Exhibit 10.73
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HSBC BANK USA
and
THE NEW YORK MORTGAGE COMPANY LLC
CREDIT NOTE
Dated as of December 15, 2003
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CREDIT NOTE
$25,000,000.00 As of December 15, 2003
FOR VALUE RECEIVED, the undersigned, THE NEW YORK MORTGAGE COMPANY LLC, a
limited liability company organized under the laws of the State of New York,
whose address is 1301 Avenue of the Xxxxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000 (the "Company"), promises to pay to the order of HSBC BANK USA, a New
York banking corporation, whose address is Mortgage Warehouse Lending
Department, 27th Floor, Xxx XXXX Xxxxxx, Xxxxxxx, Xxx Xxxx 00000 ("HSBC") on or
before June 30, 2004, or such earlier date as is provided for in the Credit
Agreement as hereinafter defined ("Maturity Date"), in lawful money of the
United States of America, the principal sum of TWENTY-FIVE MILLION DOLLARS
($25,000,000.00), or the aggregate unpaid principal amount of all advances by
HSBC to the Company pursuant to the Credit and Security Agreement among
National City, National City Bank of Kentucky ("National City"), HSBC as Agent,
National City as Documentation Agent, and the Company dated as of even date
herewith (as such agreement may be amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"), plus interest thereon from
the date hereof, as follows:
INTEREST: Interest shall accrue on the principal amount outstanding hereon
at an annual rate equal to the rate determined by HSBC to be the average rate
per annum offered on the London Interbank Offering Market for U.S. Dollar
deposits in the amount of this Credit Note or applicable portion thereof and for
a term of 30 days ("LIBOR") plus 125 basis points (together, the "LIBOR-Based
Rate"). The LIBOR-Based Rate shall be adjusted at the end of each calendar month
to the rate equal to the LIBOR-Based Rate determined by reference to the
then-current LIBOR. Accrued interest shall be paid monthly on the tenth business
day of each month after the date hereof. Interest shall be calculated on the
basis of 1/360 of the annual interest at the applicable rate on the outstanding
principal balance for each day such balance is outstanding, thus increasing the
effective rate of interest, and shall continue to accrue at such rate until the
principal balance is paid in full, regardless of whether the principal has
become due by reason of default or otherwise, except as otherwise provided
herein.
MAXIMUM RATE OF INTEREST: It is intended that the rate of interest hereon
shall never exceed the maximum rate, if any, which may be legally charged on the
loan evidenced by this Credit Note ("Maximum Rate"), and if the provisions for
interest contained in this Credit Note would result in a rate higher than the
Maximum Rate, interest shall nevertheless be limited to the Maximum Rate and any
amounts which may be paid toward interest in excess of the Maximum Rate shall be
applied to the reduction of principal, or, at the option of HSBC, returned to
the Company.
DUE DATE: All indebtedness evidenced hereby not paid before the Maturity
Date shall be due and payable on the Maturity Date.
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PLACE OF PAYMENT: All payments hereon shall be made, and all
notices to HSBC required or authorized hereby shall be given, as set forth in
the Credit Agreement.
PAYMENT AND EXPENSES OF COLLECTION: All amounts payable hereunder
are payable in lawful money of the United States. Payments received by HSBC
after 2:00 p.m. HSBC's local time shall be deemed to be received on the next
following business day. Notwithstanding the foregoing, a payment will not be
deemed to have been received unless by 2:00 p.m. HSBC's local time HSBC shall
have received a completed "Repayment Schedule" on HSBC's form, listing the
Qualifying Mortgages (as defined in the Credit Agreement) to which the payment
pertains. The Company agrees to pay all costs of collection when incurred,
including, without limiting the generality of the foregoing, reasonable
attorneys' fees through appellate proceedings, and to perform and comply with
each of the covenants, conditions, provisions and agreements contained in every
instrument now evidencing or securing said indebtedness. If any suit or action
be instituted to enforce this Credit Note, the Company promises to pay, in
addition to the cost and disbursements otherwise allowed by law, such sum as
the court may adjudge reasonable attorneys' fees in such suit or action.
COLLECTION PERIODS: Any check, draft, money order or other instrument
given in payment of all or any portion hereof may be accepted by HSBC and
handled in collection in the customary manner, but the same shall not constitute
payment hereunder or diminish any rights of HSBC except to the extent that
actual cash proceeds of such instrument are unconditionally received by HSBC;
provided, however, that this Credit Note shall not be in default as the result
of normal collection periods on such instruments.
LATE PAYMENT CHARGE: The Company promises to pay to HSBC promptly
upon the accrual thereof a late payment charge of 6% of the amount of any
installment payment not paid within ten days of receipt by the Company of the
xxxx for such payment.
INTEREST AFTER NONPAYMENT: If the principal of this Credit Note is
not paid when due, whether by acceleration or otherwise, all unpaid amounts
shall bear interest following said nonpayment at the rate of 5% per annum above
the otherwise applicable interest rate.
DEFAULTS: Upon the happening of an Event of Default (as defined in
the Credit Agreement), HSBC shall have all rights and remedies set forth in the
Credit Agreement.
The failure to exercise any of the rights and remedies set forth in
the Credit Agreement shall not constitute a waiver of the right to exercise the
same or any other option at any subsequent time in respect of the same event or
any other event. The acceptance by HSBC of any payment hereunder which is less
than payment in full of all amounts due and payable at the time of such payment
shall not constitute a waiver of the right to exercise any of the foregoing
rights and remedies at that time or at any subsequent time or nullify any prior
exercise
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of any such rights and remedies without the express consent of HSBC, except as
and to the extent otherwise provided by law.
WAIVERS: The Company, and any indorsers or guarantors hereof, severally
waive diligence, presentment, protest and demand and also notice of protest,
demand, dishonor and nonpayment of this Credit Note, and expressly agree that
this Credit Note, or any payment hereunder, may be extended from time to time,
and consent to the acceptance of further collateral, the release of any
collateral for this Credit Note, the release of any party primarily or
secondarily liable hereon, and that it will not be necessary for HSBC, in order
to enforce payment of this Credit Note, to first institute or exhaust HSBC's
remedies against the Company or any other party liable hereon or against any
collateral for this Credit Note. None of the foregoing shall affect the
liability of the Company and any indorsers or guarantors hereof. No extension of
time for the payment of this Credit Note, or any installment hereof, made by
agreement by HSBC with any person now or hereafter liable for the payment of
this Credit Note, shall affect the liability under this Credit Note of the
Company, even if the Company is not a party to such agreement; provided,
however, HSBC and the Company, by written agreement between them may affect the
liability of the company.
TERMINOLOGY: If more than one party joins in the execution of this Credit
Note, the covenants and agreements herein contained shall be the joint and
several obligation of each and all of them and of their respective heirs,
executors, administrators, successor and assigns, and relative words herein
shall be read as if written in the plural when appropriate. Any reference herein
to HSBC shall be deemed to include and apply to every subsequent holder of this
Credit Note. Words of masculine or neuter import shall be read as if written in
the neuter or masculine or feminine when appropriate.
CREDIT AGREEMENT: Reference is made to the Credit Agreement for provisions
as to mandatory principal repayments, collateral and acceleration.
APPLICABLE LAW: This Credit Note shall be governed by and construed under
the laws of the State of New York, whose laws the Company expressly elects to
apply to this Credit Note. The Company agrees that any action or proceeding
brought to enforce or arising out of this Credit Note may be commenced in the
New York Supreme Court for the County of Erie, or in the District Court of the
United States for the Western District of New York, and the Company waives
personal service of process and agrees that a summons and complaint commencing
an action or proceeding in any such court shall be properly served and shall
confer personal jurisdiction if served by registered mail to the Company, or as
otherwise provided by the laws of the State of New York or the United States.
WAIVER OF TRIAL BY JURY: The Company hereby knowingly, voluntarily,
unconditionally and irrevocably waives the right to trial by jury in every
jurisdiction in any action, proceeding or counterclaim brought by or against the
Company, its successors or assigns,
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in respect of any matter arising out of this Credit Note or any document given
in connection with or to secure this Credit Note, including without limitation
any exercise of rights under this Credit Note or any such document, any attempt
to cancel, void, or rescind this Credit Note or any such document, and any
course of conduct or course of dealing in connection therewith.
THE NEW YORK MORTGAGE COMPANY LLC
By: /s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx, Member
