Exhibit 10.3
UNSECURED REVOLVING CREDIT AGREEMENT
This Unsecured Revolving Credit Agreement, dated as of June
23, 1998 (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").
The parties hereto hereby agree as follows:
1. Defined Terms. As used in this Agreement, the following terms shall have
the meanings specified below.
"Business Day" means a day other than a Saturday, Sunday or other day
on which commercial banks in New York City are authorized or required by
law to close.
"GAAP" means generally accepted accounting principles in the United
States of America in effect from time to time.
"Maturity Date" means June 22, 1999 or such earlier date as the Loans
may be due and payable -------------- pursuant to Section 4.
"Obligations" means the unpaid principal and interest on the Loans and
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
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.
2. Amount and Terms of Loans. Subject to the Regulatory Limitation, and the
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 time during the period
from the date on which all of the conditions set forth in Section 6 hereof have
been satisfied through but not including the Maturity Date (as defined in the
Note) in an aggregate principal amount not to exceed $2,100,000,000 outstanding
at any time. The Loans shall be evidenced by a promissory note (the "Note") of
the Borrower, substantially in the form of Exhibit A, to be executed and
delivered to the Lender on or before the date of funding the first Loan (the
"Initial Loan Date"). 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 from the Initial Loan Date 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.
3. Covenants. The Borrower agrees that, so long as any amount is owing 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 and in accordance with GAAP.
(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 in which full, true and
correct entries in conformity with GAAP shall be made of all dealings and
transactions 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.
4. Events of Default; Remedies. If (a) the Borrower shall fail to pay 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) any representation or warranty made by the Borrower herein 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, then, and in any such event described in clause (a), (b), or (c) above,
(i) 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
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
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
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 Agreement, including the borrowings hereunder and
the use of any proceeds thereof, shall not result in any such violation.
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
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, (ii) such
opinions of counsel to the Borrower as the Lender shall request and certified
copies of the resolutions of the Board of Directors of the Borrower authorizing
this Agreement and the borrowings and security interests contemplated hereby,
and (iii) the opinion of a nationally recognized investment banking firm issued
in conformity with the requirements of Section 1013 of that certain Indenture
governing the 11 1/4% Series B Senior Secured Second Priority Notes of HomeSide
International, Inc., the indirect parent of the Borrower.
8. Counterparts. This agreement may be executed by one 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.
9. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
10. Notices. All notices, requests and demands to or upon the respective
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: Xxxxx X. Xxxxxxx
Senior Vice President
Fax: 000-000-0000
with a copy to: HomeSide Lending, Inc.
0000 Xxxxxxxxxx Xxx
Xxxxxxxxxxxx, XX 00000
Attention: G. Xxxx Xxxxxx
First Vice President & Senior Counsel
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
provided that any notice, request or demand to or upon the Lender shall not be
effective until received.
11. Submission To Jurisdiction Waivers. The Borrower hereby irrevocably 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 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: /s/Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
First Vice President
NATIONAL AUSTRALIA BANK LIMITED A.C.N.004044937
By: /s/ X. Xxxxx Xxxxx, III
X. Xxxxx Perry, III
Corporate Banking and Finance
