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Exhibit 10.57
SECOND AMENDMENT
SECOND AMENDMENT, dated as of December 31, 1997 (this "Second Amendment"),
to the Amended and Restated Credit Agreement, dated as of January 31, 1997 (as
amended, supplemented or otherwise modified from time to time, the "Agreement"),
among HomeSide Lending, Inc. ("HomeSide"), Honolulu Mortgage Company, Inc. (no
longer a party to the Agreement pursuant to its disposition in accordance with
the terms thereof), the Lenders parties thereto, the Balance Lenders,
NationsBank of Texas, N.A., as Syndication Agent, The First National Bank of
Boston, as Collateral Agent, the Senior Managing Agent, Managing Agents and
Co-Agents and The Chase Manhattan Bank, as Administrative Agent (the
"Administrative Agent").
W I T N E S S E T H:
WHEREAS, HomeSide has requested that the Lenders and the Administrative
Agent agree to amend or waive certain provisions of the Agreement, and the
Lenders and the Administrative Agent are agreeable to such request upon the
terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and mutual agreements
contained herein, and for other valuable consideration the receipt of which is
hereby acknowledged, HomeSide, the Lenders and the Administrative Agent hereby
agree as follows:
1. DEFINITIONS. All terms defined in the Agreement shall have such defined
meanings when used herein unless otherwise defined herein.
2. AMENDMENT TO SECTION 5. The Agreement is hereby amended by deleting
subsection 5.17 and substituting in lieu thereof the following,
"5.17 CAPITALIZATION. Schedule 5.17A sets forth the name of the owner
of all the issued and outstanding shares of Capital Stock of Holdings. All
of such shares are fully paid and duly and validly issued and outstanding.
There are no outstanding subscriptions, options, warrants, calls, rights
(including preemptive rights) or any other agreements or commitments of any
nature with respect to the Capital Stock of Holdings or any of its
Subsidiaries."
3. AMENDMENT TO SECTION 8. (a) The Agreement is hereby amended by replacing
the term "Sponsors" wherever it appears in subsection 8.1(a) with the term "the
Sponsor."
(b) The Agreement is hereby amended by deleting clause (iii) of
subsection 8.9 in its entirety and by renumbering clause (iv) of subsection 8.9
as clause (iii).
4. AMENDMENT TO SECTION 9. The Agreement is hereby amended by deleting
clauses (iii), (iv) and (v) of Section 9(k) and inserting in lieu thereof the
following:
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"(iii) [intentionally omitted], or (iv) National Australia Bank
Limited (the "Sponsor") shall cease to directly or indirectly own shares
representing at least 51% of the aggregate ordinary voting power
represented by issued and outstanding Capital Stock of Holdings on a fully
diluted basis, or (v) [intentionally omitted], or"
5. AMENDMENT TO SCHEDULE 5.17. The Agreement is hereby amended by replacing
Schedule 5.17 with Schedule 5.17A attached hereto.
6. GUARANTEE. The Required Lenders hereby agree that, notwithstanding
anything in paragraph 10 of the Holdings Guarantee to the contrary, (i) Holdings
may enter into a merger transaction with any wholly owned Subsidiary of a
national Australia Bank Limited ("NAB") in connection with the acquisition of
all the issued and outstanding Capital Stock of Holdings by NAD (the
"Acquisition") and (ii) Holdings may agree to technical modifications to the
Holdings Notes or the indenture to the extent necessary to reflect the
Acquisition, so long as such modification is not adverse to the interests of the
Lenders or the Administrative Agent.
7. REPRESENTATIONS; NO DEFAULT. On and as of the date hereof, and after
giving effect to this Second Amendment and the Amendment, dated as of September
30, 1997 (the "First Amendment"), to the Agreement, HomeSide confirms, reaffirms
and restates that the representations and warranties set forth in Section 5 of
the Agreement and in the other Loan Documents are true and correct in all
material respects, PROVIDED that the references to the Agreement therein shall
be deemed to be references to this Second Amendment and to the Agreement as
amended by the First Amendment and this Second Amendment.
8. CONDITIONS TO EFFECTIVENESS. This Second Amendment shall become
effective on the date on which each of the following conditions precedent
shall have been satisfied:
(a) the Administrative Agent shall have received counterparts of this
Second Amendment, duly executed and delivered by a duly authorized officer of
the Borrower, the Administrative Agent, and the Required Lenders;
(b) the Sponsor (as defined above) shall have acquired, directly or
indirectly, all the Capital Stock of Holdings; and
(c) the Administrative Agent shall have received an acknowledgment and
consent, in form and substance satisfactory to the Administrative Agent,
executed and delivered by a duly authorized officer of each Guarantor party to a
Guarantee, with a counterpart or a conformed copy for each Lender.
9. LIMITED AMENDMENT. Except as expressly amended herein, the Agreement
shall continue to be, and shall remain, in full force and effect. This Second
Amendment shall not be deemed to be a waiver of, or consent to, or a
modification or amendment of, any other term or condition of the Agreement or
any other Loan Document or to prejudice any other right or rights
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which the Lenders may now have or may have in the future under or in connection
with the Agreement or any of the instruments or agreements referred to therein,
as the same may be amended from time tot time.
10. COUNTERPARTS. This Second Amendment may be executed by on or more of
the parties hereto in any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
11. GOVERNING LAW. THIS SECOND AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to
be executed and delivered by their respective duly authorized officers as of the
date first above written.
HOMESIDE LENDING, INC. THE CHASE MANHATTAN BANK, as
Administrative Agent and as a Lender
By: /s/ Xxxxx X. Xxxxxxx By: /s/ X.X. Xxxxxx
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Title: Senior Vice President Title: Vice President
THE FIRST NATIONAL BANK OF BOSTON, NATIONSBANK OF TEXAS, N.A., as
as Collateral Agent Syndication Agent and as a Lender
By: By: /s/ Xxxxxxx X. Xxxxxx
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Title: Title: Xxxxxxx X. Xxxxxx
Senior Vice President
XXXXXX GUARANTY TRUST COMPANY BANK OF AMERICA NATIONAL TRUST
OF NEW YORK, as Senior Managing AND SAVINGS ASSOCIATION, as a
Agent and as a Lender Managing Agent and as a Lender
By: /s/ Signature By:
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Title: Vice President Title:
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CANADIAN IMPERIAL BANK OF CREDIT LYONNAIS, NEW YORK
COMMERCE, as a Managing Agent and BRANCH, as a Managing Agent and
as a Lender as a Lender
By: /s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxxxxx Xxxxx
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Title: Xxxxxx Xxxxxxx Title: Xxxxxxxxx Xxxxx
Executive Director First Vice President
CIBC Xxxxxxxxxxx Corp., as Agent
UNION BANK OF SWITZERLAND, WESTDEUTSCHE LANDESBANK
NEW YORK BRANCH, as a Managing Agent GIROZENTRALE, as a Managing Agent
and as a Lender and as a Lender
By: By: /s/ Signature
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Title: Title: Vice President
By: By: /s/ Signature
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Title: Title: Vice President
THE BANK OF NEW YORK, as a Managing BANKERS TRUST COMPANY, as a
Agent and as a Lender Co-Agent and as a Lender
By: /s/ Signature By: /s/ Xxxx X'Xxxxxx
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Title: Vice President Title: Managing Director
BANQUE NATIONALE DE PARIS, as a MELLON BANK, N.A., as a Co-Agent
Co-Agent and as a Lender and as a Lender
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxx X. Xxxx
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Title: Vice President Title: Xxxx X. Xxxx
Vice President
By: /s/ Signature
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Title:
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COMMERZBANK AKTIENGESELLSCHAFT, FLEET BANK, N.A., as a Co-Agent and
ATLANTA AGENCY, as Co-Agent and as as a Lender
a Lender
By: By: /s/ Xxxxxx Xxxxxxx
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Title: Title: Xxxxxx Xxxxxxx
Vice President
By:
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Title:
THE NATIONAL BANK OF KUWAIT FIRST UNION NATIONAL BANK OF
NORTH CAROLINA
By: /s/ Xxxxxxxx Xxxxx By: /s/ Signature
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Title: Assistant General Manager Title: Vice President
By: /s/ Xxxxxx X. XxXxxxx
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Title: Executive Manager
THE FUJI BANK, LIMITED, NEW YORK BANK OF TOKYO - MITSUBISHI
BRANCH TRUST COMPANY
By: By:
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Title: Title:
THE SUMITOMO BANK, LIMITED THE SANWA BANK, LIMITED,
ATLANTA AGENCY
By: /s/ Xxxxxxxx Xxxxxxxx By:
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Title: General Manager Title:
THE TOKAI BANK, LIMITED THE YASUDA TRUST AND BANKING
ATLANTA AGENCY COMPANY, LIMITED, NEW YORK
BRANCH
By: By: /s/ Xxxx Xxxxxxxxxxxxxx
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Title: Xxxx Xxxxxxxxxxxxxx
Senior Vice President
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FIRST TRUST BANK BANCA MONTE DEI PAS PASCHI DI
SIENA SPA
By: By: /s/ Signature
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Title: Senior Vice President Title: S.V.P. & General Manger
By: /s/ Xxxxx X. Xxxxx
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Title: Xxxxx X. Xxxxx
Vice President
ALLIED IRISH BANK PT. BANK NEGARA INDONESIA
(PERSERO), TBK
By: /s/ Signature By: /s/ Dewa Suthapa
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Title: S.V.P. Title: General Manager
By: /s/ Signature
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Title: A.V.P.
GUARANTY FEDERAL CREDIT AGRICOLE INDOSUEZ
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxxxxxx X. Xxxxxx
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Title: Assistant Vice President Title: Xxxxxxxxx X. Xxxxxx
First Vice President
By: /s/ W. Xxxxx Xxxxxx
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Title: W. Xxxxx Xxxxxx
First Vice President
THE SUMITOMO TRUST AND BANKING
CO. LTD., LOS ANGELES AGENCY
By: /s/ Xxxxxxx Xxxx
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Title: Xxxxxxx Xxxx
Manager & Vice President
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