EXHIBIT 10.58
--------------------------------------------------------------------------------
HSBC BANK USA
AND
THE NEW YORK MORTGAGE COMPANY LLC
------------------------------
SIXTH AMENDED
CREDIT AND SECURITY AGREEMENT
------------------------------
Dated as of August 11, 2003
--------------------------------------------------------------------------------
SIXTH AMENDED 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
1301 Avenue of the Americas, 0xx 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 amends the Credit and Security Agreement
between the Company and HSBC dated as of March 30, 2001, as previously 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; a Fifth Amended
Agreement dated as of April 29, 2002, and subsequent letter agreements
(together, "Prior Agreement") by temporarily increasing the Credit Amount to
$40,000,000.00. Capitalized terms not otherwise defined herein have the meanings
given them in the Prior Agreement.
AGREEMENTS:
1. The following definitions are amended to read as
follows:
Agreement Date: August 11, 2003.
- 2 -
Credit Amount: The sum of (a) TWENTY-FIVE MILLION AND
NO/100 DOLLARS ($25,000,000.00) plus, (b) so long as the Temporary Overadvance
is outstanding under Section 2.1B, the amount of the Temporary Overadvance.
Credit Note: The Company's Fifth Amended Credit Note
to HSBC dated as of April 29, 2002, as amended ("Fifth Amended Note"); provided,
however, from August 11, 2003 through October 10, 2003, "Credit Note" shall
mean, collectively, the Fifth Amended Note and the Temporary Overadvance Note.
Maximum Advance Amount:
A. With respect to the Credit, other than the Temporary
Overadvance, 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.
B. With respect to the Temporary Overadvance, 90% 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 on Advance has not theretofore been
made.
Notice Address:
a) With respect to the Company:
The New York Mortgage Company LLC
1301 Avenue of the Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
- 3 -
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
2. The following new definitions are added to Article I
of the Agreement:
Temporary Overadvance. As defined in Section 2.1B.
Temporary Overadvance Note. The Company's promissory note to
HSBC dated as of August 11, 2003 in the maximum amount of FIFTEEN MILLION AND
NO/100 DOLLARS ($15,000,000) which evidences the Temporary Overadvance.
3. Section 2.1 is amended to read as follows:
2.1 Agreement to Lend.
A. Advances Generally. 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 Amount. Individual Advances of the Credit (other than
the Temporary Overadvance) shall be made as requested by the Company from time
to time. Subject to Subsection 2.1B, below, the aggregate amount of all
Advances shall not exceed the Credit Amount. Following repayments of Advances
(other than the Temporary Overadvance), HSBC will make readvances under the same
terms and conditions, provided that Advances outstanding at any time shall not
exceed the lesser of the Credit Amount or the Maximum Advance Amount. The Credit
will be evidenced by the Credit Note. Notwithstanding anything to the contrary
contained in this Agreement, the Temporary
- 4 -
Overadvance shall be advanced on a one time basis pursuant to Section 2.1B,
below, and shall not be readvanced or reborrowed.
B. From August 11, 2003 through August 15,
2003, 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 additional Advances over the amount otherwise
available to be borrowed under Section 2.1 A, above, up to Fifteen Million
Dollars ($15,000,000) in the aggregate ("Temporary Overadvance"); provided,
however, (i) Advances made under the Temporary Overadvance shall be available
only for Loans which close between August 11, 2003 and August 15, 2003, (ii) the
Temporary Overadvance must be repaid to HSBC in full on or before October 10,
2003 and (iii) once repaid, Advances made pursuant to this Section 2.1B may not
be readvanced or reborrowed. The Temporary Overadvance will be evidenced by the
Temporary Overadvance Note.
4. The effectiveness of this Agreement is conditioned
upon payment by the Company to HSBC of an administrative fee in the amount of
Five Thousand Dollars ($5,000).
Except as modified herein, the Prior Agreement is ratified and
confirmed. Borrower disclaims any offsets, defenses or counterclaims respecting
its obligations under the Prior Agreement.
- 5 -
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 Xxxxxxx
-------------------------------------------
Xxxxxx Xxxxxxx, President
HSBC BANK USA
BY: /s/ Xxxx X. Xxxxxxxx
--------------------------------------------
Xxxx X. Xxxxxxxx, Senior Vice President
