COMMERCIAL PAPER DEALER AGREEMENT, dated as of September 11, 1998
between HOMESIDE LENDING, INC., a Florida corporation (the "Issuer"), and XXXXXX
XXXXXXX & CO. INCORPORATED, a Delaware corporation ("MS").
The Issuer intends to issue short-term notes pursuant to Section
3(a)(3) of the Securities Act of 1933, as amended (the "1933 Act").
The Issuer desires to enter into this Agreement with MS in order to
provide for the offer and sale of such notes in the manner described here.
The parties hereto, in consideration of the premises and mutual
covenants herein contained, agree as follows:
1. Definitions.
"Business Day" shall mean any day other than a Saturday or Sunday or a
day when banks are authorized or required by law to close in New York City.
"Company Information" shall mean the Offering Memorandum (defined
below), together with, to the extent applicable, information provided by the
Issuer pursuant to Section 6(b) hereof.
"DTC" shall mean the Depository Trust Company.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Issuing and Paying Agent" shall mean The Chase Manhattan Bank, the
issuing and paying agent under the Issuing and Paying Agency Agreement, or any
successor thereto.
"Issuing and Paying Agency Agreement" shall mean the issuing and paying
agency agreement, dated as of September 2, 1998 between the Issuer and the
Issuing and Paying Agent, as the same may from time to time be amended.
"Notes" shall mean short-term promissory notes of the Issuer,
substantially in the form of Annex A to the Issuing and Paying Agency Agreement
in the case of certificated Notes, and represented by master notes substantially
in the form of Annex B to the Issuing and Paying Agency Agreement in the case of
book-entry Notes, issued by the Issuer from time to time pursuant to the Issuing
and Paying Agency Agreement.
"Offering Materials" shall mean the offering materials concerning the
Issuer contemplated by Section 6 hereof, and such offering materials as from
time to time revised or supplemented.
"Offering Memorandum" shall mean the offering memorandum with respect
to the offer and sale of the Notes (including materials referred to therein or
incorporated by reference therein), prepared in accordance with Section 6 hereof
and provided to purchasers or prospective purchasers of the Notes, and including
all amendments and supplements thereto which may be prepared from time to time
in accordance with this Agreement.
"Person" shall mean an individual, a corporation, a partnership, a
trust, an association or any other entity.
"SEC" shall mean the U.S. Securities and Exchange Commission, or any
successor thereto.
2. Issuance and Placement of Commercial Paper Notes.
(a) The Issuer hereby appoints MS to act as the Issuer's dealer in
connection with the sale of the Notes in accordance with the terms hereof, and
MS hereby accepts such appointment. While (i) the Issuer has and shall have no
obligation to permit MS to purchase any Notes for its own account or to arrange
for the sale of the Notes and (ii) MS has and shall have no obligation to
purchase any Notes for MS's own account or to arrange for the sale of Notes, the
parties agree that, as to any and all Notes which MS may purchase or the sale of
which MS may arrange, such Notes will be purchased or sold by MS in reliance on,
among other things, the agreements, representations, warranties and covenants of
the Issuer contained herein on the terms and conditions and in the manner
provided for herein.
(b) If the Issuer and MS shall agree on the terms of the purchase of
any Note by MS or the sale of any Note arranged by MS (including, but not
limited to, agreement with respect to the date of issue, purchase price,
principal amount, maturity and interest rate (in the case of interest-bearing
Notes) or discount rate thereof (in the case of Notes issued on a discount
basis), and appropriate compensation for MS's services hereunder) pursuant to
this Agreement, MS shall confirm the terms of each such agreement promptly to
the Issuer in MS's customary form, the Issuer shall cause such Note to be issued
and delivered in accordance with the terms of the Issuing and Paying Agency
Agreement, and payment for such Note shall be made in accordance with such
Agreement. The authentication and delivery of such Note by the Issuing and
Paying Agent shall constitute the issuance of such Note by the Issuer. The
Issuer shall deliver Notes signed by the Issuer to the Issuing and Paying Agent,
and instructions shall be delivered to the Issuing and Paying Agent to complete,
authenticate and deliver such Notes in the manner prescribed in the Issuing and
Paying Agency Agreement. MS shall be entitled to compensation at such rates and
paid in such manner as the Issuer and MS shall from time to time agree upon and
to reimbursement for MS's out-of-pocket costs and expenses, including, but not
limited to, fees and disbursements of counsel, in connection with the
preparation of this Agreement and the transactions contemplated hereby.
(c) The Notes may be issued either in physical bearer form or in
book-entry form. Notes in book-entry form shall be represented by master notes
registered in the name of a nominee of DTC and recorded in the book-entry system
maintained by DTC. References to "Notes" in this Agreement shall refer to both
physical and book-entry Notes unless the context otherwise requires. The Notes
may be issued either at a discount or as interest-bearing obligations with
interest payable at maturity in a stated amount.
(d) Each Note purchased by, or the sale of which is arranged through,
MS hereunder shall (i) have a face amount of $100,000, or an integral multiple
of $1,000 in excess thereof, (ii) have a maturity which is a Business Day not
later than the 270th day next succeeding such Note's date of issuance and (iii)
not contain any provision for extension, renewal or automatic "rollover".
3. Representations and Warranties of the Issuer.
(a) The Issuer represents and warrants as follows:
(i) The Issuer is a duly organized and validly existing corporation in
good standing under the laws of the state of its incorporation and has the
corporate power and authority to own its property, to carry on its business as
presently being conducted, to execute and deliver this Agreement, the Issuing
and Paying Agency Agreement, and the Notes, and to perform and observe the
conditions hereof and thereof.
(ii) Each of this Agreement and the Issuing and Paying Agency Agreement
has been duly and validly authorized, executed and delivered by the Issuer and
constitutes the legal, valid and binding agreement of the Issuer. The issuance
and sale of Notes by the Issuer hereunder have been duly and validly authorized
by the Issuer and, when delivered by the Issuing and Paying Agent as provided in
the Issuing and Paying Agreement, each Note will be the legal, valid and binding
obligation of the Issuer.
(iii) The Notes are exempt from the registration requirements of the
1933 Act by reason of Section 3(a)(3) thereof, and, accordingly, registration of
the Notes under the 1933 Act will not be required. Qualification of an indenture
with respect to the Notes under the Trust Indenture Act of 1939, as amended,
will not be required in connection with the offer, issuance, sale or delivery of
the Notes.
(iv) The Issuer is neither an "investment company" nor a "company
controlled by an investment company" within the meaning of the Investment
Company Act of 1940, as amended.
(v) No consent or action of, or filing or registration with, any
governmental or public regulatory body or authority is required to authorize, or
is otherwise required in connection with, the execution, delivery or performance
of this Agreement, the Issuing and Paying Agency Agreement or the Notes.
(vi) Neither the execution and delivery by the Issuer of any of this
Agreement, the Issuing and Paying Agency Agreement and the Notes, nor the
fulfillment of or compliance with the terms and provisions hereof or thereof by
the Issuer, will (x) result in the creation or imposition of any mortgage, lien,
charge or encumbrance of any nature whatsoever upon any of the properties or
assets of the Issuer or (y) violate any of the terms of the Issuer's charter
documents or by-laws, any contract or instrument to which the Issuer is a party
or by which it or its property is bound, or any law or regulation, or any order,
writ, injunction or decree of any court of governmental instrumentality, to
which the Issuer is subject or by which it or its property is bound.
(vii) There are no actions, suits, proceedings, claims or governmental
investigations pending or threatened against the Issuer or any of its officers
or directors or any persons who control the Issuer (within the meaning of
Section 15 of the 1933 Act or Section 20 of the Exchange Act) or to which any
property of the Issuer is subject, which could in any way result in a material
adverse change in the condition (financial or otherwise) of the Issuer, or
materially prevent or interfere with, or materially and adversely affect the
Issuer's execution, delivery or performance of, any of this Agreement, the
Issuing and Paying Agency Agreement and the Notes.
(viii) The initial Offering Materials do not, and any amendments or
supplements thereto and any subsequent Offering Materials and any amendments or
supplements thereto will not, contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements made
therein, in light of the circumstances under which they are made, not
misleading.
(b) Each issuance of Notes by the Issuer shall be deemed a
representation and warranty by the Issuer to MS, as of the date thereof, that,
both before and after giving effect to such issuance, (i) the representations
and warranties of the Issuer set forth in Section 3(a) hereof remain true and
correct on and as of such date as if made on and as of such date (except to the
extent such representations and warranties expressly relate solely to an earlier
date); (ii) the corporate resolutions and certificate of incumbency referred to
in Section 5 hereof remain accurate and in full force and effect; (iii) since
the date of the most recent Offering Materials, there has been no material
adverse change in the financial condition or operations of the Issuer which has
not been disclosed to MS in writing; and (iv) the Issuer is not in default of
any of its obligations hereunder, under the issuing and Paying Agency Agreement
or under any Note.
4. Covenants and Agreements of the Issuer.
(a) Without the prior written consent of MS, the Issuer shall
not permit to become effective any amendment, supplement, waiver or consent to
or under the Issuing and Paying Agency Agreement. The Issuer shall give to MS,
at least 60 Business Days prior to the proposed effective date thereof, notice
of any proposed amendment, supplement, waiver or consent under the Issuing and
Paying Agency Agreement. The Issuer shall provide to MS, promptly after the same
is executed, a copy of any amendment, supplement or written waiver or consent
covered by the notice requirements of this Section 4(a). The Issuer further
agrees to furnish prior written notice to MS, as soon as possible and in any
event at least 60 days prior to the effective date thereof, of any proposed
resignation, termination or replacement of the Issuing and Paying Agent.
(b) The Issuer shall, whenever there shall occur any change in
the Issuer's financial condition or any development or occurrence in relation to
the Issuer that would be material to the holders of Notes or potential holders
of Notes, promptly, and in any event prior to any subsequent issuance of Notes,
notify MS (by telephone, confirmed in writing) of such change, development or
occurrence.
(c) The Issuer covenants and agrees with MS that the Issuer
will promptly furnish to MS a copy of any notice, report or other information,
relating to the Notes delivered to or from rating agencies then rating the
Notes.
(d) The proceeds from the sale of Notes will be used by the
Issuer for "current transactions" within the meaning of Section 3(a)(3) of the
1933 Act.
(e) The Issuer agrees promptly from time to time to take such
action as MS may reasonably request to qualify the Notes for offering and sale
under the securities laws of such jurisdictions as MS may request and to comply
with such laws so as to permit the continuance of sales and resales therein for
as long as may be necessary to complete the transactions contemplated hereby,
provided that in connection therewith the Issuer shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction other than consent to service of process under such
state securities laws. The Issuer also agrees to reimburse MS for any reasonable
fees or costs incurred in so qualifying the Notes.
5. Conditions Precedent.
At or promptly after the execution of this Agreement, and as conditions
precedent to any obligations of MS hereunder, there shall have been furnished to
MS, in form and substance satisfactory to MS:
(i) an original or photocopy of the executed Issuing and Paying
Agency Agreement;
(ii) a certified copy of resolutions duly adopted by the Board of
Directors of the Issuer authorizing and approving the
transactions contemplated hereby;
(iii) a certificate of incumbency showing the officers and other representatives
of the Issuer authorized to execute Notes and to give
instructions concerning the issuances of Notes;
(iv) an opinion of counsel to the Issuer addressed to MS as to the
matters set forth in subsections (i)-(vii) of Section 3(a)
above and as to such other matters as MS shall reasonably
request;
(v) a copy of each other opinion of counsel furnished to any
Person that may be delivered in connection with the issuance
the Notes, including, but not limited to, any opinion
delivered under or relating to the Issuing and Paying Agency
Agreement, each of which shall be addressed to MS;
(vi) true and correct copies of the letters assigning ratings and
of all other correspondence to the Issuer from the rating
agencies that have assigned a rating to the Notes;
(vii) a copy of the Offering Materials, including the Offering
Memorandum, approved in writing by the Issuer;
(viii) true and correct copies of any documents relating to the Notes
executed by the Issuer and DTC; and
(ix) in connection with issuance of Notes in book-entry form, a
copy of the master note(s) evidencing such Notes.
6. Disclosure.
(a) The Issuer understands that, in connection with the offer and sale
of the Notes, from time to time offering materials, including an Offering
Memorandum and any other Company Information approved by the Issuer for
dissemination to purchasers or potential purchasers of the Notes (the
"Offering Materials"), will be prepared by the Issuer, relating to the Notes
and the Issuer, which Offering Materials may be distributed to MS's sales
personnel and to purchasers and prospective purchasers of the Notes.
(b) To provide a basis for the preparation of the Offering Materials
and to assist in MS's ongoing credit review procedures and sale of the Notes,
the Issuer agrees to furnish to MS, as these items become available, (i) the
Issuer's most recent report on Form 10-K filed with the SEC and each report
on Form 10-Q or 8-K filed by the Issuer with the SEC since the most recent
Form 10-K, (ii) the Issuer's most recent annual audited financial statements
and each interim financial statement or report prepared subsequent thereto,
if not included in item (i) above, (iii) the Issuer's and its affiliates'
other publicly available recent reports, including, but not limited to, any
publicly available filings or reports provided to their respective
shareholders, any national securities exchange or any rating agency, and any
information generally supplied in writing to securities analysts, (iv)
research reports prepared by any brokerage house with respect to the Company,
(v) any other information or disclosure prepared pursuant to Section 6(f)
hereof, and (vi) any other information or document prepared or approved by
the Issuer for dissemination to purchasers or potential purchasers of the
Notes. In addition, the Issuer shall provide MS with such other information
as MS may reasonably request for the purpose of its ongoing credit review of
the Issuer.
(c) The Issuer recognizes that the accuracy and completeness of the
Offering Materials are dependent upon the accuracy and completeness of the
information obtained by MS and, subject to Section 6(d) and Section 7 hereof, MS
shall not be responsible for any inaccuracy in any Offering Materials.
(d) MS agrees that prior to the distribution of any Offering Materials
MS will provide the Issuer with a copy thereof for the Issuer's approval. The
Issuer agrees promptly to notify MS in writing of the Issuer's approval or
disapproval of any Offering Materials submitted to the Issuer for review. If the
Issuer has not indicated its written approval, and has not indicated in writing
the reasons why such approval cannot be given, by the 14th calendar day after
the Offering Materials are sent to the Issuer, the Offering Materials shall be
deemed approved by the Issuer on such 14th day. Any such approval by the Issuer
shall be deemed to be a representation by the Issuer that the Offering Materials
(excluding any information furnished by MS expressly for inclusion therein, as
set forth in the sections thereof entitled "MS Affiliates" and "Additional
Information") so approved do not contain an untrue statement of a material fact
nor omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they are made, not
misleading.
(e) The Issuer represents and warrants to MS that the financial
statements of the Issuer delivered or to be delivered to MS in accordance with
this Section 6 are or will be in accordance with generally accepted accounting
principles and practices in effect in the United States on the date such
statements were or will be prepared and fairly do or will present the financial
condition and operations of the Issuer at such date and the results of the
Issuer's operations for the period then ended.
(f) The Issuer further agrees to notify MS promptly upon the occurrence
of (i) any event that would render any fact contained in the Issuer's most
recent financial reports, as submitted to MS, untrue or misleading, or (ii) any
event relating to or affecting the Issuer that would cause the Offering
Materials then in use to include an untrue statement of a material fact or to
omit to state a material fact necessary in order to make the statements
contained therein, in light of the circumstances under which they were made, not
misleading. In such event, the Issuer agrees to supply MS promptly with such
information as will correct such untrue or misleading statement or omission.
7. Indemnification.
(a) The Issuer agrees to indemnify MS and its affiliates, their
respective directors, officers, employees, and agents, and each person who
controls MS or its affiliates within the meaning of the 1933 Act or the Exchange
Act and any successor thereto (MS and each such person being and "Indemnified
Person") from and against any and all losses, claims, damages and liabilities,
joint or several, to which such Indemnified Person may become subject under any
applicable federal or state law, or otherwise, related to or arising out of (i)
any untrue statement or alleged untrue statement of a material fact contained in
the Offering Materials or in any information (whether oral or written) or
documents furnished or made available by the Issuer to offerees of the Notes or
any of their representatives or the omission or the alleged omission to state
therein a material fact necessary to make the statements therein not misleading
in light of the circumstances under which they were made, or (ii) any matter or
transaction contemplated by this Agreement or by the engagement of MS pursuant
to, and the performance by MS of the services contemplated by, this Agreement or
by the engagement of MS pursuant to, and the performance by MS of the services
contemplated by, this Agreement and shall promptly reimburse any Indemnified
Person for all expenses (including, but not limited to, fees and disbursements
of internal and external counsel), as they are incurred, in connection with the
investigation of, preparation for or defense of any pending or threatened claim
or any action or proceeding arising therefrom, whether or not such Indemnified
Person is a party, provided, however, that, with respect to (ii), the Issuer
shall not be liable in any such case to the extent such loss, claim, damage or
liability is finally judicially determined to have resulted primarily from an
Indemnified Person's gross negligence or willful misconduct.
(b) Promptly after receipt by an Indemnified Person under this Section
7 of notice of any claim or the commencement of any action, the Indemnified
Person shall, if a claim in respect thereof is to be made against the Issuer
under this Section 7, notify the Issuer in writing of the claim or the
commencement of that action; provided, however, that the failure to notify the
Issuer shall not relieve it from any liability that the Issuer may have under
this Section 7 except up to the extent of any actual and material prejudice
suffered by the Issuer as a result of such failure; and, provided, further, that
in no event shall the failure to notify the Issuer relieve it from any liability
that the Issuer may have to an Indemnified Person otherwise than under this
Section 7. If any such claim or action shall be brought against an Indemnified
Person, and it notifies the Issuer thereof, the Issuer shall be entitled to
participate therein and, to the extent that the Issuer wishes, to assume the
defense thereof with counsel reasonably satisfactory to the Indemnified Person.
After notice from the Issuer to the Indemnified Person of the Issuer's election
to assume the defense of such claim or action, the Issuer shall not be liable to
the Indemnified Person under this Section 7 for any legal or other expenses
subsequently incurred by the Indemnified Person in connection with the defense
thereof other than reasonable costs of investigation. The Issuer shall not be
liable for any settlement of any such action effected without the Issuer's
written consent (which consent shall not be unreasonably withheld) but, if
settled with the Issuer's written consent or if there is a final judgment for
the plaintiff in any such action, the Issuer agrees to indemnify and hold
harmless any Indemnified Person from and against any loss or liability by reason
of such settlement or judgment.
(c) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 7 is for
any reason unavailable or insufficient to hold harmless an Indemnified Person,
other than as expressly provided above, the Issuer and MS shall contribute to
the aggregate costs of satisfying such liability (i) in such proportion as is
appropriate to reflect the relative benefits received by the Issuer, on the one
hand, and MS, on the other hand, or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Issuer on the one hand and MS on the
other with respect the statements or omissions which resulted in such loss,
claim, damage or liability or action in respect thereof, as well as any other
equitable considerations. The relative benefits received by the Issuer on the
one hand and MS on the other with respect to such offering shall be deemed to be
in the same proportion as the aggregate proceeds to the Issuer of the Notes sold
pursuant hereto (before deducting expenses) bear to the aggregate commissions
and fees earned by MS hereunder. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Issuer on the one hand or MS on the
other, the intent of the parties, and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The Issuer and MS agree that it would not be just and equitable if
contributions pursuant to this Section 7 were to be determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to herein. The amount paid or payable by
an Indemnified Person as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section 7 shall be deemed
to include, for purposes of this Section 7, but not be limited to, any fees and
disbursements of internal and external counsel reasonably incurred by an
Indemnified Person in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 7, the aggregate of all
amounts paid by MS pursuant to the foregoing shall not exceed the aggregate of
the commissions and fees earned by MS hereunder.
(d) The obligations of the Issuer in this Section 7 are in addition to
any other liability that the Issuer may otherwise have.
(e) The provisions of this Section 7 shall survive the termination of
this Agreement.
8. Notices.
All notices required under the terms and provisions hereof shall be in
writing, delivered by hand, by mail (postage prepaid), or by telex, telecopier
or telegram, and any such notice shall be effective when received at the address
specified below.
If to the Issuer: If to MS:
HomeSide Lending, Inc. Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxxxx Xxx 0000 Xxxxxxxx - 0xx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx Attention: Manager, Continuously Offered
Products
Fax No.: 000-000-0000 Telephone: 000-000-0000
Fax No.: 000-000-0000
With a copy to:
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Manager, Credit Department
Telephone: 000-000-0000
Fax: 000-000-0000
or, if to any of the foregoing parties or their successors, at such other
address as such party or successor may designate from time to time by notice
duly given in accordance with the terms of this Section 9 to the other party
hereto.
9. Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ITS CONFLICT OF LAWS
PROVISIONS.
10. Entire Agreement.
This Agreement constitutes the entire agreement between the parties
hereto with respect to the matters covered hereby and supersedes all prior
agreements and understanding between the parties.
11. Amendment and Termination; Successors; Counterparts.
(a) The terms of this Agreement shall not be waived, altered, modified,
amended or supplemented in any manner whatsoever except by written instrument
signed by both parties hereto. The Issuer or MS may terminate this Agreement
upon at least 30 days' written notice to the other, provided that such
termination shall not affect the obligations of the parties hereunder with
respect to Notes unpaid at the time of such termination or with respect to
actions or events occurring prior to such termination.
(b) This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns; provided,
however, that the Issuer may not assign, either in whole or in part, any of its
rights or obligations under this Agreement without the prior written consent of
MS, and any such assignment without such consent shall be null and void. MS may
assign or transfer, either in whole or in part, any of is rights or obligations
under this Agreement to any affiliate of MS, upon at least 30 days' prior
written notice to the Issuer.
(c) This Agreement may be executed in several counterparts, each of
which shall be deemed an original hereof.
12. Captions.
The Captions in this Agreement are for convenience of reference only
and shall not define or limit any of the terms or provisions hereof.
13. Severability of Provisions.
Any provision of this Agreement 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 or affecting the validity of such provisions in any other
jurisdiction.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date and year first above written.
HOMESIDE LENDING, INC.
By:/s/Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title:Vice President
XXXXXX XXXXXXX & CO. INCORPORATED
By:/s/Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title:
