EXHIBIT 10.12
EXECUTION COPY
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REVOLVING COMMERCIAL LOAN WAREHOUSE AND SECURITY AGREEMENT
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REVOLVING COMMERCIAL LOAN WAREHOUSE AND SECURITY AGREEMENT, dated as
of December 4, 1998 (as amended or otherwise modified from time to time, this
"Agreement") among PRUDENTIAL SECURITIES CREDIT CORPORATION, a Delaware
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corporation, having an office at Xxx Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
(the "Lender"), and FIRST NATIONAL BANK OF NEW ENGLAND, a national bank, having
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its principal office at 000 Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000 (the
"Borrower"), and its parent, FIRST INTERNATIONAL BANCORP, INC., a Delaware
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corporation, having its principal office at 000 Xxxxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxxx 00000 (the "Guarantor").
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WHEREAS, the Lender intends to lend and the Borrower intends to borrow
up to a maximum of $75,000,000 to fund the origination of Commercial Loans (as
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defined herein); and
WHEREAS, the Lender's Affiliate, Prudential Securities Incorporated
("PSI"), will have the right of first refusal, but not the obligation, to act as
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the sole manager (such role as sole manager, the "Manager Role") on any
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securities issuances ("Securitizations") sponsored by the Borrower or one of its
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Affiliates relating to up to $250,000,000 of the Commercial Loans, on the terms
and under the conditions set forth in the Engagement Letter, dated as of
December 4, 1998, among PSI, the Borrower and the Guarantor (the "Engagement
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Letter"). Such Securitizations shall be structured in a manner as shall be
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consented to by PSI.
NOW, THEREFORE, in consideration of the promises and for other good
and valuable consideration, the parties hereto hereby agree as follows:
Section 1. The Loan. (a) Subject to the terms of this Agreement:
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1. The Lender agrees to lend to the Borrower up to $75,000,000, (such
borrowing, the "Loan") to be made in one or more advances (each, an "Advance").
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The Borrower agrees that the Loan shall be used to finance fixed or adjustable
rate Commercial Loans underwritten pursuant to Borrower's underwriting
guidelines that are to be included in a Securitization, as such Commercial Loans
are identified to the Lender in writing and in electronic form from time to
time. All Commercial Loans financed hereunder shall be closed loans; i.e., this
facility shall not be used for "wet" or "table" fundings. The Lender may refuse
to lend against any Commercial Loan(s) which the Lender reasonably believes will
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not be eligible for inclusion in a securitized pool either (x) due to the
characteristics of such Commercial Loan or (y) due to the expected aggregate
characteristics of the Commercial Loans.
2. Each Advance shall be made on a date up to one week prior to
the Maturity Date referred to below (each such date, a "Funding Date"); provided
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that:
(i) (a) the conditions precedent to the making of the Advances set
forth in Sections 1(a)4 and 1(a)5 hereof shall be satisfied and (b) the Lender
shall have received officers' certificates, dated the date of such Advance and
signed by a duly authorized officer of the Borrower and the Guarantor,
certifying that (x) the representations and warranties of the Borrower and the
Guarantor, as applicable, in Section 4 hereof shall be true and correct on and
as of such Funding Date as if made on and as of such date, and (y) no Event of
Default shall have occurred and be continuing or would exist after the making of
the Advance on such Funding Date;
(ii) the Lender shall have received (A) in connection with each
Advance, a receipt from the Custodian (as defined below) to the effect that it
has received the original notes relating to the Commercial Loans that are being
pledged in connection with the Advance being made on such Funding Date; and (B)
prior to the initial Advance: (1) a legal opinion from counsel to the Borrower
and the Guarantor, in the form of Exhibit B attached hereto; (2) the Secured
Note (as defined herein) executed by the Borrower (3) the Custody Agreement (as
defined herein) executed by the Borrower and the Custodian; (4) the Guarantee,
in the form of Exhibit E hereto, executed by the Guarantor, (5) a receipt from
the Custodian to the effect that it has received the assignment of Collateral
and power of attorney referred to in Sections 2(f) and (g) of the Custody
Agreement (as defined below), and (6) the payment of a one time commitment fee
in the amount of $600,000 by the Borrower to the Lender;
(iii) the Lender has satisfactorily completed its due diligence
investigation of the Commercial Loans being pledged on such Funding Date;
(iv) if any Commercial Loan to be pledged to the Lender pursuant to
an Advance shall have an outstanding principal balance greater than or equal to
$1,000,000, the Borrower shall have delivered to the Lender, at least three
Business Days prior to the related Funding Date, a credit memorandum, in form
and substance satisfactory to the Lender, containing, among other things, an
environmental report for any real estate pledged as collateral for such
Commercial Loan.
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(v) the Borrower shall have delivered to the Lender and the
Custodian the Commercial Loan Schedule with respect to the Commercial Loans that
are being pledged on such Funding Date; and
(vi) no other Advance shall have been made in the same calendar week
as such Funding Date.
3. The Loan shall accrue interest daily on its outstanding
principal amount, with interest calculated on the basis of actual days elapsed
and a 360-day year. The daily interest rate on the outstanding principal amount
of the Loan shall be LIBOR plus 1.20% and shall be reset on each Business Day.
Interest which accrues during each calendar month shall be payable on the first
Business Day of the following month, with any outstanding interest due and
payable in its entirety on the date of termination of this Agreement (including
the Maturity Date).
"LIBOR" means the London interbank offered rate for one-month U.S.
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dollar deposits on the basis of the offered rates of the Reference Banks for
one-month U.S. Dollar Deposits, as such rates appear on Telerate Page 3750, as
of 11:00 a.m. (New York Time) reset daily, as determined by Lender in its sole
discretion.
Any amounts pre-paid or required to be repaid under this Agreement
prior to the Maturity Date may be re-borrowed, subject to the terms and
conditions of this Agreement, until the Maturity Date.
4. Not later than 4:00 p.m. New York time three Business Days
prior to the proposed Funding Date for an Advance, the Borrower shall deliver to
the Lender (i) a written notice in the form of Exhibit D hereto (the "Funding
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Notice") and (ii) an electronic disk or tape, in a mutually satisfactory form to
be agreed upon by the Lender and the Borrower, detailing certain specified
characteristics of the Commercial Loans previously pledged and those Commercial
Loans proposed to be pledged in connection with such Advance (each such
schedule, a "Commercial Loan Schedule").
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5. The Borrower shall reimburse the Lender for any of the Lender's
out-of-pocket costs and attorneys' fees and expenses incurred by the Lender in
connection with this Agreement, such costs not to exceed $35,000 (plus related
attorneys' disbursements) up to the date hereof. In addition, the Borrower
shall reimburse the Lender for any of the Lender's out-of-pocket costs and
expenses incurred in connection with its due diligence review, such costs not to
exceed $20,000 in the aggregate up to and including the Maturity Date.
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(b) The amount of each Advance shall not exceed the lesser of (i)
85.0% of the aggregate outstanding principal balance of the Commercial Loans
proposed to be pledged to the Lender in connection with such Advance as of the
related Cut-Off Date, minus in the event that a Collateral Deficiency Situation
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exists as of the date of such Advance, the Restoration Amount as of the date of
such Advance and (ii) the product of (x) the Market Value of the Commercial
Loans proposed to be pledged in connection with such Advance and (y) 0.85 (such
product, the "Borrowing Base"), minus (z) in the event that a Collateral
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Deficiency Situation exists as of the date of such Advance, the Restoration
Amount as of the date of such Advance.
For purposes of this Agreement:
Affiliate means, as to any Person, any other Person controlling,
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controlled by or under common control with such Person. "Control" means the
power to direct the management and policies of a Person, directly or indirectly,
whether through ownership of voting securities, by contract or otherwise.
"Controlled" and "Controlling" have meanings correlative to the foregoing.
Business Day means any day other than (i) a Saturday or Sunday or (ii)
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a day on which banking institutions in New York City or London are authorized or
obligated to be closed.
Collateral Deficiency Situation shall be deemed to be existing as of
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any day on which (i) the outstanding principal amount of the Loan as of such day
(including accrued interest but excluding the amount of any Advance to be made
on such day) exceeds (ii) the lesser of (a) the Borrowing Base of the Commercial
Loans then pledged to the Lender (disregarding the Commercial Loans, if any,
proposed to be pledged to the Lender on such day) and (b) the Market Value of
the Commercial Loans theretofore pledged to the Lender (disregarding the
Commercial Loans, if any, proposed to be pledged to the Lender on such day).
Commercial Loan has the meaning set forth in Section 2.
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Commercial Loan Schedule means each schedule of Commercial Loans
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listing the Commercial Loans which have been or are to be pledged by the
Borrower in connection with (x) each Advance or (y) a Collateral Deficiency,
such schedule identifying each Commercial Loan by address of and the name of the
underlying obligor and setting forth as to each Commercial Loan at least the
following information: (i)the address and name of the underlying obligor, (ii)
the original principal amount, (iii) the Cut-Off Date, (iv) the principal
outstanding as of the related Cut-Off
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Date, (v) the account number, (vi) the amount of any change in the outstanding
principal balance of each Commercial Loan since the date of the last delivered
Commercial Loan Schedule, (vii)the paid-through date, (viii) a description of
the related collateral, (ix) if the primary collateral includes real estate, the
related loan-to-value ratio of such property, (x) the interest rate, (xi)
whether such Commercial Loan bears a fixed or floating rate of interest, (xii)
the original term, (xiii) the remaining term (xiv) the loan type and (xv) any
other information that Lender may reasonably request.
Cut-Off Date means, as of any date, the close of business on the date
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set forth in the related Commercial Loan Schedule. In no event shall the Cut-Off
Date precede by more than two weeks the date on which the related Commercial
Loan Schedule is delivered.
GAAP means generally accepted accounting principals applied on a
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consistent basis.
Loan Documents means this Agreement, as it may be renewed, extended or
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continued from time to time the Secured Note, the Custody Agreement, the
Guaranty, and any other document, instrument or agreement executed by the
Borrower, the Guarantor or the Custodian in connection herewith or therewith, as
any of the same may be amended, extended or replaced from time to time.
Reference to any specific Loan Document in this Agreement or any other Loan
Document shall be deemed to include any amendment, extension or replacement
thereof.
Market Value means, as of any date and with respect to any Commercial
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Loan, the servicing-released fair market value of such Commercial Loan as of
such date as determined by the Lender (or an Affiliate thereof) in its sole
discretion.
Person means any individual, corporation, partnership, joint venture,
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association, limited liability company, joint-stock company, trust (including
any beneficiary thereof), unincorporated organization or government or any
agency or political subdivision thereof.
Pledged Commercial Loan means, as of any date of determination, any
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Commercial Loan for which the related note is then held by the Custodian as
bailee for the Lender for purposes of perfecting the Lender's security interest.
Reference Banks means leading banks selected by the Lender and engaged
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in transactions in Eurodollar deposits in the international Eurocurrency market
(i) with an established
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place of business in London, (ii) whose quotations appear on Telerate Page 3750
on the Funding Date in question, (iii) which have been designated as such by the
Custodian and (iv) not controlling, controlled by, or be under common control
with, the Borrower.
Restoration Amount means, as of any date of determination, the amount,
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if any, by which (i) the outstanding principal amount of the Loan as of such
date (including accrued interest, but excluding the amount of any Advance to be
made on such date) exceeds (ii) the lesser of (a) the Borrowing Base of the
Commercial Loans theretofore pledged to the Lender (disregarding any Commercial
Loans proposed to be pledged to the Lender on such date) and (b) the Market
Value of the Commercial Loans theretofore pledged to the Lender (disregarding
any Commercial Loans proposed to be pledged to the Lender on such date).
(c) The Loan shall mature on December 3, 1999, as such date may be
extended by means of a Credit Increase Confirmation and Note Amendment (the
"Maturity Date"), pursuant to the terms of Section 1(f) below.
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(d) The Loan is pre-payable at any time without premium or penalty
(except as otherwise provided herein), in whole or in part; provided, that
Pledged Commercial Loans may not be removed from this facility (including in
connection with any prepayment of the Loan in part) with the result that, in the
Lender's sole reasonable determination, the remaining Pledged Commercial Loans
are, in the aggregate, materially inferior as Collateral (as defined in section
3(b) below) as compared to the pool of Pledged Commercial Loans immediately
prior to such removal. In addition, no Pledged Commercial Loans may be removed
from this facility with the result that a Collateral Deficiency Situation would
then exist. Notwithstanding the foregoing, however, a Pledged Commercial Loan
may in any event be removed from this facility if (i) such Pledged Commercial
Loan has been paid in full by the obligor, (ii) such Pledged Commercial Loan
breaches one or more of the representations and warranties listed in Section
4(b) below, (iii) the Lender has advised the Borrower that the Lender believes
that any such Pledged Commercial Loan is unacceptable for inclusion in a
Securitization or (iv) such Pledged Commercial Loan is to be included in a
Securitization for which PSI is acting in the Manager Role or which PSI has been
offered but has not elected to accept the Manager Role in accordance with the
terms of the Engagement Letter. If the Borrower intends to prepay the Loan in
whole or in substantial part from a source other than the proceeds of a
Securitization, the Borrower shall give two Business Days' written notice to the
Lender.
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(e) If the Loan is not repaid in whole on or prior to the Maturity
Date, the Loan, if continued by the Lender as provided in paragraph (f) below,
shall, commencing on the Maturity Date, bear interest at a rate per annum equal
to LIBOR plus 5.00% until repaid.
(f) In the event the Loan is not repaid in whole on or prior to the
Maturity Date, the Lender shall have the option, in its sole discretion, to
continue the Loan on the Maturity Date through the last day of the month
following the Maturity Date and, thereafter, on a month-to-month basis through
the last day of each succeeding month. If the Lender elects to continue the
Loan as aforesaid, it shall deliver notice of such election to the Borrower by
means of a Credit Increase Confirmation and Note Amendment in the form of
Exhibit C no later than 3:00 p.m. on the Business Day preceding the then
scheduled date of maturity of the Loan (any such preceding date, an "Election
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Date"). If no such notice is delivered, the Loan shall immediately and
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automatically become due and payable without any further action by the Lender on
the day following such Election Date, and in such event the Lender may exercise
all rights and remedies available to it as the holder of a first perfected
security interest under the Uniform Commercial Code of the State of New York
(the "New York UCC").
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(g) The Loan shall be evidenced by the secured promissory note of the
Borrower in the form attached hereto as Exhibit A (the "Secured Note").
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(h) If any Pledged Commercial Loan is removed from the facility
provided hereby except (i) in connection with a Securitization for which PSI is
acting in the Manager Role or for which PSI has been offered, but has not
elected to accept, the Manager Role in accordance with the terms of the
Engagement Letter, (ii) in connection with such Commercial Loan being paid in
full (iii) for the purpose of curing a breach of a representation and warranty,
(iv) if the Lender has advised the Borrower that the Lender believes that any
such Pledged Commercial Loan is unacceptable for inclusion in a Securitization,
or (v) if the Lender does not continue the Maturity Date until the earlier to
occur of (x) December 3, 2000 or (y) the Termination Date (as such term is
defined and set forth in the Engagement Letter), then an amount equal to 1.0% of
the average outstanding principal balance of such Commercial Loan during the
time it was a Pledged Commercial Loan shall be paid by Borrower to the Lender on
the date such Commercial Loan is removed from this facility.
Section 2. Purpose of Loan. The Borrower agrees that the Loan shall
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be used to finance the following types of
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commercial loans: equipment loans, working capital term loans and loans secured
by mortgages on commercial real estate (such loans being the "Commercial
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Loans"). Unless removed as permitted hereunder, Commercial Loans shall be sold
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to a trust or other vehicle acceptable to Lender to be established in a
Securitization, and shall be pledged to secure the Loan as such Commercial Loans
are identified to the Lender and the Custodian in writing and in electronic form
from time to time. Each of the Commercial Loans shall be loans made to small
business concerns either (a) originated by the Borrower pursuant to its
published underwriting criteria existing at the time the Commercial Loans were
originated if such Commercial Loans were originated prior to the date hereof and
if such criteria was different than the criteria heretofore supplied to the
Lender, (b) originated by the Borrower pursuant to its published underwriting
criteria heretofore supplied to the Lender (or if such criteria have been
changed, the terms of such new underwriting criteria shall have been supplied to
Lender and are acceptable to Lender) or (c) originated by third parties and re-
underwritten by the Borrower on terms consistent with its published underwriting
criteria (or pursuant to underwriting criteria presented to and acceptable to
Lender); provided, however, that the Lender shall have the right to conduct such
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review of any such Commercial Loans as the Lender may, in its sole discretion,
decide to conduct. The Lender may decline to include in the facility any
Commercial Loan.
Section 3. Custody of Original Notes and Loan Documents. (a) Prior
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to the time that the Borrower requests any Advance by the Lender with respect to
any Commercial Loan, the Borrower shall cause to be delivered to the Custodian,
at the offices of the Custodian located in New York, New York, or at any such
other place as the parties hereto may select from time to time, the originals of
all notes evidencing any Commercial Loan in which the Lender is to be granted a
security interest pursuant to this Agreement. Upon delivery to the Custodian by
the Borrower (or by the title company as directed by the Borrower) of any note
evidencing a Commercial Loan, the Custodian will immediately execute and deliver
to the Lender and Borrower the Initial Trust Receipt and Certification, in the
form attached as Exhibit A to the Custody Agreement, as provided in Section 3(a)
of the Custody Agreement. Delivery of the note or notes to the Custodian and
the Custodian's continuous possession of such note or notes shall be a condition
precedent to any such Commercial Loan being considered as Collateral (as defined
in (b) below) for the purposes of the computation of the amount of any Advance
or the Loan under this Agreement.
(b) Within 30 days after Borrower delivers to the Custodian a note
evidencing a Commercial Loan, Borrower shall deliver to Marine Midland Bank, as
custodian (the "Custodian") on
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behalf of the Lender, the documents and instruments listed in Section 2(b)-(e)
of that certain Commercial Loan Custody Agreement dated as of December 4, 1998
(the "Custody Agreement") among the Borrower, the Custodian and the Lender.
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(Such documents and instruments, including without limitation all mortgages
relating thereto (with respect to each Pledged Commercial Loan, the related
"Loan File"), and the original note or notes evidencing and relating to the
Commercial Loans, together with any proceeds thereof, are hereinafter referred
to as the "Collateral.") Within three days of delivery to the Custodian by the
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Borrower (or by the title company as directed by the Borrower) of the Loan File
relating to a Commercial Loan, the Custodian will execute and deliver to the
Lender, with a copy to the Borrower, the Final Trust Receipt and Certification,
in the form attached as Exhibit B to the Custody Agreement, as provided in
Section 3(b) of the Custody Agreement.
The Borrower hereby pledges all of its right, title and interest in
and to the Collateral to the Lender to secure the repayment of principal of and
interest on the Loan and all other amounts owing to the Lender hereunder
(collectively, the "Secured Obligations").
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(c) Whenever any Pledged Commercial Loan is removed from this
facility, as permitted hereunder, all files held by the Custodian relating to
such removed Pledged Commercial Loan shall be returned to the Borrower in the
manner set forth in the Custody Agreement.
Section 4. Representations, Warranties and Covenants. (a) The
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Borrower and Guarantor, as applicable, represent and warrant to the Lender that:
(i) The Borrower has been duly organized and is validly existing as a
national banking association under the laws of the United States. The
Guarantor has been duly organized and is validly existing as a corporation
in good standing under the laws of the State of Delaware.
(ii) They are duly licensed as a "Licensee" or are otherwise qualified
in each state in which they transact business where the ownership or
leasing of their properties or the conduct of their business requires such
license or qualification and are not in default of such state's applicable
law, rules and regulations. They have the requisite power and authority
and legal right to own and xxxxx x xxxx on all of their right, title and
interest in and to the Collateral, and to execute and deliver, engage in
the transactions contemplated by, and perform and observe
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the terms and conditions of, this Agreement, the Custody Agreement and the
other Loan Documents, as applicable.
(iii) At all times after the Custodian has received an original note
and Loan File relating to a Commercial Loan from the Borrower and until
payment in full of the Loan, the Borrower will not commit any act in
violation of applicable laws, or regulations promulgated with respect
thereto.
(iv) Each of the Borrower and the Guarantor is solvent and is not in
default under any mortgage, borrowing agreement or other instrument or
agreement pertaining to indebtedness for borrowed money, and the execution,
delivery and performance by the Borrower and the Guarantor of this
Agreement and the other Loan Documents, as applicable, and the execution by
the Borrower of the Secured Note do not conflict with any term or provision
of the charter, certificate of incorporation or by-laws of any of them or
any law, rule, regulation, order, judgment, writ, injunction or decree
applicable to any of them of any court, regulatory body, administrative
agency or governmental body having jurisdiction over any of them and will
not result in any violation of any mortgage, instrument or agreement
pertaining to indebtedness for borrowed money.
(v) All financial statements of the Borrower or the Guarantor
furnished to the Lender do not omit to disclose any material liabilities or
other facts relevant to the Borrower's or the Guarantor's condition. All
certificates of the Borrower or the Guarantor or any of their officers
furnished to the Lender are true and complete. All such financial
statements have been prepared in accordance with GAAP. No financial
statement or other financial information as of a date later than the date
set forth in the Guarantor's most recent 10-K or 10-Q filing under the
Securities Exchange Act of 1934, as amended, has been furnished by the
Borrower to another lender of the Borrower that has not been furnished to
the Lender.
(vi) Except as have been previously obtained, no consent, approval,
authorization or order of, registration or filing with, or notice to any
governmental authority or court is required under applicable law in
connection with the execution, delivery and performance by them of this
Agreement and the other Loan Documents, as applicable.
(vii) There is no action, proceeding or investigation pending or, to
the best knowledge of any of them, threatened against any of them before
any court, administrative agency or other tribunal (A) asserting the
invalidity of this
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Agreement, as applicable, or the other Loan Documents, as applicable, (B)
seeking to prevent the consummation of any of the transactions contemplated
by this Agreement or the other Loan Documents, as applicable, or (C) which
might materially and adversely affect the validity of the Commercial Loans
or the performance by any of them of their obligations under, or the
validity or enforceability of, this Agreement or the other Loan Documents,
as applicable.
(viii) There has been no adverse change in the business, operations,
financial condition, properties or prospects of the Borrower and the
Guarantor taken as a whole since the date set forth in the Guarantor's most
recent 10-K or 10-Q filing under the Securities Exchange Act of 1934, as
amended, which would have a material adverse affect on their ability to
perform their respective obligations under this Agreement or the other Loan
Documents, as applicable.
(ix) This Agreement and the other Loan Documents, as applicable,
have been duly authorized, executed and delivered by the Borrower and the
Guarantor, as applicable, all requisite corporate action having been taken,
and each is valid, binding and enforceable against the Borrower and the
Guarantor, as the case may be, in accordance with its terms.
(x) When a note and the related Loan File evidencing a Commercial
Loan and the other Loan Documents are delivered to the Custodian, the
security interest granted pursuant to this Agreement will constitute a
fully-perfected first priority security interest in the Collateral in favor
of the Lender.
(xi) The Boards of Directors of the Borrower and the Guarantor have
approved the transactions contemplated by this Agreement and the other Loan
Documents, such approvals have been duly noted in the minutes of the Boards
of Directors of the Borrower and the Guarantor and, from the time of
execution of this Agreement and the other Loan Documents, will be
continuously an official record (as such term is used in Section
13(e)(1)(D) of the Federal Deposit Insurance Act, as amended by the
Financial Institution Reform, Recovery and Enforcement Act and as in effect
on the date hereof) of the Borrower and the Guarantor.
(xii) At the time of origination of a Commercial Loan, in all
instances where commercial real property serves as the primary collateral
for such Commercial Loan, the related mortgaged property was free of
contamination from toxic substances or hazardous wastes requiring action
under
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applicable laws or is subject to ongoing environmental rehabilitation, and
the Borrower has no knowledge of any such contamination from toxic
substances or hazardous waste material on any mortgaged property unless
such items are below action levels or such mortgaged property is subject to
ongoing environmental rehabilitation.
(b) With respect to every Commercial Loan and related note and
Loan File delivered to the Custodian and pledged to the Lender to secure the
Loan, the Borrower and the Guarantor represent and warrant to the Lender that:
(i) Such note evidencing a Commercial Loan and the related Loan
File are complete and authentic and all signatures thereon are genuine.
(ii) Such Commercial Loan was (a) originated by the Borrower
pursuant to its published underwriting criteria existing at the time the
Commercial Loans were originated if such Commercial Loans were originated
prior to the date hereof and if such criteria was different than the
criteria heretofore supplied to the Lender, (b) originated by the Borrower
pursuant to its published underwriting criteria heretofore supplied to the
Lender (or if such criteria have been changed, the terms of such new
underwriting criteria shall have been supplied to Lender) or (c) originated
by third parties and re-underwritten by the Borrower on terms consistent
with its published underwriting criteria (or pursuant to other underwriting
criteria previously supplied to Lender), and such Commercial Loan arose
from a bona fide loan, complying with all applicable state and Federal laws
and regulations, to Persons having legal capacity to contract and is not
subject to any defense, set-off or counterclaim.
(iii) All amounts represented to be payable on such Commercial Loan
are, in fact, payable in accordance with the provisions of such Commercial
Loan.
(iv) No payment default or material non-payment default has
occurred in any provisions of such Commercial Loan.
(v) Any real property subject to any security interest granted by
an obligor in connection with any Commercial Loan is not subject to any
other encumbrances other than (i) a stated prior mortgage or mortgages,
(ii) liens for taxes not yet due and payable or similar governmental
charges not yet due and payable or still subject to payment without
interest or penalty or (iii) zoning
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restrictions, utility easements, covenants or conditions and restrictions
of record and other encumbrances, which will neither defeat nor render
invalid such security interest or the priority thereof nor materially
impair the marketability or value of such real property nor be violated by
the existing improvements or the intended use thereof.
(vi) The Borrower holds good and indefeasible title to, and is the
sole owner of, such Commercial Loan, subject to no liens, charges,
mortgages, participations, encumbrances or rights of any Person.
(vii) Each Commercial Loan conforms to the description thereof as
set forth on the related Commercial Loan Schedule delivered to the
Custodian and the Lender.
(viii) The Commercial Loans do not have characteristics which are
materially worse than those of other loans made to small business concerns
financed by the Borrower during the twelve-month period preceding the
related Funding Date.
(ix) Each Commercial Loan will be eligible for inclusion in a pool
to be securitized; the Lender may refuse to lend against any Commercial
Loan which the Lender believes will not be eligible for inclusion in such a
securitized pool either (x) due to the characteristics of such Commercial
Loan or (y) due to the expected aggregate characteristics of all Commercial
Loans.
(x) No Commercial Loan shall have been originated in, or be
subject to the laws of, any jurisdiction under which the sale, transfer and
assignment of such Commercial Loan under this Agreement shall be unlawful,
void or voidable.
(c) The Borrower and the Guarantor covenant with the Lender that,
during the term of this facility:
1. The Borrower's Tangible Net Worth (determined in accordance with
GAAP) shall not be less than $40,000,000.
2. The Borrower's Tangible Net Worth shall not be less than its
Tangible Net Worth as shown on the Borrower's audited financial statements
as of September 30, 1998 (as delivered previously to the Lender) plus fifty
----
percent (50%) of all accumulated positive net income from September 30, 1998
less $4,000,000. "Tangible Net Worth" means the difference between (x) net
---- ------------------
worth determined in accordance with GAAP less (y) the sum of (i) receivables
from stockholders or Affiliates of the Borrower and (ii) intangible assets
determined in accordance with GAAP
13
(which include assets such as copyrights, patents, trademarks, goodwill,
computer programs, capitalized advertising costs, organization costs, licenses,
leases, franchises, exploration permits, and import and export permits, etc.).
3. The Borrower's leverage ratio shall not exceed 8:1, such
ratio being the ratio of (x) the Borrower's total liabilities, less subordinated
debt maturing in more than one year, to (y) the Borrower's Tangible Net Worth
(determined as set forth above).
4. The Borrower will continue to be a wholly-owned subsidiary
of the Guarantor.
5. The Borrower will continue to maintain for itself and its
subsidiaries insurance coverage with respect to employee dishonesty, forgery or
alteration, theft, disappearance and destruction, robbery and safe burglary,
property (other than money and securities) and computer fraud in an aggregate
amount of at least $4,000,000, and shall name Lender as a loss payee.
6. All subordinated debt will remain subordinate to the Loan and no
payments of principal will be made on such subordinated debt so long as the Loan
is outstanding; provided, however that (a) principal payments (plus accrued
interest to the date of redemption) on subordinated debt may be made from the
proceeds of new equity offerings in an equivalent or greater amount, and (b)
regularly scheduled payments of interest on subordinated debt may be made for so
long as no payment default or other Event of Default hereunder has occurred and
is continuing.
7. Notwithstanding anything to the contrary contained herein, with
the prior written consent of the Lender (not to be unreasonably withheld)
Borrower is permitted to assign its rights hereunder to, and the Loan can be
assumed by, another wholly-owned subsidiary of the Guarantor (the "Assignee")
--------
(in which case all of the provisions of this Agreement shall, to the same extent
as they apply to the Borrower hereunder, apply to the Assignee rather than to
the Borrower) on the condition that (a) the Assignee acquires substantially all
of the Borrower's assets relating to its commercial lending business, including
without limitation, Borrower's interest in the Commercial Loans, (b) the
Assignee assumes substantially all of the Borrower's liabilities relating to its
commercial lending business, including without limitation, the Loan, but
expressly excluding the Borrower's deposits, (c) Lender receives such documents
evidencing (a) and (b) above as Lender shall reasonably request, and (d)
Borrower and Assignee execute and deliver to Lender such amendments to this
Agreement and the other Loan Documents and such opinions of counsel as Lender
shall reasonably request in order to evidence
14
that the Assignee has assumed all of the Borrower's rights and obligations, and
is bound by all of the Borrower's agreements, set forth herein.
8. The Borrower and Guarantor shall make available to Lender
and its agents and employees, upon reasonable prior notice and during normal
business hours, the books and records of the Borrower and the Guarantor relating
to the Pledged Commercial Loans and the transactions contemplated hereby.
Section 5. Mandatory Prepayment of Loan. (a) Upon discovery by the
--------- ----------------------------
Borrower, the Guarantor, the Custodian or the Lender of any breach of any of the
representations and warranties listed in Section 4 preceding, the party
discovering such breach shall promptly give notice of such discovery to the
others.
The Lender has the right to require, in its unreviewable discretion,
the Borrower to repay the Loan in part with respect to (i) any Commercial Loan
which breaches one or more of the representations and warranties listed in
Section 4(b) preceding or (ii) any Commercial Loan which the Lender reasonably
believes to be unacceptable for inclusion in a Securitization; provided,
however, that the Borrower may, in lieu of repaying the Loan in part, substitute
one or more other Commercial Loans, in replacement for any Commercial Loan
described in (i) or (ii) above.
(b) If any Commercial Loan, as indicated on any Commercial Loan
Schedule delivered pursuant to Section 9 hereof, becomes thirty (30) or more
days delinquent in payment, the Lender may require the Borrower to prepay the
Loan in part with respect to such Commercial Loan; provided, however, that the
Borrower may, in lieu of repaying the Loan in part, substitute one or more other
Commercial Loans, in replacement for any Commercial Loan that has become thirty
(30) or more days delinquent in payment.
(c) If the Borrower awards a Securitization or whole-loan trade
involving any Pledged Commercial Loan to any party including but not limited to
an investment banking house, agent or underwriter other than PSI, or to a group
of managers which does not include PSI, then, in addition to any other rights or
remedies Lender has (including, but not limited to, amounts owed to the Lender
under Section 1(h) hereof), (x) the Lender may demand that the Borrower prepay
any portion of the Loan evidenced hereby relating to the dollar amount of the
Pledged Commercial Loans to be included in such Securitization or whole loan
trade, in which PSI has not been selected for participation, for payment within
five Business Days of the demand for prepayment and (y) the Lender may refuse to
make further Advances hereunder if such
15
Advances would relate to Pledged Commercial Loans to be included in such
Securitization or whole-loan trade in which PSI has not been selected for
participation. The Borrower shall give immediate notice, by facsimile
transmission, to the attention of Xxxx Xxxxxx at the Lender, (fax 000-000-0000)
and Xxx Xxxxxxx and Xxxxxx Xxxxx at PSI (fax 000-000-0000), of any decision to
award the Manager Role or to name any group of managers for any Securitization
or whole-loan trade involving any Pledged Commercial Loans.
(d) If, on any date other than a Funding Date, the Lender determines
that a Collateral Deficiency Situation exists, the Lender shall so notify the
Borrower, and the Borrower, within three (3) Business Days, shall either (i) pay
to the Lender the Restoration Amount or (ii) deliver to the Custodian on behalf
of the Lender additional Commercial Loans with an aggregate Market Value at
least equal to the Restoration Amount. The provisions of Section l(b) shall
govern with regard to a Collateral Deficiency Situation as of a Funding Date;
provided, however, that if the Collateral Deficiency Situation results from a
release by the Lender of its lien, such Collateral Deficiency Situation shall be
remedied as aforesaid on the business day on which such Collateral Deficiency
Situation arises.
Section 6. Guaranty; Additional Documents. (a) Guaranty. In support
--------- ------------------------------ --------
of the Secured Obligations, the Guarantor, in its capacity as guarantor (the
"Guarantor"), shall execute and deliver to the Lender a guaranty in the form of
Exhibit E hereto (the "Guaranty").
--------
(b) Further Documents. The Borrower and the Guarantor will execute and
deliver, or cause to be executed and delivered, to the Lender from time to time,
such confirmatory or supplementary security agreements, financing statements,
reaffirmations and consents and such other documents, instruments or agreements
as the Lender may reasonably request, which are in the Lender's judgment
necessary or desirable to obtain for the Lender the benefit of the Collateral.
Section 7. Servicing. The Borrower shall service the Commercial Loans
--------- ---------
with the degree of skill and care consistent with that which the Borrower
customarily exercises with respect to similar loans owned, managed or serviced
by it and all applicable industry standards. The Borrower shall comply with all
applicable state and federal laws and regulations; shall maintain all state and
federal licenses and franchises necessary for it to perform its servicing
responsibilities hereunder and shall not impair the rights of the Lender in any
Commercial Loans or for payment thereunder.
16
Section 8. No Oral Modifications; Successors and Assigns. No
--------- ---------------------------------------------
provisions of this Agreement shall be waived or modified except by a writing
duly signed by the authorized agents of the Lender, the Borrower and the
Guarantor. This Agreement shall be binding upon the successors and assigns of
the parties hereto.
Section 9. Reports. (a) The Borrower shall provide the Lender with
--------- -------
an electronic disk or tape (each, a "Supplemental Commercial Loan Schedule")
-------------------------------------
(i) three Business Days prior to each Funding Date, (ii) within 10 Business
Days after the end of each month, and (iii) within two Business Days following
any request made by the Lender or any Affiliate thereof for such a report,
setting forth, on a loan-by-loan basis, all the information contained in the
definition of "Commercial Loan Schedule" herein, plus the current principal
balance outstanding of each Commercial Loan as of the end of the prior calendar
month and the change in the current principal balance outstanding of each
Commercial Loan since the date of the last delivered Commercial Loan Schedule or
Supplemental Commercial Loan Schedule, as the case may be. Such Supplemental
Commercial Loan Schedule will also contain delinquency information concerning
(x) all Commercial Loans then held in this warehouse facility and (y) any
Commercial Loans proposed to be delivered to this facility on the next Funding
Date. The Supplemental Commercial Loan Schedule shall be in a format as may be
agreed upon by the Borrower and the Lender from time to time.
(b) The Borrower shall provide the Lender and the Custodian with a
"hard-copy" Commercial Loan Schedule or Supplemental Commercial Loan Schedule
meeting the requirements of the Custody Agreement on each date on which an
electronic disk or tape is delivered to the Lender (or a designated Affiliate
thereof); the electronic disk or tape and the Commercial Loan Schedule shall
each relate to the same Cut-Off Date.
(c) The Borrower shall furnish to Lender (i) promptly, copies of any
material and adverse notices (including, without limitation, notices of
defaults, breaches, potential defaults or potential breaches) given to or
received from its other lenders, (ii) immediately, notice of the occurrence of
any "Event of Default" hereunder or of any situation which the Borrower
reasonably expects to develop into an "Event of Default" hereunder, (iii)
copies of the Guarantor's annual and quarterly financial statements reflecting
any public filings made to the Securities and Exchange
Commission, provided that any annual Form 10-K filing shall be furnished no
later than 90 days after each year-end and any quarterly Form 10-Q filing shall
be furnished no later than 45 days after each quarter end, (iv) annual audited
financial statements 90 days after each year-end, (v) three (3)
17
days prior to the date of each Advance (the date of which Advance shall be no
later than two (2) weeks after the receipt of the Supplemental Commercial Loan
Schedule delivered pursuant to Section 9 (a) (ii) above), portfolio performance
data with respect to the Commercial Loans (vi) any other financial information
reasonably requested by the Lender and (vii) an officer's certificate within ten
(10) Business Days after the end of each quarter to the effect that the
covenants set forth in Section 4(c) are true on such date and containing therein
the mathematical calculations used to determine Tangible Net Worth and all
required ratios. All required financial statements, information and reports
shall be prepared in accordance with GAAP, or, if applicable to SEC filings, SEC
accounting regulations.
Section 10. Events of Default. Each of the following shall constitute
---------- -----------------
an "Event of Default" hereunder:
----------------
(a) Failure of the Borrower to (i) make any payment of interest or
principal or any other sum which has become due, whether by acceleration or
otherwise, under the terms of the Secured Note, this Agreement or any other Loan
Document evidencing or securing indebtedness of the Borrower to the Lender or
(ii) pay or deliver the Restoration Amount;
(b) Assignment or attempted assignment by the Borrower of this
Agreement or any rights hereunder, without first obtaining the specific written
consent of the Lender, or the granting by the Borrower of any security interest,
lien or other encumbrance on any Collateral to other than the Lender;
(c) The filing by or against the Borrower, the Guarantor or any
Affiliate thereof of a petition for liquidation, reorganization, arrangement or
adjudication as a bankrupt or similar relief under the bankruptcy, insolvency or
similar laws of the United States or any state or territory thereof or of any
foreign jurisdiction; the failure of the Borrower or such Affiliate to secure
dismissal of any such petition filed against it within thirty (30) days of such
filing; the making of any general assignment by the Borrower or any Affiliate
for the benefit of creditors; the appointment of a receiver or trustee for the
Borrower or any such Affiliate, or for any part of the Borrower's or such
Affiliate's assets; the institution by the Borrower or any Affiliate of any
other type of insolvency proceeding (under the Bankruptcy Code or otherwise) or
of any formal or informal proceeding, for the dissolution or liquidation of,
settlement of claims against, or winding up of the affairs of, the Borrower or
any Affiliate; the institution of any such proceeding against the Borrower or
any Affiliate if the Borrower or such Affiliate shall fail to secure dismissal
thereof within thirty (30) days thereafter; the consent by the Borrower or any
18
Affiliate to any type of insolvency proceeding against the Borrower or such
Affiliate (under the Bankruptcy Code or otherwise); the occurrence of any event
or existence of any condition which could be the ground, basis or cause for any
proceeding or petition described in this Section;
(d) Any materially adverse change in the financial condition of the
Borrower or the Guarantor or the existence of any other condition which, in the
Lender's sole determination, constitutes an impairment of the Borrower's or the
Guarantor's ability to perform their obligations under this Agreement or the
Borrower's obligations under the Secured Note;
(e) Failure to service the Commercial Loans in substantial compliance
with the servicing requirements set forth in Section 7 hereof;
(f) A breach by the Borrower or the Guarantor of (i) any
representation or warranty set forth in Sections 4(a) hereof, (ii) any the
covenants set forth in Sections 4(c) and 9 hereof, or (iii) a use by the
Borrower of the proceeds of the Loan for a purpose other than as set forth in
Section 2 hereof;
(g) The Borrower, the Guarantor or any of their Affiliates shall
default in (i) any payment of principal or interest of any indebtedness (other
than the Loan) or guarantee obligation (other than the Guarantee) beyond the
grace period, if any, provided therefor in the instruments or agreements
pursuant to which such indebtedness was created (not to exceed 14 days), or in
(ii) the observance or performance of any other provision of such indebtedness
or guarantee, and the lender or beneficiary thereunder shall have the ability to
declare an "event of default" under such instrument or agreement, which would
result in either an acceleration of the indebtedness created thereunder or the
termination of future funding commitments to the Borrower or Guarantor.
Section 11. Remedies Upon Default. (a) Upon the happening of one or
---------- ---------------------
more Events of Default, the Lender may (x) refuse to make further Advances
hereunder and (y) immediately declare the principal of the Secured Note then
outstanding to be immediately due and payable, together with all interest
thereon and fees and expenses accruing under this Agreement; provided that, upon
--------
the occurrence of the Event of Default referred to in Section 10(c), such
amounts shall immediately and automatically become due and payable without any
further action by any Person or entity. Upon such declaration or such automatic
acceleration, the balance then outstanding on the Secured Note shall become
immediately due and payable without presentation, demand or further notice of
any kind to the Borrower.
19
(b) Upon the occurrence of an Event of Default, the Lender may assume
all collection and servicing functions (including, without limitation, the
establishment of new addresses and accounts to receive all payments on the
Pledged Commercial Loans) or may appoint a successor servicer designated by the
Lender to assume those functions. At all times following such events, for so
long as the Loan or any portion thereof is outstanding, the Lender shall have
the right to collect and receive all further payments made on the Collateral,
and if any such payments are received by the Borrower, the Borrower shall not
commingle the amounts received with other funds of the Borrower and shall
promptly remit all such payments received over to the Lender.
(c) Following the occurrence and during the continuance of an Event
of Default, interest shall accrue on the Loan at a default interest rate of
LIBOR plus 5.00%.
Section 12. Indemnification. The Borrower agrees to hold the Lender
---------- ---------------
(which term shall include all Affiliates, officers, directors, employees and
agents of Lender and its Affiliates) harmless from and indemnifies the Lender
against all liabilities, losses, damages, judgments, costs and expenses of any
kind which may be imposed on, incurred by, or asserted against the Lender
relating to or arising out of this Agreement, the other Loan Documents or any
transaction contemplated hereby or thereby resulting from anything other than
the Lender's gross negligence or willful misconduct. The Borrower also agrees to
reimburse the Lender for all reasonable expenses in connection with the
enforcement of this Agreement and the other Loan Documents including without
limitation the reasonable fees and disbursements of counsel. The Borrower's
agreements in this Section shall survive the payment in full of the Secured Note
and the expiration or termination of this Agreement. The Borrower hereby
acknowledges that, notwithstanding the fact that the Secured Note is secured by
the Collateral, the obligations of the Borrower under the Secured Note are
recourse obligations of the Borrower.
Section 13. Power of Attorney. The Borrower hereby authorizes the
---------- -----------------
Lender, at the Borrower's expense, to file such financing statement or
statements relating to the Collateral without the Borrower's signature thereon
as the Lender at its option may deem appropriate, and appoints the Lender as the
Borrower's attorney-in-fact to execute any such financing statement or
statements in the Borrower's name and to perform all other acts which the Lender
deems appropriate to perfect and continue the security interest granted hereby
and to protect, preserve and realize upon the Collateral, including, but not
limited to, the right to endorse notes, complete blanks in
20
documents and sign assignments on behalf of the Borrower as its attorney-in-
fact. This Power of Attorney is coupled with an interest and is irrevocable
without the Lender's consent. Notwithstanding the foregoing, the power of
attorney hereby granted may be exercised only during the occurrence and
continuance of any Event of Default hereunder.
SECTION 14. GOVERNING LAW; AGREEMENT CONSTITUTES SECURITY AGREEMENT.
---------- -------------------------------------------------------
THIS AGREEMENT IS INTENDED BY THE PARTIES HERETO TO BE GOVERNED BY NEW YORK LAW,
WITHOUT GIVING EFFECT TO PRINCIPALS OF CONFLICTS OF LAW, AND TO CONSTITUTE A
SECURITY AGREEMENT WITHIN THE MEANING OF THE NEW YORK UCC.
Section 15. Lender May Act Through Affiliates. The Lender may, from
---------- ---------------------------------
time to time, designate one or more Affiliates for the purpose of performing any
action hereunder.
Section 16. Notices. All demands, notices and communications relating
---------- -------
to this Agreement shall be in writing and shall be deemed to have been duly
given if mailed, by registered or certified mail, return receipt requested, or
by overnight courier, or, if by other means, when received by the other party or
parties at the address shown below, or such other address as may hereafter be
furnished to the other party or parties by like notice. Any such demand, notice
or communication hereunder shall be deemed to have been received on the date
delivered to or received at the premises of the addressee (as evidenced, in the
case of registered or certified mail, by the date noted on the return receipt).
If to the Borrower:
First National Bank of New England
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxx
Telephone: 000-000-0000
Fax Number: 000-000-0000
If to the Guarantor:
First International Bancorp, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxx
Telephone: 000-000-0000
Fax Number: 000-000-0000
21
With a copy to:
Xxxxx X. Xxxxxxx, Esq.
Xxxxxxx Xxxx LLP
000 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Telephone: 000-000-0000
Fax Number: 000-000-0000
If to the Lender:
Prudential Securities Credit
Corporation
One Seaport Plaza
Credit Analysis Department
New York, New York 10292
Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000
Fax Number: (000) 000-0000
With copies to:
Prudential Securities Incorporated
One New York Plaza
Investment Banking Group
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx
Phone Number: (000) 000-0000
Fax Number: (000) 000-0000
Xxxxxxx X. Xxxxx, Esq.
Stroock & Stroock & Xxxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Phone Number: (000) 000-0000
Fax Number: (000) 000-0000
Section 17. Severability. Any provision of this Agreement which is
---------- ------------
prohibited, unenforceable or not authorized in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition,
unenforceability or non-authorization, without invalidating the remaining
provisions hereof or affecting the validity, enforceability or legality of such
provision in any other jurisdiction.
Section 18. Counterparts. This Agreement may be executed by the
---------- ------------
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but
22
all such counterparts shall together constitute one and the same instrument.
Section 19. Headings. The section headings contained herein are for
---------- --------
convenience of reference only and shall not define or limit any of the terms and
provisions hereof.
[Rest of Page Intentionally Left Blank]
23
IN WITNESS WHEREOF, the parties have executed
this Agreement the date and year first above written.
FIRST NATIONAL BANK OF NEW ENGLAND
By: -------------------------------
Name:
Title:
FIRST INTERNATIONAL BANCORP, INC.
By: ------------------------------
Name:
Title:
PRUDENTIAL SECURITIES CREDIT
CORPORATION
By: -------------------------------
Name:
Title:
24
EXHIBIT A
---------
SECURED NOTE
Dated as of December 4, 1998
FOR VALUE RECEIVED, the undersigned, FIRST NATIONAL BANK OF NEW
ENGLAND, a national bank, whose address is 000 Xxxxxxxx Xxxxxx,, Xxxxxxxx,
Xxxxxxxxxxx 00000 (the "Borrower"), promises to pay to the order of PRUDENTIAL
SECURITIES CREDIT CORPORATION, a Delaware corporation, whose address is Xxx
Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000(xxx "Lender") on or before the Maturity
Date the amount then outstanding under that certain Revolving Commercial Loan
Warehouse and Security Agreement dated as of December 4, 1998 (the "Agreement").
Capitalized terms used herein and not defined herein shall have their respective
meanings as set forth in the Agreement.
The holder of this Note is authorized to record the date and amount of
each Advance and the date and amount of each repayment of principal thereof on
the schedule annexed hereto and any such recordation shall constitute prima
-----
facie evidence of the accuracy of the amount so recorded; provided that the
----- --------
failure of the holder hereof to make such recordation (or any error in such
recordation) shall not affect the obligations of the Borrower hereunder or under
the Agreement.
MAXIMUM RATE OF INTEREST: It is intended that the rate of interest
------------------------
herein shall never exceed the maximum rate, if any, which may be legally charged
on the Loan evidenced by this Note ("Maximum Rate"), and if the provisions for
interest contained in this Note would result in a rate higher than the Maximum
Rate, interest shall nevertheless be limited to the Maximum Rate and any amounts
which may be paid toward interest in excess of the Maximum Rate shall be applied
to the reduction of principal, or, at the option of the Lender, returned to the
Borrower.
DUE DATE: The Loan evidenced hereby not paid before the Maturity Date
--------
shall be due and payable on the Maturity Date.
PLACE OF PAYMENT: All payments hereon shall be made, and all notices
----------------
to the Lender required or authorized hereby shall be given, at the office of the
Lender at the address designated in the heading of this Note, or to such other
place as the Lender may from time to time direct by written notice to the
Borrower.
A-1
PAYMENT AND EXPENSES OF COLLECTION: All amounts payable hereunder are
----------------------------------
payable by wire transfer in immediately available funds to the account number
specified by the Lender, in lawful money of the United States. Payments remitted
by the Borrower via wire transfer initiated after 1:00 p.m. New York City shall
be deemed to be received on the next business day. The Borrower agrees to pay
all costs of collection when incurred, including, without limiting the
generality of the foregoing, reasonable attorneys' fees through appellate
proceedings, and to perform and comply with each of the covenants, conditions,
provisions and agreements contained in every instrument now evidencing or
securing said indebtedness.
SECURITY: This Note is issued pursuant to the Agreement and is
--------
secured by a pledge of the collateral described therein. Notwithstanding the
pledge of the collateral, the Borrower hereby acknowledges, admits and agrees
that the Borrower's obligations under this Note are recourse obligations of the
Borrower to which the Borrower pledges its full faith and credit.
DEFAULTS: Upon the happening of an Event of Default (as defined in
--------
the Agreement), the Lender shall have all rights and remedies set forth in the
Agreement.
The failure to exercise any of the rights and remedies set forth in
the Agreement shall not constitute a waiver of the right to exercise the same or
any other option at any subsequent time in respect of the same event or any
other event. The acceptance by the Lender of any payment hereunder which is
less than payment in full of all amounts due and payable at the time of such
payment shall not constitute a waiver of the right to exercise any of the
foregoing rights and remedies at that time or at any subsequent time or nullify
any prior exercise of any such rights and remedies without the express consent
of Lender, except as and to the extent otherwise provided by law.
WAIVERS: The Borrower, and any indorsers or guarantors hereof,
-------
severally waive diligence, presentment, protest and demand and also notice of
protest, demand, dishonor and nonpayments of this Note, and expressly agree that
this Note, or any payment hereunder, may be extended from time to time, and
consent to the acceptance of further collateral, the release of any collateral
for this Note, the release of any party primarily or secondarily liable hereon,
and that it will not be necessary for the Lender, in order to enforce payment of
this Note, to first institute or exhaust Lender's remedies against the Borrower
or any other party liable hereon or against any collateral for this Note. None
of the foregoing shall affect the liability of the Borrower and any indorsers or
guarantors hereof. No extension
A-2
of time for the payment of this Note, or an installment hereof, made by
agreement by the lender with any Person now or hereafter liable for the payment
of this Note, shall affect the liability under this Note of the Borrower, even
if the Borrower is not a party to such agreement; provided, however, the Lender
and the Borrower, by written agreement between them, may affect the liability of
the Borrower.
TERMINOLOGY: If more than one party joins in the execution of this
-----------
Note, the covenants and agreements herein contained shall be the joint and
several obligation of each and all of them and of their respective heirs,
executors, administrators, successors and assigns, and relative words herein
shall be read as if written in the plural when appropriate. Any reference
herein to the Lender shall be deemed to include and apply to every subsequent
holder of this Note. Words of masculine or neuter import shall be read as if
written in the neuter or masculine or feminine when appropriate.
AGREEMENT: Reference is made to the Agreement for provisions as to
---------
Advances, rates of interest, mandatory principal repayments, collateral and
acceleration.
APPLICABLE LAW: THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED UNDER
--------------
THE LAWS OF THE STATE OF NEW YORK, THE LAWS OF WHICH THE BORROWER HEREBY
EXPRESSLY ELECTS TO APPLY TO THIS NOTE. THE BORROWER AGREES THAT ANY ACTION OR
PROCEEDING BROUGHT TO ENFORCE OR ARISING OUT OF THIS NOTE MAY BE COMMENCED IN
THE SUPREME COURT OF THE STATE OF NEW YORK, OR IN XXX XXXXXXXX XXXXX XX XXX
XXXXXX XXXXXX FOR THE SOUTHERN DISTRICT OF NEW YORK.
FIRST NATIONAL BANK OF NEW ENGLAND
By: ------------------------------
Name:
Title:
A-3
Schedule to
Secured Note
------------
Amount of Total
Amount of Principal Principal
Date Advance Repaid Outstanding
------------------- --------------------- ----------------- ----------------
$
------------------- ---------------------- ----------------- ----------------
$
------------------- ---------------------- ----------------- ----------------
$
------------------- ---------------------- ----------------- ----------------
$
------------------- ---------------------- ----------------- ----------------
$
------------------- ---------------------- ----------------- ----------------
$
------------------- ---------------------- ----------------- ----------------
$
------------------- ---------------------- ----------------- ----------------
$
------------------- ---------------------- ----------------- ----------------
$
------------------- --------------------- ----------------- ----------------
A-4
EXHIBIT B
---------
FORM OF LEGAL OPINION
---------------------
December 4, 1998
Prudential Securities Credit Corporation
One Seaport Plaza
Credit Analysis Department
Xxx Xxxx, XX 00000
Prudential Securities Incorporated
One New York Plaza
Investment Banking Group
Xxx Xxxx, XX 00000
Re: First National Bank of New England
----------------------------------
Ladies and Gentlemen:
We have acted as counsel to First National Bank of New England, a banking
corporation organized under the laws of the United States (the "Borrower"), and
First International Bancorp, Inc., a Delaware corporation (the "Guarantor"), in
connection with the Revolving Commercial Loan Warehouse and Security Agreement
dated as of December 4, 1998 (the "Warehouse Loan Agreement"), among the
Borrower, the Guarantor, and Prudential Securities Credit Corporation (the
"Lender"), and the transactions contemplated thereby. Capitalized terms used
herein and not otherwise defined shall have the respective meanings given such
terms in the Warehouse Loan Agreement. This opinion is rendered to you pursuant
to Section 1(a)(2)(ii)(B)(1) of the Warehouse Loan Agreement.
Although we act generally as counsel to the Borrower and the Guarantor, our
representation is limited to matters individually referred to us by the
Borrower's or Guarantor's management.
As to all matters of fact (including factual conclusions and
characterizations and descriptions of purpose, intention or other state of
mind), we have relied, with your permission, entirely upon (a) the
representations and warranties of the Borrower and Guarantor (the "Loan
Parties") set forth in the Warehouse Loan Agreement and each of the other
documents executed in connection therewith by the Loan Parties which have been
provided to us, and (b) certificates of certain of
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the officers of the Loan Parties and have assumed, without independent inquiry,
the accuracy of those representations, warranties, and certificates. For
purposes of our opinion rendered in paragraph 1 below, with respect to the
incorporation, organization, existence, qualification, or standing of any Loan
Party, our opinion relies entirely upon and is limited by those certificates of
public officials attached hereto as Exhibit A.
---------
In connection with this opinion, we have examined originals or copies of
the following documents:
(i) the Warehouse Loan Agreement;
(ii) the Secured Note;
(iii) the Guaranty;
(iv) the Custody Agreement;
(v) the Articles of Association (the "Borrower's Charter") of the
Borrower, certified by the Comptroller of the Currency as of , 1998, and
certified by an officer of the Borrower as of the date hereof as being true,
complete and correct and in full force and effect;
(vi) the Restated Certificate of Incorporation (the "Guarantor's Charter"
and, together with the Borrower's Charter, the "Charters") of the Guarantor,
certified by the Secretary of State of the State of Delaware as of 1,
1998, and certified by an officer of the Guarantor as of the date hereof as
being true, complete and correct and in full force and effect;
(vii) the By-Laws of the Borrower (the "Borrower's By-Laws"), certified by
an officer of the Borrower as of the date hereof as being true, complete and
correct and in full force and effect;
(viii) the By-Laws of the Guarantor (the "Guarantor's By-Laws" and,
together with the Borrower's By-Laws, the "By-Laws") (the Charters and the By-
Laws together being referred to sometimes herein as the "Governing Documents"),
certified by an officer of the Guarantor as of the date hereof as being true,
complete and correct and in full force and effect;
(ix) the certificate of certain officers of the Borrower, as of the date
hereof, as to certain actions taken by the
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Board of Directors of the Borrower at a meeting held on _________, 1998;
(x) the certificate of certain officers of the Guarantor, as of the date
hereof, as to certain actions taken by the Board of Directors of the Guarantor
at a meeting held on ________, 1998; and
(xi) those certificates of certain public officials with respect to the
Loan Parties attached hereto as Exhibit A.
---------
The documents specified in paragraphs (i) through (iv) above are referred
to herein, collectively, as the "Loan Documents". This opinion is based
entirely on our review of the documents listed in the preceding paragraph, and
we have made no other documentary review or investigation of any kind whatsoever
for purposes of this opinion.
We have assumed the genuineness of all signatures, the conformity to the
originals of all documents reviewed by us as copies, the authenticity and
completeness of all original documents reviewed by us in original or copy form
and the legal competence of each individual executing any document.
For purposes of this opinion, we have made such examination of law as we
have deemed necessary. This opinion is limited solely to the internal
substantive laws of the State of Connecticut as applied by courts located in
Connecticut without regard to choice of law, the federal laws of the United
States of America (except for Federal and state securities or blue sky laws, as
to which we express no opinion in this letter), and the Delaware General
Corporation Law as applied by courts located in Delaware (the "DGCL"), and we
express no opinion as to the laws of any other jurisdiction. To the extent to
which this opinion deals with matters governed by or relating to the laws of the
State of New York, by which the Warehouse Loan Agreement and certain of the
other Loan Documents are stated to be governed, we have assumed, with your
permission and without any independent investigation, that such laws are
identical to the internal substantive laws of the State of Connecticut. No
opinion is given herein as to the choice of law or internal substantive rules of
law that any court or other tribunal may apply to the transactions contemplated
by the Warehouse Loan Agreement and the other Loan Documents.
Our opinion is further subject to the following exceptions, qualifications
and assumptions, all of which we understand to be acceptable to you:
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(a) We have assumed without any independent investigation that (i)
each party to the Warehouse Loan Agreement and the other Loan Documents,
other than the Loan Parties, at all times relevant thereto, is validly
existing and in good standing under the laws of the jurisdiction in which
it is organized, and is qualified to do business and in good standing under
the laws of each jurisdiction where such qualification is required
generally or necessary in order for such party to enforce its rights under
such Loan Documents, and (ii) each party to the Warehouse Loan Agreement
and the other Loan Documents, at all times relevant thereto, had and has
the full power, authority and legal right under its certificate of
incorporation, partnership agreement, by-laws, and other governing
organizational documents, and the applicable corporate, partnership, or
other enterprise legislation and other applicable laws, as the case may be
(other than, to the limited extent the same may be applicable to the Loan
Parties and relevant to our opinions expressed below, the Loan Parties with
respect to the Governing Documents, the federal laws of the United States
of America, and the DGCL), to execute, and to perform its obligations
under, the Warehouse Loan Agreement and the other Loan Documents.
(b) We have assumed without any independent investigation (i) that
each of the Loan Parties has received the agreed to and stated
consideration for the incurrence of the Loans and other obligations
applicable to it under the terms of the Warehouse Loan Agreement and the
other Loan Documents, (ii) that each of the Warehouse Loan Agreement and
the other Loan Documents is a valid and binding obligation of each party
thereto other than the Loan Parties, and (iii) that each of the Warehouse
Loan Agreement and the other Loan Documents is a valid and binding
obligation of the Loan Parties to the extent that laws other than those of
the State of Connecticut are relevant thereto (other than the federal laws
of the United States of America, and the DGCL, but only to the limited
extent the same may be applicable to the Loan Parties and relevant to our
opinions expressed below).
(c) The enforcement of any obligations of any of the Loan Parties
under any of the Warehouse Loan Agreement or the other Loan Documents may
be limited by bankruptcy, insolvency, reorganization, moratorium,
marshaling or other laws and rules of law affecting the enforcement
generally of creditors' rights and remedies (including such as may deny
giving effect to waivers of debtors' or
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guarantors' rights); and we express no opinion as to the status under any
fraudulent conveyance laws or fraudulent transfer laws of any of the
obligations of any of the Loan Parties under any of the Warehouse Loan
Agreement or the other Loan Documents.
(d) We express no opinion as the availability of any specific or
equitable relief of any kind, or as to the enforceability of any particular
provision of any of the Warehouse Loan Agreement or the other Loan
Documents relating to remedies after default.
(e) The enforcement of any of your rights may in all cases be subject
to an implied duty of good faith and fair dealing and to general principles
of equity (regardless of whether such enforceability is considered in a
proceeding at law or in equity) and, as to any of your rights to collateral
security, will be subject to a duty to act in a commercially reasonable
manner.
(f) We express no opinion as to the enforceability of any particular
provision of any of the Warehouse Loan Agreement or the other Loan
Documents relating to (i) waivers of rights to object to jurisdiction or
venue, or consents to jurisdiction or venue, (ii) waivers of rights to (or
methods of) service of process, or other rights or benefits bestowed by
operation of law, (iii) waivers of any applicable defenses, setoffs,
recoupments, or counterclaims, (iv) waivers or variations of provisions
which are not capable of waiver or variation under the Uniform Commercial
Code of the State of Connecticut (the "Connecticut UCC"), (v) the grant of
powers of attorney to the Lender, (vi) exculpation or exoneration clauses,
indemnity clauses, and clauses relating to releases or waivers of unmatured
claims or rights, or (vii) the providing for a penalty rate of interest or
late charges on overdue or defaulted obligations, or the payment of any
premium, liquidated damages, or other amount which may be held by any court
to be a "penalty" or a "forfeiture". We express no opinion as to the
effect of suretyship defenses, or defenses in the nature thereof, with
respect to the obligations of any applicable guarantor, joint obligor,
surety, accommodation party, or other secondary obligor.
(g) No opinion is given herein as to the effect of so-called "usury
savings clauses" or other provisions of the Warehouse Loan Agreement or the
other Loan Documents purporting to deal with compliance with usury laws or
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other laws relating to limitations on the amount of interest or other
similar charges which lenders may make or receive in connection with
lending transactions.
(h) When any opinion set forth below is given to our knowledge, or to
the best of our knowledge, or with reference to matters of which we are
aware or which are known to us, or with a similar qualification, that
knowledge is limited to the actual knowledge of the individual lawyers in
this firm who have participated directly and substantively in the specific
transactions to which this opinion relates and without any special or
additional investigation undertaken for the purposes of this opinion.
(i) We express no opinion as to the effect of events occurring,
circumstances arising, or changes of law becoming effective or occurring,
after the date hereof on the matters addressed in this opinion letter, and
we assume no responsibility to inform you of additional or changed facts,
or changes in law, of which we may become aware.
(j) We have assumed, based solely upon certificates of certain
officers of the Loan Parties, that (i) the Guarantor is the corporate
parent of the Borrower, owning all of its outstanding stock; (ii) the
Guaranty is necessary or convenient to the conduct, promotion or attainment
of the business of the Borrower; and (iii) the Custodian is not an
affiliate of, or controlled by, the Borrower or the Guarantor.
(k) We have made no examination of, and no opinion is given herein as
to, any Loan Party's title to or other ownership rights in, the accuracy of
the descriptions of, or the existence of any liens, charges, encumbrances,
restrictions or limitations on, or adverse claims against, any of the
property or assets of any Loan Party. We have assumed without any
independent investigation that each Loan Party has rights in the Collateral
and any other assets in which it purports to grant a security interest
under the Loan Documents, and that each of the Loan Documents executed by
each Loan Party that purports to grant collateral creates a valid security
interest in such portion of the Collateral and any such other assets in
which a security interest may be created by contract to secure the
obligations of such Loan Party to the extent that laws other than those of
the State of Connecticut are relevant thereto. We express no opinion as to
the
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priority or (except to the extent specifically set forth in paragraphs 6
and 7 below) the attachment, validity, or perfection of any security
interest, mortgage, or other lien or encumbrance with respect to any of the
property or assets of any Loan Party. Further, we express no opinion as to
any security interest in any Collateral or any other assets excluded from,
or not governed by, Article 9 of the Connecticut UCC. We call your
attention to the following:
(i) there exist certain limitations, resulting from the
operation of Section 9-306 of the Connecticut UCC, on the perfection
of any security interest in proceeds of collateral, such that further
action (in or out of Connecticut) may be necessary to maintain
perfection of such interests;
(ii) Section 552 of the federal Bankruptcy Code limits the
extent to which property acquired by a debtor after the commencement
of a case under the Bankruptcy Code may be subject to a security
interest resulting from any security agreement entered into by the
debtor before the commencement of the case; and under Section 547 of
the Bankruptcy Code, a security interest that is deemed transferred
within the relevant period set forth in Section 547(e) of the
Bankruptcy Code may be avoidable under certain circumstances; and
(iii) the security interests in the Collateral may be subject to
the limitations set forth in Section 9-318 of the Connecticut UCC;
and, in any event, any security interests in the assets of any Loan
Party may be subject to the economic effects of valid recoupments,
offsets, counterclaims, and similar rights of the makers of the
promissory notes included in the Collateral or other contractual
parties, the terms of contracts between any Loan Party and such other
parties, and any claims or defenses of such other parties against any
Loan Party arising under or extrinsic to such contracts.
(l) We express no opinion as to the effect on the opinions expressed
herein of (i) the compliance or non-compliance of the Lender or any other
party (other than the Loan Parties) to the Loan Documents with any state,
federal or other laws or regulations applicable to it or (ii) the legal or
regulatory status or the nature of the business of any such Lender or other
party.
B-7
(m) We have assumed without any independent investigation that the
Custodian will maintain physical possession of the promissory notes
included in the Collateral and that the Custodian will not hold any such
notes in a securities account.
In addition to the foregoing, with respect to the opinions set forth in
paragraph 7 below, our opinion is further subject to the following assumptions,
limitations and exceptions:
(n) we have assumed that (i) the promissory notes that are included in
the Collateral (the "Collateral Notes") are instruments as defined in the
Connecticut UCC and are not investment property as defined in the
Connecticut UCC, (ii) the Borrower is the owner of the Collateral Notes,
(iii) the Collateral Notes will be delivered to the Lender or an agent for
the Lender in New York and perfection of the security interest granted to
the Lender in the Collateral Notes will be governed by the Uniform
Commercial Code of the State of New York (the "NY UCC") and that the effect
of such delivery in New York and perfection being governed by the New York
UCC will be the same as it would be if delivery were made in Connecticut
and perfection were governed by the Connecticut UCC, (iv) the Collateral
Notes will not constitute "proceeds" of other collateral within the meaning
of (S)9-306 of the Connecticut UCC and are not subject to a security
interest described in (S)(S)9-304(4) or 9-304(5) of the Connecticut UCC
which provide for 21 day periods during which a security interest in
instruments can be perfected without taking or continuing possession of the
instrument, (v) the Custodian is not affiliated with the Borrower and
neither the Borrower nor the Custodian has any right, directly or
indirectly, to control the business affairs of the other, and (vi) neither
the Borrower, the Lender nor Custodian has any notice of adverse claims to
the Collateral Notes.
(o) no opinion is expressed herein as to whether the Collateral Notes
constitute negotiable instruments or as to whether the Lender or Custodian
will be a holder in due course of such instruments.
Based upon the foregoing, and subject to the limitations and qualifications
set forth below, we are of the opinion that:
1. The Borrower is validly existing as a national banking association
under the laws of the United States. The Guarantor is a corporation validly
existing and in corporate
B-8
good standing under the laws of the State of Delaware. Each of the Loan Parties
has the requisite corporate power and authority to enter into and to perform its
obligations under each of the Warehouse Loan Agreement and the other Loan
Documents to which it is a party.
2. The execution and delivery by each of the Loan Parties of the Warehouse
Loan Agreement and the other Loan Documents to which it is a party, and the
performance by each of the Loan Parties of its obligations under each of the
Warehouse Loan Agreement and the other Loan Documents to which it is a party,
are within such Loan Party's corporate powers and have been duly authorized by
all requisite corporate action on the part of such Loan Party. Each of the Loan
Parties has duly executed and delivered each of the Loan Documents to which it
is a party.
3. Each of the Warehouse Loan Agreement and the other Loan Documents to
which each of the Loan Parties is a party constitutes a valid and binding
agreement of such Loan Party, enforceable against such Loan Party in accordance
with its respective terms.
4. The execution and delivery by each of the Loan Parties of each of the
Loan Documents to which it is a party and the consummation of the transactions
contemplated thereby and compliance by such Loan Party with the provisions
thereof (i) will not conflict with or result in a breach or default (or give
rise to any right of termination, cancellation or acceleration) under any of the
provisions of the Governing Documents of such Loan Party or, to the best of our
knowledge, any other material agreement binding upon such Loan Party of which we
are aware, except for such conflict, breach or default as to which requisite
waivers or consents have been obtained, (ii) will not violate any law, statute,
rule or regulation of the State of Connecticut, the DGCL or the federal laws of
the United States of America or, to the best of our knowledge, any judgment,
order, writ, injunction or decree of any court or other tribunal located in the
State of Connecticut of which we are aware, applicable to such Loan Party or any
of its properties or assets, and (iii) to the best of our knowledge, will not
result in the creation or imposition of any lien (other than liens evidenced by
the Loan Documents in favor of the Lender) on any asset of such Loan Party.
Except for the filings necessary to create, record or perfect, or maintain the
perfection of, or to enforce, the security interests created by the Loan
Documents, to the best of our knowledge, no consent or approval by, or any
notification of or filing with, any court, public body or authority of the State
of Connecticut is required to be obtained by any of the Loan Parties in
connection with the
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execution, delivery and performance by such Loan Party of each of the Loan
Documents to which it is a party or the consummation by such Loan Party of the
transactions contemplated thereby.
5. To our knowledge, but without having investigated any governmental
records or court dockets, and without having made any other independent
investigation, there is no action, suit or proceeding pending against any of the
Loan Parties or any of their respective assets before any court or arbitrator or
any governmental body, agency or official, in which there is a reasonable
possibility of an adverse decision which could reasonably be expected to affect
materially and adversely the consolidated financial position of the Borrower, or
which in any manner draws into question the validity of the Warehouse Loan
Agreement or the other Loan Documents.
6. The provisions of the Warehouse Loan Agreement are effective under the
Connecticut UCC to create a valid, attached security interest in favor of the
Lender in all right, title and interest of the Borrower in the Collateral, to
the extent that Article 9 of the Connecticut UCC is applicable.
7. Upon the delivery to the Custodian of the promissory notes included in
the Collateral, and assuming the continued possession at all times by the
Custodian or the Lender of such promissory notes, the Lender will have a
perfected security interest in such promissory notes under the Connecticut UCC,
and such security interest will have priority over other security interests in
such promissory notes that can be perfected under Article 9 of the Connecticut
UCC.
This opinion is delivered solely to you and for your benefit in connection
with the Warehouse Loan Agreement and may not be relied upon by you for any
other purpose or furnished or referred to, or relied upon, by any other person
or entity for any reason without our prior written consent.
Very truly yours,
B-10
Exhibit C
---------
CREDIT INCREASE CONFIRMATION AND
NOTE AMENDMENT
Dated ______________
Reference is made to (x) the Revolving Commercial Loan Warehouse and
Security Agreement, dated as of December 4, 1998 (the "Revolving Warehouse
Agreement") among Prudential Securities Credit Corporation (the "Lender"), First
National Bank of New England (the "Borrower") and First International Bancorp,
Inc. (the "Guarantor") and(y) the Secured Note dated as of December 4, 1998 (the
"Note") from the Borrower to the Lender.
Section 1.
---------
The "Maturity Date" referenced in the Revolving Warehouse Agreement
and in the Note shall be ______________________.
The maximum Loan amount available under the Revolving Warehouse
Agreement and in the Note shall be _________________.
[Any other changes.]
Section 2.
---------
As amended by Section 1 hereof all provisions of the Revolving
Warehouse Agreement and of the Note are reconfirmed as of the date hereof. The
Borrower and the Guarantor, in addition, hereby reconfirm and remake as of the
date hereof each and every of their respective representations, warranties and
covenants set forth in the Revolving Warehouse Agreement.
X-0
XXXXX XXXXXXXX XXXX XX XXX XXXXXXX
By:_________________________________
Name:
Title:
FIRST INTERNATIONAL BANCORP, INC.
By:_________________________________
Name:
Title:
PRUDENTIAL SECURITIES CREDIT CORPORATION
By:_________________________________
Name:
Title:
C-2
Exhibit D
---------
FUNDING NOTICE
--------------
___________, __, 19__
Prudential Securities Credit Corporation
One Xxxxxxx Xxxxx
Xxxxxxxx Xxxxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Fax: (000) 000-0000
Re: Revolving Commercial Loan Warehouse
and Security Agreement, dated as of
December 4, 1998 ("Agreement")
-------------------------------
Ladies and Gentlemen:
Reference is made to the Agreement for defined terms used herein.
Pursuant to Section 1(a)4 of the Agreement, this letter constitutes notice that
the undersigned desires to obtain an Advance on __________ __, 19__, in the
principal amount of $____________, constituting ___% of the aggregate
outstanding principal balance of the Commercial Loans shown on the attached
Commercial Loan Schedule, as of the Cut-Off Date shown thereon.
This letter will further certify that: (1) the undersigned has no
notice or knowledge of any Event of Default; (2) the representations and
warranties in the Agreement relating to the Commercial Loans shown on the
attached Commercial Loan Schedule are true and correct as of the date hereof;
(3) each of the conditions to an Advance listed in Section 1(a)2. of the
Agreement are true and correct as of the date hereof and shall be true and
correct on the date of the Advance requested herein, before and after giving
effect thereto.
FIRST NATIONAL BANK OF NEW ENGLAND
By:____________________________________
Name:
Title:
cc: Prudential Securities Credit Corporation
Xxx Xxxxx - Fax: (000) 000-0000
D-1
Prudential Securities Incorporated
Xxxxx Xxxxxx - Fax: (000) 000-0000
Xxxx Xxx - Fax: (000) 000-0000
Marine Midland Bank
Xxxxx Barstock - Fax: (000) 000-0000
D-2
Exhibit E
---------
GUARANTY
In order to induce PRUDENTIAL SECURITIES CREDIT CORPORATION ("Lender") to lend
up to $75,000,000 to FIRST NATIONAL BANK OF NEW ENGLAND ("Borrower"), a wholly-
owned subsidiary of FIRST INTERNATIONAL BANCORP, INC., pursuant to the Revolving
Commercial Loan Warehouse and Security Agreement, dated as of December 4, 1998
(the "Warehouse Agreement"), to fund the origination of certain Commercial
Loans, FIRST INTERNATIONAL BANCORP, INC. (the "Guarantor") hereby absolutely,
unconditionally and irrevocably guarantees, as a primary obligor and not merely
as a surety, the due and punctual payment of the Borrower's obligations under
the Warehouse Agreement and the related Note when and as due, whether at stated
payment dates, at maturity, by acceleration or otherwise, and all other
obligations of the Borrower to the Lender pursuant to the Warehouse Agreement,
including without limitation all of the Lender's out-of-pocket costs and
attorneys' fees and expenses associated therewith (the "Obligations"). The
Guarantor further agrees that the Obligations may be extended and renewed, in
whole or in part, in accordance with the provisions of the Warehouse Agreement,
without notice to or further assent from it, and that it will remain bound upon
its guarantee notwithstanding any extension or renewal of any Obligations by the
Lender. Capitalized terms used herein but not defined herein shall have the
meaning set forth in the Warehouse Agreement.
In furtherance of the foregoing and not in limitation of any other right which
the Lender may have at law or in equity against the Guarantor by virtue hereof,
upon the occurrence of an event requiring the payment by the Borrower of any
Obligations, the Guarantor hereby promises to and will, upon receipt of written
demand by the Lender, forthwith pay, or cause to be paid, to the Lender in cash
the amount of such unpaid Obligations. Upon payment by the Guarantor of any
sums to the Lender as provided above, all rights of the Guarantor against the
Borrower arising as a result thereof by way of right of subrogation or otherwise
shall in all respects be subordinated and junior in right of payment to the
prior indefeasible payment in full of all the Obligations to the Lender.
The Guarantor waives presentment to, demand of payment from and protest to the
Borrower of any of the Obligations, and also waives notice of acceptance of its
guarantee and notice of protest for nonpayment. The obligations of the
Guarantor hereunder shall not be affected by (a) the failure of the Lender
E-1
to assert any claim or demand or to enforce any right or remedy against the
Borrower under the provisions of the Warehouse Agreement or otherwise; (b) any
rescission, waiver, amendment or modification of any of the terms or provisions
of the Warehouse Agreement or any other agreement or (c) the release of any
security held by the Lender for the Obligations or any of them.
The Guarantor further agrees that its guarantee constitutes a guarantee of
payment when due and not of collection, and waives any right to require that any
resort be had by the Lender to any security held for payment of the Obligations.
The representations, warranties and covenants relating to the Guarantor set
forth in Section 4 to the Warehouse Agreement are incorporated herein by
reference, and such representations and warranties are true and correct on the
date hereof.
The obligations of the Guarantor hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason, including,
without limitation, any claim of waiver, release, surrender, alteration or
compromise, and shall not be subject to any defense or setoff, counterclaim,
recoupment or termination whatsoever by reason of the invalidity, illegality or
unenforceability of the Obligations or otherwise. Without limiting the
generality of the foregoing, the obligations of the Guarantor hereunder shall
not be discharged or impaired or otherwise affected by the failure of the Lender
to assert any claim or demand or to enforce any remedy under the Warehouse
Agreement or any other agreement, by any waiver or modification on any thereof,
by any default, failure or delay, willful or otherwise, in the performance of
the Obligations, or by any other act or omission which may or might in any
manner or to any extent vary the risk of the Guarantor or otherwise operate as a
discharge of the Guarantor as a matter of law or equity.
The Guarantor further agrees that its guarantee shall continue to be effective
or be reinstated, as the case may be, if at any time payment, or any part
thereof, of principal of or interest on any Obligation is rescinded or must
otherwise be restored by the Lender upon the bankruptcy or reorganization of the
Borrower or otherwise, all as though such payment had not been made.
The Guarantor hereby irrevocably and unconditionally consents to submit to the
exclusive jurisdiction of the federal and New York State courts located in the
City of New York for any action, suit or proceeding instituted by the Lender to
enforce this Guaranty. The Guarantor further agrees that service of any
E-2
process, summons, notice or documents by U.S. registered or certified mail to
the Guarantor's address set forth below shall be effective service of process
for any such proceeding. The Guarantor hereby irrevocably and unconditionally
waives any objection the Guarantor may have at any time to the venue or forum of
any such proceeding brought in such a court.
E-3
IN WITNESS WHEREOF, the undersigned has executed this Guaranty on the day and
year set forth below.
Date: December 4, 1998
FIRST INTERNATIONAL BANCORP, INC.
By:__________________________________
Name:
Title:
Address of Guarantor:
First International Bancorp, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Tel. No. 000-000-0000
Fax No. 000-000-0000
Attention: Xxxxxx Xxxxxxxxx
Accepted:
PRUDENTIAL SECURITIES CREDIT CORPORATION,
Lender
By:_________________________________
Name:
Title:
E-4
ACKNOWLEDGMENT
STATE OF____________)
):ss.:
COUNTY OF___________)
On this _____ day of December, 1998, before me came__________________________,
the _____________ of FIRST INTERNATIONAL BANCORP, INC. to me known to be the
Guarantor described in, and who executed the foregoing instrument, and
acknowledged that (s)he executed the same.
____________________________________
Notary Public
Commission Expires________________
E-5
