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Exhibit 10.47
LOAN AGREEMENT, dated as of January 15, 1997 (this "Agreement"), between
HOMESIDE LENDING, INC., a Florida corporation (the "Borrower"), and THE CHASE
MANHATTAN BANK, a New York banking corporation (the "Lender").
The parties hereto hereby agree as follows:
1. DEFINED TERMS. As used in this Agreement, capitalized terms defined
in the Credit Agreement (as defined below) and not otherwise defined herein have
the meanings given in the Credit Agreement or, in the case of paragraph 4 hereof
and the definition of Collateral below, the HomeSide Security Agreement (as such
terms are modified in such paragraph and such definition), and the following
terms have the meanings specified below:
"CREDIT AGREEMENT" means (i) the Credit Agreement, dated as of May 31,
1996, among the Borrower, Honolulu Mortgage Company, Inc., the lenders and
agents parties thereto and The Chase Manhattan Bank, as administrative
agent thereunder, and (ii) any credit agreement which amends and restates
or otherwise replaces the Credit Agreement referred to in clause (i) above,
in each case as the same may be amended, modified or supplemented from time
to time.
"COLLATERAL" means (i) Servicing Rights, (ii) Servicing Contracts,
(iii) rights to receive payments in connection with Servicing Contracts and
Servicing Rights, whether on account of the performance of services, upon
the termination of Servicing Rights, Servicing Contracts or otherwise
(including, without limitation, all Eligible Servicing Receivables (and all
deeds, contracts, agreements, instruments of title and other documents
received or receivable in respect thereof)), (iv) rights with respect to
the placement of escrow deposits associated with such Servicing Rights and
Servicing Contracts and all rights to the payment of money or provision of
concessions or services with respect thereto, (v) Specified Servicing
Receivables (as defined below) and (vi) all Proceeds of each of the
foregoing, PROVIDED that (x) the foregoing term "Servicing Contracts" shall
have the meaning ascribed thereto in the HomeSide Security Agreement, but
only in reference to the contracts listed on Schedule I hereto, and the
foregoing terms "Servicing Rights" and "Eligible Servicing Receivables"
shall have the meanings ascribed thereto in the HomeSide Security Agreement
to the extent, and as if, such terms and the items described in such terms
related only to such Servicing Contracts as defined above, and (y) for the
purposes hereof, "Specified Servicing Receivables" shall mean all Servicing
Receivables, as defined in the HomeSide Security Agreement, to the extent,
and only to the extent, that such Servicing Receivables comprise Eligible
P&I Advance Receivables in respect of Eligible P&I Advances made after the
Initial Loan Date and prior to the Maturity Date by the Borrower under
those Servicing Contracts listed on Schedule II hereto; for avoidance of
doubt, it is understood that such Collateral is not intended to include any
"Collateral" under and as defined in the HomeSide Security Agreement except
to the
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extent that any thereof has been released thereunder and no longer
constitutes "Collateral" thereunder.
"HOMESIDE SECURITY AGREEMENT" means the HomeSide Security Agreement
(as defined in the Credit Agreement) and any security agreement which
amends and restates or otherwise replaces such HomeSide Security Agreement
under the Credit Agreement, in each case as the same may be amended,
modified or supplemented from time to time.
"OBLIGATIONS" means the unpaid principal of 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).
2. AMOUNT AND TERMS OF LOANS. Subject to 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 Initial Loan Date (as
defined below) through but not including the Maturity Date (as defined in the
Note) in an aggregate principal amount not to exceed $85,000,000 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 the Initial Loan Date. The Borrower hereby unconditionally
promises to pay to the Lender the then unpaid principal amount of the Loans
outstanding on the Maturity Date (or the then unpaid principal amount of the
Loans on the date that the Loans become due and payable pursuant to paragraph
5). 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 per annum, 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 2:00 P.M. New York City time on the date of such borrowing
(which such notice shall be accompanied by such information regarding the value
of the Collateral as shall be requested by the Lender) and may be prepaid at any
time without premium or penalty.
3. COVENANTS. The Borrower hereby covenants and agrees that, so long
as any amount is outstanding or unpaid hereunder under the Note, the Borrower
shall comply with all
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the covenants and agreements set forth in Section 7 and Section 8 of the Credit
Agreement, and such provisions of the Credit Agreement (other than Sections 8.3,
8.9 and 8.11 thereof) are incorporated herein by reference, MUTATIS MUTANDIS,
PROVIDED that (i) all references therein to the "Administrative Agent" or
"Lenders" shall be deemed to refer to the Lender, and (ii) such other
modifications thereto shall be deemed made as are necessary to effectuate the
intent of the parties hereunder.
4. COLLATERAL; SECURITY AGREEMENT. As collateral security for the full
and prompt payment when due (whether at stated maturity, by acceleration or
otherwise) of, and the performance of, all the Obligations and to induce the
Lender to make the Loans, the Borrower hereby assigns, conveys, mortgages,
pledges, hypothecates and transfers to Lender, and hereby grants to the Lender,
a security interest in, all of the Borrower's right, title and interest in, to
and under the Collateral. All provisions of the HomeSide Security Agreement are
incorporated by reference herein, MUTATIS MUTANDIS, to the extent applicable to
any of the Collateral as defined above, and the Borrower agrees, covenants and
makes representations and warranties herein as set forth therein, PROVIDED that
(i) all references therein related to items of the type included in such
Collateral shall be deemed to refer only to such items included in or related to
such Collateral, and the terms defined therein and referred to in the definition
of Collateral herein shall be modified as set forth in such definition, (ii) all
references therein to the "Collateral Agent", "Administrative Agent" or
"Lenders" being deemed to refer to the Lender, (iii) all references therein to
"Grantor" shall be deemed to refer to the Borrower, (iv) provisions solely
relating to items of Collateral under (and as defined in) the HomeSide Security
Agreement that are not included in the definition of Collateral above shall be
disregarded for purposes hereof and (v) such other modifications thereto shall
be deemed made as are necessary to effectuate the intent of the parties
hereunder. Without limiting the foregoing, the Lender shall have all rights and
remedies of a secured party in respect of the Collateral as provided under the
Uniform Commercial Code in effect in the State of New York from time to time.
5. 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 or deemed 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, or (d) any Event of Default under (and as defined in) the
Credit Agreement shall occur and be continuing, then, and in any such event, (i)
if such event is an Event of Default specified in clause (i) or (ii) of
paragraph (f) of Section 9 of the Credit Agreement, automatically the commitment
of the Lender to make Loans hereunder shall be
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terminated and the Loans (with accrued interest thereon) and all other amounts
owing under this Agreement and the Note shall immediately become due and
payable, (ii) if such event is any other default described in clause (a),
(b),(c) or (d) above, 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, and (iii) the Lender shall have such
remedies with respect to the Collateral as are set forth in the HomeSide
Security Agreement (as incorporated and modified pursuant to paragraph 4
hereof).
6. 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 modification 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 or reimburse the Lender for all its costs and expenses
incurred in connection with the enforcement or preservation of any rights under
this Agreement, the Note and any such other documents, including, without
limitation, the fees and disbursements of counsel to the Lender, (c) 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 (d) 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 (d), 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. The agreements in this subsection shall survive repayment of the
Loans and all other amounts payable hereunder.
7. REPRESENTATIONS; NO DEFAULT. On and as of the date hereof, the
Borrower confirms, reaffirms and restates that the representations and
warranties set forth in Section 5 of the Credit Agreement 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 Agreement and the Note. 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.
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8. 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 each of the Borrower,
(ii) such instruments and documents as the Lender requests in connection with
the Collateral and the security interest therein granted hereunder, including
executed Uniform Commercial Code filings in proper form for filing and
acknowledgement agreements relating thereto in form and substance satisfactory
to the Lender, (iii) 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 (iv) evidence satisfactory to it that the
Collateral has been released from all Liens under the HomeSide Security
Agreement and that the Borrower has taken all actions necessary to provide the
Lender with a perfected, first priority security interest in such Collateral.
9. 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.
10. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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 subsection 11.2 of
the Credit Agreement or at such other address of which the Administrative Agent
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
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AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
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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 Xxxxxxx
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Title: Senior Vice President
THE CHASE MANHATTAN BANK
By: /s/ Xxxx Schwaabe
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Title:
