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EXHIBIT 10.28
FORM OF HOLDINGS GUARANTEE
AMENDED AND RESTATED HOLDINGS GUARANTEE, dated as of January 31, 1997
(this "GUARANTEE"), made by HOMESIDE, INC., a Delaware corporation (the
"GUARANTOR"), in favor of THE CHASE MANHATTAN BANK, as Administrative Agent (in
such capacity, the "ADMINISTRATIVE AGENT") for the lenders (the "LENDERS")
parties to the Amended and Restated Credit Agreement, dated as of January 31,
1997 (as amended, supplemented or otherwise modified from time to time, the
"CREDIT AGREEMENT"), among HOMESIDE LENDING, INC. ("HOMESIDE") and HONOLULU
MORTGAGE COMPANY, INC. ("HONOMO"), as Borrowers (collectively, the "BORROWERS"),
the Lenders, THE FIRST NATIONAL BANK OF BOSTON, as Collateral Agent, and the
Administrative Agent.
W I T N E S S E T H:
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WHEREAS, pursuant to the Credit Agreement, the Lenders have severally
agreed to make Loans to the Borrowers upon the terms and subject to the
conditions set forth therein;
WHEREAS, the Credit Agreement amends and restates in its entirety the
Existing Credit Agreement;
WHEREAS, the obligations of the Borrower under the Existing Credit
Agreement are guaranteed pursuant to the Holdings Guarantee, dated as of May 31,
1996 (the "EXISTING HOLDINGS GUARANTEE") made by Holdings in favor of the
Administrative Agent;
WHEREAS, it is a condition precedent to the obligation of the Lenders
to make their respective Loans to the Borrowers under the Credit Agreement that
the Existing Holdings Guarantee shall be amended and restated as provided
herein; and
WHEREAS, HonoMo is a wholly owned subsidiary of HomeSide; HomeSide is
the wholly owned subsidiary of Xxxxxxx Mortgage Company, which in turn is a
wholly owned subsidiary of the Guarantor; and it is to the advantage of the
Guarantor that the Lenders make the Loans to the Borrower;
NOW, THEREFORE, in consideration of the premises the parties hereto
hereby agree that on the Closing Date the Existing Holdings Guarantee shall be
amended and restated in its entirety as follows:
1. DEFINED TERMS. (a) Unless otherwise defined herein, capitalized terms defined
in the Credit Agreement and used herein shall have the meanings given to them in
the Credit Agreement.
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(b) As used herein, "OBLIGATIONS" means, collectively, the unpaid
principal of and interest on the Loans and all other obligations and liabilities
of the Borrowers to the Administrative Agent, the Collateral Agent and the
Lenders (including, without limitation, interest accruing at the then applicable
rate provided in the Credit Agreement after the maturity of the Loans and
interest accruing at the then applicable rate provided in the Credit Agreement
after the filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, relating to either 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, the Credit Agreement, the Notes, the other Loan
Documents or any other document made, delivered or given in connection
therewith, in each case whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses or otherwise (including, without
limitation, all fees and disbursements of counsel to the Administrative Agent or
to the Lenders that are required to be paid by the Borrowers or the Guarantor
pursuant to the terms of the Credit Agreement or this Guarantee or any other
Loan Document).
(c) The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Guarantee shall refer to this Guarantee as a whole and
not to any particular provision of this Guarantee, and section and paragraph
references are to this Guarantee unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
2. GUARANTEE. (a) The Guarantor hereby unconditionally and irrevocably
guarantees to the Administrative Agent, for the ratable benefit of the Lenders
and their respective successors, indorsees, transferees and assigns, the prompt
and complete payment and performance by the Borrowers when due (whether at the
stated maturity, by acceleration or otherwise) of the Obligations.
(b) The Guarantor further agrees to pay any and all reasonable expenses
(including, without limitation, all fees and disbursements of counsel) which may
be paid or incurred by the Administrative Agent or any Lender in enforcing, or
obtaining advice of counsel in respect of, any rights with respect to, or
collecting, any or all of the Obligations and/or enforcing any rights with
respect to, or collecting against, the Guarantor under this Guarantee. This
Guarantee shall remain in full force and effect until the Obligations are paid
in full and the Commitments are terminated, notwithstanding that from time to
time prior thereto the Borrowers may be free from any Obligations.
3. RIGHT OF SET-OFF. The Administrative Agent, the Collateral Agent and
each Lender is hereby irrevocably authorized at any time and from time to time
without notice to the Guarantor, any such notice being expressly waived by the
Guarantor, upon any amount of the Obligations becoming due and payable (whether
at stated maturity, by acceleration or otherwise), to set off and appropriate
and apply any and all deposits (general or special, time or demand,
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provisional or final), in any currency, and any other credits, indebtedness or
claims, in any currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by the
Administrative Agent, the Collateral Agent or such Lender to or for the credit
or the account of the Guarantor, or any part thereof in such amounts as the
Administrative Agent, the Collateral Agent or such Lender may elect, against or
on account of the obligations and liabilities of the Guarantor to the
Administrative Agent, the Collateral Agent or such Lender hereunder and claims
of every nature and description of the Administrative Agent or such Lender
against the Guarantor, in any currency, whether arising hereunder, under the
Credit Agreement, any Note, any other Loan Document or otherwise, as the
Administrative Agent, the Collateral Agent or such Lender may elect, whether or
not the Administrative Agent, the Collateral Agent or such Lender has made any
demand for payment and although such obligations, liabilities and claims may be
contingent or unmatured. The Administrative Agent, the Collateral Agent and each
Lender shall notify the Guarantor promptly of any such set-off and the
application made by the Administrative Agent, the Collateral Agent or such
Lender, as the case may be, of the proceeds thereof; PROVIDED that the failure
to give such notice shall not affect the validity of such set-off and
application. The rights of the Administrative Agent, the Collateral Agent and
each Lender under this paragraph are in addition to other rights and remedies
(including, without limitation, other rights of set-off) which the
Administrative Agent or such Lender may have.
4. NO SUBROGATION. Notwithstanding any payment or payments made by the
Guarantor hereunder, or any set-off or application of funds of the Guarantor by
the Administrative Agent or any Lender, the Guarantor shall not be entitled to
exercise any rights to be subrogated to any of the rights of the Administrative
Agent or any Lender against the Borrowers or any other Guarantor or against any
collateral security or guarantee or right of offset held by the Administrative
Agent or any Lender for the payment of the Obligations, nor shall the Guarantor
seek or be entitled to seek any contribution or reimbursement from the Borrowers
or any other Loan Party in respect of payments made by the Guarantor hereunder,
until all amounts owing to the Administrative Agent and the Lenders by the
Borrowers on account of the Obligations are paid in full and the Commitments are
terminated. If any amount shall be paid to the Guarantor on account of such
subrogation rights at any time when all of the Obligations shall not have been
paid in full, such amount shall be held by the Guarantor in trust for the
Administrative Agent and the Lenders, segregated from other funds of the
Guarantor, and shall, forthwith upon receipt by the Guarantor, be turned over to
the Administrative Agent in the exact form received by the Guarantor (duly
indorsed by the Guarantor to the Administrative Agent, if required), to be
applied against the Obligations, whether matured or unmatured, in such order as
the Administrative Agent may determine.
5. AMENDMENTS, ETC. WITH RESPECT TO THE OBLIGATIONS; WAIVER OF RIGHTS.
The Guarantor shall remain obligated hereunder notwithstanding that, without any
reservation of rights against the Guarantor, and without notice to or further
assent by the Guarantor, any demand for payment of any of the Obligations made
by the Administrative Agent or any Lender may be rescinded by the Administrative
Agent or such Lender, and any of the Obligations continued, and the Obligations,
or the liability of any other party upon or for any part thereof, or any
collateral security or guarantee therefor or right of offset with respect
thereto, may, from
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time to time, in whole or in part, be renewed, extended, amended, modified,
accelerated, compromised, waived, surrendered or released by the Administrative
Agent or any Lender, and the Credit Agreement, any Notes, and the other Loan
Documents and any other documents executed and delivered in connection therewith
may be amended, modified, supplemented or terminated, in whole or in part, as
the Administrative Agent (or the Required Lenders, as the case may be) may deem
advisable from time to time, and any collateral security, guarantee or right of
offset at any time held by the Administrative Agent or any Lender for the
payment of the Obligations may be sold, exchanged, waived, surrendered or
released. Neither the Administrative Agent nor any Lender shall have any
obligation to protect, secure, perfect or insure any Lien at any time held by it
as security for the Obligations or for this Guarantee or any property subject
thereto. When making any demand hereunder against the Guarantor, the
Administrative Agent or any Lender may, but shall be under no obligation to,
make a similar demand on the Borrowers or any other guarantor, and any failure
by the Administrative Agent or any Lender to make any such demand or to collect
any payments from the Borrowers or any such other guarantor or any release of
the Borrowers or such other guarantor shall not relieve the Guarantor of its
obligations or liabilities hereunder, and shall not impair or affect the rights
and remedies, express or implied, or as a matter of law, of the Administrative
Agent or any Lender against the Guarantor. For the purposes hereof "demand"
shall include the commencement and continuance of any legal proceedings.
6. GUARANTEE ABSOLUTE AND UNCONDITIONAL. The Guarantor waives any and
all notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by the Administrative Agent or
any Lender upon this Guarantee or acceptance of this Guarantee; the Obligations,
and any of them, shall conclusively be deemed to have been created, contracted
or incurred, or renewed, extended, amended or waived, in reliance upon this
Guarantee; and all dealings between the Borrowers or the Guarantor, on the one
hand, and the Administrative Agent and the Lenders, on the other, shall likewise
be conclusively presumed to have been had or consummated in reliance upon this
Guarantee. The Guarantor waives diligence, presentment, protest, demand for
payment and notice of default or nonpayment to or upon the Borrowers or the
Guarantor with respect to the Obligations. This Guarantee shall be construed as
a continuing, absolute and unconditional guarantee of payment without regard to
(a) the validity, regularity or enforceability of the Credit Agreement, any
Note, or any other Loan Document, any of the Obligations or any other collateral
security therefor or guarantee or right of offset with respect thereto at any
time or from time to time held by the Administrative Agent or any Lender, (b)
any defense, set-off or counterclaim (other than a defense of payment or
performance) which may at any time be available to or be asserted by the
Borrowers or any other Loan Party against the Administrative Agent or any
Lender, or (c) any other circumstance whatsoever (with or without notice to or
knowledge of the Borrowers or the Guarantor) which constitutes, or might be
construed to constitute, an equitable or legal discharge of the Borrowers for
the Obligations, or of the Guarantor under this Guarantee, in bankruptcy or in
any other instance. When pursuing its rights and remedies hereunder against the
Guarantor, the Administrative Agent and any Lender may, but shall be under no
obligation to, pursue such rights and remedies as it may have against the
Borrowers or any other Person or against any collateral security or guarantee
for the Obligations or any right of offset with respect thereto, and any failure
by the Administrative Agent or any Lender to pursue such other rights or
remedies or
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to collect any payments from the Borrowers or any such other Person or to
realize upon any such collateral security or guarantee or to exercise any such
right of offset, or any release of the Borrowers or any such other Person or of
any such collateral security, guarantee or right of offset, shall not relieve
the Guarantor of any liability hereunder, and shall not impair or affect the
rights and remedies, whether express, implied or available as a matter of law,
of the Administrative Agent or any Lender against the Guarantor. This Guarantee
shall remain in full force and effect and be binding in accordance with and to
the extent of its terms upon the Guarantor and its successors and assigns, and
shall inure to the benefit of the Administrative Agent and the Lenders, and
their respective successors, indorsees, transferees and assigns, until all the
Obligations and the obligations of the Guarantor under this Guarantee shall have
been satisfied by payment in full and the Commitments shall be terminated,
notwithstanding that from time to time during the term of the Credit Agreement
the Borrowers may be free from any Obligations.
7. REINSTATEMENT. This Guarantee shall continue to be effective, or be
reinstated, as the case may be, if at any time payment, or any part thereof, of
any of the Obligations is rescinded or must otherwise be restored or returned by
the Administrative Agent or any Lender upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of either Borrower or any other Loan
Party or upon or as a result of the appointment of a receiver, intervenor or
conservator of, or trustee or similar officer for, either Borrower, any other
Loan Party or any substantial part of its property, or otherwise, all as though
such payments had not been made.
8. PAYMENTS. The Guarantor hereby agrees that the Obligations will be
paid to the Administrative Agent without set-off or counterclaim in U.S. Dollars
at the office of the Administrative Agent located at 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000.
9. REPRESENTATIONS AND WARRANTIES. The Guarantor represents and
warrants to the Administrative Agent and the Lenders that:
(a) the Guarantor is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its incorporation and has
the corporate power and authority and the legal right to own and operate its
property, to lease the property it operates and to conduct the business in which
it is currently engaged;
(b) the Guarantor has the corporate power and authority and the legal
right to execute and deliver, and to perform its obligations under, this
Guarantee, and has taken all necessary corporate action to authorize its
execution, delivery and performance of this Guarantee;
(c) this Guarantee constitutes a legal, valid and binding obligation of
the Guarantor enforceable in accordance with its terms, except as affected by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting the enforcement of creditors' rights
generally, general equitable principles and an implied covenant of good faith
and fair dealing;
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(d) the execution, delivery and performance of this Guarantee will not
violate any provision of any Requirement of Law or Contractual Obligation of the
Guarantor and will not result in or require the creation or imposition of any
Lien on any of the properties or revenues of the Guarantor pursuant to any
Requirement of Law or Contractual Obligation of the Guarantor;
(e) no consent or authorization of, filing with, or other act by or in
respect of, any arbitrator or Governmental Authority and no consent of any other
Person (including, without limitation, any stockholder or creditor of the
Guarantor) is required in connection with the execution, delivery, performance,
validity or enforceability of this Guarantee; and
(f) no litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending or, to the knowledge of the
Guarantor, threatened by or against the Guarantor or against any of its
properties or revenues (i) with respect to this Guarantee or any of the
transactions contemplated hereby or (ii) which has any reasonable likelihood of
having a material adverse effect on the business, operations, property or
financial or other condition of the Guarantor.
The Guarantor agrees that the foregoing representations and warranties
shall be deemed to have been made by the Guarantor on the date of each borrowing
by a Borrower under the Credit Agreement on and as of such date of borrowing as
though made hereunder on and as of such date.
10. COVENANTS. The Guarantor hereby covenants and agrees with the
Administrative Agent and the Lenders that, from and after the date of this
Guarantee until the Obligations are paid in full and the Commitments are
terminated:
(a) The Guarantor shall take, or shall refrain from taking, as the case
may be, all actions that are necessary to be taken or not taken so that no
violation of any provision, covenant or agreement contained in Section 7 or 8 of
the Credit Agreement, and so that no Default or Event of Default, is caused by
any act or failure to act of the Guarantor.
(b) The Guarantor shall not incur any Indebtedness or Guarantee
Obligations, or make any investments, loans or advances to any Person, or
conduct, transact or otherwise engage, or commit to transact, conduct or
otherwise engage, in any business or operations other than (i) the ownership of
the capital stock of Xxxxxxx Mortgage Company, and the exercise of rights and
performance of obligations in connection therewith, (ii) Indebtedness under the
Holdings Notes (including the obligations thereunder to pay make-whole or
prepayment premiums), (iii) the entry into, and exercise of rights and
performance of obligations in respect of this Guarantee, the Holdings Pledge
Agreement, the Second Lien Pledge Agreement to which it is a party, equity
subscription agreements, registration rights agreements, voting and other
stockholder agreements, engagement letters, underwriting agreements and other
agreements in respect of its equity securities or any offering, issuance or sale
thereof, (iv) the offering, issuance and sale of its equity securities to the
extent such offering, issuance or sale does not constitute a Change of Control
or would be otherwise inconsistent with the provisions of the Credit Agreement,
(v) the entry into, and exercise of rights and performance of obligations in
respect of
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indentures, engagement letters, underwriting agreements and other agreements in
respect of Indebtedness permitted under clause (ii) above or any offering,
issuance or sale thereof, and the offering, issuance and sale of its debt
securities representing such Indebtedness, (vi) the filing of registration
statements, and compliance with applicable reporting and other obligations,
under federal, state or other securities laws, (vii) the listing of its equity
securities and compliance with applicable reporting and other obligations in
connection therewith, (viii) the retention of transfer agents, private placement
agents, underwriters, counsel, accountants and other advisors and consultants,
(ix) the performance of obligations under in and compliance with its certificate
of incorporation and by-laws, or any applicable law, ordinance, regulation,
rule, order, judgment, decree or permit, including, without limitation, as a
result of or in connection with the activities of the Borrowers, (x) the
incurrence and payment of any taxes for which it may be liable and (xi) other
activities directly related to the foregoing.
(c) The Guarantor shall not amend, modify or change, or consent or
agree to any amendment, modification or change to any of the terms of (i) the
Holdings Notes or the Indenture related thereto (other than any such amendment,
modification or change which would extend the maturity or reduce the amount of
any payment of principal thereof or which would reduce the rate or extend the
date for payment of interest thereon or which would result in terms and
conditions thereof that are no less favorable to Holdings or the Borrower or to
the interests of the Lenders than the terms and conditions thereof in effect
immediately prior to giving effect to such amendment, modification or change) or
(ii) any of the material terms of the BBMC Stock Purchase Agreement, the BMC
Stock Purchase Agreement or the Stockholder Agreement, in each case as in effect
on the Closing Date.
11. AUTHORITY OF ADMINISTRATIVE AGENT. The Guarantor acknowledges that
the rights and responsibilities of the Administrative Agent under this Guarantee
with respect to any action taken by the Administrative Agent or the exercise or
non-exercise by the Administrative Agent of any option, right, request, judgment
or other right or remedy provided for herein or resulting or arising out of this
Guarantee shall, as between the Administrative Agent and the Lenders, be
governed by the Credit Agreement and by such other agreements with respect
thereto as may exist from time to time among them, but, as between the
Administrative Agent and the Guarantor, the Administrative Agent shall be
conclusively presumed to be acting as agent for the Lenders with full and valid
authority so to act or refrain from acting, and the Guarantor shall not be under
any obligation, or entitlement, to make any inquiry respecting such authority.
12. NOTICES. All notices, requests and demands to or upon the
Administrative Agent, any Lender or the Guarantor to be effective shall be in
writing (or by telex, fax or similar electronic transfer confirmed in writing)
and shall be deemed to have been duly given or made (i) when delivered by hand
or (ii) if given by mail, when deposited in the mails by certified mail, return
receipt requested, or (iii) if by telex, fax or similar electronic transfer,
when sent and receipt has been confirmed, addressed as follows:
(a) if to the Administrative Agent or any Lender, at its address or
transmission number for notices provided in subsection 11.2 of the Credit
Agreement; and
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(b) if to the Guarantor, at its address or transmission number for
notices set forth under its signature below.
The Administrative Agent, each Lender and the Guarantor may change its
address and transmission numbers for notices by notice in the manner provided in
this Section.
13. SEVERABILITY. Any provision of this Guarantee which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
14. INTEGRATION. This Guarantee represents the entire agreement of the
Guarantor with respect to the subject matter hereof and there are no promises or
representations by the Administrative Agent or any Lender relative to the
subject matter hereof not reflected herein.
15. AMENDMENTS IN WRITING; NO WAIVER; CUMULATIVE REMEDIES. (a) None of
the terms or provisions of this Guarantee may be waived, amended, supplemented
or otherwise modified except by a written instrument executed by the Guarantor
and the Administrative Agent, PROVIDED that any provision of this Guarantee may
be waived by the Administrative Agent and the Lenders in a letter or agreement
executed by the Administrative Agent or by telex or facsimile transmission from
the Administrative Agent.
(b) Neither the Administrative Agent nor any Lender shall by any act
(except by a written instrument pursuant to paragraph 15(a)), delay, indulgence,
omission or otherwise be deemed to have waived any right or remedy hereunder or
to have acquiesced in any Default or Event of Default or in any breach of any of
the terms and conditions hereof. No failure to exercise, nor any delay in
exercising, on the part of the Administrative Agent or any Lender, any right,
power or privilege hereunder shall operate as a waiver thereof. No single or
partial exercise of any right, power or privilege hereunder shall preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. A waiver by the Administrative Agent or any Lender of any right or
remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy which the Administrative Agent or such Lender would otherwise
have on any future occasion.
(c) The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other rights or
remedies provided by law.
16. SECTION HEADINGS. The section headings used in this Guarantee are
for convenience of reference only and are not to affect the construction hereof
or be taken into consideration in the interpretation hereof.
17. SUCCESSORS AND ASSIGNS. This Guarantee shall be binding upon the
successors and assigns of the Guarantor and shall inure to the benefit of the
Administrative Agent and the Lenders and their successors and assigns.
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18. GOVERNING LAW. THIS GUARANTEE AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
19. SUBMISSION TO JURISDICTION; WAIVERS. The Guarantor hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Guarantee and any other Loan Documents to
which it is a party, 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
Guarantor at its address set forth under its signature below or at such
other address of which the Administrative Agent shall have been notified
pursuant hereto;
(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 Section any special, exemplary, punitive or consequential
damages.
20. WAIVERS OF JURY TRIAL. THE GUARANTOR AND, BY ACCEPTANCE HEREOF, THE
ADMINISTRATIVE AGENT, THE COLLATERAL AGENT AND THE LENDERS, HEREBY IRREVOCABLY
AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS GUARANTEE OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM
THEREIN.
IN WITNESS WHEREOF, each of the undersigned has caused this Guarantee
to be duly executed and delivered by its duly authorized officer as of the day
and year first above written.
HOMESIDE, INC.
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By
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Address for Notices:
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Telex:
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Fax:
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THE CHASE MANHATTAN BANK
By
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