EXHIBIT 10.17
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HSBC BANK USA
and
THE NEW YORK MORTGAGE COMPANY LLC
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CREDIT NOTE
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Dated as of March 30, 2001
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CREDIT NOTE
$15,000,000.00 As of March 30, 2001
FOR VALUE RECEIVED, the undersigned, THE NEW YORK MORTGAGE COMPANY
LLC, a limited liability company organized under the laws of the State of New
York, whose address is 000 Xxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the
"Company"), promises to pay to the order of HSBC BANK USA, a banking corporation
organized under the laws of the State of New York, whose address is c/o Mortgage
Warehouse Lending Department, Xxx XXXX Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxx Xxxx
00000 ("HSBC") on or before 364 days from the date hereof, 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
FIFTEEN MILLION DOLLARS ($15,000,000.00), or the aggregate unpaid principal
amount of all advances by HSBC to the Company pursuant to the Credit and
Security Agreement between HSBC and the Company dated as of even date herewith
(the "Credit Agreement"), plus interest thereon from the date hereof, as
follows:
INTEREST: Interest shall accrue at the rate of 1.5% per annum on the
outstanding principal balance hereof which is equal to or less than the balance,
net of service charges and reserve requirements, in non-interest bearing deposit
accounts maintained by the Company or related entities with HSBC. Interest shall
accrue on all other principal amounts outstanding hereon at an annual rate equal
to the rate determined by HSBC to be the average rate per annum offered on the
London Interbank Offering Market for U.S. Dollar deposits in the amount of this
Note or applicable portion thereof and for a term of 30 days ("LIBOR") plus 150
basis points (together, the "LIBOR-Based Rate"). The LIBOR-Based Rate shall be
adjusted at the end of each calendar month to the rate equal to the LIBOR-Based
Rate determined by reference to the then-current LIBOR. Accrued interest shall
be paid monthly on the first day of each month after the date hereof. Interest
shall be calculated on the basis of 1/360 of the annual interest at the
applicable rate on the outstanding principal balance for each day such balance
is outstanding, thus increasing the effective rate of interest, and shall
continue to accrue at such rate until the principal balance is paid in full,
regardless of whether the principal has become due by reason of default or
otherwise, except as otherwise provided herein.
MAXIMUM RATE OF INTEREST: It is intended that the rate of interest
hereon shall never exceed the maximum rate, if any, which may be legally charged
on the loan evidenced by this Note ("Maximum Rate"), and if the provisions for
interest contained in this Note would result in a rate higher than the Maximum
Rate, interest shall nevertheless be limited to the Maximum Rate and any amounts
which may be paid toward interest in excess of the Maximum Rate shall be applied
to the reduction of principal, or, at the option of HSBC, returned to the
Company.
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, at the office of
HSBC at the address designated in the heading of this Note, or to such other
place as HSBC may from time to time direct by written notice to the Company.
PAYMENT AND EXPENSES OF COLLECTION: All amounts payable hereunder
are payable in lawful money of the United States. Payments received by HSBC
after 2:30 p.m. HSBC's local time shall be deemed to be received on the next
following business day. Notwithstanding the foregoing, a payment will not be
deemed to have been received unless by 2:30 p.m. HSBC's local time HSBC shall
have received a completed "Repayment Schedule" on HSBC's form, listing the
Qualifying Mortgages (as defined in the Credit Agreement) to which the payment
pertains. The Company agrees to pay all costs of collection when incurred,
including, without limiting the generality of the foregoing, reasonable
attorneys' fees through appellate proceedings, and to perform and comply with
each of the 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 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 Note shall not be in default as the result of
normal collection periods on such instruments.
LATE PAYMENT CHARGE: The Company promises to pay to HSBC promptly
upon the accrual thereof a late payment charge of 6% of the amount of any
installment payment not paid within ten days of receipt by the Company of the
xxxx for such payment.
INTEREST AFTER NONPAYMENT: If the principal of this Note is not
paid when due, whether by acceleration or otherwise, all unpaid amounts shall
bear interest following said nonpayment at the rate of 5% per annum above the
otherwise applicable interest rate.
DEFAULTS: Upon the happening of an Event of Default (as defined in
the Credit Agreement), HSBC shall have all rights and remedies set forth in the
Credit Agreement.
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
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remedies at that time or at any subsequent time or nullify any prior exercise of
any such rights and remedies without the express consent of HSBC, except as and
to the extent otherwise provided by law.
WAIVERS: The Company, and any indorsers or guarantors hereof,
severally waive diligence, presentment, protest and demand and also notice of
protest, demand, dishonor and nonpayment of this Note, and expressly agree that
this Note, or any payment hereunder, may be extended from time to time, and
consent to the acceptance of further collateral, the release of any collateral
for this Note, the release of any party primarily or secondarily liable hereon,
and that it will not be necessary for HSBC, in order to enforce payment of this
Note, to first institute or exhaust HSBC's remedies against the Company or any
other party liable hereon or against any collateral for this Note. None of the
foregoing shall affect the liability of the Company and any indorsers or
guarantors hereof. No extension of time for the payment of this Note, or any
installment hereof, made by agreement by HSBC with any person now or hereafter
liable for the payment of this Note, shall affect the liability under this Note
of the Company, even if the Company is not a party to such agreement; provided,
however, HSBC and the Company, by written agreement between them may affect the
liability of the Company.
TERMINOLOGY: If more than one party joins in the execution of this
Note, the covenants and agreements herein contained shall be the joint and
several obligation of each and all of them and of their respective heirs,
executors, administrators, successor and assigns, and relative words herein
shall be read as if written in the plural when appropriate. Any reference
herein to HSBC shall be deemed to include and apply to every subsequent holder
of this Note. Words of masculine or neuter import shall be read as if written
in the neuter or masculine or feminine when appropriate.
CREDIT AGREEMENT: Reference is made to the Credit Agreement for
provisions as to mandatory principal repayments, collateral and acceleration.
APPLICABLE LAW: This Note shall be governed by and construed under
the laws of the State of New York, whose laws the Company expressly elects to
apply to this Note. The Company agrees that any action or proceeding brought to
enforce or arising out of this Note may be commenced in the New York Supreme
Court for the County of Erie, or in the District Court of the United States for
the Western District of New York, and the Company waives personal service of
process and agrees that a summons and complaint commencing an action or
proceeding in any such court shall be properly served and shall confer personal
jurisdiction if served by registered mail to the Company, or as otherwise
provided by the laws of the State of New York or the United States.
WAIVER OF TRIAL BY JURY: The Company hereby knowingly, voluntarily,
unconditionally and irrevocably waives the right to a trial by jury in every
jurisdiction in any action, proceeding or counterclaim brought by or against
the Company, its successors or assigns, in respect
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of any matter arising out of this Note or any document given in connection with
or to secure this Note, including without limitation any exercise of rights
under this Note or any such document, any attempt to cancel, void, or rescind
this Note or any such document, and any course of conduct or course of dealing
in connection therewith.
THE NEW YORK MORTGAGE COMPANY LLC
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: President
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XXXXX XX XXX XXXX )
) SS.:
COUNTY OF QUEENS )
On the 20 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.
XXXX XXXXX
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Notary Public
XXXX XXXXX
Notary Public, State of New York
No. 01MA5039882
Qualified in Queens County
Commission Expires March 6, 2003
