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Exhibit 10.70
SECOND AMENDED AND RESTATED RENEWAL PROMISSORY NOTE
$2,500,000,000 June 21, 2000
San Antonio, Texas
This Second Amended and Restated Renewal Promissory Note renews that
certain Amended and Restated Promissory Note dated as of June 22, 1999 in the
original principal amount of $2,500,000,000 by HomeSide Lending, Inc., as maker,
in favor of National Australia Bank Limited, as payee, the original of which is
affixed hereto.
FOR VALUE RECEIVED, HOMESIDE LENDING, INC., a Florida corporation (the
"BORROWER"), hereby unconditionally promises to pay to the order NATIONAL
AUSTRALIA BANK LIMITED A.C.N.004044937 (the "LENDER") on June 20, 2001 (the
"MATURITY DATE") at the office of the Lender at 200 Park Avenue, 34th Floor, New
York, New York 10166 in lawful money of the United States of America and in
immediately available funds, the lesser of (a) TWO BILLION FIVE HUNDRED MILLION
DOLLARS ($2,500,000,000) or (b) the aggregate unpaid principal amount of the
Loans made by the Lender pursuant to that certain Unsecured Revolving Credit
Agreement, dated as of June 23, 1998, as amended by that certain First Amendment
to Unsecured Revolving Credit Agreement, dated as of June 22, 1999, as further
amended by that certain Second Amendment to Unsecured Revolving Credit
Agreement, dated as of June 21, 2000 (as amended, the "CREDIT AGREEMENT"), among
the Borrower and the Lender. All capitalized terms used herein and not otherwise
defined herein shall have the meanings assigned thereto in the Credit Agreement,
as amended.
The Borrower promises to pay interest to the Lender on the unpaid principal
amount hereof (whether at the stated maturity, by acceleration or otherwise, and
including, without limitation, after the filing of any petition in bankruptcy or
the commencement of any insolvency, reorganization or like proceedings, relating
to the Borrower whether or not a claim for post-filing or post-petition interest
is allowed in such proceeding) on the last Business Day of each Interest Period
(as defined below) and on the Maturity Date.
Interest shall accrue on the outstanding principal balance of this Note
from the date of each advance hereunder at such rate as may be elected by
Borrower in accordance with the terms hereof.
For Libor-based borrowings, the Borrower may elect to pay interest on all
or a portion of the outstanding principal hereunder for periods of 7, 30, 60 or
90 days (each an "Interest Period") at the Libor Rate (as defined below). The
Borrower may make such election by delivering written notice thereof to the
Lender at least two business days before the commencement of the Interest Period
for each Libor-based borrowing. The notice shall state: (i) the date upon which
the Interest
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Period shall commence (which must be a Business Day); (ii) whether such Interest
Period shall be for 7, 30, 60 or 90 days; (iii) whether the Borrower wishes for
interest to accrue at the Libor Rate during the term of the Interest Period; and
(iv) the aggregate principal amount which shall bear interest at the Libor Rate
(which amount is referred to herein as the "Libor Amount"). If the Borrower duly
elects for interest to accrue hereunder at the Libor Rate, then interest shall
accrue at the Libor Rate on the applicable Libor Amount during the applicable
Interest Period. Any election hereunder shall be irrevocable during the term of
the Interest Period, and no Interest Period elected hereunder shall extend
beyond the Maturity Date.
As used herein, the Libor Rate applicable to any Interest Period shall be
the offered rate for deposits in United States dollars in the London Interbank
market for a period of 7, 30, 60, or 90 days (as applicable) which appears on
the Reuters Screen LIBO Page as of 11:00 a.m. (Eastern time) on the first
Business Day of the applicable Interest Period. If at least two such offered
rates appear on the Reuters Screen LIBO Page, the rate will be the arithmetic
mean of such offered rates.
In addition, the Borrower may borrow hereunder on an overnight basis (each
such advance, an "Overnight Borrowing") by delivering notice thereof to the
Lender before 3:00 p.m. on any Business Day (the "Overnight Borrowing Notice").
The Overnight Borrowing Notice shall be by telephone to the Lender's New York
money desk, with written confirmation by facsimile by the end of the same
Business Day. Overnight Borrowings shall bear interest at a rate (the "Overnight
Rate") as determined by Lender and Borrower at the time of the Overnight
Borrowing Notice. The written confirmation of the Overnight Borrowing Notice
shall state: (i) the date of the Overnight Borrowing (which must be a Business
Day); (ii) the Overnight Rate; and (iii) the aggregate principal amount of the
Overnight Borrowing.
Any principal, interest or any other amount hereunder which is not paid
when due (whether as stated, by acceleration or otherwise) shall, to the extent
permitted by law, thereafter bear interest at the rate per annum 2% above the
rate described above, payable on demand. Interest shall be calculated on the
basis of a year of 360 days for actual days elapsed. All payments to be made
hereunder shall be made free and clear of any deduction for any present or
future taxes or similar charges imposed by any jurisdiction in connection with
this Note.
The holder of this Note is authorized to endorse the date and principal
amount of each Loan made by the Lender pursuant to the Credit Agreement, the
date and amount of each payment or prepayment hereof, on SCHEDULE A annexed
hereto and made a part hereof, or on a continuation thereof which shall be
attached hereto and made a part hereof, which endorsement shall constitute PRIMA
FACIE evidence of the accuracy of the information endorsed, PROVIDED, that the
failure to make any such endorsement shall not affect the obligations of the
Borrower under this Note.
This Note is the Note referred to in the Credit Agreement and is entitled
to the benefits thereof. Upon the occurrence of any one or more of the Events of
Default specified in the Credit Agreement, all amounts then remaining unpaid on
this Note shall become, or may be declared to be immediately due and payable,
all as provided therein. All parties now and hereafter liable
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with respect to this Note, whether as market, principal, surety, guarantor,
endorser or otherwise, hereby waive presentment, demand, protest and all other
notices of any kind.
This Note shall be governed by, and construed and interpreted in accordance
with, the law of the State of New York.
HOMESIDE LENDING, INC.
By: /s/ John P. Deptula
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As Its: Senior Vice President
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SCHEDULE A TO NOTE
LOANS AND PAYMENTS OF PRINCIPAL
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PRINCIPAL AMOUNT OF UNPAID PRINCIPAL NOTATIONS MADE
DATE AMOUNT OF LOANS PRINCIPAL PAID BALANCE BY
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