AMENDMENT
AMENDMENT, dated as of September 30, 1997 (this "Amendment"), to the
Credit Agreement, dated as of January 31, 1997 (as amended, the "Credit
Agreement"), among HomeSide Lending, Inc. ("HomeSide"), Honolulu Mortgage
Company, Inc. (no longer a party to the Credit Agreement pursuant to its
disposition in accordance with the terms thereof), the Lenders parties thereto,
NationsBank of Texas, N.A., as Syndication Agent, The First National Bank of
Boston, as Collateral Agent, and The Chase Manhattan Bank, as Administrative
Agent (the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, HomeSide, the Lenders and the Administrative Agent are parties
to the Credit Agreement; and
WHEREAS, HomeSide has requested that the Lenders and the Administrative
Agent agree to amend or waive certain provisions of the Credit 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 Credit Agreement shall have
such defined meanings when used herein unless otherwise defined herein.
Subsection 1.1 of the Credit Agreement is hereby amended by:
(a) adding, in the appropriate alphabetical order, the
definition "`CP Refunding Borrowing': a borrowing of Committed Loans
that is immediately applied to repay Permitted Commercial Paper at its
scheduled maturity in an aggregate amount equal to the amount of such
borrowing.";
(b) deleting the definition of Adjusted Consolidated Tangible
Net Worth in its entirety;
(c) deleting the definition of Consolidated Tangible Net Worth
and inserting in lieu thereof the following new definition:
"`Consolidated Tangible Net Worth': at any date, the
amount equal to (a) Consolidated Net Worth at such date less
(b) Consolidated Intangibles at such date.";
(d) deleting the definition of MTN Deduction Amount and
inserting in lieu thereof the following definition:
"`MTN Deduction Amount': at any time, the amount by which (a)
the aggregate principal amount of Permitted Medium Term Debt
outstanding at such time exceeds (b) the sum of (i) the remainder (if
positive) of (A) the Servicing Advance Portion of the Tranche B
Borrowing Base at such time (determined, for the purposes of this
definition only, without giving effect to the first proviso appearing
in subsection 4.1) minus (B) the amount equal to 50% of the Tranche B
Commitment Amount at such time plus (ii) 70% of the Appraised Value of
Ineligible Servicing (as defined below) at such time (determined, for
the purposes of this definition only, as if the Ineligible Servicing
constituted the Eligible Servicing constituted the Eligible Servicing
Portfolio as used in the definition of Appraised Value). For the
purposes of this definition only, "Ineligible Servicing" shall mean, at
any time, Direct Servicing Rights that would be included in Eligible
Servicing Portfolio but for failing (x) to satisfy clause (b) of the
definition thereof or (y) to constitute Non-Recourse Servicing Rights."
(e) adding the phrase "increased or" immediately after the
phrase "such amount may be" in the definition of Tranche A Commitment;
and
(f) adding to the definition of Tranche B Commitment the
phrase "increased or" immediately after the phrase "such amount may
be".
2. Amendment to Section 2. The Credit Agreement is hereby amended by
adding the following new subsection 2.12 to the end of Section 2:
"2.12 Increase of Revolving Credit Commitments. (a) HomeSide
may from time to time, by notice to the Administrative Agent, request
that the Tranche A and Tranche B Commitments be increased by an
aggregate amount that is not less than $10,000,000 and will not result
in the aggregate amount of the Commitments for all Lenders exceeding
$3,000,000,000 after giving effect thereto, provided that such increase
shall be allocated proportionally among the Tranche A Commitments and
Tranche B Commitments such that, after giving effect to such increase,
the total amount of each of the Tranche A Commitments and Tranche B
Commitments bears the same relative proportion immediately before
giving effect thereto. Upon receipt of such notice the Administrative
Agent will seek the agreement of one or more existing or new Lenders to
increase or, in the case of new Lenders, provide, its or their Tranche
A Commitments and Tranche B Commitments in an aggregate amount equal to
the increase so requested by such Borrower.
17
(b) If one or more of the Lenders shall have agreed to
increase its or their Tranche A Commitments and Tranche B Commitments
pursuant to a request made as described in the foregoing clause (a) (it
being understood that no Lender shall have any obligation to agree to
any such increase of its Commitments) in an aggregate amount not less
than $10,000,000, such increases and such new Tranche A Commitments and
Tranche B Commitments shall become effective on a date mutually agreed
upon among the Administrative Agent, HomeSide and the Lenders providing
such increase and/or such new Commitments and shall be implemented
pursuant to documentation consistent herewith and otherwise in form and
substance reasonably satisfactory to the Administrative Agent,
providing, among other things, for adjustments to cause Tranche A Loans
and the Tranche B Loans of each Lender to correspond ratably to their
respective Tranche A Commitment Percentages and Tranche B Commitment
Percentages, as applicable, after giving effect to such increase
(including, without limitation, by providing for prepaying and
reborrowing all then outstanding Loans of the affected Tranches)."
3. Amendments to Section 4. (a) Subsection 4.1 of the Credit Agreement
is hereby amended (i) by deleting clauses (c) and (d) thereof and inserting in
lieu thereof the following:
"(c) (i) for Eligible Mortgage-Backed Securities, 99% of the
lesser of (A) the face amount thereof and (B) the Applicable Take-Out
Price multiplied by the face amount thereof, and (ii) cash or Cash
Equivalents pledged as Collateral in accordance with the applicable
Borrower Security Agreement and held in the Settlement Accounts
referred to in such Borrower Security Agreement; and
(d) (i) 90% of Eligible P&I Advance Receivables and (ii) 85%
of Eligible Paid-in-Full Buyout Advance Receivables;".
(b) Subsection 4.2 of the Credit Agreement is hereby amended
by deleting clause (g) of the first paragraph of such subsection and by
inserting the following in its place;
"(g) 70% of (i) the Appraised Value of the Eligible Servicing
Portfolio at such time minus (ii) the MTN Deduction Amount at such
time;".
(c) Subsection 4.2 of the Credit Agreement is hereby further
amended (i) by deleting the phrase "90% of Eligible P&I Advance Receivables"
from clause (a) thereof and inserting in lieu thereof the phrase "[Intentionally
Omitted]" and (ii) by deleting the phrase "85% of Eligible Paid-in-Full Buyout
Advance Receivables" from clause (f) thereof and inserting in lieu thereof the
phrase "[Intentionally Omitted]".
(d) Subsection 4.3 of the Credit Agreement is hereby amended
by adding, immediately before the period at the end of the proviso to the
definition of "Eligible Servicing Portfolio" the following new proviso:
18
"; provided further, that, notwithstanding the applicable
provisions of the foregoing or of the definitions of "Direct Servicing
Rights" or "Non-Recourse Servicing Rights" to the contrary, for the
purposes of determining the Tranche B Borrowing Base under subsection
4.2(g) at any time, the value that would be attributed to servicing in
respect of Mortgage Loans owned by HomeSide and not serviced for any
third party if such servicing was pursuant to contracts and
Acknowledgment Agreements with Approved Investors in respect thereof
shall be deemed to be included in the Eligible Servicing Portfolio for
the purposes of clause (g) of subsection 4.2(g) so long as (i) all
other applicable requirements for inclusion therein, other than the
existence of servicing contracts and Acknowledgment Agreements with
Approved Investors in respect thereof, are satisfied and (ii) such
Mortgage Loans are eligible for sale to FNMA or FHLMC or for inclusion
in a pool of Mortgage Loans underlying GNMA Mortgage-Backed
Securities".
4. Amendment to Section 6. Subsection 6.2(a) of the Credit Agreement is
hereby amended by inserting immediately after the words "such Loans" the
phrase", other than, in the case of a CP Refunding Borrowing, the
representations and warranties set forth in subsection 5.2, 5.3(f), 5.6, the
first sentence of subsection 5.7 or the last sentence of subsection 5.9,".
5. Amendment to Subsection 8.1. (a) Subsection 8.1 of the Credit
Agreement is hereby amended by deleting clause (c) thereof in its entirety and
inserting in lieu thereof the phrase "[Intentionally Omitted]".
(b) Subsection 8.1 of the Credit Agreement is hereby further
amended by deleting clause (a) thereof and inserting in lieu thereof the
following:
(a) Maintenance of Consolidated Tangible Net Worth. Permit
Consolidated Tangible Net Worth at any date to be less than an amount
equal to the sum of (i) an amount equal to 80% of Consolidated Tangible
Net Worth as at February 28, 1997, plus, (ii) an amount equal to the
excess of (A) the aggregate amount of net proceeds received during the
period from February 28, 1997 through such date by Holdings from the
issuance of Capital Stock other than to Sponsors over (B) the amount
thereof applied to prepay or redeem the Holdings Notes plus (iii) an
amount equal to 50% of the sum of Consolidated Net Income for each
fiscal quarter for which Consolidated Net Income is positive during the
period from February 28, 1997 through the last day of the most recently
ended fiscal quarter of HomeSide less (iv) the amount of Restricted
Payments actually made by HomeSide as permitted under subsection 8.9
during the period from February 28, 1997 through such date (to the
extent such Restricted Payments were not deducted in determining such
Consolidated Tangible Net Worth)."
(c) Subsection 8.1 of the Credit Agreement is hereby further
amended by deleting the term "Adjusted Consolidated Tangible Net Worth" in each
place where it appears in clause (b) thereof and inserting in lieu thereof in
each such place the term "Consolidated Tangible Net Worth".
6. Amendment to Subsection 8.2. Subsection 8.2 of the Credit Agreement
is hereby amended by inserting the caption (i) before the word "intra-day" at
the beginning of clause (g) thereof and inserting at the end of clause (g)
thereof the following:
19
"and (ii) intra-day overdrafts or drawings against uncollected funds,
and obligations under agreements that HomeSide or any of its
Subsidiaries must enter into in anticipation of such overdrafts or
drawings, in each case arising in the ordinary course of business of
servicing mortgages, so long as such overdraft or drawing is not
outstanding for more than two Business Days".
7. Representations; No Default. On and as of the date hereof, and after
giving effect to this Amendment, HomeSide confirms, reaffirms and restates that
the representations and warranties set forth in Section 5 of the Credit
Agreement and in the other Loan Documents are true and correct in all material
respects, provided that the references to the Credit Agreement therein shall be
deemed to be references to this Amendment and to the Credit Agreement as amended
by this Amendment.
8. Conditions to Effectiveness. This Amendment shall become effective
on and as of the date that the Administrative Agent shall have received
counterparts of this Amendment, duly executed and delivered by a duly authorized
officer of each of the Borrowers, the Administrative Agent, and the Required
Lenders.
9. Limited Amendment. Except as expressly amended herein, the Credit
Agreement shall continue to be, and shall remain, in full force and effect. This
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 Credit
Agreement or any other Loan Document or to prejudice any other right or rights
which the Lenders may now have or may have in the future under or in connection
with the Credit Agreement or any of the instruments or agreements referred to
therein, as the same may be amended form time to time.
10. Counterparts. This Amendment 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.
11. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
20
IN WITNESS WHEREOF, the parties hereto have caused this 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/Signature
Title: Senior Vice President Title: Vice President
By: s/Xxxxx X. Race
Title: Executive Vice President
and Chief Financial
Officer
THE FIRST NATIONAL BANK OF BOSTON, NATIONSBANK OF TEXAS, N.A., as
as Collateral Agent Syndication Agent and as a Lender
By: s/Xxxxx X. Xxxx By: s/Xxxxxx
Title: Title: 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/Xxxxx X. Xxxxxxxxxx By: s/Xxxxxx X. XxXxxxxx
Title: Vice President Title: Vice President
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 X. Xxxxxxx By: s/Xxxxxx Diherbes
Title: Director, CIBC Wood Gundy Title: Senior Vice President
Securities Corp., as
Agent
UNION BANK OF SWITZERLAND, WESTDEUTSCHE LANDESBANK
NEW YORK BRANCH, as a Managing GIROZENTRALE, as a Managing Agent
and as a Lender and as Lender
21
By: s/Xxxxxx Xxxxxxxx By: s/Xxxxxxx X. Xxxxxx
Title: Director Title: Vice President
By: s/Xxxxxx Xxxxxxxx By: s/Xxxxx X.
Title: Director 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
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/Signature
Title: Vice President Title: Vice President
By: s/Signature
Title:
COMMERZBANK AKTIENGESELLSCHAFT, FLEET BANK, N.A., as a Co-Agent and
ATLANTA AGENCY, as Co-Agent and as as a Lender
a Lender
By: s/Signature By: s/Signature
Title: Title:
By: s/Signature
Title: Assistant Vice President
THE NATIONAL BANK OF KUWAIT FIRST UNION NATIONAL BANK OF
NORTH CAROLINA
By: s/Xxxxxxxx Xxxxx By: s/Signature
Title: Executive Manager Title: Vice President
By: s/Xxxxxx X. XxXxxxx
Title: Deputy Division Manager
22
THE FUJI BANK, LIMITED, NEW YORK BANK OF TOKYO - MITSUBISHI
BRANCH TRUST COMPANY
By: s/Signature By: s/Signature
Title: Title:
THE SUMITOMO BANK, LIMITED SUNTRUST BANK, INC.
By: s/Xxxxxxxx Xxxxxxxxx By: s/Signature
Title: Joint General Manager Title: First Vice President
THE TOKYO TRUST & BANKING CO., LTD. THE INDUSTRIAL BANK OF JAPAN,
LIMITED, ATLANTA AGENCY
By: s/Signature By: s/Signature
Title: Title:
PNC BANK KENTUCKY, INC. THE SAKURA BANK, LIMITED
ATLANTA AGENCY
By: s/Signature By: s/Signature
Title: Vice President Title:
COMPASS BANK BANQUE PARIBAS
By: s/Xxxxxxx Xxxx Xxxxx By: s/Signature
Title: Senior Vice President Title:
COMERICA BANK BANQUE FRANCAISE, DU, COMMERCE
EXTEDRIEUR
By: s/Xxxxx X. Xxxxxx By: s/Signature
Title: Account Officer Title: First Vice President
23
By: s/Signature
Title: Vice President
THE DAI-ICHI KANGYO BANK, LIMITED DG BANK DEUTSCHE GENOSSENSCHAFTSBANK,
ATLANTA AGENCY CAYMAN ISLAND BRANCH
By: s/Signature By: s/Signature
Title: Title: First Vice President
By: s/Xxxxx X. Xxxxxxxx
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO LTCB TRUST COMPANY
By: s/Signature By: s/Signature
Title: First Vice President Title: Senior Vice President
NATIONAL CITY BANK OF KENTUCKY KREDIETBANK N.V., GRAND
CAYMAN BRANCH
By: s/Signature By: s/Signature
Title: Title:
ALLIED IRISH BANK PT. BANK NEGARA INDONESIA
(PERSERO), TBK
By: s/Signature By: s/Signature
Title: Title:
GUARANTY FEDERAL CAISSE NATIONALE DE CREDIT
AGRICOLE
By: s/Xxxxx X. Xxxxx By: s/Xxxx Xxxxxx
Title: Assistant Vice President Title: Senior Vice President
Branch Manager
THE SUMITOMO TRUST AND BANKING BANCA CRT S.p.A.
CO LTD., LOS ANGELES AGENCY
24
By: s/Signature By: s/J. Xxxxx Xxxxxx, Xx.
Title: Title: Vice President
By: s/Xxxxxx X. XxXxxxxx
Title: First Vice President
Head of Corporate
Banking
