Exhibit 10.75
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HSBC BANK USA
AND
THE NEW YORK MORTGAGE COMPANY LLC
SWINGLINE NOTE
Dated as of December 15, 2003
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SWINGLINE NOTE
$5,000,000.00 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
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 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 FIVE MILLION DOLLARS ($5,000,000.00), or the aggregate unpaid
principal amount of all advances by HSBC as Swingline Lender to the Company
pursuant to the Credit and Security Agreement between HSBC, National City Bank
of Kentucky, HSBC as Agent, HSBC as Swingline Lender, and National City Bank of
Kentucky, 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 Swingline 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 Swingline Note ("Maximum Rate"), and if the
provisions for interest contained in this Swingline 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 Swingline 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 Swingline 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 Swingline 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
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foregoing rights and 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 Swingline Note, and expressly agree that
this Swingline 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 Swingline 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 Swingline Note, to first institute or exhaust HSBC's
remedies against the Company or any other party liable hereon or against any
collateral for this Swingline 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 Swingline Note, or any installment hereof, made by
agreement by HSBC with any person now or hereafter liable for the payment of
this Swingline Note, shall affect the liability under this Swingline 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
Swingline 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
Swingline 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 Swingline 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 Swingline Note. The Company agrees that any action or
proceeding brought to enforce or arising out of this Swingline 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 by 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
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action, proceeding or counterclaim brought by or against the Company, its
successors or assigns, in respect of any matter arising out of this Swingline
Note or any document given in connection with or to secure this Swingline Note,
including without limitation any exercise of rights under this Swingline Note
or any such document, any attempt to cancel, void, or rescind this Swingline
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
