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EXHIBIT 10.29
FORM OF HOMESIDE GUARANTEE
AMENDED AND RESTATED HOMESIDE GUARANTEE, dated as of January 31,
1997 (this "HOMESIDE GUARANTEE"), made by HOMESIDE LENDING, INC., a Florida
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 the Guarantor 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 HonoMo under the Existing Credit Agreement
are guaranteed pursuant to the HomeSide Guarantee, dated as of May 31, 1996 (the
"EXISTING HOMESIDE GUARANTEE") made by the Guarantor 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 HomeSide Guarantee shall be amended and restated as provided
herein; and
WHEREAS, HonoMo is a wholly-owned subsidiary of the Guarantor, and it
is to the advantage of the Guarantor that the Lenders make the Loans to HonoMo;
NOW, THEREFORE, in consideration of the premises the parties hereto
hereby agree that on the Closing Date the Existing HomeSide 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 HonoMo 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 HonoMo or the Guarantor pursuant to the terms of the
Credit Agreement or this HomeSide Guarantee or any other Loan Document).
(c) The words "hereof," "herein" and "hereunder" and words of similar
import when used in this HomeSide Guarantee shall refer to this HomeSide
Guarantee as a whole and not to any particular provision of this HomeSide
Guarantee, and section and paragraph references are to this HomeSide 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 HonoMo 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 HomeSide Guarantee.
This HomeSide 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 HonoMo 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),
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to set off and appropriate and apply any and all deposits (general or special,
time or demand, 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 HonoMo 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 HonoMo 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 HonoMo 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
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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 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 HomeSide 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
HonoMo 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 HonoMo or any
such other guarantor or any release of HonoMo 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 HomeSide Guarantee or acceptance of this HomeSide
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 HomeSide Guarantee; and all dealings between
HonoMo 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 HomeSide Guarantee. The Guarantor waives
diligence, presentment, protest, demand for payment and notice of default or
nonpayment to or upon HonoMo or the Guarantor with respect to the Obligations.
This HomeSide 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 HonoMo 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 HonoMo or the Guarantor) which
constitutes, or might be construed to constitute, an equitable or legal
discharge of HonoMo for the Obligations, or of the Guarantor under this HomeSide
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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 HonoMo 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 to collect any payments from HonoMo 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 HonoMo 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 HomeSide 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 thereof, 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 HomeSide 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
HonoMo may be free from any Obligations.
7. REINSTATEMENT. This HomeSide 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 or 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
HomeSide Guarantee, and has
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taken all necessary corporate action to authorize its execution, delivery and
performance of this HomeSide Guarantee;
(c) this HomeSide 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;
(d) the execution, delivery and performance of this HomeSide 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 HomeSide 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 HomeSide 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. AUTHORITY OF ADMINISTRATIVE AGENT. The Guarantor acknowledges that
the rights and responsibilities of the Administrative Agent under this HomeSide
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 HomeSide 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.
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11. 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 to such Person at its
address or transmission number for notices provided in subsection 11.2 of the
Credit Agreement.
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.
12. SEVERABILITY. Any provision of this HomeSide 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.
13. INTEGRATION. This HomeSide 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.
14. AMENDMENTS IN WRITING; NO WAIVER; CUMULATIVE REMEDIES. (a) None of
the terms or provisions of this HomeSide 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
HomeSide 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 14(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.
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15. SECTION HEADINGS. The section headings used in this HomeSide
Guarantee are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
16. SUCCESSORS AND ASSIGNS. This HomeSide 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.
17. GOVERNING LAW. THIS HOMESIDE 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.
IN WITNESS WHEREOF, each of the undersigned has caused this HomeSide
Guarantee to be duly executed and delivered by its duly authorized officer as of
the day and year first above written.
HOMESIDE LENDING, INC.
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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