EXHIBIT 10.59
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HSBC BANK USA
AND
THE NEW YORK MORTGAGE COMPANY LLC
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TEMPORARY OVERADVANCE NOTE
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Dated as of August 11, 2003
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TEMPORARY OVERADVANCE NOTE
$15,000,000.00 As of August 11, 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 October 10, 2003, 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 the Temporary Overadvance made by HSBC to the Company
pursuant to Section 2.1B of the Credit and Security Agreement between HSBC and
the Company dated as of March 30, 2001, as amended by First Amended Credit and
Security Agreement dated as of May 24, 2001, Second Amended Credit and Security
Agreement dated as of June 18, 2001, Third Amended Credit and Security Agreement
dated as of November 13, 2001, Fourth Amended Credit and Security Agreement
dated as of January 16, 2002, Fifth Amended Credit and Security Agreement dated
as of April 29, 2002, subsequent letter agreements and Sixth Amended Credit and
Security Agreement dated as of even date herewith (together, 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
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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 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
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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 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 Xxxxxxx
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Xxxxxx Xxxxxxx, President
