Exhibit 10.75
UNSECURED REVOLVING CREDIT AGREEMENT
This Unsecured Revolving Credit Agreement, dated as of July 31, 2001 (this
"Agreement"), is entered into by and between HOMESIDE LENDING, INC., a Florida
corporation (the "Borrower"), and NATIONAL AUSTRALIA BANK LIMITED
A.C.N.004044937, an Australian corporation (the "Lender").
This Agreement replaces that certain credit facility established pursuant
to an Unsecured Revolving Credit Agreement dated as of June 23, 1998 (as
amended, the "Original Credit Agreement"), and the obligations of the Borrower
to the Lender thereunder as evidenced by that certain Third Amended and Restated
Renewal Promissory Note dated June 20, 2001 (the "Renewal Note").
The parties hereto hereby agree as follows:
1. Defined Terms. As used in this Agreement, the following terms shall
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have the meanings specified below.
"Business Day" means a day other than a Saturday, Sunday or other day
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on which commercial banks in New York City are authorized or required by law
to close.
"Maturity Date" means July 30, 2002 or such earlier date as the Loans
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may be due and payable pursuant to Section 4.
"Obligations" means the unpaid principal and interest on the Loans and
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the Note and all other obligations and liabilities of the Borrower to the
Lender (including, without limitation, interest accruing at the then
applicable rate provided in the Note after the maturity of the Loans and
interest accruing at the then applicable rate provided in the Note after the
filing of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Borrower, whether or not
a claim for post-filing or post-petition interest is allowed in such
proceeding), whether direct or indirect, absolute or contingent, due or to
become due, or now existing or hereafter incurred, which may arise under,
out of, or in connection with, this Agreement, the Loans, the Note, or any
other document made, delivered or given in connection therewith, in each
case whether on account of principal, interest, fees, indemnities, costs,
expenses or otherwise (including, without limitation, all fees and
disbursements of counsel to the Lender that are required to be paid by the
Borrower pursuant to the terms of this agreement.
"Regulatory Limitation" means any lending limit or other limitation
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imposed by regulatory bodies having jurisdiction over the Lender or
Borrower, including without limitation, the Reserve Bank of Australia, which
would limit or prohibit the extension of the credit contemplated hereby, as
the same may be waived or modified from time to time.
"Step-down Date" means January 31, 2002.
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2. Amount and Terms of Loans. Subject to the Regulatory Limitation and the
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terms and conditions hereof, and so long as no Event of Default (as
defined herein) has occurred and is continuing, the Lender agrees to
make revolving credit loans (the "Loans") to the Borrower from time to
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time as follows:
(a) during the period from the date on which all of the conditions set
forth in Section 7 hereof have been satisfied through but not
including the Step-down Date, in an aggregate principal amount not
to exceed $2,420,000,000 outstanding at any time; and
(b) during the period commencing with the Step-down Date and
continuing through the Maturity Date, in an aggregate principal
amount not to exceed $1,920,000,000 outstanding at any time.
The Loans are evidenced by a promissory note (the "Note") of the
Borrower, substantially in the form of Exhibit A, executed and delivered to
Lender simultaneously herewith. The Borrower hereby unconditionally promises to
pay to the Lender on the Maturity Date the then unpaid principal amount of the
Loans outstanding, together with any accrued and unpaid interest. The Borrower
hereby further agrees to pay interest on the unpaid principal amount of the
Loans from time to time outstanding until payment in full thereof at the rates,
and on the dates, set forth in the Note. The Loans may be borrowed on any
Business Day upon notice to the Lender prior to 3:00 p.m. New York City time on
the date of such borrowing (which notice shall be accompanied by such
information as shall be reasonably requested by the Lender) and may be prepaid
at any time without premium or penalty.
The proceeds of the initial funding hereunder shall first be applied to
the payment in full of all amounts outstanding under the Original Credit
Agreement and Renewal Note, an upon such payment the Original Credit Agreement
will terminate and the Renewal Note will be satisfied.
3. Covenants. The Borrower agrees that, so long as any amount is owing
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to the Lender hereunder or under the Note, the Borrower shall:
(a) Furnish to the Lender within 90 days after the end of each fiscal
year of the Borrower a copy of the Borrower's year end
consolidated balance sheet, the related consolidated statements of
income and retained earnings, and statements of cash flows. Such
financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail.
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(b) Preserve, renew and keep in full force and effect its corporate
existence and take all reasonable action to maintain all rights
and privileges necessary in the normal conduct of its business.
(c) Keep proper books of record and account relating to the Borrower's
business.
(d) Maintain at all times its status as a FNMA and FHLMC approved
Seller/Servicer, a GNMA approved Issuer/Servicer, a HUD Direct
Endorsement Lender, a VA approved Lender and an FHA approved
Lender in good standing.
(e) Comply with all covenants of Borrower as set forth in that certain
Revolving Credit Agreement dated as of October 16, 2000 by and
among the Borrower, the several lenders party thereto, and The
Chase Manhattan Bank, as Administrative Agent thereunder (the
"Chase Credit Agreement").
4. Events of Default; Remedies. If (a) the Borrower shall fail to pay
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any principal of the Loans when due in accordance with the terms hereof and of
the Note, or (b) the Borrower shall fail to pay any interest on the Loans, or
any other amount payable hereunder or under the Note, within five days after any
such interest or other amount becomes due in accordance with the terms thereof
or hereof, or (c) the Borrower shall default in the observance or performance of
any other agreement contained in this Agreement or in the Chase Credit
Agreement, and any such default described in this paragraph 4(c) shall continue
un-remedied for a period of 10 days, or (d) any representation or warranty made
by the Borrower herein, in the Chase Credit Agreement, or in any document
delivered by the Borrower in connection herewith or which is contained in any
certificate, document, or financial or other statement furnished by it at any
time under or in connection with this Agreement or any such other document shall
prove to have been incorrect in any material respect on or as of the date made
or deemed made, and the facts or circumstances in respect of which such
representation or warranty was incorrect have not changed to make such
representation or warranty correct within 30 days after it was made, or (e)
cease to be a direct or indirect subsidiary of National Australia Bank Limited;
THEN, the Lender may by notice to the Borrower declare the commitment of the
Lender to make Loans hereunder to be terminated and the Loans (with accrued
interest thereon) and all other amounts owing under this Agreement and the Note
to be due and payable forthwith, whereupon the same shall immediately become due
and payable. The Borrower hereby waives presentment, demand, protest or any
notice (to the maximum extent permitted by applicable law) of any kind in
connection with this Agreement.
5. Payment of Expenses. The Borrower agrees (a) to pay or reimburse the
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Lender for all its out-of-pocket costs and expenses incurred in connection with
the development, preparation and execution of, and any amendment, supplement or
modifications to this Agreement and the Note and any other documents prepared in
connection herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, including, without limitation, the
reasonable fees and disbursements of counsel to the Lender, (b) to pay,
indemnify, and hold the Lender harmless from, any and all recording and filing
fees and any and all liabilities with respect to, or resulting from any delay in
paying, stamp, excise and other taxes, if any, which may be payable or
determined to be payable in connection with the execution and delivery of, or
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consummation or administration of any of the transactions contemplated by, or
any amendment, supplement or modification of, or any waiver or consent under or
in respect of, this Agreement, the Note and any such other documents, and (c) to
pay, indemnify, and hold the Lender harmless from and against any and all other
liabilities, obligations, losses, damages, penalties, actions judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever with respect
to the execution, delivery, enforcement, performance and administration of this
Agreement, the Note and any such other documents (all the foregoing in this
clause (c), collectively, the "Indemnified Liabilities"), provided that the
Borrower shall have no obligation hereunder to the Lender with respect to
Indemnified Liabilities arising from the gross negligence or willful misconduct
of the Lender.
6. Representations and Warranties. On and as of the date hereof, the
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Borrower represents and warrants to the Lender that:
(a) The Borrower (i) is duly organized, validly existing and in good
standing under the laws of the State of Florida, (ii) has the
corporate power and authority, and the legal right, to own and
operate its property, to lease the property it operates as lessee
and to conduct the business in which it is currently engages, and
(iii) is duly qualified and in good standing under the laws of
each jurisdiction where its conduct of its business requires such
qualification, except to the extent that the failure to be so
qualified or in good standing could not, in the aggregate,
reasonably be expected to have a material adverse effect.
(b) The Borrower has the corporate power and authority, and the legal
right, to make, deliver and perform its obligations under this
Agreement and has taken all necessary corporate action to
authorize the borrowings under the terms and conditions of this
Agreement and the Note and to authorize the execution, delivery
and performance of this Agreement. No consent or authorization of,
filing with, notice to or other act by or in respect of any
governmental authority or any other person is required in
connection with the borrowings hereunder or with the execution,
delivery, performance, validity or enforceability of this
Agreement. This Agreement constitutes a legal, valid and binding
obligation of the Borrower enforceable against the Borrower in
accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors rights
generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good
faith and fair dealing.
(c) Insofar as the Borrower's capacity to carry out any obligation
under this Agreement is concerned, the Borrower is not in
violation of any provision of any charter, certificate of
incorporation, by-law, mortgage, indenture, indebtedness,
agreement, instrument, judgment, decree, order, statue, rule or
regulation, and there is no such provision that adversely affects
the Borrower's capacity to carry out such obligations. The
Borrower's execution of, and performance pursuant to, this
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Agreement, including the borrowings hereunder and the use of any
proceeds thereof, shall not result in any such violation.
(d) The Obligations represent general unsecured unsubordinated
indebtedness of the Borrower that rank pari passu with all other
general unsecured unsubordinated indebtedness of the Borrower.
Each request by the Borrower that a Loan be made hereunder, and each borrowing
thereof, shall constitute a representation and warranty by the Borrower on the
date thereof that all such representations and warranties set forth in the
preceding sentence are true and correct in all material respects as if made on
such date
7. Conditions to Effectiveness. This Agreement shall be considered
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effective as of the date on which the Lender receives (i) the Note, duly
executed and delivered by a duly authorized officer of the Borrower, and (ii)
certified copies of the resolutions of the Board of Directors of the Borrower
authorizing this Agreement and the borrowings and security interests
contemplated hereby.
8. Counterparts. This Agreement may be executed by one or more of the
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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.
9. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
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INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
10. Notices. All notices, requests and demands to or upon the respective
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parties hereto to be effective shall be in writing (including by facsimile
transmission) and, unless otherwise expressly provided herein, shall be deemed
to have been duly given or made (a) in the case of delivery by hand, when
delivered, (b) in the case of delivery by mail, three days after being deposited
in the mails, postage prepaid, or (c) in the case of delivery by facsimile
transmission, when sent and receipt has been confirmed, addressed as follows in
the case of the Borrower, and the Lender or to such other address as may be
hereafter notified by the respective parties hereto:
The Borrower: HomeSide Lending, Inc.
0000 Xxxxxxxxxx Xxx
Xxxxxxxxxxxx, XX 00000
Attention: W. Xxxxx Xxxxxx
Fax: 000-000-0000
The Lender: National Australia Bank Limited
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. XxXxxx
Fax: 000-000-0000
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provided that any notice, request or demand to or upon the Lender shall not be
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effective until received.
11. Submission To Jurisdiction Waivers. The Borrower hereby irrevocably
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and unconditionally (a) submits for itself and its property in any legal action
or proceeding relating to this Agreement and the Note, or for recognition and
enforcement of any judgment in respect thereof, to the non-exclusive general
jurisdiction of the Courts of the State of New York, the courts of the United
States of America for the Southern District of New York, and appellate courts
from any thereof (b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same, (c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail (or
any substantially similar form of mail), postage prepaid, to the Borrower at its
address set forth in section 10 of this Agreement or at such other address of
which the Lender shall have been notified pursuant thereto, (d) agrees that
nothing herein shall affect the right to effect service of process in any other
manner permitted by law or shall limit the right to xxx in any other
jurisdiction, and (e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding referred
to in this subsection any special, exemplary, punitive or consequential damages.
12. WAIVERS OF JURY TRIAL. THE BORROWER AND THE LENDER HEREBY
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IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their respective duly authorized officers as of the
date first above written.
HOMESIDE LENDING, INC.
By:
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Its Authorized Officer
NATIONAL AUSTRALIA BANK LIMITED
A.C.N.004044937
By:
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Its Authorized Officer
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