
Credit. Provided there is no Event of Default then existing, HSBC shall adjust
in favor of the Company any excess proceeds received from Investors. If the
amount remitted is less than the principal payment due on the Sale Date, the
Company shall pay the remaining amount due against the respective Advance
directly to HSBC by wire transfer on such Sale Date. Upon receipt of (i) the
amount of the Advance secured by the Qualifying Mortgage, and (ii) payment
instructions from the Company relating to the amount received, Lender will
forward to the Company the original UCC-3.
B. If for any reason an Investor fails to
purchase the subject mortgage loan covered by its Commitment on the Sale Date or
becomes insolvent or the subject of a proceeding under the Bankruptcy Code, or
ceases to carry on its business, the Company shall, at HSBC's option, either (i)
obtain and provide to HSBC another Commitment acceptable to HSBC to purchase the
subject mortgage loan; or (ii) immediately repay to HSBC by wire transfer all
amounts advanced for the non-purchased loan or loans in question (or in the case
of the Investor's insolvency, bankruptcy proceeding, or cessation of business,
all mortgage loans covered by that Investor's Commitments); or (iii) replace
such mortgage loan or loans with a
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Qualifying Mortgage of market value equal to or greater than the Maximum Advance
Amount applicable to the replaced mortgage loan or loans, whereupon HSBC shall
return to the Company the Loan Documents held by HSBC relating to the replaced
mortgage loan or loans.
C. Interest on the outstanding principal
balance of the Credit at the rate required in the Credit Note shall be payable
by the Company to HSBC on the first day of each calendar month during the Term
hereof, and on the date the Credit is paid in full. A late charge of 6% of
payments received more than ten days past due will also be payable in accordance
with the terms of the Credit Note.
D. The Company shall immediately notify HSBC of
all delinquencies on any mortgage loans constituting security for the Credit
Note and will, at HSBC's option, either (i) replace such mortgage loans with
Qualifying Mortgages, whereupon HSBC shall return to the Company the Loan
Documents held by HSBC relating to the replaced mortgage loans, or (ii) reduce
the amount of principal outstanding under the Credit Note by the amount of the
Advance applicable to such delinquent mortgage loans plus accrued interest.
E. In the event Loan Documents related to any
Advance (i) are not delivered within the Delivery Period, or (ii) are delivered
and determined by HSBC to be incomplete or improper, or (iii) are Loan Documents
for loans which are secured by mortgages which are no longer Qualifying
Mortgages ("Defective Loan Documents"), then the Company shall immediately repay
by wire transfer so much of the Advance as was attributable to the Defective
Loan Documents, whereupon HSBC shall return to the Company the Loan Documents
held by HSBC relating to the Loans for which repayment has been made.
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ARTICLE III. CONDITIONS TO ADVANCES
3.1 Initial Advance. HSBC's obligation to make the
Initial Advance, and the effectiveness of this Agreement, are conditioned upon
compliance with the requirements of Section 2.3 hereof and upon the
fulfillment of the following conditions.
A. The Company shall have duly executed and
delivered to HSBC:
(i) This Agreement;
(ii) The Credit Note;
(iii) A copy, certified by a member or
manager of the Company, of the consent of the Company's members authorizing the
execution, delivery and performance of this Agreement, the Credit Note and all
related documents;
B. HSBC shall have received:
(i) The Guarantys;
(ii) A copy, certified by the Secretary
of State of the state of New York, of the Company's filed Articles of
Organization;
(iii) A certified copy of the Company's
Operating Agreement;
(iv) A certificate of the Secretary of
State of the state of New York as to the existence and good standing of the
Company;
(v) The favorable opinion of the
Company's independent counsel as to the due execution, delivery and
enforceability of this Agreement, the Credit Note and the Guarantys, the due
organization and existence of the Company, and such other relevant matters as
HSBC may require;
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(vi) A UCC search against the Company,
showing no filings affecting the Collateral;
(vii) State and County UCC-1 financing
statements executed by the Company covering the Collateral; and
(viii) Evidence of the insurance coverages
required hereby.
3.2 Conditions to Subsequent Advances. All future
Advances shall be subject to compliance with the requirements of Section 2.3
hereof and to such updating of the certificates and opinions referred to in
Section 3.1 as HSBC may reasonably require from time to time.
3.3 Other Conditions. All Advances shall be subject to
HSBC's receipt of such additional documents and the Company's compliance with
such additional requirements as HSBC may reasonably require from time to time,
provided that such additional documents or requirements shall not be
inconsistent with the existing terms of this Agreement.
ARTICLE IV. SECURITY AGREEMENT
4.1 Grant of Security Interest. This Agreement
constitutes a security agreement. As collateral security for the repayment of
all sums which may become due under the Credit Note or this Agreement, the
Company hereby assigns, pledges, and transfers all its right, title and
interest in, and grants to HSBC a security interest in the following property
(the "Collateral"):
A. All Qualifying Mortgages and all other
mortgages which have been represented to HSBC to be Qualifying Mortgages, or
upon the security of which an Advance has
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been made, including all Loan Documents and any other documents evidencing or
securing the same;
B. All surveys and title insurance policies,
commitments, or reports relating to the same;
C. All hazard insurance policies relating to
the same;
D. All private mortgage insurance policies
relating to the same;
E. All servicing rights relating to the same;
F. All accounts relating to the same
(including, without limitation, escrow accounts, subject to the rights of
mortgagors under applicable law};
G. All files, records, data, correspondence,
computer tapes, programs and discs, appraisals, accounting records relating to
the same or the servicing thereof;
H. All Commitments to purchase said Qualifying
Mortgages and all other mortgages which have been represented to HSBC to be
Qualifying Mortgages;
I. All property of any kind given by the
Company to HSBC or its designee in furtherance of this Agreement;
J. All collections on and proceeds of any of
the foregoing; and
K. The Pledged Account, if applicable.
4.2 Rights of HSBC.
A. With respect to the Collateral, HSBC shall
have the rights of a secured party under the Uniform Commercial Code as enacted
in the State of New York.
B. The Company shall not have the right to
modify, delete, or waive any material term of any of the Collateral without
HSBC's prior written consent.
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4.3 Income from Interest on Collateral.
A. Until the occurrence of an Event of Default,
the Company reserves the right to receive all income from or interest on the
Collateral and if HSBC receives any such income or interest prior to such Event
of Default, HSBC shall pay the same promptly to the Company.
B. Upon the occurrence of an Event of Default,
the Company will not demand or receive any income from or interest on such
Collateral, and if the Company receives any such income or interest without any
demand by it, same shall be held by the Company in trust for HSBC in the same
medium in which received, shall not be commingled with any assets of the Company
and shall be delivered to HSBC in the form received, properly endorsed to permit
collection, not later than the next Business Day following the day of its
receipt HSBC may apply the net cash receipts from such income or interest to
payment of any amounts due under the Credit Note or this Agreement, provided
that HSBC shall account for and pay over to the Company any such income or
interest remaining after payment in full of all such amounts.
4.4 Possession of Collateral. The Company agrees that
possession of any of the Collateral by closing attorneys, title companies, or
any other bailee acting on the Company's behalf shall be deemed possession by
HSBC for purposes of perfecting the Security Interest granted hereby.
ARTICLE V. REPRESENTATIONS AND WARRANTIES
The Company makes the following representations and
warranties, which shall be deemed to be continuing representations and
warranties so long as any portion of the Credit
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Amount remains available or any indebtedness of the Company to HSBC arising
pursuant to this Agreement remains unpaid:
5.1 Good Standing and Authority of the Company. The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of its incorporation; has powers to transact the
business in which it is engaged; is duly licensed or qualified and in good
standing in each jurisdiction in which the conduct of such business requires
such licensing or such qualification; and has all necessary power and authority
to enter into this Agreement and to execute, deliver and perform this Agreement,
the Credit Note and any other document executed in connection with this
Agreement, all of which have been duly authorized by all proper and necessary
corporate action.
5.2 Good Standing and Authority of the Guarantor. The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of its incorporation; has powers to transact the
business in which it is engaged; is duly licensed or qualified and in good
standing in each jurisdiction in which the conduct of such business requires
such licensing or such qualification; and has all necessary power and authority
to enter into the Guaranty and to execute, deliver and perform the Guaranty,
which has been duly authorized by all proper and necessary corporate action.
5.3 Valid and Binding Obligation. This Agreement and any
other document executed in connection herewith, and the Credit Note when
executed and delivered, will constitute the legal, valid and binding obligations
of the Company, enforceable in accordance with their respective terms, except as
enforceability may be limited by applicable bankruptcy and insolvency laws and
laws effecting creditors' rights generally.
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5.4 Guarantys. The Guarantys, when executed and
delivered, will constitute the legal, valid and binding obligation of the
Guarantor, enforceable in accordance with its terms, except as enforceability
may be limited by applicable bankruptcy and insolvency laws and laws effecting
creditors' rights generally.
5.5 No Pending Litigation. Except as have been or shall
be disclosed to HSBC in writing, there are no actions, suits, proceedings
(whether or not purportedly on behalf of the Company) or investigations pending
or, to the knowledge of the Company, threatened against the Company or the
Guarantor, if any, or any basis therefor, which, if adversely determined, would,
in any case or in the aggregate, materially and adversely affect the property,
assets, financial condition or business of the Company or the Guarantor, if any,
or materially impair the right or ability of the Company to carry on its
operations substantially as now conducted or anticipated to be conducted in the
future, or which question the validity of this Agreement, the Credit Note, the
Guaranty, if any, or other documents required by this Agreement, or any action
to be taken pursuant to any of the foregoing.
5.6 No Consent or Filing. No consent, license, approval
or authorization of, or registration, declaration or filing with, any court,
governmental body or authority or other person or entity is required in
connection with the valid execution, delivery or performance of this Agreement,
the Credit Note, or other documents required by this Agreement or in connection
with any of the transactions contemplated thereby.
5.7 No Violations. The Company is not in violation of any
material term of its certificate of incorporation or by-laws, or of any
mortgage, borrowing agreement or other instrument or agreement pertaining to
indebtedness for borrowed money. The Company is not in
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violation of any term of any other indenture, instrument or agreement to which
it is a party or by which it may be bound, resulting, or which might reasonably
be expected to result, in a material and adverse effect upon, its business or
assets. The Company is not in violation of any order, writ, judgment, injunction
or decree of any court of competent jurisdiction or of any statute, rule or
regulation of any competent governmental authority. The execution and delivery
of this Agreement, the Credit Note and other documents required by this
Agreement and the performance of all of the same is and will be in compliance
with the foregoing and will not result in any violation or result in the
creation of any mortgage, lien, security interest, charge or encumbrance upon
any properties or assets except in favor of HSBC. There exists no fact or
circumstance not disclosed in this Agreement or in the documents furnished in
connection herewith which materially adversely affects, or in the future (so far
as the Company can now foresee) may materially adversely affect the condition,
business or operations of the Company.
5.8 Federal Regulations. The Company is not engaged
principally, or as one of its important activities, in the business of extending
or arranging for the extension of credit for the purpose of purchasing or
carrying "margin security" or "margin stock" (as defined in Regulations G and U
issued by the Board of Governors of the Federal Reserve System). Likewise, the
Company does not own or intend to carry or purchase any such "margin security"
or "margin stock", and the Company will not use the proceeds of any Advance to
purchase or carry (or refinance any borrowing, the proceeds of which were used
to purchase or carry) any such "margin security" or "margin stock".
5.9 ERISA Matters. No Pension Plan has been terminated or
partially terminated or is insolvent or in reorganization, nor have any
proceedings been instituted to
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terminate or reorganize any Pension Plan; neither the Company nor any Subsidiary
has withdrawn from any Pension Plan in a complete or partial withdrawal, nor has
a condition occurred which if continued would result in a complete or partial
withdrawal; neither the Company nor any Subsidiary has incurred any withdrawal
liability, including contingent withdrawal liability, to any Pension Plan
pursuant to Title IV of ERISA; neither the Company nor any Subsidiary has
incurred any liability to the Pension Benefit Guaranty Corporation other than
for required insurance premiums which have been paid when due; no Reportable
Event has occurred; and no Pension Plan or other "employee pension benefit plan"
as defined in Section 3(2) of ERISA to which the Company or any Subsidiary is a
party has an "accumulated funding deficiency" (whether or not waived) as defined
in Section 302 of ERISA or in Section 412 of the Internal Revenue Code. Each
Pension Plan and each other "employee benefit plan" as defined in Section 3(3)
of ERISA to which the Company or any Subsidiary is a party is in substantial
compliance with ERISA, and no such plan, or any administrator, trustee or
fiduciary thereof has engaged in a prohibited transaction described in Section
406 of ERISA or in Section 4975 of the Internal Revenue Code.
5.10 Collateral. Company represents, and so long as this
Agreement is in effect, shall be deemed continuously to represent and warrant
that the Company is the owner of the Collateral free of all security interests
or other encumbrances except the Security Interest granted herein.
5.11 Subsidiaries. The Company has no Subsidiary or other
interest in any other association, corporation, partnership, joint venture, or
other business entity not disclosed to HSBC on a Schedule hereto.
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5.12 Financial Condition. The financial statements which
the Company has furnished HSBC have been prepared in conformity with GAAP
consistently applied and present fairly the financial condition of the Company
as of such date and the result of its operations for the period then ended and
there has been no material adverse change in said financial condition. The
Company has no contingent obligations, liabilities for taxes or other
outstanding financial obligations which are material in the aggregate, which are
not otherwise disclosed in the financial statements referred to above.
5.13 Liens. The Company has good and marketable title to
all of its properties and assets, which properties and assets are not subject to
any mortgage, pledge, title retention lien, or other lien, encumbrance or
security interest, except (i) for current taxes not delinquent or for taxes
being contested in good faith and by appropriate proceedings, (ii) liens arising
in the ordinary course of business for sums not due or sums being contested in
good faith and by appropriate proceedings and not involving any deposits or
advances or borrowed money or the deferred purchase price of property or
services, and (iii) liens in favor of HSBC.
5.14 Investment Company Act. The Company is not an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
5.15 Corporate Takeovers. No portion of the Credit will be
used to a acquire any security in any transaction which is subject to Section 13
or 14 of the Securities and Exchange Act of 1934, including without limitation
Sections 13(d) and 14(d) thereof.
5.16 Insider. The Company is not, and no person having
"control" (as the term is defined in 12 U.S.C. Section 375(b)(9)(G) or in
regulations promulgated pursuant thereto) of the Company is an "executive
officer", "director", or person who "directly or indirectly, or acting
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through or in concert with one or more persons," owns, controls, or has the
power to vote more than 25% of any class of "voting securities" (as those terms
are defined in 12 U.S.C. Section 375(9)(b) or in regulations promulgated
pursuant thereto) of HSBC, HSBC (USA) Inc. or any subsidiary thereof, or of any
bank at which HSBC maintains a correspondent account, or of any bank which
maintains a correspondent account with HSBC.
ARTICLE VI. COVENANTS
During the Term of this Agreement, and so long as any portion
of the Credit shall remain available or any indebtedness of the Company to HSBC
shall remain unpaid, the Company will:
6.1 Payments. Duly and punctually pay the principal of
and interest on all indebtedness incurred by it pursuant to this Agreement and
the Credit Note in the manner set forth herein and therein.
6.2 Notice. Promptly notify HSBC in writing of (a) any
pending or future audits of the Company's federal income tax returns by the
Internal Revenue Service as soon as the Company has knowledge thereof, and the
results of each such audit after its completion; (b) any default by the Company
in the performance of, or any modifications of, any of the terms or conditions
contained in any agreement, mortgage, indenture or instrument to which the
Company is a party or which is binding upon the Company and of any default by
the Company in the payment of any of its indebtedness; provided, however, the
Company shall not be required to so notify HSBC of modifications of any or all
terms or provisions of any document or agreement pertaining to its transaction
in the ordinary course of business, but which do not pertain to its
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indebtedness for borrowed money, which do not materially and adversely affect
the business or assets of the Company; and (c) receipt by the Company of notices
from FHA, VA, FNMA, FHLMC, GNMA, HUD, any Investor, or any state in which the
Company transacts business, which notice pertains to the status or qualification
of the Company to conduct its business.
6.3 Taxes. Promptly pay and discharge all of its taxes,
assessments and other governmental charges (including any charged or assessed on
the issuance of the Credit Note or any of the Qualifying Mortgage notes) prior
to the date on which penalties attach thereto, establish adequate reserves for
the payment of taxes and assessments and make all required withholding and other
tax deposits; provided, however, that nothing herein contained shall be
interpreted to require the payment of any tax, assessment or charge so long as
its validity is being contested in good faith and by appropriate proceedings
diligently conducted, if the Company, upon HSBC's request, deposits with HSBC,
to be held in escrow, such amount being contested.
6.4 Insurance. (a) Keep all its property so insurable
insured at all times with responsible insurance carriers against fire, theft and
other risks in coverage, form and amount satisfactory to HSBC; (b) keep
adequately insured at all times in reasonable amounts with responsible insurance
carriers against liability on account of errors and omissions, damage to persons
or property and under all applicable workers' compensation laws; (c) promptly
deliver to HSBC certificates of insurance or any of those insurance policies
required to be carried by the Company pursuant hereto; and (d) cause each
insurance policy to contain a notice of cancellation provision satisfactory to
HSBC.
6.5 Litigation. Promptly notify HSBC in writing as soon
as the Company has knowledge thereof, of the institution or filing of any
litigation, action, suit, claim, counterclaim
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or administrative proceeding against, or investigation of, the Company (a) to
which the Company is a party by or before any regulatory body or governmental
agency; (b) the outcome of which may materially and adversely affect the
finances or operations of the Company or the Company's ability to fulfill its
obligations hereunder unless adequately covered by insurance; or (c) which
questions the validity of this Agreement, the Credit Note or any action taken or
to be taken pursuant to the foregoing; and furnish or cause to be furnished to
HSBC such information regarding the same as HSBC may request.
6.6 Existence and Eligibility. Maintain its existence in
good standing and remain or become duly licensed or qualified and in good
standing in each jurisdiction in which the conduct of its business requires such
qualification or licensing.
6.7 Books and Records. Keep proper books and records in
accordance with GAAP consistently applied, and notify HSBC promptly in writing
of any proposed change in the location at which such books and records are
maintained.
6.8 Compliance with Law. Comply in all material respects
with all laws and governmental rules and regulations respecting the transactions
which are the subject of this Agreement.
6.9 Access to Records. Permit HSBC's authorized
representatives, during normal business hours and as often as HSBC may
reasonably request, to have access to the Company's premises and its financial
records pertaining to the transactions contemplated hereby; inspect and copy
such records, and discuss the affairs and finances of the Company with
appropriate officers of the Company.
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6.10 Maintain Qualifications. Maintain its status, as
applicable, as an FHA approved direct endorsement mortgagee, an approved lender
under the VA guaranty program, and an approved Seller/Servicer to FNMA, FHLMC
and GNMA.
6.11 Financial Reports. Furnish to HSBC the following
financial in information:
A. Financial statements of the Company as of
the end of each calendar quarter, to be furnished not later than forty-five days
after the end of each calendar quarter. Such statements shall contain such
information as HSBC may reasonably request.
B. Annual financial statements of the Company
audited by independent certified public accountants acceptable to HSBC, to be
furnished not later than ninety days after the end of each fiscal year of the
Company.
C. Servicing portfolio reports, including
investor remittance, escrow, delinquency and foreclosure reports, as of the end
of each calendar quarter, to be furnished not later than thirty days after the
end of each calendar quarter.
D. Annual financial statements of the
Guarantor, certified by the Guarantor as true and complete, to be furnished not
later than ninety days after the end of each of Guarantor's tax or fiscal years,
as applicable.
E. Secondary marketing reports, including
position report, commitment status, pipeline report, and closed loan report, as
of the end of each calender quarter, to be furnished not later than thirty days
after the end of each calendar quarter.
6.12 Pension Reports. With respect to each Pension Plan,
the Company will furnish the following to HSBC:
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A. As soon as possible and in any event within
thirty days, after the Company knows or has reason to know that any Reportable
Event with respect to such Pension Plan has occurred, the statement of the
President or chief financial officer of the Company setting forth the details of
such Reportable Event and the action which the Company proposes to take with
respect thereto;
B. Promptly after the filing thereof with the
Secretary of Labor, the Pension Benefit Guaranty Corporation or the Internal
Revenue Service, copies of reports (including without limitation, notices of
Reportable Events and annual reports in the Form 5500 Series) filed with respect
to each Pension Plan.
6.13 Collateral Value: Margin Call.
A. Defend the Collateral against the claims and
demands of all other parties; keep the Collateral free from all security
interests or other encumbrances except those granted herein; not sell, transfer,
assign, deliver or otherwise dispose of any Collateral except pursuant to the
terms hereof or with the consent of HSBC.
B. Execute and deliver to HSBC such financing
statements, assignments and other documents and do such other things relating to
the Collateral as HSBC may request.
C. Maintain with HSBC at all times as security
for the Credit, Collateral Value equal to or greater than the outstanding
balance of the Credit, and to repay the amount necessary to reduce the
outstanding balance of the Credit to or below the Collateral Value within three
Business Days of the Company's receipt of a demand by HSBC for such repayment.
"Collateral Value" means (i) the aggregate open market value (as determined from
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time to time by HSBC in HSBC's sole discretion) of Collateral Mortgages securing
unrepaid Advances and (ii) the amount of the Pledged Account, if any,
6.14 Liens. Not create or permit to exist any mortgage,
pledge, title retention lien, lease, purchase or other encumbrance or security
interest with respect to any of the Collateral, except:
(a) the Security Interest,
(b) materialmen's, mechanics', suppliers', tax,
and warehousemen's liens, statutory liens of landlords and other like liens
arising in the ordinary course of business securing obligations which are not
yet due or which are being contested in good faith by appropriate proceedings,
(c) liens incurred or deposits made in the
ordinary course of business in connection with workers' compensation,
unemployment insurance and other types of social security or to secure the
performance of statutory obligations, surety or appeal bonds, bids, leases,
performance and return of money bonds and similar obligations (exclusive of
obligations for the payment of borrowed money),
(d) encumbrances consisting of zoning
regulations, easements, rights of way, survey exceptions and other similar
restrictions on the use of real property and minor irregularities in titles
thereto which do not materially impair such use,
(e) liens on GNMA mortgaged-backed securities
owned by the Company and liens on such securities which secure the Company's
repurchase obligations to brokers with respect to such securities, and
(f) existing liens and security interests
described on a Schedule hereto.
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6.15 Document Shipping Charges. Pay all expenses of shipping Loan
Documents from the Company to HSBC and from HSBC to Investors.
6.16 ERISA Contributions. At all times, make prompt payment of
contributions required to meet the minimum funding standards set forth in ERISA
with respect to any employee benefit plan.
6.17 VA Guaranties and FHA Insurance. Not commit or suffer to be
committed any act which would invalidate the guarantee of the VA or insurance by
the FHA or cause any impairment to the validity of or priority of the lien on
the Collateral created hereby in favor of HSBC.
6.18 Financial Covenants.
A. Adjusted Net Worth. Maintain a minimum Adjusted Net
Worth of at least ONE MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS
($1,500,000.00).
B. Total Liabilities to Adjusted Net Worth Ratio.
Maintain a ratio of total liabilities to Adjusted Net Worth of not more than
10 to 1.
6.19 Additional Primary or Secondary Indebtedness. Not incur
indebtedness under any other lines of credit except (i) the Company's existing
warehousing line with GE Capital Corp., or (ii) indebtedness in the ordinary
course of business not exceeding $1,000,000.00 in the aggregate, or guaranty the
repayment of any other indebtedness.
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6.20 Fees. Pay to HSBC when and as due the following fees:
A. File Handling Fee. Monthly, in arrears, file handling
fees of
(i) $20.00 for each set of Loan Documents
delivered to HSBC or its designee pursuant
to this Agreement; and
(ii) an additional $20.00 for each set of such
Loan Documents for which an Advance is made
as the result of which the aggregate amount
of outstanding Advances secured by (x)
Cooperative Loans is or remains greater than
30% of the Credit Amount, and (y)
Non-Conforming Mortgages is or remains
greater than 50% of the Credit Amount.
B. Collateral Exception Fee. Monthly, in
arrears, a Collateral Exception Fee of
$50.00 for each noncompliance by the Company
with Section 2.4A with respect to repayment
of Advances. Acceptance by HSBC of such Fee
shall not constitute a waiver of any other
right or remedy of HSBC hereunder resulting
from such noncompliance.
6.21 Intentionally Omitted.
6.22 Other Acts. Execute and deliver, or cause to be executed and
delivered, to HSBC all further documents and perform all other acts and things
which HSBC deems necessary or appropriate to protect or perfect its mortgage or
security interests in any property directly or indirectly securing payment of
any indebtedness of the Company to HSBC.
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ARTICLE VII. EVENTS OF DEFAULT
The occurrence of any of the events listed in this Article
shall constitute an event of default under this Agreement ("Event of Default").
7.1 Nonpayment of Indebtedness. Failure of the Company to
make any payment of interest or principal or any other sum, which has become due
whether by acceleration or otherwise, under the terms of the Credit Note, this
Agreement or any other document evidencing or securing indebtedness of the
Company to HSBC.
7.2 Assignment or Encumbrance. Assignment or attempted
assignment by the Company of this Agreement, any rights hereunder, or any
Advance to be made hereunder, without first obtaining the specific written
consent of HSBC, or the granting by the Company of any security interest, lien
or other encumbrance other than to HSBC on any Collateral.
7.3 Insolvency Proceedings. The filing by or against the
Company of a petition for liquidation, reorganization, arrangement or
adjudication as a bankrupt or similar relief under the bankruptcy, insolvency
or similar laws of the United States or any state or territory thereof or of any
foreign jurisdiction; the failure of the Company to secure dismissal of any such
petition filed against it within thirty days of such filing; the making of any
general assignment by the Company for the benefit of creditors; the appointment
of a receiver or trustee for the Company or for any part of the Company's
assets; the institution by the Company of any other type of insolvency
proceeding (under the Bankruptcy Code or otherwise) or of any formal or informal
proceeding, including, without limitation, proceedings by the Federal Deposit
Insurance Corporation or other governmental authority, for the dissolution or
liquidation of, settlement of claims against, or winding up of the affairs of,
the Company; the institution of any
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such proceeding against the Company if the Company shall fail to secure
dismissal thereof within thirty days thereafter; the consent by the Company to
any type of insolvency proceeding against the Company (under the Bankruptcy Code
or otherwise); the occurrence of any event or existence of any condition which
could be the ground, basis or cause for any proceeding or petition described in
this Section; or the occurrence of any event described in this Section with
respect to the Guarantor, if any, of the Credit.
7.4 Misrepresentation. If any certificate, statement,
representation, warranty or audit heretofore or hereafter furnished by or on
behalf of the Company pursuant to or in connection with this Agreement or
otherwise (including, without limitation, representations and warranties
contained herein) or as an inducement to HSBC to extend any credit to or enter
into this or any other agreement with the Company proves to have been false in
any material respect at the time as of which the facts therein set forth were
stated or certified or to have omitted any substantial contingent or
unliquidated liability or claim against the Company, or if on the Agreement Date
there shall have been any materially adverse changes in any of the facts
previously disclosed by any such certificate, statement, representation,
warranty or audit, which change shall not have been disclosed to HSBC at or
prior to the time of such execution.
7.5 Materially Adverse Changes. Any materially adverse change in
the financial condition of the Company or the existence of any other condition
which, in HSBC's sole determination, constitutes an impairment of the Company's
ability to perform its obligations under this Agreement or any other document
evidencing or securing the Credit, and which condition is not remedied within
ten days after written notice to the Company thereof or, if the condition cannot
be fully remedied within said ten days, substantial progress has not been made
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within said ten days toward remedy of the condition.
Such materially adverse change may include, but shall
not be limited to (a) the sale, assignment, transfer or delivery of all or
substantially all of the assets of the Company; (b) the cessation by the Company
as a going business concern; (c) the entry of judgment against the Company other
than a judgment for which the Company is fully insured, if ten days thereafter
such judgment is not satisfied, vacated, bonded or stayed pending appeal; (d)
the failure of the Company to pay its debts as such debts become due; or (e)
nonpayment by the Company when due of any indebtedness for borrowed money owing
to any third party, or the occurrence of any event which could result in
acceleration of payment of any such indebtedness.
7.6 Failure to Perform Obligations. Default by the
Company in the performance of any of the other terms, conditions or covenants
contained in this Agreement or any agreement or document made in connection with
this Agreement which is not remedied within ten days after notice thereof by
HSBC to the Company.
7.7 Pension Default. Any Reportable Event which HSBC
determines in good faith constitutes grounds for the termination of any Pension
Plan by the Pension Benefit Guaranty Corporation or for the appointment by an
appropriate United States district court of a trustee to administer any Pension
Plan shall have occurred and continued thirty days after written notice thereof
to the Company by HSBC; or the Pension Benefit Guaranty Corporation shall have
instituted proceedings to terminate any Pension Plan or to appoint a trustee to
administer any Pension Plan; or a trustee shall be appointed by an appropriate
United States district court to administer any Pension Plan; or any Pension Plan
shall be terminated; or the Company withdraws from a Pension Plan in a complete
withdrawal or a partial withdrawal; or the Company shall fail
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to pay to any Pension Plan any contribution which it is obligated to pay under
the terms of such plan or any agreement, or which is required to meet statutory
minimum funding standards.
7.8 Change in Management. A change in the management of
the Company.
7.9 Events Affecting Guarantor(s). The occurrence with
respect to any Guarantor of an event or condition described in Sections 7.1,
7.2, 7.3, 7.4 or 7.5 hereof or the death or judicial declaration of incompetency
of any Guarantor.
ARTICLE VIII. REMEDIES UPON DEFAULT
8.1 Default Other Than Insolvency. Upon the happening of
one or more Events of Default (except a default under Section 7.3 hereof), HSBC
may (a) immediately cancel or suspend its agreement to advance the Credit and
(b) declare the principal of the Credit Note then outstanding to be immediately
due and payable, together with all interest thereon and fees and expenses
accruing under this Agreement. Upon such declaration, the balance then
outstanding on the Credit Note shall become immediately due and payable without
presentation, demand or further notice of any kind to the Company.
8.2 Default - Insolvency. Upon the happening of
one or more Events of Default under Section 7.3 hereof, HSBC's obligations to
advance the Credit shall be canceled immediately, automatically and without
notice, and the Credit Note shall become immediately due and payable without
presentation, demand or notice of any kind.
8.3 Enforcement of Agreements. Upon the
happening of one or more Events of Default, HSBC shall have the right to obtain
physical possession of all files of the Company relating to the Collateral and
all documents relating to the Collateral which are then or pay
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thereafter come into the possession of the Company or any third party acting for
the Company. HSBC shall be entitled to specific performance of all agreements of
the Company contained in this Agreement or other documents relating to the
Credit.
8.4 Realization on Collateral. Upon the
happening of one or more Events of Default, HSBC shall have the right to collect
all further payments made on the Collateral, and if any such payments are
received by the Company, the Company shall not commingle the amount received
with other funds of the Company and shall promptly pay them over to HSBC. In
addition, HSBC shall have the right to dispose of the Collateral as provided
herein or as provided in the other documents executed in connection herewith or
as provided by law.
ARTICLE IX. INDEMNIFICATION AND EXPENSES
The Company agrees to hold HSBC harmless from and indemnifies
HSBC against all liabilities, losses, damages, judgments, costs, and expenses of
any kind which may be imposed on, incurred by, or asserted against HSBC relating
to or arising out of this Agreement, the Credit Note, or any transaction
contemplated hereby. The Company also agrees to reimburse HSBC for all
reasonable expenses in connection with this Agreement and the Credit Note,
including without limitation the reasonable fees and disbursements of counsel,
all delivery and insurance charges incurred in connection with delivery of Loan
Documents except as otherwise specifically provided herein, wire transfer fees
and the travel expenses of HSBC's officers in connection with the transactions
contemplated hereby and including expenses of enforcement. The Company's
agreements in this Section shall survive the payment in full of the Credit Note
and the expiration or termination of this Agreement.
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ARTICLE X. MISCELLANEOUS
10.1 Amendments and Waivers. No modification, rescission,
waiver, release or amendment of any provision of this Agreement shall be made
except by a written agreement subscribed by duly authorized officers of the
Company and HSBC. If the Company should request that HSBC waive, in whole or in
part, any financial covenant contained herein which has been breached by the
Company without prior consent by HSBC, and HSBC should agree to such waiver (and
the Company acknowledges that the availability of any such waiver shall be at
HSBC's absolute discretion), the Company agrees to pay to HSBC on the date of
such agreement a fee for such waiver of 1/20 of 1% (0.05%) of the Credit Amount.
10.2 Delays and Omissions. No course of dealing and no
delay or omission by HSBC in exercising any right or remedy hereunder or with
respect to any indebtedness of the Company to HSBC 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. HSBC may remedy any default by the Company hereunder
or with respect to any other person, firm or corporation in any reasonable
manner without waiving the default remedied and without waiving any other prior
or subsequent default by the Company and shall be reimbursed for its expenses in
so remedying such default. All rights and remedies of HSBC hereunder are
cumulative.
10.3 Attorney-in-fact. The Company hereby authorizes HSBC,
at the Company's expense, to file such financing statement or statements
relating to the Collateral without the Company's signature thereon as HSBC at
its option may deem appropriate and appoints HSBC as the Company's
attorney-in-fact (without requiring HSBC) to execute any such
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financing statement or statements in the Company's name and to perform all other
acts which HSBC deems appropriate to perfect and continue the Security Interest
and to protect, preserve and realize upon the Collateral, including, but not
limited to, the right to endorse notes, complete blanks in documents and sign
assignments on behalf of the Company as its attorney-in-fact. This Power of
Attorney is coupled with an interest and is irrevocable without HSBC's consent.
10.4 Collection. HSBC may demand, collect and xxx on any
of the Collateral (in either the Company's or HSBC's name at the latter's
option); may enforce, compromise, settle or discharge such Collateral without
discharging the indebtedness or any part thereof; and may endorse the Company's
name on any and all checks, commercial paper, and any other instruments
pertaining to or constituting Collateral. In the event HSBC intends to exercise
any rights set forth in this Section, HSBC shall use its best efforts to notify
the Company thereof prior to taking any such action.
10.5 Further Security. As further security for payment of
the indebtedness, the Company hereby grants to HSBC a Security Interest in and
lien on any and all property of the Company which is or may hereafter be in the
possession or control of HSBC in any capacity or of any third party acting on
its behalf, including, without limitation, all deposit and other accounts and
all moneys owed or to be owed by HSBC to the Company; and with respect to all of
such property, HSBC shall have the same rights hereunder as it has with respect
to the Collateral. Without limiting any other right of HSBC, whenever HSBC has
the right to declare any indebtedness to be immediately due and payable (whether
or not it has so declared), HSBC at its sole election may set off against the
indebtedness any and all moneys then or thereafter owed to the Company by HSBC
in any capacity, whether or not the indebtedness or the obligation to pay
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such moneys owed by HSBC is then due, and HSBC shall be deemed to have exercised
such right of setoff immediately at the time of such election even though any
charge therefor is made or entered on HSBC's records subsequent thereto.
10.6 Return of Collateral Under Trust Receipt. Possession
of any of the Collateral (including original notes evidencing Qualifying
Mortgages) may be temporarily relinquished by HSBC to the Company under a trust
receipt for the sole purpose of sale, exchange, collection, or presentation,
renewal or registration of transfer. At all times the Collateral is in the
Company's possession, the Company will hold the Collateral in trust so as to
continue the perfection of HSBC's Security Interest.
10.7 Loss of Loan Documents. Once Loan Documents have been
delivered to a postal or delivery service, HSBC shall incur no liability of any
kind in connection with loss or delay in connection with the transmittal of Loan
Documents to or from the Company, any Investor, or any other party pursuant to
this Agreement.
10.8 Successors and Assigns. The Company and HSBC as used
herein shall include the legal representatives or assigns of those parties in
cases where the assignment by the Company was made with the consent required
hereunder.
10.9 Notices. Any notice or demand to be given hereunder
shall be duly given if delivered or mailed to the respective parties at their
Notice Address and shall be deemed effective if delivered upon delivery and if
mailed upon deposit in an official depository maintained by the United States
Post Office for the collection of mail.
10.10 Counterparts. This Agreement may be executed in any
number of counterparts and by HSBC and the Company on separate counterparts,
each of which when so
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executed and delivered shall be an original, but all such counterparts shall
together constitute one and the same Agreement.
10.11 Titles. Titles to the sections of this Agreement are
solely for the convenience of HSBC and the Company, and are not an aid in the
interpretation of this Agreement or any part thereof.
10.12 Inconsistent Provisions. In the event any provision
of this Agreement is inconsistent with any provision of any other document
required or executed pursuant to this Agreement, the provisions of this
Agreement shall be controlling.
10.13 Participation. HSBC reserves the right to transfer
participating interests in this Agreement and in the Credit Note to one or more
other institutions or entities.
10.14 Entire Agreement. This Agreement and the related
documents identified and referred to herein are intended to set forth the entire
agreement of the parties concerning the subject matter hereof.
10.15 Governing Law. This Agreement and the Credit Note
shall be governed by and are to be construed under the internal laws of the
State of New York.
10.16 CONSENT TO JURISDICTION. COMPANY AGREES THAT ANY
ACTION OR PROCEEDING TO ENFORCE OR ARISING OUT OF THIS DOCUMENT MAY BE COMMENCED
IN THE SUPREME COURT OF NEW YORK IN ERIE COUNTY, OR IN XXX XXXXXXXX XXXXX XX XXX
XXXXXX XXXXXX FOR THE WESTERN DISTRICT OF NEW YORK, AND 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
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CONFER PERSONAL JURISDICTION IF SERVED BY REGISTERED MAIL TO COMPANY AT THE
ADDRESS SPECIFIED ABOVE, OR AS OTHERWISE PROVIDED BY THE LAWS OF THE STATE OF
NEW YORK OR THE UNITED STATES.
10.17 WAIVER OF JURY TRIAL. COMPANY AND HSBC HEREBY
KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY
COMPANY AND HSBC MAY HAVE IN ANY ACTION OR PROCEEDING, IN LAW OR IN EQUITY, IN
CONNECTION WITH THIS DOCUMENT OR THE TRANSACTIONS RELATED HERETO. COMPANY
REPRESENTS AND WARRANTS THAT NO REPRESENTATIVE OR AGENT OF HSBC HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT HSBC WILL NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THIS JURY TRIAL WAIVER. COMPANY ACKNOWLEDGES THAT HSBC HAS BEEN INDUCED
TO ENTER INTO THIS TRANSACTION BY, AMONG OTHER THINGS, THE PROVISIONS OF THIS
SECTION.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be signed by their duly authorized officers and their corporate
seals to be hereunto affixed, all as of the Agreement Date.
THE NEW YORK MORTGAGE COMPANY LLC
BY: /s/XXXXXX X. XXXXXXX
------------------------------
NAME XXXXXX X. XXXXXXX
TITLE: PRESIDENT
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(SEAL) HSBC BANK USA
BY: /s/ XXXXX X. XXXXX
--------------------------------------------
NAME : XXXXX X. XXXXX
TITLE VICE PRESIDENT
- 41 -
STATE OF NEW YORK )
) SS.:
COUNTY OF QUEENS )
On the 20th day of March, 2001, before me, the undersigned, a notary
public in and for said state, personally appeared XXXXXX X. XXXXXXX personally
known to me or proved to me on the basis of satisfactory evidence to be the
individual(s) whose name(s) is (are) subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signature(s) on the instrument, the
individual(s), or the person upon behalf of which the individual(s) 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
STATE OF PENNSYLVANIA)
) SS.:
COUNTY OF XXXXXXXXXX )
On the 30th day of March, 2001, before me, the undersigned, a notary
public in and for said state, personally appeared XXXXX X. XXXXX, personally
known to me or proved to me on the basis of satisfactory evidence to be the
individual(s) whose name(s) is (are) subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signature(s) on the instrument, the
individual(s), or the person upon behalf of which the individual(s) acted,
executed the instrument.
/s/ XxXxx Xxxxxxx
-----------------------------------
Notary Public
Notarial Seal
XxXxx Xxxxxxx, Notary Public
Upper Merion Twp., Xxxxxxxxxx County
My Commission Expires Apr. 22, 2002
Member, Pennsylvania Association of Notaries
