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EXHIBIT 10.34
FORM OF BMC SECURITY AGREEMENT
AMENDED AND RESTATED SECURITY AND COLLATERAL AGENCY AGREEMENT (this
"Agreement"), dated January 31, 1997, made by HOMESIDE HOLDINGS, INC., a Florida
corporation (formerly known as Xxxxxxx Mortgage Company; the "Grantor"), THE
CHASE MANHATTAN BANK, in its capacity as Administrative Agent under the Credit
Agreement referred to below (in such capacity, the "Administrative Agent"), and
THE FIRST NATIONAL BANK OF BOSTON, as Collateral Agent for the financial
institutions party to the Credit Agreement referred to below (in such capacity,
the "Collateral Agent").
W I T N E S S E T H:
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WHEREAS, HomeSide Lending, Inc., a Florida corporation ("HomeSide"),
and Honolulu Mortgage Company, Inc., a Hawaiian corporation ("HonoMo"), have
entered into an Amended and Restated Credit Agreement, dated as of January 31,
1997, with the financial institutions from time to time party thereto, as
Lenders (the "Lenders"), the lenders from time to time designated therein as
Balance Lenders (the "Balance Lenders"), the Collateral Agent and the
Administrative Agent (said Agreement, as it may be amended, supplemented or
otherwise modified from time to time, being the "Credit Agreement");
WHEREAS, the Credit Agreement amends and restates in its entirety the
Existing Credit Agreement;
WHEREAS, obligations of the Grantor in respect of the Existing Credit
Agreement are secured pursuant to, INTER ALIA, the Security and Collateral
Agency Agreement, dated as of May 31, 1996 (the "EXISTING BMC SECURITY
AGREEMENT") among the parties to this Agreement;
WHEREAS, (i) the Grantor is the beneficial and record owner of 100% of
the issued and outstanding capital stock of HomeSide, and (ii) HomeSide is the
beneficial and record owner of 100% of the issued and outstanding capital stock
of HonoMo;
WHEREAS, in connection with the Credit Agreement, the Grantor has
entered into the BMC Guarantee; and
WHEREAS, it is a condition precedent to the making of the Loans that
the Existing BMC Security Agreement shall have been amended and restated as
provided herein;
NOW, THEREFORE, in consideration of the premises the parties hereto
hereby agree that on the Closing Date the Existing BMC Security Agreement shall
be amended and restated in its entirety as follows:
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WHEREAS, it is a condition precedent to the making of the Loans that
the Grantor shall have entered into this Agreement;
NOW, THEREFORE, in consideration of the premises and in order to
induce the Lenders to make the Loans, the Grantor hereby agrees with the
Administrative Agent and the Collateral Agent on behalf and for the ratable
benefit of the Secured Parties (as hereinafter defined) as follows:
1. Defined Terms.
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Terms defined in the UCC (as hereinafter defined) are used herein as
therein defined. As used in this Agreement, capitalized terms defined in the
Credit Agreement and not otherwise defined herein have the meanings given in the
Credit Agreement, and the following terms have the meanings specified below
(such meanings being equally applicable to both the singular and plural forms of
the terms defined):
"AGENCY CUSTODIAL AGREEMENT" shall mean the GNMA Custodial Agreement.
"CERTIFICATING CUSTODIAN" shall mean any Person acting as the
Grantor's "certificating custodian," as such term is used in the GNMA Guide, for
purposes of (a) certifying that the documentation relating to Mortgage Loans
received by such Person from the Grantor (or the Collateral Agent) is complete
and acceptable under the GNMA Guide for purposes of including such Mortgage Loan
in a pool of Mortgage Loans in which Mortgage-Backed Securities will represent
interests and (b) holding such documentation following formation of such pools
and issuance of such Mortgage-Backed Securities. The Certificating Custodian
shall at all times be party to the Agency Custodial Agreement.
"COLLATERAL" has the meaning set forth in Section 3 of this Agreement.
"GNMA CUSTODIAL AGREEMENT" shall mean the agreement, as amended,
modified or supplemented from time to time, between GNMA, the Grantor and any
Person meeting the eligibility requirements set forth in the GNMA Guide to serve
as a "certificating custodian," as such term is used in the GNMA Guide, pursuant
to which such Person is authorized to act as Certificating Custodian.
"PROCEEDS" shall mean "proceeds," as such term is defined in Section
9-306(1) of the UCC, and, in any event, includes, without limitation, (a) any
and all proceeds of any insurance, indemnity, warranty or guaranty payable to
the Grantor from time to time with respect to any of the Collateral, (b) any and
all payments (in any form whatsoever) made or due and payable to the Grantor
from time to time in connection with any requisition, confiscation,
condemnation, seizure or forfeiture of all or any part of the Collateral by any
Governmental Authority (or any Person acting under color of Governmental
Authority), and (c) any and all other amounts from time to time paid or payable
under or in connection with any of the Collateral.
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"SECURED OBLIGATIONS" shall mean the "Obligations," as such term is
defined in the Holdings Guarantee.
"SECURED PARTIES" shall mean, collectively, the Lenders, the Balance
Lenders, the Collateral Agent and the Administrative Agent.
"SERVICING CONTRACT" shall mean each of the contracts or other
agreements to which the Grantor is a party pursuant to which the Grantor holds
Servicing Rights, in each case as amended, supplemented or otherwise modified
from time to time, including, without limitation, (a) all rights of the Grantor
to receive moneys due and to become due to it thereunder or in connection
therewith, other than any portion of principal and interest payable under the
related Mortgage Loans to the extent not attributable to servicing fees payable
to the Grantor under such Servicing Contracts, (b) all rights of the Grantor to
damages arising out of, or for, breach or default in respect thereof, and (c)
all rights of the Grantor to perform and to exercise all remedies thereunder.
"SERVICING RECEIVABLES" shall mean the accounts, receivables and other
amounts owing to the Grantor for its own account in respect of Servicing Rights
or under a Servicing Contract, including, without limitation, all Eligible
Servicing Receivables.
"SERVICING RIGHTS" shall mean the rights of the Grantor to service
Mortgage Loans for or on behalf of the owner or holder of such Mortgage Loans
(including investors in Mortgage-Backed Securities supported by Mortgage Loans)
pursuant to any direct agreement between the Grantor and GNMA, together with the
legal titles, mortgagor files, escrows and records relating to such Mortgage
Loans and the right to receive servicing fee income and any other income arising
from or in connection with such Mortgage Loans, including late charges,
termination fees and charges and all other incidental fees and charges.
"SERVICING SETTLEMENT ACCOUNT" shall have the meaning given such term
in the HomeSide Security Agreement.
"UCC" shall mean the Uniform Commercial Code as the same may, from
time to time, be in effect in the State of New York; PROVIDED, HOWEVER, in the
event that, by reason of mandatory provisions of law, any or all of the
attachment, perfection or priority of the Collateral Agent's and the other
Secured Parties' security interest in any Collateral is governed by the Uniform
Commercial Code as in effect in a jurisdiction other than the State of New York,
the term "UCC" shall mean the Uniform Commercial Code as in effect in such other
jurisdiction for purposes of the provisions hereof relating to such attachment,
perfection or priority and for purposes of definitions related to such
provisions.
2. Appointment of Collateral Agent.
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Pursuant to the Credit Agreement the Collateral Agent has been
appointed to act as secured party, agent, bailee and custodian for the exclusive
benefit of the Secured Parties with respect to the Collateral. The Collateral
Agent hereby acknowledges that it has accepted such
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appointment and agrees to maintain and hold all Collateral at any time delivered
to it as secured party, agent, bailee and custodian for the exclusive benefit of
the Secured Parties. The Collateral Agent acknowledges and agrees that it is
acting and will act with respect to the Collateral for the exclusive benefit of
the Secured Parties and is not, and shall not at any time in the future be,
subject, with respect to the Collateral, in any manner or to any extent, to the
direction or control of the Grantor or any of the other Loan Parties, except as
expressly permitted hereunder and under the other Loan Documents. The Collateral
Agent agrees to act in accordance with this Agreement and in accordance with any
written instructions from the Administrative Agent delivered pursuant to the
Credit Agreement. Under no circumstances shall the Collateral Agent deliver
possession of Collateral to the Grantor or any other Person (other than the
Administrative Agent) or otherwise release any Collateral from the Lien created
hereby, except in accordance with the express terms of this Agreement or
otherwise upon the written instructions of the Administrative Agent.
3. Grant of Security Interest.
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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 Secured Obligations and to induce the Lenders to make
the Loans pursuant to the Credit Agreement, effective during any Negative
Security Period, the Grantor hereby assigns, conveys, mortgages, pledges,
hypothecates and transfers to the Collateral Agent, on behalf and for the
ratable benefit of the Secured Parties, and hereby grants to the Collateral
Agent, on behalf and for the ratable benefit of the Secured Parties, a security
interest in, all of the Grantor's right, title and interest in, to and under the
following, whether now owned or hereafter acquired, whether now in existence or
hereafter arising (all of which being herein collectively called the
"Collateral"):
(a) all (i) Servicing Rights, (ii) Servicing Contracts, (iii) Hedge
Contracts held by the Grantor relating to any Servicing Rights or Servicing
Contracts, (iv) rights to receive payments in connection with Servicing
Contracts, Servicing Rights and Hedge Contracts, whether on account of the
performance of services, upon the termination of Servicing Rights, Servicing
Contracts, Hedge 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)), and (v) 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;
(b) the Servicing Settlement Account and any other custodial account
of the Grantor held by or in the name of the Collateral Agent or its bailee or
designee (including, without limitation, the Administrative Agent), and any and
all funds, securities and other items at any time held in such accounts and any
and all rights of the Grantor to insurance payments made in respect of such
accounts;
(c) all files, documents, agreements, instruments, deeds, chattel
paper, inventory consisting of Servicing Rights held for sale, insurance
policies, personal property, contract rights, accounts, general intangibles,
records, surveys, certificates, correspondence,
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appraisals, computer records, tapes, discs, cards, accounting records and other
books, records, information and data of the Grantor relating to the Collateral
(including all such items necessary or helpful in the administration or
servicing of the Collateral) of whatever kind or nature whatsoever relating to
the Servicing Rights or any other Collateral, and all other documents or
instruments delivered to the Collateral Agent in respect of the Collateral; and
(d) to the extent not otherwise included, all Proceeds of each of
the foregoing and all accessions to, substitutions and replacements for, and
rents, profits and products of, each of the foregoing.
4. Servicing Settlement Account.
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(a) SERVICING SETTLEMENT ACCOUNT. With respect to any amounts owed
to the Grantor in respect of Servicing Receivables or other Servicing Rights
(including, without limitation, all Eligible Servicing Receivables, proceeds of
the sale of Servicing Rights and all termination and other fees payable in
respect of Servicing Rights) other than from a mortgagor in respect of the
applicable Mortgage Loan, if requested by the Administrative Agent, the
Collateral Agent and the Grantor shall instruct any obligor in respect of such
Servicing Receivable or other Servicing Rights that all amounts payable on
account of such Servicing Receivable or other Servicing Rights are to be paid
directly by such party to the Servicing Settlement Account. The Grantor shall,
upon demand of the Collateral Agent or the Administrative Agent, provide the
Collateral Agent and the Administrative Agent with evidence that the Grantor has
directed such obligors to pay such amounts directly into the Servicing
Settlement Account.
(b) SECURITY INTEREST IN SERVICING SETTLEMENT ACCOUNT. Pursuant to
Section 3 hereof, the Grantor has granted to the Collateral Agent, for the
benefit of the Secured Parties, effective during any Negative Security Period, a
security interest in the Servicing Settlement Account and in any and all funds
at any time held therein as collateral security for the Secured Obligations.
This subsection (b) shall constitute irrevocable notice to the Collateral Agent
that the Servicing Settlement Account is a "no access" account to the Grantor.
The Collateral Agent shall hold its security interest in the Servicing
Settlement Account and all funds at any time held therein for the benefit of the
Secured Parties and with all rights of a secured party under the UCC and other
applicable New York law. In no circumstances shall the Grantor have access to,
control of or dominion over the Servicing Settlement Account. The Collateral
Agent hereby appoints the Administrative Agent to hold the Servicing Settlement
Account pursuant to the terms hereof for the benefit of the Secured Parties with
all rights of a secured party under the UCC and other applicable New York law,
and the Administrative Agent hereby accepts such appointment.
(c) TRANSFER OF FUNDS FROM THE SERVICING SETTLEMENT ACCOUNT. The
Administrative Agent shall transfer funds from the Servicing Settlement Account
in accordance with Section 6(m) of the HomeSide Security Agreement.
5. Rights of the Secured Parties; Limitations on Secured Parties' Obligations.
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(a) It is expressly agreed by the Grantor that, anything herein to
the contrary notwithstanding, the Grantor shall remain liable to observe and
perform all the conditions, duties and obligations to be observed and performed
by it relating to the Collateral, and the Grantor shall perform all of its
duties and obligations thereunder, all in accordance with and pursuant to the
terms and provisions relating thereto. Neither the Collateral Agent nor any
other Secured Party shall have any obligation or liability under any instrument,
agreement, contract or other document by reason of or arising out of this
Agreement or the granting of a security interest in any instrument, agreement,
contract or other document to the Collateral Agent on behalf and for the ratable
benefit of the Secured Parties or the receipt by the Collateral Agent or any
other Secured Party of any payment relating to any of the foregoing pursuant
hereto, nor shall the Collateral Agent or any other Secured Party be required or
obligated in any manner to perform or fulfill any of the obligations of the
Grantor thereunder, or to make any payment, or to make any inquiry as to the
nature or the sufficiency of any payment received by it or the sufficiency of
any performance by any party thereunder, or to present or file any claim, or to
take any action to collect or enforce any performance or the payment of any
amounts which may have been assigned to it or to which it may be entitled at any
time or times.
(b) Subject to the terms of this Agreement, the Collateral Agent
authorizes the Grantor to collect all sums due or to become due (including,
without limitation, Proceeds) in respect of any Collateral ("Collateral
Payments"), provided that such collection is performed in a prudent and
businesslike manner, and the Collateral Agent may, upon the occurrence and
during the continuance of any Default or Event of Default and without notice,
limit or terminate said authority at any time. If required by the Collateral
Agent at any time during the continuance of any Default or Event of Default, any
Collateral Payments, when first collected by the Grantor shall be promptly
delivered by the Grantor to the Collateral Agent in precisely the form received
(with all necessary indorsements), and until so turned over shall be deemed to
be held in trust by the Grantor for and as the Collateral Agent's property, for
the benefit of the Secured Parties, and shall not be commingled with the
Grantor's other funds or properties. Such Collateral Payments, when so delivered
to the Collateral Agent, shall continue to be collateral security for all of the
Secured Obligations and shall not constitute payment thereof until applied as
hereinafter provided. The Collateral Agent shall upon the request of the
Required Lenders apply all or a part of the funds so delivered in accordance
with the provisions of Section 14(h) hereof.
(c) The Collateral Agent may at any time, upon the occurrence and
during the continuance of any Default or Event of Default, notify any party that
is or might become obligated to make any Collateral Payment that the Collateral
and the right, title and interest of the Grantor in and under the Collateral
have been assigned to the Collateral Agent, for the benefit of the Secured
Parties, and that any or all of such Collateral Payments shall be made directly
to the Collateral Agent or its designee. Upon the request of the Collateral
Agent, the Grantor will so notify such parties. Upon the occurrence and during
the continuance of a Default or an Event of Default, the Collateral Agent may in
its own name or in the name of others communicate with all such parties to
verify with such parties to the Collateral Agent's satisfaction the existence,
amount and terms of any such obligation in respect of any Collateral Payment.
6. Representations and Warranties.
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(a) The Grantor hereby represents and warrants to the Secured
Parties as follows:
(i) The Grantor is the sole owner of each item of the
Collateral in which it purports to grant a security interest
hereunder, having good title thereto, free and clear of any and all
Liens or any other right, title, claim or interest, except for (A) the
security interest granted pursuant to this Agreement and (B)
subservicing rights in favor of HomeSide arising under the Xxxxxxx
Subservicing Agreement, dated as of May 31, 1996, between the Grantor
and HomeSide.
(ii) No effective security agreement, financing statement,
equivalent security or lien instrument or continuation statement
covering all or any part of the Collateral is on file or of record in
any public office, except such as may have been filed by the Grantor
in favor of the Collateral Agent, for the benefit of the Secured
Parties, pursuant to this Agreement.
(iii) Except as otherwise provided in Section 25 hereof, all
action necessary to protect and perfect the valid and perfected first
priority security interest in each item of the Collateral has been
duly taken.
(iv) The Grantor's principal place of business and the place
where its records concerning the Collateral are kept are set forth on
Schedule I hereto.
(v) All information heretofore, herein, or hereafter
supplied to the Collateral Agent or any other Secured Party by or on
behalf of the Grantor with respect to the Collateral is accurate and
complete in all material respects.
(vi) No consent of any other Person is required for the
grant of the security interest provided herein by the Grantor in any
of the Collateral, other than consents that have been obtained, nor
will any consent need to be obtained upon the occurrence of an Event
of Default for the Secured Parties to exercise their rights with
respect to any of such Collateral.
(vii) To the best of the Grantor's knowledge, no Obligor or
other Person responsible or liable for any Collateral Payment has any
defense, set off, claim or counterclaim against the Grantor that can
be asserted against the Collateral Agent or any other Secured Party.
(b) The Collateral Agent hereby represents and warrants to the
Grantor and each of the other Secured Parties as follows:
(i) The Collateral Agent is a national banking association
duly incorporated, validly existing and in good standing under the
laws of the United States of America.
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(ii) The execution, delivery and performance by the
Collateral Agent of this Agreement are within the Collateral Agent's
corporate powers, have been duly authorized by all necessary corporate
action and do not contravene the Collateral Agent's certificate of
incorporation or bylaws, any Requirement of Law or any order or decree
of any court, or any contractual obligation of the Collateral Agent.
(iii) No consent, authorization, approval or other action
by, and no notice to or filing with, any Governmental Authority or any
other Person is required for the due execution, delivery and
performance by the Collateral Agent of this Agreement.
(iv) This Agreement has been duly executed and delivered by
the Collateral Agent and is the legal, valid and binding obligation of
the Collateral Agent, enforceable against the Collateral Agent in
accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency and other similar laws affecting
creditors' rights generally and by general principles of equity.
7. Standard of Care of Collateral Agent; Duties; Indemnification.
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The Collateral Agent is a bailee for hire and shall hold the
Collateral in accordance with customary standards for those engaged as
custodians of commercial documents in similar capacities. Nothing contained
herein or in the Credit Agreement shall be construed to make the Collateral
Agent a trustee or other fiduciary for the Administrative Agent or any other
Secured Party. Notwithstanding anything to the contrary contained herein:
(a) The provisions of the Credit Agreement, this Agreement and the
annexes, schedules, exhibits and attachments hereto set forth the exclusive
duties of the Collateral Agent and no implied duties or obligations shall be
read into this Agreement against the Collateral Agent. The Collateral Agent
shall not be bound in any way by any agreement or contract other than this
Agreement and the annexes, the exhibits and the attachments hereto and any other
agreement to which it is a party. The Collateral Agent shall not be required to
ascertain or inquire as to the performance or observance of any of the
conditions or agreements to be performed or observed by any other party, except
as specifically provided in this Agreement and the annexes, schedules, exhibits
and attachments hereto. The Collateral Agent disclaims any responsibility for
the validity or accuracy of the recitals to this Agreement and any
representations and warranties contained herein, unless specifically identified
as recitals, representations or warranties of the Collateral Agent.
(b) Throughout the term of this Agreement, the Collateral Agent
shall have no responsibility for ascertaining the value, collectability,
insurability, enforceability, effectiveness or suitability of any Collateral,
the title of any party therein, the validity or adequacy of the security
afforded thereby or the validity of this Agreement (except as to Collateral
Agent's authority to enter into this Agreement and to perform its obligations
hereunder).
(c) The Collateral Agent may rely upon and shall be protected in
acting in good faith upon any notice, resolution, request, consent, order,
certificate, report, statement or
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other paper or document appearing on its face to be genuine and to have been
signed or presented by the proper party or parties or by a person or persons
authorized to act on behalf of the proper party or parties. The Collateral Agent
shall not be liable for any action or omission to act as bailee, except for its
own gross negligence or willful misconduct.
(d) No provision of this Agreement shall require the Collateral
Agent to expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder or in the exercise of any of
its rights or powers, if, in its judgment, it shall believe that repayment of
such funds or adequate indemnity against such risk or liability is not assured
to it.
(e) The Collateral Agent is not responsible for preparing or filing
any reports or returns relating to federal, state or local income taxes with
respect to this Agreement, other than for the Collateral Agent's compensation or
for reimbursement of expenses.
(f) The Grantor agrees to reimburse, indemnify and hold harmless the
Collateral Agent and its directors, officers, employees, Affiliates and agents
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses (including, without
limitation, reasonable attorneys' fees and disbursements and allocated costs of
internal counsel) or disbursements of any kind or nature that may be imposed on,
incurred by or asserted against the Collateral Agent and its directors,
officers, employees, Affiliates and agents arising from or connected with the
Collateral Agent's execution and performance of this Agreement, including, but
not limited to, the claims of any third parties, including any assignee. The
foregoing shall apply regardless of whether such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements are in any way or to any extent caused, in whole or in part, by
any negligent act or omission of any kind by the Collateral Agent; PROVIDED that
the Grantor shall not be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from gross negligence or willful misconduct
on the part of the Collateral Agent. This provision shall survive the
termination of this Agreement.
(g) At its sole cost and expense, the Collateral Agent shall have
the power to employ such agents as it may deem necessary or appropriate in the
performance of its duties and the exercise of its powers under this Agreement.
8. Fees and Expenses of Collateral Agent.
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The Collateral Agent shall notify the Grantor of all reasonable fees,
expenses. and charges of the Collateral Agent arising out of the Collateral
Agent's entering into this Agreement and performing its duties and obligations
under this Agreement (including in connection with the enforcement of remedies
hereunder and realization upon the Collateral), and (except as set forth in
Section 7(g) hereof) such fees, expenses and charges shall be paid promptly by
the Grantor or, if already paid by the Collateral Agent, the Grantor shall
reimburse the Collateral Agent promptly therefor. The Collateral Agent shall
receive reasonable additional compensation from the Grantor for services
rendered beyond those specifically enumerated in this Agreement,
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PROVIDED that the Collateral Agent shall, to the extent possible, provide
reasonable advance notice to the Grantor of such services and its estimate of
fees, expenses and charges in connection therewith. The Collateral Agent may
employ, at the Grantor's expense, such legal counsel and other expense as it
reasonably deems necessary in connection with entering into this Agreement and
performing its duties and obligations under this Agreement. The Collateral Agent
may rely upon and shall be protected if acting in good faith upon the advice of
such legal counsel or experts.
9. Removal or Resignation of Collateral Agent.
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The Administrative Agent, upon the direction of the Required Lenders,
may, at any time, remove and discharge the Collateral Agent from the performance
of its duties under this Agreement, effective (a) immediately if such
termination is for cause or (b) upon not less than thirty (30) days' prior
written notice to the Collateral Agent and the Grantor if such termination is
without cause. In addition, the Collateral Agent may, at any time, terminate its
agreement to act as the Collateral Agent hereunder, effective upon sixty (60)
days' prior written notice to the Grantor, the Administrative Agent and the
Lenders. Upon the effective date of any such termination, the Collateral Agent
shall promptly deliver the Collateral then held by it and any and all books and
records (or copies thereof) relating thereto, to the Administrative Agent or to
such other person or entity as the Administrative Agent may direct in writing,
and shall cooperate with the Administrative Agent and any successor Collateral
Agent in order to effect the orderly transfer of the Collateral and the rights
and obligations of the Collateral Agent hereunder to any successor Collateral
Agent. Upon resignation or removal of the Collateral Agent hereunder, the
Administrative Agent and the Required Lenders shall appoint a successor
Collateral Agent. If no successor Collateral Agent shall have been so appointed,
and shall have accepted such appointment, before the end of the thirty (30) or
sixty (60) day period referred to above, as the case may be, then the
Administrative Agent (or, at the discretion of the Administrative Agent, an
Affiliate of the Administrative Agent) shall succeed as Collateral Agent.
10. Availability of Documents.
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The Administrative Agent and each other Secured Party and its agents,
accountants, attorneys and auditors will be permitted during normal business
hours at any time and from time to time upon reasonable notice to the Collateral
Agent to examine and inspect (to the extent permitted by applicable law) the
files, documents, records and other papers in the possession or under the
control of the Collateral Agent relating to any or all of the Collateral and to
make copies thereof. As long as no Default or Event of Default has occurred and
is continuing, any such activity will be at no cost or expense to the Grantor;
if a Default or Event of Default has occurred and is continuing, all costs and
expenses associated with the exercise by the Administrative Agent or any other
Secured Party of its rights under this Section 10 shall be paid by the Grantor
within fifteen (15) days of receipt by the Grantor from the Administrative Agent
or such other Secured Party of a statement setting forth in reasonable detail
the amount thereof.
11. Covenants.
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The Grantor covenants and agrees with the Collateral Agent and the
other Secured Parties that from and after the date of this Agreement and until
the Secured Obligations are fully satisfied:
(a) FURTHER DOCUMENTATION; PLEDGE OF INSTRUMENTS AND CHATTEL PAPER.
At any time and from time to time, upon the written request of the Collateral
Agent, and at the sole expense of the Grantor, the Grantor will promptly and
duly execute and deliver any and all such further instruments and documents and
take such further action as the Collateral Agent may reasonably deem necessary
or desirable to obtain the full benefits of this Agreement and of the rights and
powers herein granted, including, without limitation, using its best efforts to
secure all consents and approvals necessary or appropriate for the assignment to
the Collateral Agent of any Collateral held by the Grantor or in which the
Grantor has any rights not heretofore assigned, the filing of any financing or
continuation statements under the UCC with respect to the Liens and security
interests granted hereby and transferring Collateral to the Collateral Agent's
(or its bailee's) possession (if a security interest in such Collateral can be
perfected by possession). The Grantor also hereby authorizes the Collateral
Agent to file any such financing or continuation statement without the signature
of the Grantor to the extent permitted by applicable law. If any of the
Collateral shall be or become evidenced by any instrument, the Grantor agrees to
pledge such instrument to the Collateral Agent and shall duly endorse such
instrument in a manner satisfactory to the Collateral Agent and deliver the same
to the Collateral Agent. The Grantor shall hold any such instrument in its
possession in trust for the benefit of the Secured Parties until the delivery
thereof to the Collateral Agent as provided herein.
(b) MAINTENANCE OF RECORDS. The Grantor will keep and maintain at
its own cost and expense satisfactory and complete records of the Collateral,
including, without limitation, a record of all payments received and all credits
granted with respect to the Collateral and all other dealings with the
Collateral. The Grantor will xxxx its books and records pertaining to the
Collateral to evidence this Agreement and the Lien and security interests
granted hereby. For the Collateral Agent's and the other Secured Parties'
further security, the Grantor agrees that the Collateral Agent and the other
Secured Parties shall have a special property interest in all of the Grantor's
books and records pertaining to the Collateral and, upon the occurrence and
during the continuance of any Default or Event of Default, the Grantor shall
deliver and turn over any such books and records to the Collateral Agent or to
its representatives at any time on demand of the Collateral Agent.
(c) INDEMNIFICATION. In any suit, proceeding or action brought by the
Collateral Agent or any other Secured Party relating to all or any portion of
the Collateral or any Collateral Payment for any sum owing thereunder, or to
enforce any right in respect of the Collateral or any Collateral Payment, the
Grantor will indemnify and save and keep harmless the Collateral Agent and each
of the other Secured Parties from and against all expense, loss or damage
suffered by reason of any defense, set-off, counterclaim, recoupment or
reduction of liability whatsoever of the obligor thereunder, arising out of a
breach by the Grantor of any obligation thereunder or arising out of any other
agreement, indebtedness or liability at any time owing to, or in favor of, such
obligor or its successors from the Grantor, and all such obligations
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of the Grantor shall be and remain enforceable against and only against the
Grantor and shall not be enforceable against the Collateral Agent or any other
Secured Party.
(d) COMPLIANCE WITH LAWS, ETC. The Grantor will comply, in all
material respects, with all acts, rules, regulations, orders, decrees and
directions of any Governmental Authority, applicable to the Collateral or any
part thereof or to the operation of the Grantor's business; PROVIDED, HOWEVER,
that the Grantor may contest any act, regulation, order, decree or direction in
any reasonable manner which shall not, in the sole opinion of the Collateral
Agent, adversely affect the Collateral Agent's rights hereunder or adversely
affect the first priority of its Lien on and security interest in the Collateral
for the benefit of the Secured Parties.
(e) PAYMENT OF OBLIGATIONS. The Grantor will pay promptly when due
all taxes, assessments and governmental charges or levies imposed upon the
Collateral or in respect of its income or profits therefrom and all claims of
any kind (including, without limitation, claims for labor, materials and
supplies), except that no such charge need be paid if (i) such non-payment does
not involve any danger of the sale, forfeiture or loss of any of the Collateral
or any interest therein, and (ii) such charge is adequately reserved against in
accordance with and to the extent required by GAAP.
(f) COMPLIANCE WITH TERMS OF AGREEMENTS, ETC. In all material
respects, the Grantor will comply with and perform with all obligations,
covenants, conditions and other agreements with respect to any of the Collateral
and all other agreements related thereto to which it is a party or by which it
is bound.
(g) LIMITATION ON LIENS ON COLLATERAL. The Grantor will not create,
permit or suffer to exist, and will defend the Collateral against and take such
other action as is necessary to remove, any Lien on the Collateral except the
Liens created under this Agreement and the other Loan Documents, and will defend
the right, title and interest of the Collateral Agent and the other Secured
Parties in and to any of the Grantor's rights in and under the Collateral and in
and to the Proceeds thereof against the claims and demands of all Persons
whomsoever.
(h) LIMITATIONS ON DISPOSITION. The Grantor will not sell, lease,
transfer or otherwise dispose of any of the Collateral, or attempt or contract
to do so, except as permitted by the Credit Agreement, this Agreement or the
other Loan Documents.
(i) FURTHER IDENTIFICATION OF COLLATERAL. The Grantor will, if so
requested by the Collateral Agent, furnish to the Collateral Agent, as often as
the Collateral Agent reasonably requests, statements and schedules further
identifying and describing the Collateral and such other reports in connection
with the Collateral as the Collateral Agent may reasonably request, all in
reasonable detail.
(j) NOTICES. The Grantor will advise the Collateral Agent promptly,
in reasonable detail, (i) of any Lien or claim made or asserted against any of
the Collateral, (ii) of any material change in the composition of the
Collateral, and (iii) of the occurrence of any other
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event which would have a material adverse effect on the aggregate value of the
Collateral or on the security interests created hereunder.
(k) RIGHT OF INSPECTION. Upon reasonable notice to the Grantor
(unless a Default or an Event of Default has occurred and is continuing, in
which case no notice is necessary), the Collateral Agent, each of the other
Secured Parties, and their respective agents, accountants, attorneys and
auditors shall at all times have full and free access during normal business
hours to all the files, documents, records and other papers of the Grantor, and
the Collateral Agent, each of the other Secured Parties and their respective
agents, accountants, attorneys and auditors may examine the same, take extracts
therefrom and make photocopies thereof, and the Grantor agrees to render to the
Collateral Agent, at the Grantor's cost and expense, such clerical and other
assistance as may be reasonably requested with regard thereto.
(l) CONTINUOUS PERFECTION. The Grantor will not change its name,
identity or corporate structure in any manner which might make any financing or
continuation statement filed in connection herewith seriously misleading within
the meaning of Section 9-402(7) of the UCC (or any other then applicable
provision of the UCC) unless the Grantor shall have given the Collateral Agent
at least 30 days' prior written notice thereof and shall have taken all action
(or made arrangements to take such action substantially simultaneously with such
change if it is impossible to take such action in advance) necessary or
reasonably requested by the Collateral Agent to amend such financing statement
or continuation statement so that it is not seriously misleading. The Grantor
will not change its principal place of business or remove its records, each as
set forth on Schedule I hereto, unless it gives the Collateral Agent at least 30
days' prior written notice thereof and has taken such action as is necessary to
cause the security interest of the Collateral Agent in the Collateral to
continue to be perfected.
(m) INSURANCE. The Grantor will keep the Collateral insured against
loss, damage, theft and other risks customarily covered by insurance and such
other risks as the Collateral Agent may reasonably request.
(n) OTHER ACTS. The Grantor will do all acts that a prudent investor
would deem necessary or desirable to maintain, preserve and protect the
Collateral.
(o) DEFENSE OF ACTIONS. The Grantor will appear in and defend, at
the Grantor's sole cost and expense (unless such action or proceeding arises
solely from an act or failure to act by a Secured Party which act or failure to
act is determined to be gross negligence or willful misconduct), any action or
proceeding that may affect its title to or the Secured Parties' interest in the
Collateral.
12. The Collateral Agent's Appointment as Attorney-in-Fact.
------------------------------------------------------
(a) The Grantor hereby irrevocably constitutes and appoints the
Collateral Agent and any officer or agent thereof, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of the Grantor and in the name of the
Grantor or in its own name, from time to time in the Collateral Agent's
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discretion, for the purpose of carrying out the terms of this Agreement, to take
any and all appropriate action and to execute and deliver any and all documents
and instruments which the Collateral Agent may deem necessary or desirable to
accomplish the purposes of this Agreement and, without limiting the generality
of the foregoing, hereby gives the Collateral Agent the power and right, on
behalf of the Grantor, without notice to or assent by the Grantor to do the
following:
(i) to ask, demand, collect, receive and give acquittances
and receipts for any and all moneys due and to become due under any
Collateral and, in the name of the Grantor or in its own name or
otherwise, to take possession of and endorse and collect any checks,
drafts, notes, acceptances or other instruments for the payment of
moneys due under any Collateral and to file any claim or to take any
other action or proceeding in any court of law or equity or otherwise
deemed appropriate by the Collateral Agent for the purpose of
collecting any and all such moneys due under any Collateral whenever
payable and to file any claim or to take any other action or
proceeding in any court of law or equity or otherwise deemed
appropriate by the Collateral Agent for the purpose of collecting any
and all such moneys due under any Collateral whenever payable;
(ii) to pay or discharge taxes, Liens, security interests or
other encumbrances levied or placed on or threatened against the
Collateral, to effect any insurance called for by the terms of this
Agreement and to pay all or any part of the premiums therefor and the
costs thereof; and
(iii) (A) to direct any party liable for any Collateral
Payment under any of the Collateral to make any and all Collateral
Payments due and to become due thereunder, directly to the Collateral
Agent or as the Collateral Agent shall direct: (B) to receive payment
of and receipt for any and all moneys, claims and other amounts due
and to become due at any time, in respect of or arising out of any
Collateral; (C) to sign and indorse any invoices, freight or express
bills, bills of lading, storage, trust or warehouse receipts, drafts
against debtors, assignments, verifications and notices in connection
with accounts and other documents constituting or relating to the
Collateral; (D) to commence and prosecute any suits, actions or
proceedings at law or in equity in any court of competent jurisdiction
to collect the Collateral or any part thereof and to enforce any other
right in respect of any Collateral; (E) to defend any suit, action or
proceeding brought against the Grantor with respect to any Collateral;
(F) to settle, compromise or adjust any suit, action or proceeding
described above and, in connection therewith, to give such discharges
or releases as the Collateral Agent may deem appropriate; (G) to
license or, to the extent permitted by an applicable license,
sublicense, whether general, special or otherwise, and whether on an
exclusive or non-exclusive basis, any patent or trademark constituting
Collateral, throughout the world for such term or terms, on such
conditions, and in such manner, as the Collateral Agent shall in its
sole discretion determine; and (H) generally to sell, transfer,
pledge, make any agreement with respect to or otherwise deal with any
of the Collateral as fully and completely as though the Collateral
Agent were the absolute owner thereof for all purposes, and to do, at
the Collateral Agent's option and the Grantor's expense, at any time,
or from time to time, all
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acts and things which the Collateral Agent reasonably deems necessary
to protect, preserve or realize upon the Collateral and the Collateral
Agent's and the other Secured Parties' Lien therein, in order to
effect the intent of this Agreement, all as fully and effectively as
the Grantor might do.
(b) The Collateral Agent agrees that, except upon the occurrence and
during the continuance of any Default or Event of Default, it will forbear from
exercising the power of attorney or any rights granted to the Collateral Agent
pursuant to this Section 12. The Grantor hereby ratifies, to the extent
permitted by law, all that any said attorney shall lawfully do or cause to be
done by virtue hereof. The power of attorney granted pursuant to this Section
12, being coupled with an interest, shall be irrevocable until the Secured
Obligations are indefeasibly paid in full.
(c) The powers conferred on the Collateral Agent hereunder are
solely to protect the Collateral Agent's and the other Secured Parties'
interests in the Collateral and shall not impose any duty upon it to exercise
any such powers. The Collateral Agent shall be accountable only for amounts that
it actually receives as a result of the exercise of such powers and neither it
nor any of its officers, directors, employees or agents shall be responsible to
the Grantor for any act or failure to act, except for its own gross negligence
or willful misconduct.
(d) The Grantor also authorizes the Collateral Agent, at any time
and from time to time upon the occurrence and during the continuance of a
Default or Event of Default, (i) to communicate in its own name with any party
to any contract, instrument, agreement or document constituting Collateral with
regard to the assignment of the right, title and interest of the Grantor therein
and thereunder and other matters relating thereto and (ii) to execute, in
connection with the sale provided for in Section 14 hereof, any indorsements.
assignments or other instruments of conveyance or transfer with respect to the
Collateral.
13. Performance by the Collateral Agent of the Grantor's Obligations.
----------------------------------------------------------------
If the Grantor fails to perform or comply with any of its agreements
contained herein and the Collateral Agent, as provided for by the terms of this
Agreement, shall itself perform or comply, or otherwise cause performance or
compliance, with such agreement, the reasonable expenses of the Collateral Agent
incurred in connection with such performance or compliance, together with
interest thereon at the highest rate then in effect in respect of the Loans,
shall be payable by the Grantor to the Collateral Agent on demand and shall
constitute Secured Obligations secured hereby.
14. Remedies; Rights Upon an Event of Default.
-----------------------------------------
(a) If any Event of Default shall occur and be continuing, the
Collateral Agent shall, at the request of the Administrative Agent (acting upon
the direction of the Required Lenders), or may with the consent of the
Administrative Agent (acting upon the direction of the Required Lenders),
exercise in addition to all other rights and remedies granted to it in this
Agreement and in any other instrument or agreement securing, evidencing or
relating to the Secured Obligations,
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all rights and remedies of a secured party under the UCC or as otherwise
provided by applicable law or in equity. Without limiting the generality of the
foregoing, the Grantor expressly agrees that in any such event the Collateral
Agent, without demand of performance or other demand, advertisement or notice of
any kind (except the notice specified below of time and place of public or
private sale) to or upon the Grantor or any other Person (all and each of which
demands, advertisements and/or notices are hereby expressly waived to the
maximum extent permitted by the UCC and other applicable law), may forthwith (i)
enter onto property where any Collateral or books and records relating thereto
are located and take possession thereof with or without judicial process, (ii)
prior to the disposition of any Collateral, prepare such Collateral for
disposition in any manner and to the extent the Administrative Agent or
Collateral Agent deems appropriate, (iii) collect, receive, appropriate and
realize upon the Collateral, or any part thereof, and/or sell, lease, assign,
give an option or options to purchase, or sell or otherwise dispose of and
deliver said Collateral (or contract to do so), or any part thereof, in one or
more parcels at public or private sale or sales, at any exchange or broker's
board or any of the Collateral Agent's offices or elsewhere at such prices as it
may deem best, for cash or on credit or for future delivery without assumption
of any credit risk. The Collateral Agent or any other Secured Party shall have
the right upon any such public sale or sales, and, to the extent permitted by
law, upon any such private sale or sales, to purchase the whole or any part of
said Collateral so sold. Each purchaser at any such sale or other disposition
shall hold the Collateral free from any claim or right of whatever kind,
including, without limitation, any equity or right of redemption of the Grantor,
and the Grantor specifically waives and releases (to the extent permitted by
law) all rights of redemption, stay, or appraisal that it has or may have under
any rule of law or statute now existing or hereafter adopted. The Grantor
further agrees, at the Collateral Agent's request, to assemble the Collateral
and make it available to the Collateral Agent at places which the Collateral
Agent shall reasonably select, whether at the Grantor's premises or elsewhere.
The Collateral Agent shall apply the net proceeds of any such collection,
recovery receipt, appropriation, realization or sale, as provided in Section
14(h) hereof, the Grantor remaining liable for any deficiency remaining unpaid
after such application, and only after so paying over such net proceeds and
after the payment by the Collateral Agent of any other amount required by any
provision of law, including Section 9-504(1 )(c) of the UCC, need the Collateral
Agent account for the surplus, if any, to the Grantor. To the maximum extent
permitted by applicable law, the Grantor waives all claims, damages, and demands
against the Secured Parties arising out of the repossession, retention or sale
of the Collateral. The Grantor agrees that the Collateral Agent need not give
more than ten days' notice of the time and place of any public sale or of the
time after which a private sale may take place and that such notice is
reasonable notification of such matters. The Grantor shall remain liable for any
deficiency if the proceeds of any sale or disposition of the Collateral are
insufficient to pay all amounts to which the Secured Parties are entitled, the
Grantor also being liable for the fees and expenses of any attorneys employed by
the Collateral Agent and the other Secured Parties to collect such deficiency.
Upon the exercise by the Collateral Agent of any remedy hereunder, the Grantor
shall (x) upon request of the Collateral Agent, deliver to the Collateral Agent
all computer software, tapes, records, documents, escrow deposits and other
deposits in its possession or under its control relating to the Collateral, and
(y) cooperate with the Collateral Agent in every respect in effecting such
delivery.
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(b) In furtherance and not in limitation of the rights of the
Collateral Agent set forth in this Section 14, upon the acceleration of the
maturity of the Loans or other Secured Obligations as provided in the Credit
Agreement, at the request and direction of the Administrative Agent, the
Collateral Agent may, in addition to any other rights it may have, do one or
more of the following, subject to the terms of the Servicing Contracts, GNMA
Acknowledgment Agreement (if applicable), GNMA Guide or applicable law (it being
understood that if there is any conflict between any such Servicing Contracts,
GNMA Acknowledgment Agreement (if applicable), GNMA Guide or applicable law and
this Agreement, then the terms of such Servicing Contracts, GNMA Acknowledgment
Agreement (if applicable), GNMA Guide or applicable law shall prevail):
(i) succeed the Grantor as servicer under any or all of the
Servicing Contracts as absolute assignee thereof and not merely as
security;
(ii) appoint a third party as successor servicer under the
Servicing Contracts;
(iii) sell to a third party or itself or otherwise transfer
any of the Grantor's right, title, interest or obligations with
respect to the Servicing Contracts, including without limitation the
right to hold and/or place the escrow deposits associated therewith;
or
(iv) require the Grantor, notwithstanding any action taken
by the Collateral Agent under clause (iii), to remain as servicer
under any Servicing Contract for a reasonable period of time, such
period not to exceed 180 days.
Notwithstanding anything herein to the contrary, the Collateral Agent shall have
no obligations as servicer under any Servicing Contracts unless and until the
Collateral Agent has succeeded the Grantor as servicer of such Mortgage Loans
pursuant to this subsection (b).
(c) The Collateral Agent's rights under clauses (i), (ii) and (iii)
of subsection (b) above shall respectively include, without limitation, the
right to succeed the Grantor as servicer, appoint a successor servicer or
transfer any or all of its rights with respect to the Servicing Rights and/or
the Servicing Contracts if the Grantor, or any successor to the Grantor in
bankruptcy or similar proceedings, rejects any Servicing Contracts. As successor
servicer under such clause (i), the Collateral Agent shall notify all interested
Persons thereof and take such further action as it shall deem necessary or
appropriate. Upon the Collateral Agent's (x) succeeding the Grantor as servicer
under such clause (i), (y) appointing a third party as a successor servicer
under any Servicing Contract under such clause (ii), or (z) transferring any of
the Grantor's right, title, interest and obligations under such clause (iii),
the Grantor shall have no further rights under or with respect to the Servicing
Rights (or to such rights, title, interest or obligations in the case of a
transfer under clause (iii)), to any other documents pertaining thereto or to
the related escrow deposits.
(d) Upon the exercise by the Collateral Agent of any remedy set
forth in subsection (b) or (c) above, the Grantor shall:
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(i) upon request of the Collateral Agent, deliver to the
Collateral Agent or its designee all computer software, tapes,
records, documents, escrow deposits and other deposits in its
possession or under its control relating to the Collateral, and
(ii) cooperate with the Collateral Agent in every reasonable
respect in effecting the succession of a successor servicer.
(e) If the Collateral Agent or any appointee of the Collateral Agent
succeeds the Grantor as successor servicer under any Servicing Contract, the
Collateral Agent or such appointee, as the case may be, shall only assume those
obligations that a successor servicer under such Servicing Contract is obligated
to assume; PROVIDED that neither the Collateral Agent or its appointee nor any
other Secured Party shall be liable for any failure of the Grantor to perform
its obligations under any Servicing Contract or for any other breach thereof.
Nothing herein contained shall be construed as an assumption by the Collateral
Agent or its appointee or any other Secured Party of any liability of the
Grantor with respect to any of the Collateral, and the Grantor shall be and
remain responsible for all such liabilities.
(f) The Grantor also agrees to pay all reasonable costs and expenses
of the Collateral Agent and each of the other Secured Parties, including,
without limitation, attorneys' fees, incurred in connection with the enforcement
of any of their rights and remedies hereunder.
(g) The Grantor hereby waives presentment, demand, protest or any
notice (to the maximum extent permitted by applicable law) of any kind in
connection with this Agreement or any Collateral.
(h) The Proceeds of any sale, disposition or other realization upon
all or any part of the Collateral shall be distributed by the Collateral Agent
in the following order of priorities:
First, to the payment of the costs and expenses of such
sale, disposition or other realization, including, without limitation,
all expenses of the Collateral Agent and its agents including the fees
and expenses of its counsel, and all expenses, liabilities and
advances made or incurred by the Collateral Agent and the other
Secured Parties in connection therewith or pursuant to Section 5
hereof;
Next, to the Administrative Agent, for distribution by it in
accordance with the terms of the Holdings Guarantee; and
Finally, after payment in full of all the Secured
Obligations, to the payment to the Grantor, or its successors or
assigns, or to whomsoever may be lawfully entitled to receive the same
as a court of competent jurisdiction may direct.
15. Limitation on the Secured Parties' Duty in Respect of Collateral.
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No Secured Party shall have any duty as to any Collateral in its
possession or control or in the possession or control of any agent or nominee of
it or any income thereon or as to the preservation of rights against prior
parties or any other rights pertaining thereto, except that each Secured Party
shall use reasonable care with respect to the Collateral in its possession or
under its control. Upon request of the Grantor, the Collateral Agent shall
account for any moneys received by it in respect of any foreclosure on or
disposition of the Collateral.
16. Rights with Respect to GNMA.
---------------------------
Notwithstanding anything contained herein or in any of the other Loan
Documents to the contrary, the Collateral Agent, by executing this Agreement,
and each of the other Secured Parties, by executing the Credit Agreement,
acknowledge that (a) the Grantor is entitled to servicing income with respect to
any GNMA pool of Mortgage Loans only so long as the Grantor is a GNMA
Issuer/Servicer in good standing; (b) upon the Grantor's loss of such good
standing status, the Secured Parties' rights to any such servicing income also
terminate; and (c) the pledge of rights to servicing income with respect to any
GNMA pool of Mortgage Loans hereunder conveys no rights (such as the right to
become a substitute servicer or issuer) that are not otherwise specifically
provided for in the applicable GNMA Guide.
17. Notices.
-------
All notices and other communications provided for hereunder shall be
in writing (including telegraphic, telex, telecopy, or cable communication) and
mailed, telegraphed, telexed, telecopied, cabled or delivered by hand, addressed
to any party hereto as set forth on the signature page hereto, or, as to each
party, at such other address as shall be designated by such party in a written
notice to each other party complying as to delivery with the terms of this
Section. All such notices and other communications shall, when mailed,
telegraphed, telexed, telecopied, cabled or delivered, be effective when
deposited in the mails, delivered to the telegraph company, confirmed by telex
answerback, telecopied with confirmation of receipt, delivered to the cable
company, or delivered by hand to the addressee or its agent, respectively.
18. Amendments. Etc.
---------------
No amendment or waiver of any provision of this Agreement nor consent
to any departure by the Grantor therefrom shall in any event be effective unless
the same shall be in writing, signed by the Grantor, the Administrative Agent
(upon the direction of the Required Lenders or all of the Lenders, as required
by the Credit Agreement) and the Collateral Agent, and then any such waiver or
consent shall only be effective in the specific instance and for the specific
purpose for which given.
19. No Waiver; Remedies.
-------------------
(a) No failure on the part of any Secured Party to exercise, and no
delay in exercising, any right hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any right hereunder preclude any other
or further exercise thereof or the exercise of
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any other right. The remedies herein provided are cumulative, may be exercised
singly or concurrently, and are not exclusive of any remedies provided by law or
any of the other Loan Documents.
(b) Failure by any of the Secured Parties at any time or times
hereafter to require strict performance by the Grantor or any other Person of
any of the provisions, warranties, terms or conditions contained in any of the
Loan Documents now or at any time or times hereafter executed by the Grantor or
any such other Person and delivered to any of the Secured Parties shall not
waive, affect or diminish any right of any of the Secured Parties at any time or
times hereafter to demand strict performance thereof, and such right shall not
be deemed to have been modified or waived by any course of conduct or knowledge
of any of the Secured Parties, or any agent, officer or employee of any Secured
Party.
20. Successors and Assigns.
----------------------
This Agreement and all obligations of the Grantor hereunder shall be
binding upon the successors and assigns of the Grantor, and shall, together with
the rights and remedies of the Collateral Agent hereunder, inure to the benefit
of the Collateral Agent, each of the other Secured Parties, and their respective
successors and assigns. Notwithstanding the foregoing, the Grantor may not
assign or transfer any of its rights or obligations under this Agreement without
the prior written consent of each Lender, the Administrative Agent and the
Collateral Agent.
21. Governing Law.
-------------
THIS AGREEMENT SHALL BE GOVERNED BY, AND BE CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
22. Entire Agreement: Severability.
------------------------------
This Agreement and the other Loan Documents constitute the entire
agreement and understanding between the parties hereto and supersede any and all
prior or contemporaneous agreements and understandings of such Persons, oral or
written, relating to the subject matter hereof and thereof. In addition, there
are no promises, undertakings, representations or warranties by the Collateral
Agent or any other Secured Party relating to the subject matter hereof not
expressly set forth or referred to herein or in the other Loan Documents. All
waivers by the Grantor provided for in this Agreement have been specifically
negotiated by the parties with full cognizance and understanding of their
respective rights. If any of the provisions of this Agreement shall be held
invalid or unenforceable, this Agreement shall be construed as if not containing
such provisions, and the rights and obligations of the parties hereto shall be
construed and enforced accordingly.
23. Waiver of Jury Trial.
--------------------
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EACH OF THE GRANTOR, THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT
WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO
ENFORCE OR DEFEND ANY RIGHTS OR REMEDIES HEREUNDER, UNDER THE CREDIT AGREEMENT
OR UNDER ANY OF THE OTHER LOAN DOCUMENTS OR ANY OTHER DOCUMENT RELATING TO ANY
OF THE FOREGOING.
24. Further Indemnification.
-----------------------
The Grantor agrees to pay, and to save the Collateral Agent and each
other Secured Party harmless from, any and all liabilities with respect to, or
resulting from any delay in paying, any and all excise, sales or other similar
taxes which may be payable or determined to be payable with respect to any of
the Collateral or in connection with any of the transactions contemplated by
this Agreement.
25. Release and Reinstatement.
-------------------------
(a) In the event a Positive Security Event shall occur or a Positive
Security Period shall be in effect, upon the written request of the Grantor and
subject to the conditions precedent set forth below, the Collateral Agent shall
release the Collateral from the Lien in favor of the Collateral Agent for the
benefit of the Secured Parties hereunder and, as evidence of such release of
Lien, shall execute and deliver to the Grantor (i) a confirmation of such
release in the form of that attached hereto as ATTACHMENT 1, and (ii) such UCC
termination statements as are necessary to terminate all existing UCC-1
financing statements covering the Collateral filed by the Collateral Agent on
behalf of the Secured Parties, it being expressly acknowledged and agreed by the
Collateral Agent, the Agent and the Grantor that upon the occurrence of a
Positive Security Event the Secured Obligations are intended to be and become
unsecured obligations. As conditions precedent to the release of Lien
contemplated hereby:
(i) Immediately prior to and immediately following the
release of Lien contemplated hereby, there shall not exist any Default
or Event of Default;
(ii) Immediately prior to and immediately following the
release of Lien contemplated hereby, there shall not exist a Negative
Security Event; and
(iii) The Grantor shall have executed and conditionally
delivered to the Collateral Agent new UCC-1 financing statements in
form and substance acceptable to the Collateral Agent accompanied by
the Grantor's irrevocable written authorization for the Collateral
Agent to file such UCC-I financing statements upon the occurrence of a
Negative Security Event.
(b) If following the Closing Date or the release of the Lien
contemplated by subparagraph (a) above there shall occur a Negative Security
Event:
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(i) The Grantor shall automatically be deemed to assign,
convey, mortgage, pledge, hypothecate and transfer to the Collateral
Agent, on behalf and for the ratable benefit of the Secured Parties,
and automatically be deemed to grant to the Collateral Agent, on
behalf and for the ratable benefit of the Secured Parties, a security
interest in, and effective upon the occurrence of such Negative
Security Event hereby does so assign, convey, mortgage, pledge,
hypothecate and transfer to the Collateral Agent, for the ratable
benefit of the Secured Parties, and hereby does so grant a security
interest in, the Collateral, including, without limitation, all
Collateral then in the possession of the Collateral Agent, as
collateral security for the Secured Obligations;
(ii) The Collateral Agent shall no later than five Business
Days following receipt of notification from the Administrative Agent
of such Negative Security Event record the UCC-1 financing statements
previously delivered to it pursuant to subparagraph (a)(iii) above;
and
(iii) The Grantor shall take such other actions and execute
and deliver such additional documents, instruments and agreements as
the Administrative Agent, the Collateral Agent and the Required
Lenders shall reasonably request to obtain for the Secured Parties the
benefit of the Collateral.
(c) The reinstatement of the Lien of the Collateral Agent for the
benefit of the Secured Parties on the Collateral following a Negative Security
Event shall in no manner affect the rights, powers and remedies of the
Collateral Agent or the other Secured Parties otherwise available under the Loan
Documents, including, without limitation, the right to accelerate the Secured
Obligations and to refuse to make further Loans under the Credit Agreement in
the event there exists a Default or an Event of Default.
26. Survival of Representations.
---------------------------
All covenants, agreements, representations and warranties made herein
shall survive the making by the Lenders of the Loans and the execution and
delivery to the Administrative Agent for the account of the Lenders of the Notes
regardless of any investigation made by the Collateral Agent or any of the other
Secured Parties and of the Collateral Agent's and the other Secured Parties'
access to any information and shall continue in full force and effect so long as
any Secured Obligation is unpaid or unperformed.
27. Section Titles.
--------------
The Section titles contained in this Agreement are and shall be
without substantive meaning or content of any kind whatsoever and are not a part
of this Agreement.
28. Execution in Counterparts.
-------------------------
23
23
This Agreement may be executed in counterparts, each of which when so
executed shall be deemed to be an original and all of which when taken together
shall constitute one and the same agreement.
24
24
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed and delivered by its duly authorized officer on the
date first above written.
HOMESIDE HOLDINGS, INC.
By:_____________________________
Name:
Title:
0000 Xxx Xxxxxxx Xxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxx X. Xxxxxxx
Telecopy: 000-000-0000
THE CHASE MANHATTAN BANK,
as Administrative Agent
By:_____________________________
Name:
Title:
[ADDRESS]
THE FIRST NATIONAL BANK
OF BOSTON, as Collateral Agent
By:_____________________________
Name:
Title:
000 Xxxxxxx Xxxxxx
Mail Stop: 01-1B-06
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxx
Fax: 000-000-0000
25
25
SCHEDULE I TO SECURITY AND COLLATERAL AGENCY AGREEMENT
LOCATION OF RECORDS AND CERTAIN COLLATERAL
------------------------------------------
Principal Place of Business:
0000 Xxx Xxxxxxx Xxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Location of Records:
0000 Xxx Xxxxxxx Xxx
Xxxxxxxxxxxx, Xxxxxxx 00000
509265\0409\01228\971931XK.AGR
26
26
ATTACHMENT 1
------------
TO SECURITY AGREEMENT
---------------------
CONFIRMATION OF RELEASE OF LIEN
The undersigned, HOMESIDE HOLDINGS, INC. (the "Grantor"), pursuant to
Section 25 of that certain Amended and Restated Security and Collateral Agency
Agreement dated as of January 31, 1997 by and among the Grantor, THE FIRST
NATIONAL BANK OF BOSTON, as Collateral Agent, and THE CHASE MANHATTAN BANK, as
Administrative Agent (the "Security Agreement," and with capitalized terms not
otherwise defined herein used with the meanings given such terms in the Security
Agreement), hereby requests the Collateral Agent to execute and deliver to the
Grantor this Confirmation of Release of Lien. To induce the Collateral Agent to
so execute and deliver this Confirmation of Release of Lien, the Grantor hereby
represents and warrants to each of the Secured Parties that all conditions
precedent to the release of Lien set forth in Section 25(a) of the Security
Agreement have been and following the execution by the Collateral Agent of this
Confirmation of Release of Lien will be satisfied.
DATED: _________________, 199_.
HOMESIDE HOLDINGS, INC.
By:________________________
Name:______________________
Title:_____________________
RELEASE OF LIEN CONFIRMED
this __ day of _________, 199_:
THE FIRST NATIONAL BANK OF BOSTON,
as Collateral Agent
By:______________________________
Name:____________________________
Title:___________________________
