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EXHIBIT 10(a)
WOOD STREET FUNDING CORPORATION
c/o PNC Bank, National Association,
Administrative Agent
One PNC Plaza
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
August 16, 1996
Source One Mortgage Services Corporation
00000 Xxxxxxxxxx Xxxx
Xxxxxxxxxx Xxxxx, XX 00000
Attention: Xxxxx X. Xxxxx, Treasurer
Re: Uncommitted Credit Facility for Short-Term Loans
Ladies/Gentlemen:
We are pleased to make available to you an uncommitted credit facility for
general corporate purposes on the terms set forth in this letter (the "Letter
Agreement").
1. We agree to consider from time to time your requests that we make advances
to you, on either an interest bearing or a discount basis ("Advances"), in an
aggregate amount not to exceed at any one time outstanding the amount set forth
on Schedule I hereto as the "Facility Amount", on the terms and conditions set
forth below. This is not a committed line of credit and Advances hereunder, if
any, shall be made by us in our sole discretion. Nothing contained herein or
any other documents executed or delivered herewith shall be construed to
obligate us to make any Advances. We shall have the right to refuse to make
any Advances or terminate the credit facility at any time without prior notice
to you. This Letter Agreement sets forth the procedures to be used in
connection with your requests for our making of Advances to you from time to
time on or prior to the termination hereof pursuant to paragraph 10 and, in the
event that we make Advances to you hereunder, your obligations to us with
respect thereto.
2. The net amount of each Advance shall be in an amount at least equal to the
amount set forth on Schedule I hereto as the "Minimum Advance Amount" and shall
be made upon (i) your request to us by telephone, facsimile or letter, given by
any of the persons listed on Exhibit A hereto or otherwise designed by you in
writing ("Designated Persons"), that you wish to borrow money on a specified
date, in a specified amount and for a specified term (which shall, in no event,
be longer than the number of days set forth on Schedule I hereto as the
"Maximum Term"); and (ii) our mutual agreement as to such date, amount and term
and as to the interest rate per annum or, in the case of an Advance made on a
discount basis, discount applicable to any such Advance. We shall
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be entitled to rely upon any instructions which we believe to have been given
by a Designated Person. You hereby agree to indemnify and hold us harmless
from and against any and all damages, losses, liabilities, costs and expenses
(including fees and expenses of counsel) which may arise or be created by the
acceptance of such requests or the making of such Advances. On the date of any
such Advance, we will make such Advance available to you in same day funds by
directing our managing agent to transfer or wire the net proceeds of such
Advance to an account designated in writing by a Designated Person. Promptly
after the date of each Advance, our managing agent will send you a written
confirmation of such Advance and the amount and term thereof and the interest
rate per annum or, in the case of an Advance made on a discount basis, discount
applicable thereto. We will enter on our books and records, which entry when
made will be presumed correct, the date and amount of each Advance, the
interest rate (or as the case may be, the discount basis) and the term
applicable thereto, as well as the date and amount of each payment made by you.
3. Prior to the making of any Advance hereunder, you shall provide us with
an executed copy of this Letter Agreement; evidence of the due authorization by
you of the execution, delivery and performance by you of this Letter Agreement;
and such other instruments as we shall reasonably require in form and substance
satisfactory to us. Your agreement and acceptance of this Letter Agreement
shall constitute a representation and warranty by you that (a) the execution,
delivery and performance by you of this Letter Agreement has been duly
authorized by all necessary corporate action and does not contravene any law,
or any contractual or legal restrictions, applicable to you and (b) no
authorization or approval or other action by, and no notice to or filing with,
any governmental authority or regulatory body is required for such execution,
delivery and performance or for the making of any Advance.
4. Each request by you for an Advance shall constitute a representation and
warranty by you, as of the making of such Advance and giving effect to the
application of the proceeds therefrom, that (i) you shall have performed and
complied with all agreements and conditions required hereunder, (ii) no
condition or event shall exist which constitutes an Event of Default (as herein
defined) or which, with the passage of time or the giving of notice or both,
would constitute an Event of Default, (iii) such Advance when made will
constitute your legal, valid and binding obligation, (iv) such Advance is being
incurred, and will be repaid at maturity, in the ordinary course of your
business out of the cash flow generated in the normal day-to-day conduct and
operations of your business, and (v) no event has occurred and no circumstance
exists as a result of which the information which you have provided to us in
connection herewith would include an untrue statement of a material fact or
omit to state any material fact or any fact necessary to make the statements
contained herein, in the light of the circumstances under which they were made,
not misleading.
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5. You hereby promise to pay to us or our order with respect to each Advance:
(a) in the case of an Advance made on an interest bearing
basis, the principal amount of such Advance made to you, on the date
mutually agreed to by both parties at the time of such Advance as the
maturity date thereto, together with interest on the principal amount
of each Advance outstanding from time to time from and including the
date on which such Advance is made until the maturity date of such
Advance, at an interest rate per annum mutually agreed to by both
parties at the time of such Advance, payable on the maturity date of
such Advance; and
(b) in the case of each Advance made on a discount basis to
you, the stated or face amount of such Advance, on the date mutually
agreed to by both parties at the time of such Advance as the maturity
date thereof.
You shall have no right to prepay any unpaid principal amount of any Advance.
6. If any Advance or other amount is not paid when due, you shall pay
interest on such amount until it is paid in full at a rate per annum (the
"Default Rate") equal to two percent (2%) above the PNC Bank Prime Rate but not
more than the maximum rate allowed by law. As used herein, "PNC Bank Prime
Rate" shall mean the rate publicly announced by PNC Bank, National Association
("PNC Bank") from time to time as its prime rate. The Prime Rate is determined
from time to time by PNC Bank as a means of pricing some loans to its
borrowers. The PNC Bank Prime Rate is not tied to any external rate of
interest or index, and does not necessarily reflect the lowest rate of interest
actually charged by PNC Bank to any particular class or category of customers.
If and when the PNC Bank Prime Rate changes, the Default Rate will change
automatically without notice to you, effective on the date of any such change.
The Default Rate shall continue to apply whether or not judgment shall be
entered herein.
7. You shall make each payment hereunder in same day funds on or before 12:00
noon (eastern time) on the day when due in lawful money of the United States of
America to Account No. 1001746466 maintained at PNC Bank, National Association,
ABA # 000000000, Pittsburgh, Pennsylvania, Reference: Wood Street Funding
Corporation, For further credit to Source One Mortgage Services Corporation.
All computations of interest shall be made by us on the basis of a year of 360
days, for the actual number of days (including the first day but excluding the
last day) elapsed.
8. Whenever any payment to be made hereunder shall be otherwise due on a
Saturday, a Sunday or other day of the year on which commercial banks are
required or authorized to close in Pittsburgh, Pennsylvania (any other day
being a "Business Day"), such payment shall be made on the next succeeding
Business Day.
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9. You agree that you will not apply the proceeds of any Advance to purchase
or carry margin stock within the meaning of Regulation G or U issued by the
Board of Governors of the Federal Reserve System.
10. This Letter Agreement may be terminated at any time by either you or us
by notice of such termination to the other party hereto, but no such
termination shall affect your obligations with respect to the Advances
hereunder outstanding at the time of such termination.
11. All notices, demands, requests, consents, approvals and other
communications required or permitted hereunder must be in writing and will be
effective upon receipt if delivered personally to such party, or if sent by
facsimile transmission with confirmation of delivery, or by nationally
recognized overnight courier service, to the address specified on Schedule I
hereto or to such other address as any party may give to the other in writing
for such purpose.
12. You may not assign your rights or obligations hereunder or any interest
herein to any person. We may assign to one or more financial institutions or
other entities all or any part of, or may grant participation to one or more
financial institutions or other entities in or to all or any part of, any
Advance or Advances hereunder without your consent and without notice to you.
You hereby acknowledge that any public and non-public information provided by
you to us or to PNC Bank may, without your consent, be provided to us, PNC
Bank, any affiliate of PNC Bank, any prospective participant or assignee, any
attorney, accountant, or other advisor advising us or PNC Bank; provided that,
with respect to non-public information provided by you to any prospective
participant or assignee, any such prospective participant or assignee shall be
subject to a confidentiality agreement in form and substance acceptable to you.
In addition, you acknowledge that we may, without your consent, disclose public
and non-public information to any bank regulatory authority and any other
person as required by law or order. We agree not to disclose any non-public
information provided by you to any person except as provided herein.
13. You agree to pay on demand all costs, expenses (including fees and
expenses of counsel) and losses, if any, incurred by us in connection with the
enforcement of this Letter Agreement.
14. You agree to furnish us promptly with such financial statements or other
information as we may reasonably request.
15. If any of the following events (each, an "Event of Default") shall occur
and be continuing: (a) you shall fail to pay any amount due hereunder when the
same becomes due and payable; or (b) any material representation or warranty
made by you (or any of your officers) in connection with any Advance or
otherwise in connection herewith shall prove to have been false, erroneous or
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misleading in any material respect when made; or (c) you shall, without our
prior written consent, merge or consolidate with or into, or convey, transfer,
lease or dispose of (whether in one transaction or in a series of transactions)
all or substantially all of your assets to, any person or entity; or (d) you
shall fail to perform or observe any other material term, covenant or agreement
in connection with any Advance or otherwise in connection herewith on your part
to be performed or observed; (e) you shall fail to pay any principal of or
premium or interest on any Material Debt (as that term is defined on Schedule I
attached hereto), when the same becomes due and payable (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise), and such
failure shall continue after the applicable grace period, if any, specified in
the agreement or instrument relating to such Material Debt; or any other event
shall occur or condition shall exist under any agreement or instrument relating
to such Material Debt and shall continue after the applicable grace period, if
any, specified in such agreement or instrument, if the effect of such event or
condition is to accelerate, or to permit the acceleration of, the maturity of
such Material Debt or any such Material Debt shall be declared to be due and
payable, or required to be prepaid (other than by a regularly scheduled
required prepayment), prior to the stated maturity thereof; or (f) any material
adverse change in your business, assets, operations, financial condition or
results of operations; (g) the entry of a Material Final Judgment against you
and your failure to discharge such Material Final Judgment within thirty days
of the entry thereof; or (h) you shall generally not pay your debts as such
debts become due, or shall admit in writing your inability to pay your debts
generally, or shall make a general assignment for the benefit of creditors; or
any proceeding shall be instituted by or against you seeking to adjudicate you
as bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of you or your
debts under any law relating to bankruptcy, insolvency or reorganization or
relief of debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee, custodian or other similar official for you
or any substantial part of your property; or you shall take any corporate
action to authorize any of the actions set forth above in this subsection (h);
then, upon the occurrence of any such Event of Default, we may declare all
amounts payable hereunder to be forthwith due and payable, whereupon all such
amounts shall become and be forthwith due and payable; without presentment,
demand, protest or further notice of any kind all of which you hereby expressly
waive; provided, however, that in the event of an actual or deemed entry of an
order for relief with respect to you under the Federal Bankruptcy Code, all
such other amounts shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by you.
16. You agree that you will not institute against us or join any other
person in instituting against us any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding,
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or other proceeding under any federal or state bankruptcy or similar law, for
one year and a day after the latest maturing Commercial Paper issued by us is
paid in full.
17. At our option, we shall, upon notice that either Standard & Poor's
Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc. or Xxxxx'x
Investor Service, Inc. has (i) lowered or downgraded your short term commercial
paper or corporate bond or other short term rating of you, (ii) placed your
securities on a watch list of securities singled out for surveillance, with
either negative or developing implications or (iii) withdrawn its approval of
you for inclusion in a Ratings Category, amend Schedule I hereof to provide for
an amended "Facility Amount" and amended "Maximum Term".
18. As long as you shall have any Advances outstanding, you agree that you
will maintain a separate line of credit with a commercial bank, or several
commercial banks in an unutilized aggregate amount equal to the amount of all
outstanding Advances.
19. Our obligations under this Letter Agreement are solely the corporate
obligations of Wood Street Funding Corporation (the "Lender"). No recourse
shall be had for the payment of any amount owing by the Lender hereunder or any
other obligation or claim of or against the Lender arising out of or based upon
this Letter Agreement against any stockholder, employee, officer, director or
incorporator of the Lender or JH Management Corporation.
20. You hereby forever waive presentment, protest, notice of dishonor and
notice of nonpayment. In addition, no delay or omission by us in exercising
any right or power arising hereunder shall impair any such right or power or be
considered to be a waiver of any such right or power or any acquiescence
therein nor shall our action or inaction impair any right or power hereunder.
21. THIS LETTER AGREEMENT WILL BE INTERPRETED AND THE RIGHTS AND LIABILITIES
OF THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE LAWS OF THE
COMMONWEALTH OF PENNSYLVANIA, EXCLUDING ITS CONFLICT OF LAWS RULES. You hereby
irrevocably consent to the exclusive jurisdiction of any state or federal court
located in Pittsburgh, Pennsylvania, and consent that all service of process be
sent by nationally recognized overnight courier service directed to you at your
address set forth herein and service so made will be deemed to be completed on
the business day after deposit with such courier; provided that nothing
contained herein will prevent us from bringing any action, enforcing any award
or judgment or exercising any rights against you individually, against any
security or against any of your property within any other county, state or
other foreign or domestic jurisdiction. You acknowledge and agree that the
venue provided above is the most convenient forum for both parties. You waive
any objection to venue and any objection based on a more convenient forum in
any action instituted hereunder.
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22. No modification, amendment or waiver of any provision of this Letter
Agreement nor consent to any departure by you from the terms thereof, will in
any event be effective unless the same is in writing and signed by us, and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which it was given. No notice to or demand made on you in any
case will entitle you to any other or further notice or demand in the same,
similar or other circumstance.
23. This Letter Agreement (including the documents and instruments referred
to herein) constitutes the entire agreement and supersedes all other prior
agreements and understandings, both written and oral, between the parties with
respect to the subject matter hereof.
24. This Letter Agreement may be signed in any number of counterpart copies
and by the parties hereto on separate counterparts, but all such copies shall
constitute one and the same instrument.
If the terms of this Letter Agreement are satisfactory to you, please
indicate your agreement and acceptance thereof by signing a counterpart of this
Letter Agreement and returning it to us.
Agreed and Accepted: Very truly yours,
SOURCE ONE MORTGAGE SERVICES WOOD STREET FUNDING CORPORATION
CORPORATION
By: /s/ Xxxxx X. Xxxxx By:
------------------- ----------------------------
Name: Xxxxx X. Xxxxx Name:
Title: Vice President Title:
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SCHEDULE I
to
Letter Agreement
dated as of August 16, 1996
between Wood Street Funding Corporation and
Source One Mortgage Services Corporation
(i) For the purpose of Sections 1 and 2 of the Letter Agreement:
The "Facility Amount" is $25,000,000.
The "Minimum Advance Amount" is $1,000,000.
The "Maximum Term" is 100 days.
(ii) For the purpose of Section 12 of this Letter Agreement:
The address for written communication to you is:
Source One Mortgage Services Corporation
00000 Xxxxxxxxxx Xxxx
Xxxxxxxxxx Xxxxx, XX 00000
Attention: Xxxxx X. Xxxxx, Treasurer
Telephone: (000) 000-0000
Fax: (000) 000-0000
The address for written communication to us is:
Wood Street Funding Corporation
c/o PNC Bank, National Association,
Administrative Agent
One PNC Plaza - Third Floor
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
(iii) For the purpose of Section 15 of this Letter Agreement, the term
"Material Debt" means indebtedness (other than indebtedness incurred under this
Letter Agreement) in an amount in excess of $25,000,000.
(iv) For the purpose of Section 15 of this Letter Agreement, the term
"Material Final Judgment" means a judgment for damages in excess of $5,000,000
for which all relief and all appeals have been exhausted and the time for
seeking such relief and taking such appeals has expired.
(v) For purposes of the Letter Agreement, instructions for wire transfer
of funds to you are:
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Name of Bank: ______________________________
Bank ABA Number: ___________________________
Customer Number: ___________________________
Reference: _________________________________
(See Exhibit A)
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EXHIBIT A
to
the Letter Agreement
dated as of August 16, 1996
between Wood Street Funding Corporation and
Source One Mortgage Services Corporation
For the purpose of Section 2 of the Letter Agreement, the "Designated
Persons" are:
Name Title
---- -----
Xxxxxxx X. Xxxxxxxx Executive Vice President/CFO/Secretary
Xxxxx X. Xxxxx Vice President
Xxxxxx X. Xxxx Assistant Vice President
Xxxxx X. Xxxx Department Manager
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EXHIBIT A
SOURCE ONE MORTGAGE SERVICES CORPORATION
Wire Transfer Instructions:
Send Funds To: Comerica Bank
Detroit, MI
Account Number: 1038017727
Account Name: SOMSC
ABA Number: 072 000 096
Reference: Wood Street
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AMENDED AND RESTATED SCHEDULE I
TO LETTER AGREEMENT
DATED AS OF AUGUST 16, 0000
XXXXXXX XXXX XXXXXX FUNDING CORPORATION
AND SOURCE ONE MORTGAGE SERVICES CORPORATION
Effective Date of Schedule: April 21, 1997
(i) For the purpose of Sections 1 and 2 of the Letter Agreement:
The "Facility Amount" is $50,000,000.
The "Minimum Advance Amount" is $1,000,000.
The "Maximum Term" is 100 days.
(ii) For the purpose of Section 12 of this Letter Agreement:
The address for written communication to you is:
Source One Mortgage Services Corporation
00000 Xxxxxxxxxx Xxxx
Xxxxxxxxxx Xxxxx, XX 00000
Attention: Xxxxx X. Xxxxx, Treasurer
Telephone: (000) 000-0000
Fax: (000) 000-0000
The address for written communication to us is:
Wood Street Funding Corporation
c/o PNC Bank, National Association,
Administrative Agent
One PNC Plaza - Third Floor
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxx/Xxxxx Xxxxx
Telephone: (000) 000-0000/(000) 000-0000
Fax: (000) 000-0000
(iii) For the purpose of Section 15 of this Letter Agreement, the term
"Material Debt" means indebtedness (other than indebtedness incurred under this
Letter Agreement) in an amount in excess of $25,000,000.
(iv) For the purpose of Section 15 of this Letter Agreement, the term
"Material Final Judgment" means a judgment for damages in excess of $5,000,000
for which all relief and all appeals have been exhausted and the time for
seeking such relief and taking such appeals has expired.
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(v) For purposes of the Letter Agreement, instructions for wire transfer of
funds to you are:
Name of Bank: Comerica Bank - Detroit Michigan
Bank ABA Number: 000-000-000
Customer Number: 1038017727
Reference: Wood Street
Agreed to and Accepted:
SOURCE ONE MORTGAGE SERVICES WOOD STREET FUNDING CORPORATION
CORPORATION
By: /s/ Xxxxx X. Xxxxx By:
------------------ ----------------------------
Name: Xxxxx X. Xxxxx Name:
--------------------------
Title: Vice President Title:
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