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EXHIBIT 10.89
AMENDED AND RESTATED
CREDIT AGREEMENT
(SERVICING FACILITY)
Dated as of June 25, 1999
Between
DORAL FINANCIAL CORPORATION,
DORAL MORTGAGE CORPORATION,
THE LENDERS PARTY HERETO
And
BANKERS TRUST COMPANY,
as Agent
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TABLE OF CONTENTS
PAGE
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ARTICLE 1 DEFINITIONS...................................................................................1
Section 1.1 Defined Terms.........................................................................1
Section 1.2 Terms Generally......................................................................13
ARTICLE 2 AMOUNTS AND TERMS OF LOANS...................................................................13
Section 2.1 Commitments..........................................................................13
Section 2.2 Method of Borrowing and of Conversions/Continuations.................................13
Section 2.3 Conversions/Continuations of Loans...................................................14
Section 2.4 Disbursement of Funds................................................................15
Section 2.5 Notes................................................................................15
Section 2.6 Interest.............................................................................16
Section 2.7 Termination of Commitments...........................................................16
Section 2.8 Mandatory Repayments.................................................................17
Section 2.9 Optional Prepayments.................................................................17
Section 2.10 Fees.................................................................................17
Section 2.11 Payments, Etc,.......................................................................18
Section 2.12 Eurodollar Rate Not Determinable; Illegality or Impropriety..........................19
Section 2.13 Reserve Requirements; Change in Circumstances........................................20
Section 2.14 Indemnity............................................................................21
Section 2.15 Taxes................................................................................22
Section 2.16 Sharing of Setoffs...................................................................23
ARTICLE 3 CONDITIONS TO LOANS..........................................................................23
Section 3.1 Conditions to Loans..................................................................23
ARTICLE 4 REPRESENTATIONS AND WARRANTIES...............................................................25
Section 4.1 Corporate Existence; Compliance with Law and Contractual Obligations.................26
Section 4.2 Corporate Power; Authorization; Enforceable Obligations..............................26
Section 4.3 No Legal or Contractual Bar..........................................................26
Section 4.4 Financial Information................................................................26
Section 4.5 No Material Litigation...............................................................27
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Section 4.6 Taxes................................................................................27
Section 4.7 Investment Company Act...............................................................27
Section 4.8 Subsidiaries.........................................................................27
Section 4.9 Use of Proceeds......................................................................28
Section 4.10 ERISA................................................................................28
Section 4.11 Security Interests...................................................................28
Section 4.12 Agency Approvals.....................................................................28
Section 4.13 Solvency.............................................................................29
Section 4.14 Minimum Servicing Portfolio..........................................................29
Section 4.15 Year 2000 Compliance.................................................................29
ARTICLE 5 COVENANTS....................................................................................29
Section 5.1 Affirmative Covenants................................................................29
Section 5.2 Negative Covenants of Each Borrower..................................................34
Section 5.3 Additional Negative Covenants........................................................38
ARTICLE 6 EVENTS OF DEFAULT............................................................................39
Section 6.1 Events of Default....................................................................39
ARTICLE 7 THE AGENT....................................................................................41
Section 7.1 Appointment of Agent.................................................................41
Section 7.2 Nature of Duties of Agent............................................................41
Section 7.3 Lack of Reliance on Agent............................................................42
Section 7.4 Certain Rights of Agent..............................................................42
Section 7.5 Reliance by Agent....................................................................43
Section 7.6 Indemnification of Agent.............................................................43
Section 7.7 Agent in its Individual Capacity.....................................................43
Section 7.8 Holders of Notes.....................................................................43
Section 7.9 Successor Agent......................................................................44
ARTICLE 8 MISCELLANEOUS PROVISIONS.....................................................................44
Section 8.1 Notices..............................................................................44
Section 8.2 Amendments, Etc......................................................................45
Section 8.3 No Waiver; Remedies Cumulative.......................................................45
Section 8.4 Payment of Expenses, Etc.............................................................46
Section 8.5 Right of Setoff......................................................................46
Section 8.6 Benefit of Agreement.................................................................47
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Section 8.7 GOVERNING LAW; SUBMISSION TO JURISDICTION............................................49
Section 8.8 Counterparts.........................................................................50
Section 8.9 Headings Descriptive.................................................................50
Section 8.10 Survival of Representations and Indemnities..........................................50
Section 8.11 Severability.........................................................................51
Section 8.12 Indemnification of Collateral Agent..................................................51
Section 8.13 Joint and Several Nature of the Obligations..........................................51
Section 8.14 Certain Waivers......................................................................51
Section 8.15 Subrogation, Etc.....................................................................52
Section 8.16 Confidentiality......................................................................53
Section 8.17 Integration..........................................................................53
Section 8.18 Effectiveness........................................................................54
Section 8.19 Ratification; No Novation............................................................55
Section 8.20 WAIVER OF JURY TRIAL.................................................................55
EXHIBITS
Exhibit A Form of Note
Exhibit B Amended and Restated Security and Collateral Agency Agreement
Exhibit C-1 Form of Opinion of Borrowers' New York Counsel
Exhibit C-2 Form of Opinion of Borrowers' Puerto Rico Counsel
Exhibit D-1 Officer's Certificate (DFC)
Exhibit D-2 Officer's Certificate (DMC)
Exhibit E Notice of Borrowing
Exhibit F Notice of Conversion/Continuation
Exhibit G Form of Power of Attorney
Exhibit H Addresses for Notices
Exhibit I Material Litigation
Exhibit J Form of Confidentiality Agreement
Exhibit K Permitted Subordinated Indebtedness
Exhibit L-1 Form of Pledged Servicing Portfolio Report
Exhibit L-2 Form of Recourse Servicing Portfolio Report
Exhibit L-3 Form of Recourse Servicing Portfolio Statistics Report
Exhibit M Authorized Officers
Exhibit N Form of Assignment and Acceptance
Exhibit O Form of Additional Lender Agreement
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AMENDED AND RESTATED CREDIT AGREEMENT
(SERVICING FACILITY)
THIS AMENDED AND RESTATED CREDIT AGREEMENT (SERVICING
FACILITY) is made and dated as of June 25, 1999, by and between the Lenders
party hereto from time to time, BANKERS TRUST COMPANY, a New York banking
corporation, as agent for the Lenders, DORAL FINANCIAL CORPORATION, a
corporation organized under the laws of the Commonwealth of Puerto Rico
("DFC"), and DORAL MORTGAGE CORPORATION, a corporation organized under the laws
of the Commonwealth of Puerto Rico, and a wholly-owned subsidiary of DFC
("DMC"), and together with DFC, each a "BORROWER" and collectively, the
"BORROWERS"), with reference to the First Amended and Restated Credit
Agreement, dated as of June 26, 1998, between the Borrowers, the Banker Trust
Company, as agent thereunder, and the lenders party thereto (as amended to the
date hereof, the "ORIGINAL CREDIT AGREEMENT"). Capitalized terms not otherwise
defined herein are defined in Article I.
The Lenders, the Agent and the Borrowers wish to amend and restate the
Original Credit Agreement in its entirety.
ACCORDINGLY, the parties hereto agree that the Original Credit
Agreement is amended and restated in its entirety as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1 DEFINED TERMS.
For purposes of this Agreement, the terms set forth below
shall have the following meanings:
"ACCUMULATED FUNDING DEFICIENCY" shall mean a funding
deficiency described in Section 302 of ERISA.
"ACKNOWLEDGMENT AGREEMENT" shall mean an acknowledgment
agreement in form and substance satisfactory to the Agent pursuant to
which FNMA, FHLMC, GNMA or any other Person which owns Mortgage Loans
or has issued mortgaged-backed securities for which either Borrower
holds direct servicing rights, acknowledges and recognizes the
security interest in such rights granted to the Secured Parties.
"ADJUSTED TANGIBLE NET WORTH" shall mean, as of any date, (a)
the sum of: (i) Book Net Worth as of such date, (ii) one percent
(1.0%) of the outstanding principal balance of Mortgage Loans in the
Servicing Portfolio as of such date, and (iii) the aggregate principal
amount of Permitted Subordinated Indebtedness outstanding as of such
date, less (b)(i) fifty percent (50%) of the amount of "interest only
strip securities", (ii) all purchased loan administration contracts
and (iii) all other assets that would be classified as intangible
assets under GAAP, including purchased and capitalized value of
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servicing rights, goodwill (whether representing the excess cost over
book value of assets acquired or otherwise), patents, trademarks,
trade names, copyrights, franchises, deferred charges (including
unamortized debt discount and expense, organization and acquisition
costs and research and product development costs), and in accordance
with FASB 65, as amended by FASB 122, by the Financial Accounting
Standards Board, any originated mortgage servicing rights.
"ADJUSTMENT DATE" shall have the meaning given such term in
Section 8.6(h).
"AFFILIATE" shall mean, as to any Person, any other Person
directly or indirectly Controlling, Controlled by or under direct or
indirect common Control with, such Person, whether through the
ownership of voting securities, by contract or otherwise. "Control" as
used herein (and all forms of the word) means the power to direct the
management and policies of a Person.
"AGENCY" shall mean FHA, FHLMC, FNMA, GNMA or VA.
"AGENT" shall mean Bankers Trust Company, in its capacity as
agent for the Lenders hereunder, and any successor agent appointed
pursuant to Section 7.9.
"AGREEMENT" shall mean this Agreement, as amended, modified
or supplemented from time to time.
"AMENDMENT EFFECTIVE DATE" shall have the meaning given such
term in Section 8.18.
"APPLICANT LENDER" shall have the meaning given such term in
Section 8.6(g).
"AUTHORIZED OFFICERS" shall mean those officers identified on
Exhibit M attached hereto; provided that DFC or DMC, as the case may
be, may, with respect to its Authorized Officers, by notice to the
Agent in accordance with Section 8.1, add or delete any person from
the list of Authorized Officers set forth above.
"BASE EURODOLLAR RATE" shall mean, with respect to any
Eurodollar Loan, a rate per annum equal to the offered rate for U.S.
Dollar deposits, in an amount equal to amount of the Eurodollar Loan
proposed to be subject to such rate and with maturities comparable to
such Eurodollar Interest Period, that appears on Telerate Page 3750 as
of approximately 11:00 a.m., London time, two (2) Eurodollar Business
Days prior to the commencement of such Eurodollar Interest Period;
provided that if such rate does not appear on Telerate Page 3750, the
"Base Eurodollar Rate" applicable to a particular Eurodollar Interest
Period shall mean a rate per annum equal to the rate at which U.S.
Dollar deposits, in an amount equal to the principal amount of the
Eurodollar Loans proposed to be subject to such rate and with
maturities comparable to such Eurodollar Interest Period, are offered
in immediately available funds in the London Interbank Market to the
London office of the Agent by leading banks in the London Interbank
Market as of approximately 11:00 a.m., London time, two (2) Eurodollar
Business Days prior to the commencement of the Eurodollar Interest
Period to which such Base Eurodollar Rate is applicable.
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"BOARD" shall mean the Board of Governors of the Federal
Reserve System of the United States and any successor thereto.
"BOOK NET WORTH" shall mean (a) the sum of (i) the net worth,
determined in accordance with GAAP consistently applied, of (A) DFC on
a non-consolidated basis, (B) DMC, (C) Centro Hipotecaro de Puerto
Rico, Inc. and (D) other Subsidiaries of DFC engaged primarily in the
business of mortgage banking (as reasonably determined by the Agent,
but excluding Doral Bank, Doral Securities, Inc., Doral Bank FSB and
Doral Money, Inc.) and (ii) the amount of intercompany payables
between DFC and DMC, less (b) the sum of (i) the amount of
intercompany receivables between DFC and DMC and (ii) investments by
DFC and/or DMC in any Subsidiaries, which investments are listed under
the account titled "Other Assets" (as such term is used in the
consolidated statement of financial condition of DFC dated as of
December 31, 1998) or which are listed under other accounts.
Notwithstanding the foregoing, if at any time any of the entities
listed in clauses (B), (C) or (D) above become businesses engaged
primarily in activities other than mortgage banking (as reasonably
determined by the Agent), then the net worth of such entity shall not
be included in clause (i) for the purposes of calculating Book Net
Worth.
"BORROWER" and "BORROWERS" shall have the meaning given such
terms in the introductory paragraph of this Agreement.
"BORROWING" shall mean a borrowing pursuant to a Notice of
Borrowing consisting of Loans made concurrently by all of the Lenders.
"BORROWING DATE" shall mean any date on which the Lenders
make Loans at the Borrowers' request pursuant to Section 2.2.
"BUSINESS DAY" shall mean any day other than (i) a Saturday,
Sunday and any other day on which banks in New York City are required
or authorized to close or (ii) any public or bank holiday in the
Commonwealth of Puerto Rico.
"CODE" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and the rules and regulations issues
thereunder as from time to time in effect.
"COLLATERAL" shall have the meaning given such term in
Section 2 of the Security Agreement.
"COLLATERAL AGENT" shall mean initially Bankers Trust
Company, in its capacity as "Collateral Agent" under the Security
Agreement, and any successor collateral agent thereto acceptable to
the Required Lenders and the Borrowers and designated as the
"Collateral Agent" under the Security Agreement.
"COLLATERAL VALUE OF THE PLEDGED SERVICING PORTFOLIO" shall
mean, at the time of determination thereof, an amount equal to the
lesser of (i) 70% of the fair market value of the servicing rights
relating to the Mortgage Loans included in the Pledged Servicing
Portfolio and (ii) 1.10% of the unpaid principal balance of the
Mortgage Loans included in the Pledged Servicing
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Portfolio (in each case as reflected on the most recent Pledged
Servicing Valuation Report delivered to the Agent, provided that if no
Pledged Servicing Valuation Report has been delivered to the Agent in
accordance with Section 5.1(a)(ix)(B), then the Collateral Value of
the Pledged Servicing Portfolio shall be an amount determined by the
Agent in its sole discretion).
"COMMITMENT" shall mean, with respect to each Lender, the
commitment of such Lender to make Loans hereunder as set forth in
Section 2.1, as such commitment may be modified pursuant to Section
8.6(c).
"COMMITMENT FEE" shall have the meaning given such term in
Section 2.10(a).
"CONTRACTUAL OBLIGATION" shall mean, as to any Person, any
provision of any security issued by such Person or of any agreement,
instrument or undertaking to which such Person is a party or by which
it or any of its property is bound.
"CONVERSION/CONTINUATION DATE" shall mean (a) any date on
which the Lenders, pursuant to Sections 2.2 and 2.3, convert Loans to
Loans bearing interest at a different interest rate, or continue
outstanding Eurodollar Loans for an additional Eurodollar Interest
Period (which date shall be a Eurodollar Business Day in the case of a
conversion of Prime Loans into Eurodollar Loans or the continuation of
a Eurodollar Loan) and (b) the last day of each Eurodollar Interest
Period in the case of a Eurodollar Loan.
"DEFAULTING LENDER" shall have the meaning given such term in
Section 2.4(b).
"DFC" shall have the meaning given such term in the
introductory paragraph of this Agreement.
"DMC" shall have the meaning given such term in the
introductory paragraph of this Agreement.
"ELIGIBLE SERVICING RECEIVABLE" shall have the meaning given
such term in the Warehouse Credit Agreement.
"ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as the same may from time to time be supplemented or
amended, and the rules and regulations issued thereunder as from time
to time in effect.
"ERISA AFFILIATE" shall mean each trade or business,
including the Borrowers, whether or not incorporated, that together
with the Borrowers would be treated as a single employer under section
4001 of ERISA.
"EURODOLLAR BUSINESS DAY" shall mean any Business Day on
which commercial banks are open for international business (including
dealings in dollar deposits) in London, England.
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"EURODOLLAR INTEREST PERIOD" shall mean, with respect to any
Eurodollar Loan, the period commencing on the Borrowing Date or a
Conversion/Continuation Date for such Eurodollar Loan, as the case may
be, and ending one, two or three months thereafter as the Borrowers
may elect in the applicable Notice of Borrowing or Notice of
Conversion/Continuation; provided that (a) any Eurodollar Interest
Period that would otherwise end on a day that is not a Eurodollar
Business Day shall be extended to the next succeeding Eurodollar
Business Day, unless such Eurodollar Business Day falls in another
calendar month, in which case such Eurodollar Interest Period shall
end on the next preceding Eurodollar Business Day; (b) any Eurodollar
Interest Period that begins on the last Eurodollar Business Day of a
calendar month or any Eurodollar Interest Period that begins on a day
for which there is no numerically corresponding day in the calendar
month at the end of such Eurodollar Interest Period shall end on the
last Eurodollar Business Day of such calendar month at the end of such
Eurodollar Interest Period; and (c) no Eurodollar Interest Period
shall end after the Maturity Date.
"EURODOLLAR LOAN" shall mean any Loan bearing interest at the
rate set forth in Section 2.6(a).
"EURODOLLAR RATE" shall mean, with respect to any Eurodollar
Interest Period, a rate per annum equal to the quotient obtained by
dividing (a) the Base Eurodollar Rate applicable to such Eurodollar
Interest Period by (b) one minus the Reserve Requirement (expressed as
a decimal) applicable to such Eurodollar Interest Period. The
Eurodollar Rate shall be rounded, if necessary, to the next higher
one-sixteenth of one percent (1/16 of 1%).
"EVENT OF DEFAULT" shall have the meaning given such term in
Article VI.
"FEDERAL FUNDS RATE" shall mean, for any period, a
fluctuating interest rate per annum equal for each day during such
period to the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by
Federal funds brokers, as published for such day (or, if such day is
not a Business Day, for the preceding Business Day) by the Federal
Reserve Bank of New York or, if such rate is not so published for any
day that is a Business Day, the average of the quotations for such day
on such transactions received by the Agent from three (3) Federal
funds brokers of recognized standing selected by it.
"FHA" shall mean the Federal Housing Administration and any
successor thereto.
"FHLMC" shall mean the Federal Home Loan Mortgage Corporation
and any successor thereto.
"FNMA" shall mean the Federal National Mortgage Association
and any successor thereto.
"FNMA/FHLMC SERVICING PORTFOLIO" shall mean the portfolio of
outstanding Mortgage Loans (excluding Mortgage Loans owned by either
Borrower or its Affiliates that are not serviced pursuant to a
Permitted Affiliate Servicing Agreement) that are
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owned by FNMA or FHLMC or included in pools of Mortgage Loans with
respect to which FNMA or FHLMC has issued a Mortgage-Backed Security
and with respect to which either Borrower holds direct servicing
rights, and that are covered by an effective Acknowledgment Agreement.
"GAAP" shall mean generally accepted accounting principles in
the United States of America in effect from time to time.
"GNMA" shall mean the Government National Mortgage
Association and any successor thereto.
"GNMA SERVICING PORTFOLIO" shall mean the portfolio of
outstanding Mortgage Loans (excluding Mortgage Loans owned by either
Borrower or its Affiliates that are not serviced pursuant to a
Permitted Affiliate Servicing Agreement) that are guaranteed by GNMA
or included in pools of Mortgage Loans with respect to which GNMA has
issued a Mortgage-Backed Security and with respect to which either
Borrower holds direct servicing rights, and that are covered by an
effective Acknowledgment Agreement if requested by the Agent and the
Lenders.
"GOVERNMENTAL AUTHORITY" shall mean any nation or government,
any state, commonwealth or other political subdivision thereof, and
any entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"HUD" shall mean the Department of Housing and Urban
Development and any successor thereto.
"INDEBTEDNESS" shall mean, with respect to any Person, all
items of indebtedness that, in accordance with GAAP, would be included
in determining liabilities as shown on the liability side of a
statement of financial condition of such Person as of the date as of
which indebtedness is to be determined, including all obligations for
money borrowed, the deferred purchase price of property or services
and capitalized lease obligations, and shall also include all
indebtedness and liabilities of others assumed or guaranteed by such
Person, or secured by any Lien upon property owned by such Person,
whether or not such indebtedness is assumed, or in respect of which
such Person is secondarily or contingently liable (other than by
endorsement of instruments in the course of collection), including
contingent reimbursement obligations of such Person under undrawn
letters of credit, whether by reason of any agreement to acquire such
indebtedness or to supply or advance sums or otherwise (but excluding
any obligations (whether recourse or nonrecourse) to advance principal
and interest payments and taxes and insurance payments on Mortgage
Loans in advance of receipt of such payments from the underlying
obligor under servicing agreements entered into by either Borrower
which agreements exist on the date hereof and any similar agreements
entered into after the date hereof).
"INFORMATION SYSTEMS AND EQUIPMENT" shall mean all computer
hardware, firmware and software, as well as other information
processing systems, or any
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equipment containing embedded microchips, whether directly owned,
licensed, leased, operated or otherwise controlled by either Borrower
or any of their respective Subsidiaries, including through third-party
service providers, and which, in whole or in part, are used, operated,
relied upon, or integral to either Borrower's or any of their
Subsidiaries' conduct of their business.
"INTERCREDITOR AGREEMENT" shall mean the Intercreditor
Agreement dated as of June 25, 1999, between the Agent, the Lenders,
and each of the Warehouse Lenders, as amended, supplemented or
otherwise modified from time to time.
"LENDERS" shall mean the banks and other financial
institutions party hereto from time to time.
"LIEN" shall mean any security interest, mortgage, pledge,
lien, claim on property, charge or encumbrance (including any
conditional sale or other title retention agreement), any lease in the
nature thereof, and the filing of or agreement to give any financing
statement under the Uniform Commercial Code of any jurisdiction.
"LOAN" shall mean a loan made by a Lender pursuant to Section
2.1 for the purposes set forth in Section 4.9.
"LOAN DOCUMENTS" shall mean this Agreement, the Security
Agreement, the Warehouse Security Agreement, the Notes, the
Acknowledgment Agreements and any other document, instrument or
agreement executed by the Borrowers in connection herewith or
therewith, as any of the same may be amended, modified or supplemented
from time to time.
"MARGIN STOCK" shall have the meaning given such term in
Regulation U of the Board.
"MATERIAL ADVERSE EFFECT" shall mean a material adverse
effect with respect to (a) the business, operations or financial
condition of a Borrower, (b) the ability of any Borrower to pay and
perform its Obligations, (c) the validity or enforceability of this
Agreement, any of the other Loan Documents, or the rights and remedies
of the Secured Parties hereunder or thereunder or (d) the value of the
Collateral or the Warehouse Collateral.
"MATERIAL AMOUNT" shall mean, at any time, ten percent (10%)
of Book Net Worth, as set forth in the most recent annual or quarterly
statement of financial condition of DFC delivered to the Lenders,
absent manifest error in such statement.
"MATURITY DATE" shall mean June 23, 2000; provided that upon
the written request of the Borrowers to the Agent, the Lenders may
elect to extend the Maturity Date on terms as they may deem
appropriate in their sole discretion.
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"MORTGAGE-BACKED SECURITY" shall mean any security (including
a participation certificate) issued by FHLMC, FNMA or any other
Person, or guaranteed by GNMA, that represents an interest in a pool
of Mortgage Loans.
"MORTGAGE LOAN" shall mean a one- to four-family residential
real estate-secured loan other than any loan secured by mobile homes
or other temporary housing facilities.
"MULTIEMPLOYER PLAN" shall mean a plan described in section
4001(a)(3) of ERISA to which the Borrowers or any ERISA Affiliate is
required to contribute on behalf of any of its employees.
"NOTE" shall have the meaning given such term in Section 2.5.
"NOTICE OF BORROWING" shall have the meaning given such term
in Section 2.2.
"NOTICE OF CONVERSION/CONTINUATION" shall have the meaning
given such term in Section 2.2.
"OBLIGATIONS" shall mean, collectively, the unpaid principal
of and interest on the Loans and any Notes and all other obligations
and liabilities of each of the Borrowers to the Agent, the Lenders,
the Collateral Agent and any other Secured Parties (including, without
limitation, interest accruing at the then applicable rate provided in
this Agreement after the maturity of the Loans and interest accruing
at the then applicable rate provided in this Agreement after the
filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, relating to either
Borrower, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding), whether direct or indirect,
absolute or contingent, due or to become due, voluntary or
involuntary, whether or not jointly owed with others, liquidated or
unliquidated, or now existing or hereafter incurred, and whether or
not from time to time decreased or extinguished and later increased,
created or incurred, which may arise under, out of, or in connection
with, this Agreement, the Loans, any Notes, the Security Agreement,
the Warehouse Security Agreement, the other Loan Documents or any
other document made, delivered or given in connection therewith, in
each case whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses or otherwise
(including, without limitation, all reasonable fees and disbursements
of counsel to any of the Agent, the Collateral Agent or any of the
other Secured Parties that are required to be paid by the Borrowers
pursuant to the terms of this Agreement, the Security Agreement, the
Warehouse Security Agreement, or any other Loan Document).
"ORIGINAL CREDIT AGREEMENT" shall have the meaning given such
term in the introductory paragraph hereof.
"PAYMENT OFFICE" shall mean the Agent's office located at Xxx
Xxxxxxx Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other office as
the Agent shall specify by notice to the Borrowers and the Lenders.
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"XXXX" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA and any
successor thereto.
"PERMITTED AFFILIATE SERVICING AGREEMENT" shall mean an
agreement between either Borrower and an Affiliate thereof pursuant to
which such Borrower has direct servicing rights to service Mortgage
Loans owned by such Affiliate on terms and at rates no less favorable
than would be obtained from a non-Affiliate of such Borrower,
including the Master Servicing and Collection Agreement between DFC
and Doral Bank, dated as of October 1, 1995, as amended by the First
Amendment to Master Servicing and Collection Agreement, dated as of
March 1, 1996.
"PERMITTED SUBORDINATED INDEBTEDNESS" shall mean any
Indebtedness (other than the Obligations) incurred by each Borrower
that is subordinated to the Obligations in accordance with the
criteria set forth on Exhibit K attached hereto.
"PERSON" shall mean any corporation, natural person, firm,
joint venture, partnership, trust, unincorporated organization,
government or any political subdivision, department, agency or
instrumentality of any government.
"PLAN" shall mean any plan (other than a Multiemployer Plan)
subject to Title IV of ERISA maintained for employees of the Borrowers
or any ERISA Affiliate (and any such plan no longer maintained by the
Borrowers or any of its ERISA Affiliates to which the Borrowers or any
of its ERISA Affiliates has made or was required to make any
contributions during the five years preceding the date on which such
plan ceased to be maintained).
"PLEDGED SERVICING PORTFOLIO" shall mean the FNMA/FLHMC
Servicing Portfolio and the GNMA Servicing Portfolio, in each case
with respect to which the Secured Parties have a valid and perfected
first priority security interest in the related direct servicing
rights owned by either Borrower.
"PLEDGED SERVICING PORTFOLIO REPORT" shall mean a report
prepared by the Borrowers in the format prescribed by the Mortgage
Bankers' Association of America listing the FNMA/GNMA/FHLMC statistics
and the other information shown on Exhibit L-1.
"PLEDGED SERVICING VALUATION REPORT" shall mean a report
prepared by a nationally recognized mortgage servicing broker
acceptable to the Agent and the Borrowers, and otherwise in form and
substance reasonably satisfactory to the Agent, setting forth the fair
market value of the servicing rights relating to the Mortgage Loans
included in the Pledged Servicing Portfolio as of such date (with the
FNMA/FHLMC Servicing Portfolio and the GNMA Servicing Portfolio each
listed and valued separately (and, with respect to the FNMA/FHLMC
Servicing Portfolio, with the portfolio serviced for FNMA listed
separately from the portfolio serviced for FHLMC)), with such value
determined on the basis of the net present value of the expected
stream of annual cash flow generated thereby using assumptions
reasonably acceptable to the Agent.
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"POWER OF ATTORNEY" shall mean a power of attorney granted by
the Borrowers, substantially in the form of Exhibit G attached hereto.
"POTENTIAL DEFAULT" shall mean an event that with the lapse
of time or the giving of notice, or both, would, unless cured or
waived, constitute an Event of Default.
"PRIME LOAN" shall mean any Loan bearing interest at the rate
set forth in Section 2.6(b).
"PRIME RATE" shall mean the rate of interest that is publicly
announced from time to time by Bankers Trust Company in New York City
as its prime lending rate as in effect from time to time, such rate to
change automatically and without notice to the Borrowers when and as
such prime lending rate changes. The Prime Rate is a reference rate
and does not necessarily represent the best or lowest rate actually
charged by Bankers Trust Company to any customer. Bankers Trust
Company may make commercial loans or other loans at rates of interest
at, above or below the Prime Rate.
"PROCESS AGENT" shall have the meaning given such term in
Section 8.7.
"PROHIBITED TRANSACTION" shall mean any transaction described
in section 406 of ERISA that is not exempt by reason of section 408 of
ERISA or the transitional rules set forth in section 414(c) of ERISA
and any transaction described in section 4975(c)(1) of the Code that
is not exempt by reason of section 4975(c)(2) or section 4975(d) of
the Code, or the transitional rules of section 2003(c) of ERISA.
"RECOURSE SERVICING PORTFOLIO REPORT" shall mean a report
prepared by the Borrowers in substantially the form set forth in
Exhibit L-2, including the following information: the recourse
Mortgage Loan or Mortgage-Backed Security investor; the type of
recourse (i.e. limited or full); delinquency and foreclosure rates on
the Borrowers' recourse servicing portfolio; the amount of risk
weighted capital required to support DFC's consolidated recourse
exposure; and consolidated total capital to risk weighted assets in
both amount and ratio terms.
"RECOURSE SERVICING PORTFOLIO STATISTICS REPORT" shall mean a
report prepared by the Borrowers in substantially the form set forth
in Exhibit L-3.
"REGULATION D" shall mean Regulation D of the Board as from
time to time in effect, and any other regulation hereafter promulgated
by the Board to replace the prior Regulation D and having
substantially the same function.
"REPORTABLE EVENT" shall mean any of the events set forth in
section 4043(c) of ERISA or the regulations thereunder, a withdrawal
from a Plan described in section 4063 of ERISA, a cessation of
operations described in section 4068(f) of ERISA, an amendment to a
Plan necessitating the posting of security under section 401(a)(29) of
the Code, or a failure to make a payment required by section 412(m) of
the Code and section 302(e) of ERISA when due.
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"REQUIRED LENDERS" shall mean, at any time, Lenders holding
at least sixty-six and two-thirds percent (66.66%) of the then
aggregate unpaid principal amount of the Loans or, if no Loans are
then outstanding, Lenders holding at least sixty-six and two-thirds
percent (66.66%) of the Commitments.
"REQUIREMENTS OF LAW" shall mean as to any Person the
Articles or Certificate of Incorporation and Bylaws or other
organizational or governing documents of such Person, and any law,
treaty, rule or regulation, or a final and binding determination of an
arbitrator or a determination of a court or other Governmental
Authority, in each case applicable to or binding upon such Person or
any of its property or to which such Person or any of its property is
subject.
"RESERVE REQUIREMENT" shall mean, with respect to any
Eurodollar Interest Period, the daily average during such Eurodollar
Interest Period of the maximum aggregate reserve requirement
(including all basic, supplemental, marginal and other reserves and
taking into account any transitional adjustments or other scheduled
changes in reserve requirements during such Eurodollar Interest
Period) which is imposed under Regulation D on any member bank of the
Federal Reserve System, in respect of eurocurrency or eurodollar
funding, lending or liabilities.
"SECURED PARTIES" shall have the meaning given such term in
the Security Agreement.
"SECURITY AGREEMENT" shall mean the Amended and Restated
Security and Collateral Agency Agreement (Servicing Collateral)
substantially in the form of Exhibit B, as amended, modified or
supplemented from time to time and any other documents or certificates
creating or evidencing security interests granted to the Secured
Parties under such agreement.
"SERVICING PORTFOLIO" shall mean, at any time, the portfolio
of outstanding Mortgage Loans (excluding Mortgage Loans owned by
either Borrower or its Affiliates which are not serviced pursuant to a
Permitted Affiliate Servicing Agreement) with respect to which the
Borrowers have direct servicing rights.
"SUBSIDIARY" shall mean with respect to any Person, any
corporation, association or other business entity of which more than
fifty percent (50%) of the securities or other ownership interests
having ordinary voting power is, or with respect to which rights to
control management (pursuant to any contract or other agreement or
otherwise) are, at the time as of which any determination is being
made, owned, controlled or held by such Person or one or more
subsidiaries of such Person.
"TAXES" shall have the meaning given such term in Section
2.15.
"TELERATE PAGE 3750" shall mean the display designated as
"Page 3750" on the Associated Press-Dow Xxxxx Telerate Service (or
such other page as may replace Page 3750 on the Associated Press-Dow
Xxxxx Telerate Service or such other service as may be nominated by
the British Bankers' Association as the information vendor for the
purposes of displaying British Bankers' Association interest
settlement rates for U.S.
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Dollar deposits). Any Base Eurodollar Rate determined on the basis of
the rate displayed on Telerate Page 3750 shall be subject to
corrections, if any, made in such rate and displayed by the Associated
Press-Dow Xxxxx Telerate Service within one (1) hour of the time when
such rate is first displayed by such service.
"TOTAL LIABILITIES" shall mean (i) the aggregate amount of
all liabilities of each Borrower and each of its consolidated
Subsidiaries (other than Doral Bank, Doral Securities, Inc., Doral
Bank FSB and Doral Money, Inc.) determined in accordance with GAAP,
consistently applied, other than Permitted Subordinated Indebtedness,
less (ii) the aggregate amount of intercompany payables owing from one
Borrower to the other Borrower.
"VA" shall mean the Veterans Administration and any successor
thereto.
"WAREHOUSE AGENT" shall mean the "Agent" as such term is
defined in the Warehouse Credit Agreement.
"WAREHOUSE COLLATERAL" shall mean the "Collateral" as such
term is defined in the Warehouse Security Agreement.
"WAREHOUSE CREDIT AGREEMENT" shall mean the Amended and
Restated Credit Agreement, dated as of June 25, 1999, between the
Borrowers, Bankers Trust Company, as Agent, and the lenders party
thereto from time to time, as amended, supplemented or otherwise
modified from time to time.
"WAREHOUSE EVENT OF DEFAULT" shall mean an "Event of Default"
as such term is defined in the Warehouse Credit Agreement.
"WAREHOUSE FACILITY 1 COMMITMENTS" shall mean the "Facility 1
Commitments" as such term is defined in the Warehouse Credit
Agreement.
"WAREHOUSE FACILITY 2 TRANCHE C LOANS" shall mean the
"Facility 2 Tranche C Loans" as such term is defined in the Warehouse
Credit Agreement.
"WAREHOUSE LENDERS" shall mean the "Lenders" as such term is
defined in the Warehouse Credit Agreement.
"WAREHOUSE OBLIGATIONS" shall mean the "Obligations" as such
term is defined in the Warehouse Credit Agreement.
"WAREHOUSE SECURITY AGREEMENT" shall mean the "Security
Agreement" as such term is defined in the Warehouse Credit Agreement.
"WAREHOUSE SECURITY AGREEMENTS" shall mean the "Security
Agreements" as such term is defined in the Warehouse Credit Agreement.
"YEAR 2000 COMPLIANT" shall mean that all Information Systems
and Equipment accurately process date data (including, but not limited
to, calculating, comparing and
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sequencing), before, during and after the year 2000, as well as same
and multi-century dates, or between the years 1999 and 2000, taking
into account all leap years, including the fact that the year 2000 is
a leap year, and further, that when used in combination with, or
interfacing with, other Information Systems and Equipment, shall
accurately accept, release and exchange date data, and shall in all
material respects continue to function in the same manner as it
performs today and shall not otherwise impair the accuracy or
functionality of Information Systems and Equipment.
SECTION 1.2 TERMS GENERALLY.
The definitions in Section 1.1 shall apply equally to both
the singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and
neuter forms. The words "include," "includes" and "including" shall be deemed
to be followed by the phrase "without limitation." All references herein to
Articles, Sections, Exhibits and Attachments shall be deemed references to
Articles and Sections of, and Exhibits and Attachments to, this Agreement or to
an Exhibit to this Agreement unless the context shall otherwise require. Except
as otherwise provided herein, all terms of an accounting or financial nature
shall be construed in accordance with GAAP, as in effect from time to time;
provided, that for purposes of determining compliance with any covenant set
forth in Article V, such term shall be construed in accordance with GAAP as in
effect on the date of this Agreement applied on a basis consistent with the
financial statements referred to in Section 4.4(a).
ARTICLE 2
AMOUNTS AND TERMS OF LOANS
SECTION 2.1 COMMITMENTS.
Subject to and upon the terms and conditions herein set
forth, each Lender agrees, severally and not jointly, at any time and from time
to time from the date of this Agreement up to but excluding the date upon which
the Commitments are terminated, to make Loans to the Borrowers in an aggregate
principal amount at any time outstanding not to exceed the Commitment set forth
opposite such Lender's name on the signature pages hereto, as such commitment
may be modified from time to time pursuant to Section 8.6(c); provided that the
aggregate principal amount of Loans plus the aggregate principal amount of
Warehouse Facility 2 Tranche C Loans outstanding at any time shall not exceed
the then current Collateral Value of the Pledged Servicing Portfolio. Subject
to Section 2.12, each Loan shall be a Eurodollar Loan or a Prime Loan. Each
Borrowing shall be made ratably by the Lenders in proportion to their
respective Commitments. Within the foregoing limits and subject to the
conditions set forth in Article III, the Borrowers may borrow and reborrow
Loans under Section 2.2 and prepay Loans under Section 2.9.
SECTION 2.2 METHOD OF BORROWING AND OF CONVERSIONS/CONTINUATIONS.
(a) Whenever the Borrowers desire to make a Borrowing hereunder,
to convert any Loan pursuant to Section 2.3 or to continue any Loan for an
additional Eurodollar Interest
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Period pursuant to Section 2.3, an Authorized Officer shall deliver to the
Agent written notice of such proposed Borrowing, conversion or continuation (a
"NOTICE OF BORROWING" or "NOTICE OF CONVERSION/CONTINUATION," as the case may
be), each such notice to be given (x) prior to 12:00 noon (New York City time)
on the date of such proposed Borrowing or conversion, in the case of a
Borrowing of Prime Loans or a conversion of Eurodollar Loans into Prime Loans;
and (y) prior to 12:00 noon (New York City time) on the third Eurodollar
Business Day before the date of such proposed Borrowing, conversion or
continuation (which date shall be a Eurodollar Business Day), in the case of a
Borrowing of Eurodollar Loans, a conversion of Prime Loans into Eurodollar
Loans or a continuation of Eurodollar Loans for an additional Eurodollar
Interest Period. Each such notice shall be irrevocable and shall be in the form
of Exhibit E or Exhibit F, as the case may be. Notwithstanding any other
provision hereof to the contrary, (i) no more than three (3) Eurodollar
Interest Periods for Loans may be in effect hereunder at any time; and (ii) no
Borrowing shall be in an aggregate principal amount of less than $5,000,000.
(b) Without in any way limiting the Borrowers' obligation to
deliver to the Agent a copy of any written Notice of Borrowing or Notice of
Conversion/Continuation, the Agent may act without liability upon the basis of
any telephonic Notice of Borrowing or Notice of Conversion/Continuation
believed by the Agent in good faith to be from an Authorized Officer prior to
receipt of written confirmation. In each such case, the Borrowers hereby waive
the right to dispute the Agent's record of the terms of such telephonic notice.
An Authorized Officer shall promptly confirm in writing any Notice of Borrowing
or Notice of Conversion/Continuation given by telephone.
(c) On the date of receipt of any Notice of Borrowing or Notice of
Conversion/Continuation, the Agent shall promptly give (and in any event by
1:00 p.m. (New York City time)) each Lender telefacsimile notice of each
proposed Borrowing, such Lender's proportionate share thereof, each proposed
conversion or continuation and any other matters covered by the Notice of
Borrowing or Notice of Conversion/Continuation.
(d) Unless otherwise specified in a Notice of Borrowing, each Loan
to be made as part of a Borrowing shall be made as a Prime Loan. If a timely
notice as specified in Section 2.2(a) is not received from the Borrowers prior
to the expiration of any Eurodollar Interest Period for any outstanding
Eurodollar Loan, the Borrowers shall be deemed to have irrevocably elected to
convert such Loan into a Prime Loan. The Agent will endeavor to notify the
Borrowers prior to the expiration of any Eurodollar Interest Period but shall
have no liability for failure to provide such notice.
(e) By delivering a Notice of Conversion/Continuation to the Agent
hereunder of the continuation of any Eurodollar Loans for an additional
Eurodollar Interest Period or the conversion of any outstanding Loans to
Eurodollar Loans, the Borrowers shall be deemed to have represented and
warranted that no Potential Default or Event of Default has occurred and is
continuing.
SECTION 2.3 CONVERSIONS/CONTINUATIONS OF LOANS.
(a) Subject to the terms and conditions hereof and in accordance
with the procedures for conversions and continuations and the other provisions
set forth in Section 2.2, each Lender
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agrees to convert outstanding Loans that are Prime Loans into Eurodollar Loans
and Eurodollar Loans into Prime Loans and to continue Loans that are Eurodollar
Loans for an additional Eurodollar Interest Period, in each case in an
aggregate principal amount not to exceed the principal amount of the Prime
Loans or Eurodollar Loans, as the case may be, being converted or Eurodollar
Loans, as the case may be, being continued; provided that no Lender shall
convert any Loan into a Eurodollar Loan or continue any Eurodollar Loan for an
additional Eurodollar Interest Period if a Potential Default or an Event of
Default has occurred and is continuing.
SECTION 2.4 DISBURSEMENT OF FUNDS.
(a) No later than 2:00 p.m. (New York City time) on the date of
each Borrowing, each Lender will make available to the Agent the full amount of
such Lender's pro rata share of such Borrowing, in immediately available funds,
by wire transfer of such funds to the Agent at the Payment Office. Unless the
Agent determines that any applicable condition in Article III has not been
satisfied, the Agent shall make the funds so received from the Lenders
available to the Borrowers by wire transfer of such funds to such account as
the Borrowers through the Agent may direct in writing for such purpose. If a
Borrowing does not occur on the requested date because any condition precedent
herein specified has not been satisfied, the Agent shall so notify the affected
Lenders promptly and shall return the amounts so received to the respective
Lenders.
(b) Unless the Agent has been notified by any Lender before 2:00
p.m. (New York City time) on the date of a proposed Borrowing that such Lender
does not intend to make available to the Agent on such date such Lender's
portion of such Borrowing, the Agent may assume that such Lender will make such
amount available to the Agent on such date and the Agent may (but shall not be
obligated to) make available to the Borrowers a corresponding amount. If such
corresponding amount is not in fact made available to the Agent by such Lender
(a "DEFAULTING LENDER") on such date, the Agent shall be entitled to recover
such corresponding amount on demand from such Defaulting Lender, together with
interest at the overnight Federal Funds Rate for each day until paid. A
Defaulting Lender shall be deemed to have assigned to the Agent the right to
receive any and all payments due to it in respect of the Obligations until the
sum of such payments received by the Agent is equal to the amount owed to the
Agent by such Defaulting Lender pursuant to the preceding sentence. The
foregoing assignment shall be deemed to be a power coupled with an interest and
shall be absolute and irrevocable. Nothing in this subsection shall be deemed
to relieve any Lender from its obligation to fulfill its obligation to make
Loans hereunder or to prejudice any rights that the Borrowers, the Agent or any
Lender may have against any Defaulting Lender hereunder.
(c) No Lender shall be responsible for any default by any other
Lender in its obligation to make Loans hereunder, and each Lender shall be
obligated to make the Loans on the terms set forth herein, regardless of the
failure of any other Lender to fulfill its obligations hereunder.
SECTION 2.5 NOTES.
(a) Each Borrower's joint and several obligation to pay the
principal of and interest on the Loans made by each Lender shall be evidenced
by a promissory note (each a "NOTE" and collectively the "NOTES") substantially
in the form of Exhibit A, with blanks appropriately
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completed in conformity therewith and payable to the order of such Lender. Each
Lender shall, and is hereby authorized by the Borrowers to, endorse on the
schedule attached to the applicable Note delivered to such Lender (or on a
continuation of such schedule attached to such Note and made a part thereof),
or otherwise to record in such Lender's internal records, an appropriate
notation evidencing the date and amount of the Loan from such Lender, each
payment and prepayment of principal of any such Loan, each payment of interest
on any such Loan, and applicable interest rates and Eurodollar Interest Periods
and other information with respect thereto, and any such recordation shall
absent manifest error constitute prima facie evidence of the accuracy of the
information so recorded; provided that the failure of any Lender to make such a
notation or any error therein shall not affect the joint and several
obligations of the Borrowers, including the joint and several obligation of the
Borrowers to repay the Loans made by such Lender in accordance with the terms
of this Agreement and the applicable Notes.
SECTION 2.6 INTEREST.
(a) The Borrowers agree to pay interest in respect of the unpaid
principal amount of each Eurodollar Loan for each day during the Eurodollar
Interest Period applicable thereto at a rate per annum equal to one and
one-quarter percent (1.25%) per annum plus the Eurodollar Rate for such
Eurodollar Interest Period.
(b) The Borrowers agree to pay interest in respect of the unpaid
principal amount of each Prime Loan for each day such Prime Loan is outstanding
at a rate per annum equal to one-quarter percent (0.25%) per annum plus the
Prime Rate.
(c) Overdue principal and interest in respect of each Loan and all
other overdue amounts owing hereunder shall bear interest for each day that
such amounts are overdue (after as well as before judgment) at a rate per annum
equal to two and one-quarter percent (2.25%) per annum plus the Prime Rate.
(d) Interest on each Loan shall accrue from and including the
Borrowing Date thereof to but excluding the date of any repayment thereof and
shall be payable (i) on or before the third Business Day after receipt of the
billing statement referred to in clause (e) below, (ii) on any prepayment in
full of all of any Lender's outstanding Loans, (iii) at maturity (whether by
acceleration or otherwise) and (iv) after maturity, on demand.
(e) The Agent shall deliver to the Borrowers one interest billing
statement for each month on or before the third Business Day of the next
succeeding month, which interest billing statement shall set forth the interest
accrued on the Loans for such month; provided that any failure or delay in
delivering such interest billing statement or any inaccuracy therein shall not
affect the Obligations.
SECTION 2.7 TERMINATION OF COMMITMENTS.
The Commitments shall automatically terminate on the earliest
of: (i) Maturity Date, and (ii) the date on which the Borrowers terminate or
fail to renew the Warehouse Facility 1 Commitments, in each case subject to
earlier termination pursuant to Section 6.1. The Commitments may not be reduced
in part by the Borrowers, but may be terminated in their
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entirety at any time by the Borrowers upon at least fifteen (15) days' prior
irrevocable written notice to the Agent.
SECTION 2.8 MANDATORY REPAYMENTS.
(a) The Borrowers shall repay all outstanding Loans on the earlier
to occur of the termination of the Commitments and the Maturity Date.
(b) On any date upon which the aggregate principal amount of the
outstanding Loans plus the aggregate principal amount of the outstanding
Warehouse Facility 2 Tranche C Loans exceeds the Collateral Value of the
Pledged Servicing Portfolio, the Borrowers shall repay on such date the
aggregate principal amount of the Loans or the Warehouse Facility 2 Tranche C
Loans as shall be necessary so that the aggregate principal amount of
outstanding Loans plus the aggregate principal amount of the outstanding
Warehouse Facility 2 Tranche C Loans does not exceed the Collateral Value of
the Pledged Servicing Portfolio.
(c) All repayments of the Loans of any Lender under this Section
2.8 shall be applied first to such Lender's Loans that are Prime Loans and
second, to such Lender's Loans that are Eurodollar Loans. All repayments of
Loans under this Section 2.8 shall be without premium or penalty, except that
any repayment of Eurodollar Loans shall be subject to the provisions of Section
2.14. Interest shall be payable in accordance with the provisions of Section
2.6.
SECTION 2.9 OPTIONAL PREPAYMENTS.
The Borrowers shall have the right at any time and from time
to time to prepay outstanding Loans, in whole or in part, upon one (1) Business
Day's prior written notice to the Agent, in the case of Eurodollar Loans, and
without prior notice in the case of Prime Loans; provided that each partial
prepayment of any Loan shall be in an aggregate principal amount of $5,000,000
or any multiple of $1,00,000 in excess thereof. All prepayments of the Loans of
any Lender under this Section 2.9 shall be applied first, to such Lender's
Loans that are Prime Loans, and second, to such Lender's Loans that are
Eurodollar Loans. All prepayments of Loans under this Section 2.9 shall be
without premium or penalty, except that any prepayment of Eurodollar Loans
shall be subject to the provisions of Section 2.14. Interest shall be payable
upon such prepayment in accordance with the provisions of Section 2.6.
SECTION 2.10 FEES.
(a) The Borrowers agree to pay to the Agent for the account of
each Lender a commitment fee in an amount equal to one-quarter of one percent
(1/4 of 1%) on the amount of the Commitments (the "COMMITMENT FEE"). Such fee
shall be deemed to be earned in full upon the Amendment Effective Date and
shall be payable in advance on the Amendment Effective Date.
(b) The Borrowers agree to pay to the Agent an agency fee in the
amount and on the dates separately agreed to by the Agent and the Borrowers.
(c) The fees set forth in this Section 2.10, once paid, shall not
be refundable under any circumstances.
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SECTION 2.11 PAYMENTS, ETC,
(a) Except as otherwise specifically provided herein, all payments
by the Borrowers under this Agreement shall be made without defense, set-off or
counterclaim to the Agent not later than 1:00 p.m. (New York City time) on the
date when due, it being expressly agreed and understood that if a payment is
received after 1:00 p.m. (New York City time) by the Agent, such payment will
be deemed to have been made on the next succeeding Business Day and interest
thereon shall be payable at the then applicable rate during such extension;
provided that if the Agent receives the federal wire confirmation number with
respect to such payment before 1:00 p.m. (New York City time) on the date when
such payment is due, and the payment is actually received and credited for
value to the appropriate account at Bankers Trust Company before the close of
business on such due date, then the payment will be deemed to be made on such
due date. All payments hereunder shall be made in U.S. Dollars in immediately
available funds at the Payment Office. The Agent will promptly after receipt of
each such payment (and in any event by the close of business on the day on
which such funds are received or deemed to have been received) distribute funds
in the form received relating to the payment of (i) principal or interest on
Loan to the Lenders ratably in accordance with the aggregate principal amount
of the Loans of such Lenders, (ii) the Commitment Fee ratably to the Lenders
and (iii) any other amount payable to any Lender to such Lender.
(b) Whenever any payment to be made hereunder or under any Note
shall be stated to be due on a day that is not a Business Day, the due date
thereof shall be extended to the next succeeding Business Day and, with respect
to payments of principal, interest thereon shall be payable at the then
applicable rate during such extension.
(c) All computations of interest shall be made on the basis of a
year of three hundred and sixty (360) days for the actual number of days
(including the first day but excluding the last day) occurring in the period
for which such interest is payable. Each determination by the Agent of an
interest rate hereunder shall be conclusive and binding absent manifest error.
(d) Prior to the maturity of the Loans (whether upon acceleration,
upon any date that the Commitments are terminated pursuant to Section 2.7 or
otherwise), all amounts received on any day by the Agent hereunder in respect
of principal of the Loans or under the Security Agreement or from the Warehouse
Agent in respect of the Warehouse Collateral shall be disbursed by the Agent as
follows: first, ratably to the Lenders in accordance with the aggregate
principal amounts of their respective outstanding Loans, to repay the aggregate
principal amount of Loans due and payable on such day pursuant to Section 2.8;
second, ratably to the Lenders in accordance with the aggregate principal
amounts of their respective outstanding Loans, to prepay outstanding Loans
being prepaid on such day pursuant to Section 2.9; third, if a Warehouse Event
of Default has occurred and is continuing, to the Warehouse Agent to be
disbursed in accordance with Section 2.11 of the Warehouse Credit Agreement;
and fourth, the balance, if any, shall be released by the Agent to the
Borrowers by transfer to such account as the Borrowers may direct in writing
for such purpose; provided that if a Potential Default or an Event of Default
has occurred and is continuing, then the Agent shall not release any such
amounts to the Warehouse Agent or to the Borrowers until the earlier of (x) the
cure of any Potential Default or Event of Default, in which case such amounts
shall be released to the Warehouse Agent or to the Borrowers as described in
this subsection (d), or (y) the acceleration of the Loans, in which case
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such amounts shall be applied in accordance with Section 2.11(e); and provided
further, that if a Warehouse Event of Default has occurred and is continuing,
notwithstanding the foregoing provisions of this Section 2.11(d), all amounts
received by the Agent hereunder in respect of Eligible Servicing Receivables
shall be paid by the Agent to the Warehouse Agent to be disbursed in accordance
with Section 2.11 of the Warehouse Credit Agreement.
(e) Upon the maturity of the Loans (whether upon acceleration,
upon any date that the Commitments are terminated pursuant to Section 2.7, or
otherwise), all amounts received by the Agent on account of the Obligations
shall be disbursed by the Agent as follows: first, to the Collateral Agent in
accordance with the amounts due to it, to reimburse it for all fees, costs and
expenses reasonably incurred by it in connection with a Potential Default or an
Event of Default or otherwise payable to it in its capacity as Collateral Agent
under the Security Agreement; second, to the Agent, to reimburse the Agent for
all fees, costs and expenses reasonably incurred by it in connection with a
Potential Default or an Event of Default or otherwise payable to it in its
capacity as Agent under the Loan Documents; third, ratably to the Lenders in
accordance with the amount of interest due to each Lender, to pay all accrued
and unpaid interest due hereunder; fourth, ratably to the Lenders in accordance
with the aggregate principal amounts of their respective outstanding Loans, to
repay all outstanding Loans; fifth, ratably to the Lenders in accordance with
their respective unpaid Obligations, to pay all remaining unpaid Obligations;
sixth, if a Warehouse Event of Default has occurred and is continuing, to the
Warehouse Agent to be disbursed in accordance with Section 2.11 of the
Warehouse Credit Agreement; and seventh, to the Borrowers by transfer to such
account as the Borrowers may direct in writing for such purpose; provided that
if a Warehouse Event of Default has occurred and is continuing, notwithstanding
the foregoing provisions of this Section 2.11(e), all amounts received by the
Agent hereunder in respect of Eligible Servicing Receivables shall, after the
payments provided for in clauses first and second above have been made, be paid
by the Agent to the Warehouse Agent to be disbursed in accordance with Section
2.11 of the Warehouse Credit Agreement.
SECTION 2.12 EURODOLLAR RATE NOT DETERMINABLE; ILLEGALITY OR IMPROPRIETY.
(a) In the event, and on each occasion, that on or before the day
on which the Eurodollar Rate for a Borrowing that is to include Eurodollar
Loans is to be determined, the Agent has determined in good faith that the
Eurodollar Rate cannot be determined for any reason, the Agent shall, as soon
as practicable thereafter, give written notice of such determination to the
Borrowers and the Lenders. Upon any such determination, any request by the
Borrowers for a Eurodollar Loan pursuant to Section 2.2 shall, until the Agent
has advised the Borrowers and the Lenders that the circumstances giving rise to
such notice no longer exist, be deemed to be a request for a Prime Loan. Each
determination by the Agent hereunder shall be conclusive and binding absent
manifest error.
(b) If any Lender determines at any time that the introduction of,
or any change in, any applicable law, rule, regulation, order or decree or in
the interpretation or the administration thereof by any Governmental Authority
charged with the interpretation or administration thereof, or compliance by
such Lender with any request or directive (whether or not having the force of
law) of any such Governmental Authority, shall make it unlawful or improper for
such Lender to make, maintain or fund any Eurodollar Loan as contemplated by
this Agreement, then such Lender shall immediately give notice thereof to the
Agent and the Borrowers describing such illegality or impropriety in reasonable
detail. Effective thirty (30) days after the giving of such notice (or
effective upon such earlier date as required by such Governmental Authority),
the obligation of such Lender to make Eurodollar Loans shall be suspended for
the duration of such
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illegality or impropriety and, if and when such illegality or impropriety
ceases to exist, such suspension shall cease and such Lender shall notify the
Agent and the Borrowers thereof. If any such change makes it unlawful or
improper for any Lender to maintain any Eurodollar Loan such Lender shall, upon
the happening of such event, notify the Agent and the Borrowers thereof, and
the Borrowers shall immediately, or if permitted by applicable law, rule,
regulation, order, decree, interpretation, request or directive, no later than
the date permitted thereby, convert each such Eurodollar Loan into a Prime
Loan. If any Lender notifies the Agent and the Borrowers pursuant to this
Section 2.12(b) that it is unlawful or improper for such Lender to make or
maintain Eurodollar Loans, as the case may be, but no other Lenders give
similar notices, then the Borrowers may require such Lender to sell, pursuant
to Section 8.6(c) all of its outstanding Loans and its Commitment to another
Lender (if any other Lender agrees, in its sole and absolute discretion, to
purchase such Loans and Commitment) or to any other financial institution
reasonably acceptable to the Agent that is willing to make and maintain
Eurodollar Loans.
SECTION 2.13 RESERVE REQUIREMENTS; CHANGE IN CIRCUMSTANCES.
(a) Notwithstanding any other provision herein, if after the date
of this Agreement any change in applicable law or regulation or in the
interpretation or administration thereof by any Governmental Authority charged
with the interpretation or administration thereof (whether or not having the
force of law) imposes any tax on or changes the basis of taxation of payments
to any Lender of the principal of or interest on any Eurodollar Loan made by
such Lender or any fees or other amounts payable hereunder (other than taxes
imposed on the overall net income of such Lender by the jurisdiction in which
such Lender has its principal office or by any political subdivision or taxing
authority therein), or imposes, modifies or deems applicable any reserve,
special deposit or similar requirement against assets of, deposits with or for
the account of or credit extended by such Lender (except any such reserve
requirement that is reflected in the Eurodollar Rate) or imposes on such Lender
any other condition affecting this Agreement or Eurodollar Loans, and the
result of any of the foregoing is to increase the cost to such Lender of making
or maintaining any Eurodollar Loan, or to reduce the amount of any sum received
or receivable by such Lender hereunder (whether of principal, interest, fee or
otherwise) in respect thereof by an amount deemed by such Lender to be
material, then the Borrowers shall pay to such Lender such additional amount or
amounts as will compensate such Lender for such additional costs incurred or
reduction suffered. Any amount or amounts payable by the Borrowers to any
Lender in accordance with the provisions of this Section 2.13(a) shall be paid
by the Borrowers to such Lender within ten (10) Business Days of receipt by the
Borrowers from such Lender of a statement setting forth in reasonable detail
the amount or amounts due and the basis for the determination from time to time
of such amount or amounts, which statement shall be conclusive and binding
absent manifest error.
(b) If any Lender has determined that the adoption after the date
hereof of any applicable law, rule or regulation regarding capital adequacy, or
any change therein, or any change in the interpretation or administration
thereof by any Governmental Authority, central bank or comparable agency
charged with the interpretation or administration thereof, or compliance by
such Lender (or any lending office of such Lender, as the case may be) or by
the
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holding company of such Lender, as the case may be, with any request or
directive regarding capital adequacy (whether or not having the force of law)
of any such authority, central bank or comparable agency, has the effect of
reducing the rate of return on such Lender's capital or on the capital of such
Lender's holding company, as the case may be, as a consequence of such Lender's
obligations under the Loan Documents to a level below that which such Lender or
such Lender's holding company, as the case may be, could have achieved but for
such adoption, change or compliance (taking into consideration such Lender's
policies or such Lender's holding company's policies, as the case may be, with
respect to capital adequacy) by an amount deemed by such Lender to be material,
then from time to time, the Borrowers shall reimburse such Lender or such
Lender's holding company, as the case may be, for such reduction. Any amount or
amounts payable by the Borrowers to any Lender in accordance with the
provisions of this Section 2.13(b) shall be paid by the Borrowers to such
Lender within ten (10) Business Days of receipt by the Borrowers from such
Lender of a statement setting forth in reasonable detail the amount or amounts
due and the basis for the determination from time to time of such amount or
amounts, which statement shall be conclusive and binding absent manifest error.
(c) Each Lender agrees to use reasonable efforts to change its
lending office to avoid or minimize (i) any amounts that might otherwise be
payable to such Lender pursuant to this Section 2.13 or pursuant to Section
2.15 or (ii) the effect of any event referred to in Section 2.12(b); provided
that such efforts or change shall not cause the imposition on such Lender of
any additional cost or legal, regulatory or administrative burdens deemed by
such Lender, in its sole discretion, to be material.
(d) Failure on the part of any Lender to demand compensation for
any increased costs or reduction in amounts received or receivable or reduction
in return on capital with respect to any period shall not constitute a waiver
of such Lender's right to demand compensation with respect to such period or
any other period. The protection of this Section 2.13(d) shall be available to
any Lender regardless of any possible contention of the invalidity or
inapplicability of the law, rule, regulation, guideline or other change or
condition that shall have occurred or been imposed.
SECTION 2.14 INDEMNITY.
(a) The Borrowers shall indemnify and hold harmless each Lender
against any and all claims, demands, liabilities, damages, losses, costs,
charges and expenses (including reasonable attorneys' fees) that such Lender
actually sustains or incurs as a consequence of (i) any failure by the
Borrowers to fulfill on the Amendment Effective Date or on the date of any
Borrowing hereunder the applicable conditions set forth in Article III, (ii)
any failure by the Borrowers to borrow any Eurodollar Loan hereunder, to
convert any Loan into a Eurodollar Loan or to continue any Eurodollar Loan for
an additional Eurodollar Interest Period, after irrevocable notice of such
borrowing, conversion or continuation has been given pursuant to Section 2.2,
(iii) any payment, prepayment or conversion of a Eurodollar Loan required by
any provision of this Agreement or otherwise made on a date other than the last
day of the Eurodollar Interest Period applicable thereto or required by the
Loan Documents to be made on a date other than the maturity date applicable
thereto, (iv) any default in payment or prepayment of the principal amount of
any Eurodollar Loan or any part thereof or interest accrued thereon, as and
when due and payable (at the due date thereof, by irrevocable notice of
prepayment or otherwise), or
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(v) the occurrence of any Event of Default, including, in each such case, any
loss or reasonable expense sustained or incurred in liquidating or employing
deposits from third parties acquired to effect or maintain such Eurodollar Loan
or any part thereof as a Eurodollar Loan. Such loss or reasonable expense shall
include but not be limited to an amount equal to the excess, if any, as
reasonably determined by such Lender, of (A) its cost of obtaining the funds
for the Eurodollar Loan being paid, prepaid or converted or not borrowed,
converted or continued (based on the Eurodollar Rate applicable thereto) for
the period from the date of such payment, prepayment, conversion or failure to
borrow, convert or continue to the last day of the Eurodollar Interest Period,
as the case may be, for such Loan (or, in the case of a failure to borrow,
convert, or continue the Eurodollar Interest Period, as the case may be, for
such Loan that would have commenced on the date of such failure to borrow,
convert or continue) over (B) the amount of interest (as reasonably determined
by such Lender) that would be realized by such Lender in re-employing the funds
so paid, prepaid or converted or not borrowed, converted or continued for such
period or Eurodollar Interest Period, as the case may be. A certificate of any
Lender setting forth in reasonable detail any amount or amounts which such
Lender is entitled to receive pursuant to this Section 2.14 shall be delivered
to the Borrowers and shall be conclusive and binding absent manifest error.
(b) Nothing in this Section is intended to limit the reimbursement
obligation of the Borrowers contained elsewhere in this Agreement. The
obligations of the Borrowers under this Section shall survive the termination
of this Agreement.
SECTION 2.15 TAXES.
All payments made by the Borrowers under this Agreement and
the other Loan Documents shall be made free and clear of, and without deduction
or withholding for or on account of, any present or future income, stamp or
other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or assessed
by any Governmental Authority, excluding, in the case of the Agent, the
Collateral Agent and each Lender, net income taxes and franchise taxes (imposed
in lieu of net income taxes) imposed on the Agent, the Collateral Agent or such
Lender, as the case may be, as a result of a present or former connection
between the jurisdiction of the government or taxing authority imposing such
tax and the Agent, the Collateral Agent or such Lender (excluding a connection
arising solely from the Agent, the Collateral Agent or such Lender having
executed, delivered, performed its obligations or received a payment under, or
enforced, this Agreement or the other Loan Documents) or any political
subdivision or taxing authority thereof or therein (all such non-excluded
taxes, levies, imposts, duties, charges, fees, deductions and withholdings
being hereinafter called "TAXES"). If any Taxes are required to be withheld
from any amounts payable to the Agent, the Collateral Agent or any Lender
hereunder or under other Loan Documents, the amounts so payable to the Agent,
the Collateral Agent or such Lender shall be increased to the extent necessary
to yield to the Agent, the Collateral Agent or such Lender (after payment of
all Taxes) interest or any such other amounts payable hereunder at the rates or
in the amounts specified in this Agreement and the other Loan Documents.
Whenever any Taxes are payable by the Borrowers, as promptly as possible
thereafter the Borrowers shall send to the Agent for its own account or for the
account of the Collateral Agent or such Lender, as the case may be, a certified
copy of an original official receipt received by the Borrowers showing payment
thereof. If the Borrowers fail to pay any Taxes when due to the appropriate
taxing authority or fails to
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remit to the Agent the required receipts or other required documentary
evidence, the Borrowers shall indemnify the Agent, the Collateral Agent and the
Lenders for any incremental taxes, interest or penalties that may become
payable by the Agent, the Collateral Agent or any Lender as a result of any
such failure. The agreements in this subsection shall survive the termination
of this Agreement and the payment of the Notes and all other amounts payable
under the Loan Documents.
SECTION 2.16 SHARING OF SETOFFS.
Each Lender agrees that if it shall, through the exercise of
a right of banker's lien, setoff or counterclaim against the Borrowers, or
pursuant to a secured claim under Section 506 of Title 11 of the United States
Code or other security or interest arising from, or in lieu of, such secured
claim, received by such Lender under any applicable bankruptcy, insolvency or
other similar law or otherwise, or by any other means, obtain payment
(voluntary or involuntary) in respect of any Obligation as a result of which
the unpaid portion of its Obligations shall be proportionately less than the
unpaid portion of the Obligations of any other Lender, it shall simultaneously
purchase from such other Lender at face value a participation in the
Obligations of such other Lender, so that the aggregate unpaid amount of the
Obligations and such participations in Obligations held by each Lender shall be
in the same proportion to the aggregate unpaid amount of all Obligations then
outstanding as the amount of its Obligations prior to such exercise of banker's
lien, setoff or counterclaim or other event was to the principal amount of all
Obligations outstanding prior to such exercise of banker's lien, setoff or
counterclaim or other event; provided that, if any such purchase or purchases
or adjustments are made pursuant to this Section 2.16 and the payment giving
rise thereto is thereafter recovered, such purchase or purchases or adjustments
shall be rescinded to the extent of such recovery and the purchase price or
prices or adjustments restored without interest. The Borrowers expressly
consent to the foregoing arrangements and agrees that any Lender holding a
participation in an Obligation deemed to have been so purchased may exercise
any and all rights of banker's lien, setoff or counterclaim with respect to any
and all moneys owing by the Borrowers to such Lender by reason thereof as fully
as if such Lender had made a loan directly to the Borrowers in the amount of
such participation.
ARTICLE 3
CONDITIONS TO LOANS
SECTION 3.1 CONDITIONS TO LOANS.
(a) As conditions precedent to the initial disbursement of the
Loans hereunder:
(i) Each Borrower shall have delivered or shall have had
delivered to the Agent, in form and substance and in quantities
reasonably satisfactory to the Agent and its counsel, each of the
following:
(A) this Agreement, duly executed by the parties
hereto;
(B) each of the Security Agreement and the
Warehouse Security Agreement and the Power of Attorney for
each Borrower, duly executed (and notarized where required)
by the parties thereto (which Powers of Attorney shall
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be "protocolized" under the laws of Puerto Rico by counsel to
the Borrowers, and filed with the Registry of Powers of
Attorneys and Xxxxx by counsel to the Borrowers promptly
after the closing contemplated hereunder);
(C) a duly executed Note for each Lender;
(D) duly executed documents, instruments,
agreements and financing statements, properly executed,
deemed necessary or appropriate by the Agent, in its
reasonable discretion, to create in favor of the Lenders a
valid and perfected first priority security interest in and
lien upon the Collateral (other than the Eligible Servicing
Receivables) and a valid and perfected second priority
security interest in and lien upon the Warehouse Collateral
and the Eligible Servicing Receivables;
(E) a certified copy of resolutions of the Board
of Directors of each of the Borrowers approving the
execution, delivery and performance of all Loan Documents
required to be delivered by such parties hereunder and the
transactions contemplated therein;
(F) a certificate of the Secretary or an
Assistant Secretary of each of the Borrowers certifying the
names and true signatures of the officers of such parties
authorized to sign the Loan Documents required to be executed
and delivered by such parties hereunder, in each case dated
the Amendment Effective Date;
(G) an opinion of New York counsel and Puerto
Rico counsel for the Borrowers in the form of Exhibit C-1 and
Exhibit C-2, respectively, and covering such other matters as
the Agent may reasonably request, dated the Amendment
Effective Date;
(H) a copy of the Certificate of Incorporation
or other equivalent document available in the applicable
jurisdiction of each of the Borrowers certified by the
appropriate officer of the jurisdiction of such party's
incorporation as of a recent date;
(I) a copy of the Bylaws of each of the
Borrowers, certified by the Secretary or an Assistant
Secretary or other appropriate officer of each such party as
of the Amendment Effective Date as being accurate and
complete;
(J) a certificate of the appropriate officer in
the jurisdiction of incorporation of each of the Borrowers
certifying that such Borrower is in good standing as of a
recent date;
(K) a certificate of an executive officer of
each of the Borrowers, in the form of Exhibit D-1 and Exhibit
D-2, respectively, dated the Amendment Effective Date;
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(L) evidence of (aa) the acceptance by the
Process Agent of its appointment pursuant to Section 8.7 and
(bb) payment of all fees required by the Process Agent for
serving in such capacity;
(M) a schedule of servicing rights included in
the Pledged Servicing Portfolio, including the owner of such
servicing rights and otherwise in form and substance
acceptable to the Agent; and
(N) the duly executed Intercreditor Agreement;
(ii) All acts and conditions (including the obtaining of
any necessary regulatory approvals and the making of any required
filings, recordings or registrations) required to be done and
performed and to have happened prior to the execution, delivery and
performance of the Loan Documents and to constitute the same legal,
valid and binding obligations, enforceable in accordance with their
respective terms, shall have been done and performed and shall have
happened in due and strict compliance with all applicable laws or if
any of such have not been done, performed or happened, such has been
expressly disclosed to the Agent and waived by all of the Lenders in
writing;
(iii) All documentation, including documentation for
corporate and legal proceedings in connection with the transactions
contemplated by the Loan Documents, shall be reasonably satisfactory
in form and substance to the Agent and its counsel; and
(iv) The Borrowers shall have paid all fees required to
have been paid under the Loan Documents prior to or on the Amendment
Effective Date.
(b) As additional conditions precedent to the disbursement of all
Loans (including the initial Loans hereunder), at and as of the date of such
disbursement:
(i) The representations and warranties of the Borrowers
contained in the Loan Documents shall be accurate and complete in all
material respects on and as of the date of such disbursement as if
made on and as of such date;
(ii) No Potential Default or Event of Default shall have
occurred and be continuing;
(iii) Following the funding of the requested Loan, the
aggregate principal amount of Loans outstanding hereunder shall not
exceed the limitations set forth in Sections 2.1 and 2.8;
(iv) Since December 31, 1998, no material adverse change
shall have occurred in the business, financial condition or results of
operations of DFC and its Subsidiaries, taken as a whole; and
(v) The Agent shall have received such other documents
or legal opinions as the Agent or any Lender or special counsel to the
Agent may reasonably request, all in form and substance reasonably
satisfactory to the Agent.
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By delivering a Notice of Borrowing to the Agent hereunder for any Loan, the
Borrowers shall be deemed to have represented and warranted the accuracy and
completeness of the statements set forth in subsections (i) through (iv) above
as of the date of such Loan.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
As an inducement to the Agent and each Lender to enter into
this Agreement and to make Loans as provided herein, each of the Borrowers
represents and warrants to the Agent and each Lender that:
SECTION 4.1 CORPORATE EXISTENCE; COMPLIANCE WITH LAW AND CONTRACTUAL
OBLIGATIONS.
Each Borrower (a) is duly organized, validly existing and in
good standing as a corporation under the laws of the Commonwealth of Puerto
Rico and in each jurisdiction where its ownership of property or conduct of
business requires such qualification, except where the failure to be so
qualified would not have a Material Adverse Effect; (b) has the corporate power
and authority and the legal right to own and operate its property and to
conduct business in the manner in which it does and proposes so to do; and (c)
is not in violation of any Requirement of Law or any Contractual Obligation if
such violation could have a Material Adverse Effect.
SECTION 4.2 CORPORATE POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS.
Each Borrower has the corporate power and authority to
execute, deliver and perform the Loan Documents to which it is a party and has
taken all necessary corporate action to authorize the execution, delivery and
performance of such Loan Documents. Such Loan Documents have been duly executed
and delivered on behalf of such Borrower and constitute legal, valid and
binding obligations of such Borrower enforceable against it in accordance with
their respective terms, except as enforceability may be limited by applicable
bankruptcy, insolvency and other similar laws affecting creditors' rights
generally and by general principles of equity.
SECTION 4.3 NO LEGAL OR CONTRACTUAL BAR.
The execution, delivery and performance of the Loan
Documents, including the creation and perfection of the security interests
contemplated hereunder and thereunder, the borrowings of Loans hereunder and
the use of the proceeds thereof, do not and will not (a) violate any
Requirement of Law or any Contractual Obligation of either Borrower or any of
its Subsidiaries, (b) except as contemplated by this Agreement, the Security
Agreement, and the Warehouse Security Agreement, require any license, consent,
authorization, approval or any other action by, or any notice to or filing or
registration with, any Governmental Authority or any other Person or (c) result
in the creation or imposition of any Lien on any asset of either Borrower or
any of its Subsidiaries except as contemplated by the Loan Documents.
SECTION 4.4 FINANCIAL INFORMATION.
(a) The consolidated and consolidating statement of financial
condition of DFC and its consolidated Subsidiaries as at December 31, 1998 and
the related consolidated and
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consolidating statements of income and cash flows for the fiscal year then
ended, including in each case the related schedules and notes, reported on by
PricewaterhouseCoopers LLP, true copies of which have been previously delivered
to each of the Lenders, are complete and correct and fairly present the
consolidated and consolidating financial condition of DFC and its consolidated
Subsidiaries as at the date thereof and the consolidated and consolidating
results of operations and cash flows for such period, in accordance with GAAP
applied on a consistent basis.
(b) The unaudited consolidated and consolidating statement of
financial condition of each Borrower and its consolidated Subsidiaries as at
March 31, 1999, and the related unaudited combined statements of income and
cash flows for the three months then ended, certified by the chief financial
officer of DFC, true copies of which have been previously delivered to each of
the Lenders, are complete and correct and fairly present the consolidated and
consolidating financial condition of DFC and its consolidated Subsidiaries as
at the date thereof and the consolidated and consolidating results of
operations and cash flows for such period in conformity with GAAP applied on a
basis consistent with the financial statements referred to in subsection (a) of
this Section 4.4, subject to normal year-end audit adjustments.
(c) Neither Borrower has any material liability of any kind,
whether accrued, contingent, absolute, determined, determinable or otherwise,
and no condition, situation or set of circumstances exists that could be
reasonably expected to result in such a liability, in each case that is not
reflected in the financial statements referred to in Section 4.4(b) or in the
most recent financial statements delivered to the Agent and the Lenders
pursuant to Section 5.1(a)(i) or (ii) (other than liabilities permitted
hereunder and incurred after the date of such most recent financial statements
and to be reflected in the next financial statements to be delivered to the
Agent and the Lenders pursuant to Section 5.1 (a)(i) or (ii)).
(d) Since December 31, 1998, no material adverse change has
occurred in the business, financial condition or results of operations of DFC
and its Subsidiaries, taken as a whole.
SECTION 4.5 NO MATERIAL LITIGATION.
Except as set forth on Exhibit I, no litigation,
investigation or proceeding of or before any arbitrator or Governmental
Authority is pending or, to the knowledge of either Borrower, threatened by or
against such Borrower or any of its Subsidiaries, or against any of such
Borrower's or any such Subsidiary's properties or revenues that, if adversely
determined, could alone, or with any other litigation, investigation or
proceeding, affect the business, financial condition or results of operations
of such Borrower and its Subsidiaries, taken as a whole, in excess of the
Material Amount or could have a Material Adverse Effect.
SECTION 4.6 TAXES.
Each Borrower and each of its Subsidiaries have filed or
caused to be filed all tax returns that are required to be filed and have paid
all taxes shown to be due and payable on such returns or on any assessments
made against them or any of their property other than taxes and assessments
that are being contested in good faith by appropriate proceedings and as to
which such Borrower or such Subsidiary has established adequate reserves in
conformance with GAAP.
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SECTION 4.7 INVESTMENT COMPANY ACT.
Neither Borrower is an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
SECTION 4.8 SUBSIDIARIES.
DFC has no Subsidiaries as of the Amendment Effective Date
other than DMC, Doral Bank, Centro Hipotecario de Puerto Rico, Inc., First
Florida Realty Corporation, Doral Securities, Inc., Doral Bank FSB, Doral
Money, Inc. and Doral Capital, Inc.. DFC owns, directly or through another
Subsidiary of DFC, one hundred percent (100%) of the stock of each such
Subsidiary, and all of the stock of each such Subsidiary has been duly issued
and is fully paid and nonassessable. DMC has no Subsidiaries as of the
Amendment Effective Date.
SECTION 4.9 USE OF PROCEEDS.
The proceeds of all Loans shall be used by the Borrowers
solely for the purpose of financing the Borrowers' servicing portfolios and the
purchase of servicing portfolios and for general working capital purposes.
SECTION 4.10 ERISA.
(a) No Prohibited Transactions, Accumulated Funding Deficiencies,
withdrawals from Multiemployer Plans or Reportable Events have occurred with
respect to any Plans or Multiemployer Plans that, in the aggregate, could
subject either Borrower or any of such Borrower's Subsidiaries to any material
tax, penalty or other liability where such tax, penalty or liability is not
covered in full, for the benefit of such Borrower or such Subsidiary, by
insurance; (b) no notice of intent to terminate a Plan has been filed, nor has
any Plan been terminated under Section 4041 of ERISA, nor has the PBGC
instituted proceedings to terminate, or appoint a trustee to administer, a Plan
and no event has occurred or condition exists that might constitute grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Plan; (c) the present value of all benefits
liabilities (as defined in Section 4001(a)(16) of ERISA) under all Plans (based
on the actuarial assumptions used to fund the Plans) does not exceed the assets
of the Plans; and (d) the execution, delivery and performance by Borrowers of
the Loan Documents and the borrowing of the Loans hereunder and the use of the
proceeds thereof will not involve any Prohibited Transaction.
SECTION 4.11 SECURITY INTERESTS.
The security interests created in favor of the Lenders under
the Security Agreement, subject to the terms of the Intercreditor Agreement,
constitute valid and perfected first priority security interests in the
Collateral (other than the Eligible Servicing Receivables), and the Collateral
is not and will not be subject to any other Liens except as permitted by
Section 5.2(a). The security interests created in favor of the Lenders under
the Warehouse Security Agreement, subject to the terms of the Intercreditor
Agreement, constitute valid and perfected second priority security interests in
the Warehouse Collateral and the Eligible
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Servicing Receivables, and the Warehouse Collateral is not and will not be
subject to any other Liens except as permitted by Section 5.2(a).
SECTION 4.12 AGENCY APPROVALS.
Each Borrower is a FHLMC approved Seller/Servicer, a HUD
Direct Endorsement Lender and a VA approved Lender in good standing. DFC is
also a FNMA approved Seller/Servicer and a GNMA approved Issuer/Servicer.
SECTION 4.13 SOLVENCY.
Each Borrower is able to pay its debts as they mature. The
aggregate estimated fair market value of each Borrower's assets is greater than
such Borrower's liabilities (including contingent, subordinated, unmatured and
unliquidated liabilities and any and all Obligations hereunder). Each Borrower
has capital sufficient to carry on the business and transactions in which it is
engaged and all business and transactions in which it is about to engage.
SECTION 4.14 MINIMUM SERVICING PORTFOLIO.
As of the date of this Agreement, the Mortgage Loans in the
Servicing Portfolio have an aggregate outstanding principal balance of not less
than $4,000,000,000.
SECTION 4.15 YEAR 2000 COMPLIANCE.
All Information Systems and Equipment are Year 2000 Compliant.
ARTICLE 5
COVENANTS
SECTION 5.1 AFFIRMATIVE COVENANTS.
Each Borrower hereby covenants and agrees that, as long as
any Obligations remain unpaid or any Lender has any Commitment hereunder, the
Borrowers shall:
(a) Reports to Agent. Furnish or cause to be furnished to the
Agent (with sufficient numbers of copies for each Lender which the Agent shall
forward to each Lender within a reasonable time after receipt thereof):
(i) Annual Financial Statements. As soon as available and
in any event within ninety-five (95) days after the end of each fiscal
year of DFC, a consolidated and consolidating statement of financial
condition of DFC and its consolidated Subsidiaries as at the end of
such year and the related consolidated and consolidating statements of
income and cash flows of DFC and its consolidated Subsidiaries for
such fiscal year, setting forth in each case in comparative form the
figures for the previous fiscal year, all in reasonable detail and
accompanied by a report thereon of PricewaterhouseCoopers LLP or other
independent public accountants of comparable recognized national
standing, which report shall be unqualified as to scope of audit and
shall state that such financial statements present fairly the
consolidated and consolidating financial condition
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as at the end of such fiscal year, and the consolidated and
consolidating results of operations and cash flows for such fiscal
year, of DFC and its consolidated Subsidiaries in accordance with GAAP
consistently applied;
(ii) Quarterly Financial Statements. As soon as available
and in any event within fifty (50) days after the end of each fiscal
quarter of DFC, a consolidated and consolidating statement of
financial condition of DFC and its consolidated Subsidiaries as at the
end of such fiscal quarter and the related consolidated and
consolidating statements of income and cash flows of DFC and its
consolidated Subsidiaries for such fiscal quarter, setting forth in
each case in comparative form the figures for the previous fiscal
quarter, all in reasonable detail and certified by the chief financial
officer of DFC that they present fairly the consolidated and
consolidating financial condition as at the end of such fiscal
quarter, and the consolidated and consolidating results of operations
and cash flows for such fiscal quarter, of DFC and its consolidated
Subsidiaries in accordance with GAAP consistently applied, subject to
normal year-end adjustments;
(iii) Monthly Financial Statements. Upon thirty (30) days'
notice from the Agent (such notice to be given no earlier than the
first day of a month to receive a statement for the previous month), a
consolidated and consolidating statement of financial condition of DFC
and its consolidated Subsidiaries as at the end of the previous month
and the related consolidated and consolidating statements of income
and cash flows of DFC and its consolidated Subsidiaries for such month
setting forth in each case in comparative form the figures for the
previous month, all in reasonable detail and certified by the chief
financial officer of DFC that they are complete and correct and that
they present fairly the consolidated and consolidating financial
condition as at the end of such month, and the consolidated and
consolidating results of operations for such month and such portion of
the fiscal year, of DFC and its consolidated Subsidiaries in
accordance with GAAP consistently applied (subject to normal year-end
adjustments);
(iv) No Default/Compliance Certificate. Together with the
financial statements required pursuant to subsections (i) and (ii)
above, a certificate of the chief financial officer or chief
accounting officer of DFC (A) to the effect that, based upon a review
of the activities of DFC and its Subsidiaries and such financial
statements during the period covered thereby, no Event of Default or
Potential Default exists, or if an Event of Default or a Potential
Default exists, specifying the nature thereof and the Borrowers'
proposed response thereto, and (B) demonstrating in reasonable detail
compliance with Section 5.3 as at the end of such fiscal year or such
fiscal quarter, as applicable;
(v) Audit Reports. Upon request by the Agent, copies of
each HUD Single Family Audit Report and FNMA and FHLMC audit reports
on each Borrower and its operations;
(vi) Notice of Default or Misrepresentation. (a) Promptly
after obtaining knowledge of the occurrence of an Event of Default or
a Potential Default, a certificate of the chief financial officer or
chief accounting officer of DFC specifying the nature thereof and
DFC's or DMC's proposed response thereto and (b) at any time that any
representation, warranty or other information contained in any
statement or certificate
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required to be delivered hereunder or any representation or warranty
deemed to have been made hereunder shall prove to be false or
misleading in any material way, promptly after obtaining knowledge
thereof give notice thereof to the Agent describing how such
representation, warranty or information is misleading.
(vii) Litigation. Promptly after the occurrence thereof,
notice of the institution of or any material adverse development in
any action, suit or proceeding or any governmental investigation or
any arbitration, before any court or arbitrator or any governmental or
administrative body, agency or official, against either Borrower or
any material property of any thereof, in each case if such action,
suit, proceeding, investigation or arbitration could result in a
liability to the Borrowers in excess of the Material Amount;
(viii) ERISA. In connection with ERISA:
(A) Promptly and in any event within ten (10)
Business Days after either Borrower knows or has reason to
know of the occurrence of a Reportable Event with respect to
a Plan with regard to which notice must be provided to the
PBGC, a copy of such materials required to be filed with the
PBGC with respect to such Reportable Event and in each such
case a statement of the chief financial officer of such
Borrower setting forth details as to such Reportable Event
and the action that such Borrower proposes to take with
respect thereto;
(B) Promptly and in any event within ten (10)
Business Days after either Borrower knows or has reason to
know of any condition existing with respect to a Plan that
presents a material risk of termination of such Plan,
imposition of an excise tax, requirement to provide security
to such Plan or occurrence of other liability by the
applicable Borrower or any ERISA Affiliate, a statement of
the chief financial officer of the applicable Borrower
describing such condition;
(C) At least ten (10) Business Days prior to the
filing by any plan administrator of a Plan of a notice of
intent to terminate such Plan, a copy of such notice;
(D) Promptly and in no event more than ten (10)
Business Days after the filing thereof with the Secretary of
the Treasury, a copy of any application by either Borrower or
an ERISA Affiliate for a waiver of the minimum funding
standard under section 412 of the Code;
(E) Upon request by the Agent from time to time,
copies of each annual report that is filed on Internal
Revenue Service Form 5500, together with certified financial
statements for any Plan (if any) as of the end of such year
and actuarial statements on Schedule B to such Form 5500;
(F) Promptly and in any event within ten (10)
Business Days after it knows or has reason to know of any
event or condition that might constitute grounds under
section 4042 of ERISA for the termination of, or the
appointment
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of a trustee to administer, any Plan, a statement of the
chief financial officer of the applicable Borrower describing
such event or condition;
(G) Promptly and in no event more than ten (10)
Business Days after receipt thereof by either Borrower or any
ERISA Affiliate, a copy of each notice received by such
Borrower or an ERISA Affiliate concerning the imposition of
any withdrawal liability under section 4202 of ERISA; and
(H) Promptly after receipt thereof a copy of any
notice either Borrower or any ERISA Affiliate may receive
from the PBGC or the Internal Revenue Service with respect to
any Plan or Multiemployer Plan; provided that this
subparagraph (H) shall not apply to notices of general
application promulgated by the PBGC or the Internal Revenue
Service;
(ix) Servicing Reports.
(A) As soon as available and in any event no
later than forty-five (45) days after the end of each
six-month period ended June 30 and December 31 of each year,
commencing with the six-month period ending June 30, 1999, a
Pledged Servicing Portfolio Report dated as of the last day
of such six-month period;
(B) As soon as available and in any event no
later than forty-five (45) days after the end of each
six-month period ended June 30 and December 31 of each year,
commencing with the six-month period ending June 30, 1999, a
Pledged Servicing Valuation Report, dated as of the last day
of each such six-month period; provided, that the Agent shall
have the right to request additional Pledged Servicing
Valuation Reports at such times as it deems necessary or
desirable, which reports shall be prepared at the expense of
the Lenders;
(C) As soon as available and in any event no
later than thirty (30) days after the end of each quarterly
period ended March 31, June 30, September 30 and December 31
of each year, commencing with the quarterly period ending
June 30, 1999, a Recourse Servicing Portfolio Report dated as
of the last day of such quarterly period;
(D) As soon as available and in any event no
later than thirty (30) days after the end of each quarterly
period ended March 31, June 30, September 30 and December 31
of each year, commencing with the quarterly period ending
June 30, 1999, a Recourse Servicing Portfolio Statistics
Report dated as of the last day of such quarterly period; and
(E) Promptly upon the request of the Agent, a
schedule of servicing rights then included in the Pledged Servicing
Portfolio, including the owner of such servicing rights and otherwise
in form and substance acceptable to the Agent; and
(x) Other Information. Promptly, such additional
financial and other information, including financial statements of the
Borrowers or any of its Subsidiaries,
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and such information regarding the Collateral or the Warehouse
Collateral as any Lender, through the Agent, may from time to time
reasonably request, including such information as is necessary for any
Lender to grant participations of its interests in Loans hereunder or
to enable another financial institution to become a signatory hereto.
(b) Maintenance of Existence and Properties; Compliance with Laws;
Maintenance of Agency Status. (i) Except as provided in Section 5.2(e),
preserve and maintain, and cause each of its Subsidiaries to preserve and
maintain, its corporate existence and all rights, privileges, licenses,
approvals, franchises, properties and assets material to the normal conduct of
its business; comply, and cause each of its Subsidiaries to comply, in all
material respects with all Contractual Obligations and Requirements of Law,
except when the failure to maintain the existence of any such Subsidiary or to
so comply would not have a Material Adverse Effect; and (ii) except as
permitted under Section 5.2(j), preserve and maintain at all times its status
as a FHLMC approved Seller/Servicer, a HUD Direct Endorsement Lender and a VA
approved Lender in good standing and, with respect to DFC, its status as a FNMA
approved Seller/Servicer and as a GNMA approved Issuer/Servicer.
(c) Inspection of Property; Books and Records; Discussions. (i)
Keep, and cause each of its Subsidiaries to keep, proper books of record and
account in which full, true and correct entries in conformity with GAAP and all
Requirements of Law shall be made of all dealings and transactions in relation
to its business and activities, and, (ii) permit representatives of the Agent
and the Lenders (at no cost to such Borrower unless a Potential Default or an
Event of Default has occurred and is continuing) to visit and inspect any of
its properties and examine and make copies from any of its books and records
during normal business hours, upon reasonable advance notice and as often as
may reasonably be desired by the Agent, and to discuss the business,
operations, properties and financial and other condition of such Borrower and
its Subsidiaries with officers of such parties, and, with their independent
certified public accountants (if a representative of DFC or DMC shall have been
given the right upon reasonable notice to be present by phone or in person),
and with the consent of such Borrower, which consent shall not be unreasonably
withheld, with employees of the Borrowers.
(d) Insurance. Maintain or cause to be maintained with financially
sound and reputable insurers, insurance with respect to its properties and
business, and the properties and business of its Subsidiaries, against loss or
damage of the kinds customarily insured against by reputable companies in the
same or similar businesses, such insurance to be of such types and in such
amounts (with such deductible amounts) as is customary for such companies under
similar circumstances, including errors and omissions coverage and fidelity
coverage in form and substance acceptable under Agency guidelines, and furnish
the Agent on request evidence of all such insurance.
(e) Payment of Taxes and Claims, Etc. Pay, and cause each of its
Subsidiaries to pay, (i) all taxes, assessments and governmental charges
imposed upon it or upon its property, and (ii) all genuine claims (including
claims for labour, materials, supplies or services) that might, if unpaid,
become a Lien upon its property, unless, in each case, the validity or amount
thereof is being contested in good faith by appropriate proceedings and such
Borrower or such Subsidiary has maintained adequate reserves in accordance with
GAAP with respect thereto or has posted a bond in respect thereof satisfactory
to the Required Lenders.
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(f) GNMA Acknowledgment Agreement. Obtain, execute and deliver an
Acknowledgment Agreement from GNMA relating to the acknowledgment of the
Collateral Agent's security interest in the GNMA Servicing Portfolio, if and
when requested by the Agent in its sole discretion.
(g) Further Documents. Execute and deliver or to cause to be
executed and delivered to the Agent or the Collateral Agent on behalf of the
Lenders from time to time such confirmatory or supplementary security
agreements, financing statements, reaffirmations and consents and such other
documents, instruments or agreements as the Agent may reasonably request, that
are in the Agent's reasonable judgment necessary or desirable to obtain for the
Agent on behalf of the Lenders the benefit of the Loan Documents, the
Collateral and the Warehouse Collateral.
(h) Recording. Cause each Power of Attorney to be "protocolized"
under the laws of Puerto Rico and filed in the Registry of Powers of Attorneys
and Xxxxx, pay any and all fees and charges in connection therewith, and
provide evidence of such protocolization and filing to the Agent promptly
thereafter.
(i) Year 2000 Compliance. Ensure that their respective Information
Systems and Equipment are at all times after the date of this Agreement Year
2000 Compliant, except insofar as the failure to do so will not result in a
Material Adverse Effect, and shall notify the Agent promptly upon detecting any
failure of the Information Systems and Equipment to be Year 2000 Compliant. In
addition, the Borrowers shall provide the Agent with such information about
their respective year 2000 computer readiness (including, without limitation,
information as to contingency plans, budgets and testing results) as the Agent
may reasonably request.
SECTION 5.2 NEGATIVE COVENANTS OF EACH BORROWER.
Each Borrower hereby covenants and agrees that, as long as
any Obligations remain unpaid or any Lender has any Commitment hereunder, such
Borrower shall not, directly or indirectly:
(a) Liens. Create, incur, assume or suffer to exist, or permit any
Subsidiary to create, incur, assume or suffer to exist, any Lien upon the
Collateral, the Warehouse Collateral or the Servicing Portfolio, whether now
owned or hereafter acquired, except in favor of the Secured Parties under the
Security Agreement, other than:
(i) Liens or charges for current taxes, assessments or
other governmental charges that are not delinquent or which remain
payable without penalty;
(ii) Liens, deposits or pledges made to secure statutory
obligations, surety or appeal bonds, or bonds for the release of
attachments or for stay of execution, or to secure the performance of
bids and tenders or for purposes of like general nature in the
ordinary course of business of such Borrower or such Subsidiary;
(iii) the interests of FNMA and FHLMC with respect to the
servicing rights relating to the underlying Mortgage Loans in the
Pledged Servicing Portfolio as set forth
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in acknowledgment agreements with such Agencies and the interests of
GNMA as set forth in the GNMA Guide;
(iv) involuntary Liens relating to liabilities not in
excess of $100,000 in the aggregate for each Borrower; provided that
such Borrower or such Subsidiary is making a diligent effort to remove
such Liens as soon as practicable; and
(vi) a first priority Lien on the Warehouse Collateral and
the Eligible Servicing Receivables, in favor of the Warehouse
Collateral Agent under the Warehouse Security Agreement and subject to
the terms of the Intercreditor Agreement.
(b) Change of Business. Except as permitted under Section 5.2(e),
engage in any type of business that is unrelated to (i) the mortgage banking
and lending business and the servicing of Mortgage Loans, or (ii) any related
financial services business (including, without limitation, any activity
permitted for banks, savings associations, or savings and loan or bank holding
companies), or permit any of DFC's Subsidiaries to engage in any type of
business other than financial services (including, without limitation, any
activity permitted for banks, savings associations, or savings and loan or bank
holding companies); provided that the Borrowers may create one or more
Subsidiaries for the purposes of acquiring, developing and holding real
property to be leased principally to DFC and DFC's other Subsidiaries.
(c) Acquisitions. Except as permitted under Section 5.2(e),
purchase or acquire, or permit any of its Subsidiaries to purchase or acquire,
or incur liability for the purchase or acquisition of, or permit any of its
Subsidiaries or to incur liability for the purchase or acquisition of, any or
all of the assets or business of any Person (whether such purchase or
acquisition shall be by means of merger, stock purchase, asset purchase or
otherwise) other than (i) purchases and acquisitions in the ordinary course of
business as currently conducted and (ii) other purchases and acquisitions
relating to the mortgage banking and lending business and the servicing of
Mortgage Loans or other financial services (including, without limitation, any
activity permitted for banks, savings associations, or savings and loan or bank
holding companies).
(d) Transactions with Affiliates. Enter into, or permit any of its
Subsidiaries directly or indirectly to enter into, any transaction (including
the purchase, sale, lease or exchange of any property, the making or borrowing
of any loan or the rendering of any service) with any Affiliate on terms that
are less favorable to such Borrower or such Subsidiary than those that might be
obtained at the time from Persons who are not Affiliates, other than the
existing Master Purchase, Servicing and Collections Agreement dated as of
September 15, 1993 with Doral Bank, the Amended and Restated Master Production
Agreement among DFC, DMC and Doral Bank dated as of October 1, 1995, as amended
by the First Amendment to Master Production Agreement, dated as of March 1,
1996, and the Master Servicing and Collection Agreement between DFC and Doral
Bank, dated as of October 1, 1995, as amended by the First Amendment to Master
Servicing and Collection Agreement, dated as of March 1, 1996, each as in
effect on such respective dates.
(e) Consolidation, Merger, Sale of Assets, Etc. (i) Enter into any
merger, consolidation or amalgamation, including any such transaction with a
regulated banking entity or that results in either Borrower becoming a
Subsidiary of a regulated banking entity (other than of
40
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DFC), (ii) liquidate, wind-up or dissolve itself (or suffer or permit any of
the foregoing to occur), or (iii) sell, lease, assign, transfer or otherwise
dispose of, or permit any of its Subsidiaries to sell, lease, assign, transfer
or otherwise dispose of, more than twenty-five percent (25%) of its assets,
whether now owned or hereafter acquired, based on the book value of all such
assets as set forth in the last audited financial statement of such Borrower,
provided that the following shall be permitted so long as no Potential Default
or an Event of Default has occurred and is continuing or would result
therefrom:
(A) DFC may merge or consolidate with another
Person where DFC is the surviving entity;
(B) DMC may merge with any other wholly-owned
Subsidiary of DFC that is principally engaged in the mortgage
banking business where DMC is the surviving entity;
(C) the Borrowers may sell assets in the
ordinary course of business at fair market value (it being
expressly agreed and understood that the sale or other
disposition of Mortgage-Backed Securities and of Mortgage
Loans with or without servicing released is in the ordinary
course of business and that, subject to Section 2.8, the
Borrowers may sell all or a portion of their servicing rights
to the extent and in the manner permitted by Sections 5.2(d)
and (g) and by the Security Agreement). Notwithstanding the
foregoing, DMC may be merged into, become consolidated with
or become a Subsidiary of any Person (other than DFC) that is
a regulated banking entity so long as (x) DFC (aa) becomes
the sole borrower under the Loan Documents and affirms the
same pursuant to documentation reasonably satisfactory to
Lenders and Agent and (bb) satisfies all the representations,
warranties and covenants hereunder, including the financial
covenants, without DMC being included in its consolidated and
consolidating financial statements; (y) no Potential Default
or Event of Default exists at the time of such event and
after giving effect thereto; and (z) such event does not have
a Material Adverse Effect; and
(D) the Borrowers may sell all of the
outstanding stock or assets of Centro Hipotecario de Puerto
Rico, Inc..
(f) ERISA. Take, or permit any of its Subsidiaries to take, any of
the following actions:
(i) Terminate or withdraw from any Plan so as to result
in any material liability to the PBGC;
(ii) Engage in or permit any Person to engage in any
Prohibited Transaction involving any Plan that would subject such
Borrower or any of its Subsidiaries to any material tax, penalty or
other liability;
(iii) Incur or suffer to exist any material Accumulated
Funding Deficiency, whether or not waived, involving any Plan;
41
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(iv) Allow or suffer to exist any event or condition that
presents a risk of incurring a material liability to the PBGC;
(v) Amend any Plan so as to require the posting of
security in a material amount under section 401(a)(29) of the Code; or
(vi) Fail to make payments required under section 412(m)
of the Code and section 302(e) of ERISA that would subject such
Borrower or any of its Subsidiaries to any material tax, penalty or
other liability.
(g) Transfer to Affiliates. Subject to the proviso in subsection
(e) above, sell, assign or otherwise transfer any of its assets to any
Affiliate of a Borrower without the prior written consent of the Required
Lenders, or permit any of its Subsidiaries to sell, assign or otherwise
transfer any of their respective assets, to any Affiliate of a Borrower without
the prior written consent of the Required Lenders other than (i) inter-company
dividends to Borrowers or Borrowers' Subsidiaries, and (ii) sales or other
dispositions of Mortgage Loans and Mortgage-Backed Securities, with or without
servicing released, in the ordinary course of business and at fair market
value; provided that (aa) any Subsidiary of a Borrower may, subject to
subsection (e) above, sell, assign or otherwise transfer any of their
respective assets to such Borrower, (bb) DMC may, subject to subsection (e)
above, sell, assign or otherwise transfer its assets to DFC, and (cc) DFC may
make capital investments in its Subsidiaries.
(h) Subsidiaries. Form or cause to be formed after the date hereof
any Subsidiaries of the Borrowers without notice thereof to the Agent prior to
or promptly after such formation.
(i) Margin Regulations. Use any or all of the proceeds of any Loan
(i) to purchase or carry Margin Stock or extend credit to others for the
purpose of purchasing or carrying Margin Stock or (ii) in any manner that will
violate or be inconsistent with the provisions of any regulation of the Board.
(j) Agency Approvals. Fail to maintain the Agency approvals
described in Section 4.12 as a result of a change in business plan of the
Borrower without the prior consent thereto of the Agent and Lenders, which
consent shall not be unreasonably withheld as long as no Material Adverse
Effect would result therefrom.
(k) Recourse Obligations. In the case of DFC, without the prior
written consent of the Agent, acting at the direction of the Required Lenders,
enter into any transaction whereby (i) DFC sells Mortgage-Backed Securities or
Mortgage Loans and remains obligated to repurchase (whether conditionally or
unconditionally) such Mortgage-Backed Securities or Mortgage Loans or has
retained other recourse obligations with respect thereto, or (ii) DFC assumes
or otherwise incurs recourse obligations with respect to Mortgage-Backed
Securities or Mortgage Loans included in its Servicing Portfolio, if, in either
case, in the reasonable judgment of the management of DFC, the aggregate
obligations of DFC in connection with such transaction and all previous
transactions of the type described in clauses (i) and (ii) above for which DFC
is then obligated could, if DFC is required to perform such obligations, result
in a decrease in DFC's Book Net Worth by a Material Amount.
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SECTION 5.3 ADDITIONAL NEGATIVE COVENANTS.
Each Borrower hereby covenants and agrees that, as long as
any Obligations remain unpaid or any Lender has any Commitment hereunder, such
Borrower shall not at any time, directly or indirectly:
(a) Total Liabilities. Permit DFC on a consolidated basis
(excluding any Subsidiaries that are not primarily engaged primarily in the
business of mortgage banking as reasonably determined by the Agent) to incur
Total Liabilities in excess of the sum of (i) one hundred percent (100%) of
"Cash" or "Cash equivalents"; (ii) ninety-five percent (95%) of the sum of
"Mortgage Loans held for sale", "Mortgage-backed securities held for trading"
(but excluding "interest only securities" included therein), and "Securities
available for sale"; (iii) ninety percent (90%) of "Accrued interest
receivable"; (iv) ninety percent (90%) of "Securities held to maturity"
provided that such securities are tax-exempt investments for the Borrowers,
including GNMA, FNMA and FHLMC mortgage-backed securities, collateralized
mortgage obligations that are backed by GNMA, FNMA or FHLMC mortgage-backed
securities and are rated AAA by Standard & Poor's Corporation and by Xxxxx'x
Investors Service, and securities issued by the United States Treasury or an
agency of the United States Government; (v) eighty percent (80%) of "prepaid
and other assets" (excluding investment in any Subsidiary of either Borrower)
and mortgage-backed securities that are not tax-exempt and rated AAA by
Standard & Poor's Corporation and by Xxxxx'x Investors Service (including
collateralized mortgage obligations); (vi) fifty percent (50%) of the sum of
(A) "Property, leasehold improvements and equipment" and (B) "Real estate held
for sale"; (vii) sixty-five percent (65%) of "interest only securities"; (viii)
one percent (1.0%) of the principal amount of Mortgage Loans owned by Persons
not affiliated with DFC or DMC or any of their Affiliates (unless covered by a
Permitted Affiliate Servicing Agreement) for which DFC or DMC owns the direct
servicing rights (excluding subservicing); and (ix) eighty percent (80%) of
"loans receivable". All quoted terms used in the preceding sentence shall have
the same meanings, and shall continue to be calculated and classified in the
same manner, as the terms used in the statement of financial condition of DFC
and its consolidated Subsidiaries referred to in Section 4.4(a).
(b) Adjusted Tangible Net Worth. Permit Adjusted Tangible Net
Worth at any time to be less than $180,000,000.
(c) Book Net Worth. Permit Book Net Worth at any time to be less
than $217,000,000.
(d) Minimum Servicing Portfolio. Permit DFC on a consolidated
basis (excluding any Subsidiaries that are not primarily engaged in the
business of mortgage banking as reasonably determined by the Agent) to maintain
a Servicing Portfolio with an aggregate outstanding principal balance of less
than $4,000,000,000 or such lesser amount as shall be agreed by the Lenders in
their sole discretion.
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ARTICLE 6
EVENTS OF DEFAULT
SECTION 6.1 EVENTS OF DEFAULT.
If one or more of the following events (each an "EVENT OF
DEFAULT") shall have occurred and be continuing:
(a) Payments. (i) The Borrowers shall fail to pay when due
(whether at scheduled maturity, upon mandatory repayment or otherwise) any
principal of any Note; or (ii) the Borrowers shall fail to pay within three (3)
Business Days after the due date thereof any interest on any Note or any other
Obligation;
(b) Covenants Without Notice. The Borrowers shall fail to observe
or perform any covenant or agreement contained in Sections 5.1(b)(i), 5.1(f),
5.2 or 5.3; provided that any violation of Section 5.2(a) that is attributable
to the existence of an involuntary Lien on the Collateral or the Warehouse
Collateral (other than an involuntary Lien expressly permitted by Section
5.2(a)) shall not constitute an Event of Default until thirty (30) days after
the imposition thereof if at all times during such thirty (30) day period the
Borrowers are making a diligent effort by appropriate means to remove such Lien
and the existence of such Lien will not have a Material Adverse Effect);
(c) Covenants With Seven Business Day Grace Period. The Borrowers
shall fail to observe or perform any covenant or agreement contained in
Sections 5.1(a), 5.1(b)(ii) or 5.1(c)(ii), and such failure shall remain
unremedied for seven (7) Business Days after oral notice thereof to an
Authorized Officer (which shall be confirmed in writing (which may be by
facsimile) before the end of such seven (7) Business Day period);
(d) Covenants With Thirty Day Grace Period. The Borrowers shall
fail to observe or perform any covenant or agreement contained in any Loan
Document, other than those referred to in Sections 6.1(a), (b) or (c), and, if
capable of being remedied, such failure shall remain unremedied for thirty (30)
days after the earlier of (i) either Borrower's obtaining knowledge thereof or
(ii) notice thereof shall have been given to an Authorized Officer by any
Lender or the Agent before the end of such thirty (30) day period); provided
that if such failure is capable of being remedied but only in a period of more
than thirty (30) days, then such failure shall not constitute an Event of
Default until sixty (60) days after the earlier of the above dates if each
Borrower is making a diligent effort by appropriate means to observe or perform
such covenant and there is otherwise no Material Adverse Effect as a result of
such delay;
(e) Representations. Any representation, warranty or statement
made or deemed to be made by either Borrower or any of their respective
officers under or in connection with any Loan Document shall have been
inaccurate, incomplete or incorrect in any respect when made or deemed to be
made and such inaccuracy, incompleteness or incorrectness could have a Material
Adverse Effect;
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(f) Non-Payment of Other Indebtedness. Either Borrower shall fail
to make any payment of principal of or interest on any of its Indebtedness
(other than the Obligations) exceeding the Material Amount in the aggregate
when due (whether at stated maturity, by acceleration, on demand or otherwise)
after giving effect to any applicable grace period;
(g) Defaults Under Other Agreements. Either Borrower shall fail to
observe or perform any covenant or agreement contained in any agreement or
instrument relating to any of its Indebtedness (other than the Obligations) in
excess of the Material Amount in the aggregate within any applicable grace
period, or any other event shall occur if the effect of such failure or other
event is to accelerate, or to permit the holder of such Indebtedness or any
other Person to accelerate, the maturity of such Indebtedness; or any such
Indebtedness shall be required to be prepaid (other than by a regularly
scheduled required prepayment) in whole or in part prior to its stated
maturity;
(h) Bankruptcy. Either Borrower shall commence a voluntary case
concerning itself under Title 11 of the United States Code entitled
"Bankruptcy" as now or hereafter in effect, or any successor thereto (the
"BANKRUPTCY CODE"); or any involuntary case is commenced against either
Borrower and the petition is not dismissed within sixty (60) days after
commencement of the case; or a custodian (as defined in the Bankruptcy Code) is
appointed for, or takes charge of, all or any substantial part of the property
of either Borrower; or either Borrower commences any other proceeding under any
reorganization, arrangement, adjustment of debt, relief of debtors,
dissolution, insolvency or liquidation or similar law or there is commenced
against either Borrower any such proceeding that remains undismissed for a
period of sixty (60) days; or either Borrower is adjudicated insolvent or
bankrupt; or any order of relief or other order approving any such case or
proceeding is entered; or either Borrower shall fail to pay, or shall state
that it is unable to pay, or shall be unable to pay, its debts generally as
they become due; or either Borrower shall call a meeting of its creditors with
a view to arranging a composition or adjustment of its debts; or either
Borrower shall by any act or failure to act indicate its consent to, approval
of or acquiescence in any of the foregoing; or any corporate action is taken by
either Borrower for the purpose of effecting any of the foregoing;
(i) Money Judgment. A judgment or order for the payment of money
in excess of the Material Amount shall be rendered against either Borrower and
such judgment or order shall continue unsatisfied (in the case of a money
judgment) and in effect for a period of thirty (30) days during which execution
shall not be effectively stayed or deferred (whether by action of a court, by
agreement or otherwise);
(j) ERISA. (i) Any Reportable Event or a Prohibited Transaction
shall occur with respect to any Plan; (ii) a notice of intent to terminate a
Plan under section 4041 of ERISA shall be filed; (iii) a notice shall be
received by the plan administrator of a Plan that the PBGC has instituted
proceedings to terminate a Plan or appoint a trustee to administer a Plan; (iv)
any other event or condition shall exist that might, in the opinion of the
Required Lenders, constitute grounds under section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Plan; (v)
the Borrowers or any ERISA Affiliate shall withdraw from a Multiemployer Plan
under circumstances that the Required Lenders determine could have a material
adverse effect on the financial condition of either Borrower; and in case of
the occurrence of any event or condition described in clauses (i) through (v)
above, such event or
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condition together with all other such events or conditions, if any, could
subject either Borrower to any tax, penalty or other liabilities in the
aggregate material in relation to the business, operations, property or
financial or other condition of either Borrower;
(k) Loan Documents. Any of the Loan Documents shall cease for any
reason to be in full force and effect, a breach by the Borrowers under any of
the Acknowledgement Agreements shall occur, or any action shall be taken by any
Person to terminate, revoke or discontinue, or to assert the invalidity or
unenforceability of, any of the Loan Documents;
(l) Security Interests. The Lenders shall cease for any reason
(other than in accordance with the terms of the Security Agreement or the
Warehouse Security Agreement) to have valid and perfected security interests in
the Collateral or the Warehouse Collateral (with the priority as set forth in
Section 4.11), or any Person shall take any action to discontinue or to assert
the invalidity or unenforceability of such security interests; or
(m) Warehouse Event of Default. A Warehouse Event of Default shall
occur;
THEN, the Agent shall notify the Lenders of such Event of Default and may, and
upon the written request of the Required Lenders, shall, by written notice to
the Borrowers, take any or all of the following actions: (A) declare the
Commitments terminated, whereupon the Commitment of each Lender shall terminate
immediately without any other notice of any kind; and (B) declare the principal
of and any accrued interest on the Loans, and all other Obligations to be,
whereupon the same shall become, forthwith due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrowers; provided that, if an Event of Default specified in Section
6.1(h) shall occur, the Commitments shall terminate and all Obligations shall
become immediately due and payable automatically without the giving of any such
notice and without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrowers.
ARTICLE 7
THE AGENT
SECTION 7.1 APPOINTMENT OF AGENT.
Each Lender hereby designates Bankers Trust Company as Agent
to act as herein specified. Each Lender hereby irrevocably authorizes, and each
holder of any Note by the acceptance of a Note shall be deemed irrevocably to
authorize, the Agent to take such action on its behalf under the provisions of
this Agreement and the other Loan Documents and any other instruments and
agreements referred to herein or therein and to exercise such powers and to
perform such duties hereunder or thereunder as are specifically delegated to or
required of the Agent by the terms hereof and thereof and such other powers as
are reasonably incidental thereto. The Agent may perform any of its duties
hereunder or thereunder by or through its agents or employees.
SECTION 7.2 NATURE OF DUTIES OF AGENT.
The Agent shall have no duties or responsibilities except
those expressly set forth in this Agreement and the other Loan Documents.
Neither the Agent nor any of its officers,
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directors, employees or agents shall be liable for any action taken or omitted
hereunder or thereunder or in connection herewith or therewith, unless caused
by its or their gross negligence or wilful misconduct as evidenced by a final
judgment of a court of competent jurisdiction. The duties of the Agent shall be
mechanical and administrative in nature; the Agent shall not have by reason of
this Agreement or any other Loan Document a fiduciary relationship in respect
of any Lender; and nothing in this Agreement or any other Loan Document,
express or implied, is intended to or shall be so construed as to impose upon
the Agent any obligations in respect of this Agreement or any other Loan
Document except as expressly set forth herein or therein.
SECTION 7.3 LACK OF RELIANCE ON AGENT.
(a) Independently and without reliance upon the Agent, each
Lender, to the extent it deems appropriate, has made and shall continue to make
(i) its own independent investigation of the financial condition and affairs of
each Borrower and its Affiliates in connection with the taking or not taking of
any action in connection herewith and (ii) its own appraisal of the
creditworthiness of each Borrower and its Affiliates, and, except as expressly
provided in this Agreement, the Agent shall have no duty or responsibility,
either initially or on a continuing basis, to provide any Lender with any
credit or other information with respect thereto, whether coming into its
possession before the making of the Loans or at any time or times thereafter.
(b) The Agent shall not be responsible to any Lender for any
recitals, statements, information, representations or warranties herein or in
any document, certificate or other writing delivered in connection with this
Agreement or any other Loan Document or for the execution, effectiveness,
genuineness, validity, enforceability, collectibility, priority or sufficiency
of this Agreement or any other Loan Document or for the sufficiency of the
Collateral or the Warehouse Collateral or the validity, perfection or priority
of any security interest in the Collateral or the Warehouse Collateral or the
financial condition of each Borrower or its Affiliates or be required to make
any inquiry concerning either the performance or observance of any of the
terms, provisions or conditions of this Agreement or any other Loan Document,
or the financial condition of each Borrower or its Affiliates, or the existence
or possible existence of any Potential Default or Event of Default.
SECTION 7.4 CERTAIN RIGHTS OF AGENT.
If the Agent shall request instructions from the Required
Lenders with respect to any act or action (including the failure to act) in
connection with this Agreement or any other Loan Document, the Agent shall be
entitled to refrain from such act or taking such action unless and until the
Agent shall have received instructions from the Required Lenders; and the Agent
shall not incur liability to any Lender by reason of so refraining. Without
limiting the foregoing, no Lender shall have any right of action whatsoever
against the Agent as a result of the Agent acting or refraining from acting
hereunder or under any other Loan Document in accordance with the instructions
of the Required Lenders. The provisions of this Section 7.4 are not intended to
supersede the provisions of Section 8.2 that require all of the Lenders to
approve certain actions under the Loan Documents.
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SECTION 7.5 RELIANCE BY AGENT.
The Agent shall be entitled to rely, and shall be fully
protected in relying, upon any notice, believed by it to be genuine and correct
and to have been signed, sent or made by the proper Person. The Agent may
consult with legal counsel (including with the consent of DFC, which consent
shall not be unreasonably withheld, counsel for DFC or DMC), independent public
accountants (including those retained by DFC or DMC if a representative of DFC
or DMC, as applicable, shall have been given the right upon reasonable notice
to be present by phone or in person during such consultation) and other experts
selected by it and shall not be liable for any action taken or omitted to be
taken by it in good faith in accordance with the advice of such counsel,
accountants or experts.
SECTION 7.6 INDEMNIFICATION OF AGENT.
To the extent the Agent is not reimbursed and indemnified by
DFC or DMC, each Lender will reimburse and indemnify the Agent, in proportion
to its respective Commitment (before giving effect to any termination of the
Commitments pursuant to the terms of this Agreement), from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses (including reasonable attorneys' fees and disbursements)
or disbursements of any kind or nature whatsoever which may be imposed on,
incurred by or asserted against the Agent in performing its duties hereunder
and under the other Loan Documents, in any way relating to or arising out of
this Agreement or the other Loan Documents; provided that no Lender shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Agent's gross negligence or wilful misconduct, as evidenced
by a final judgment of a court of competent jurisdiction.
SECTION 7.7 AGENT IN ITS INDIVIDUAL CAPACITY.
With respect to its obligation to lend under this Agreement,
the Loans made by it and the Notes issued to it, the Agent shall have the same
rights and powers hereunder as any other Lender or holder of a Note and may
exercise the same as though it were not performing the duties specified herein;
and the terms "Lenders," "Required Lenders," "holders of Notes" or any similar
terms shall, unless the context clearly otherwise indicates, include the Agent
in its individual capacity. The Agent may accept deposits from, lend money to,
and generally engage in any kind of banking, trust, financial advisory or other
business with each Borrower or any Affiliate of the Borrowers as if it were not
performing the duties specified herein, and may accept fees and other
consideration from the Borrowers and any Affiliates of the Borrowers for
services in connection with this Agreement and the other Loan Documents and
otherwise without having to account for the same to the Lenders.
SECTION 7.8 HOLDERS OF NOTES.
The Agent may deem and treat the payee of any Note as the
owner thereof for all purposes hereof unless and until a written notice of the
assignment or transfer thereof shall have been filed with the Agent. Any
request, authority or consent of any Person who, at the time of making such
request or giving such authority or consent, is the holder of any Note shall be
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conclusive and binding on any subsequent holder, transferee or assignee of such
Note or of any Note or notes issued in exchange therefor.
SECTION 7.9 SUCCESSOR AGENT.
(a) The Agent may resign as Agent hereunder at any time by giving
written notice thereof to the Lenders and the Borrowers if (i) it believes that
its duties hereunder present an actual or potential conflict of interest with
any other business of the Agent or (ii) it determines at any time that the
introduction of, or any change in, any applicable law, rule, regulation, order
or decree or in the interpretation or administration thereof by any
Governmental Authority charged with the interpretation or administration
thereof, or compliance by the Agent with any request or directive (whether or
not having the force of law) of any such Authority, shall make it unlawful or
improper for the Agent to continue as Agent hereunder. Upon any such
resignation or any removal of the Agent pursuant to Section 7.9(b), the
Required Lenders shall have the right, upon five (5) days' notice to the
Borrowers, to appoint a successor Agent, which shall be a Lender. If no
successor Agent shall have been so appointed by the Required Lenders, and shall
have accepted such appointment, within thirty (30) days after the retiring
Agent's giving of notice of resignation, then, upon five (5) days' notice to
the Borrowers, the retiring Agent may, on behalf of the Lenders, appoint a
successor Agent, which shall be a bank which maintains an office in the United
States, or a commercial bank organized under the laws of the United States of
America or of any State thereof, or any Affiliate of such bank, having a
combined capital and surplus of at least $250,000,000.
(b) The Agent may be removed by the unanimous vote of all the
Lenders hereunder (not including the vote of the Agent if the Agent is also a
Lender hereunder) if (i) the Agent has engaged in wilful misconduct with
respect to its obligations and duties hereunder as evidenced by a final
judgment of a court of competent jurisdiction and (ii) has failed to cure such
wilful misconduct after sixty (60) days notice by the Lenders to the Agent of
such wilful misconduct.
(c) Any resignation or removal of the Agent hereunder shall be
effective only upon the acceptance of any appointment as Agent hereunder by a
successor Agent. Upon such acceptance, such successor Agent shall succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations under this Agreement and the other Loan Documents. After any
retiring Agent's resignation hereunder as Agent, the provisions of this Article
VII shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was Agent under this Agreement.
ARTICLE 8
MISCELLANEOUS PROVISIONS
SECTION 8.1 NOTICES.
(a) Except as otherwise expressly set forth herein, all notices,
requests and other communications to any party hereunder shall be in writing
(including telecopy or similar teletransmission or writing) and shall be given
to such party at its address or telecopy number set
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forth on Exhibit H hereto or such other address or telecopy number as such
party may hereafter specify by notice to the Agent and the Borrowers. Each such
notice, request or other communication shall be effective (a) if given by
telecopy, when such telecopy is transmitted to the telecopy number specified
herein and the receipt thereof is confirmed by the recipient or (b) if sent by
overnight courier (with all charges paid) providing for confirmation of
delivery, then upon confirmation of delivery by such courier; provided that
notices to the Agent pursuant to Article II shall not be effective until
received.
(b) Any notice required to be given to one or more Borrowers
hereunder or under any other Loan Document shall be effective if delivered to
DFC, it being the intent that notice to DFC is effective notice to both
Borrowers. In connection therewith, DMC hereby irrevocably appoints DFC as its
agent to receive any and all notices hereunder and under any other Loan
Document and such appointment is coupled with an interest. In addition to the
foregoing, the Agent and the Lenders shall be entitled, but shall not be
required, to rely on notice from either Borrower as constituting notice from
both Borrowers.
SECTION 8.2 AMENDMENTS, ETC.
No amendment or waiver of any provision of any Loan Document,
nor consent to any departure by the Borrowers therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Borrowers and
the Required Lenders, and then such amendment, waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided that (a) notwithstanding anything else contained herein, no
amendment, waiver or consent shall, unless in writing and signed by all the
Lenders, do any of the following: (i) waive or change Section 5.2(e) or any of
the conditions specified in Article III, (ii) except as provided in Sections
8.6(g) and 8.6(h), increase the aggregate Commitments of the Lenders or subject
the Lenders to any additional obligations, (iii) reduce the principal of, or
interest on, the Notes, (iv) postpone any date fixed for any payment in respect
of principal of, or interest on, the Notes, or waive any Event of Default under
Section 6.1(a), (v) change the percentage of the Commitments, the definitions
of "Required Lenders" or "Collateral Value of the Pledged Servicing Portfolio"
(or any definitions contained in such definitions), or the number or identity
of Lenders that is required for any or all of the Lenders to take any action
hereunder, (vi) release the Lien of the Lenders on any of the Collateral or the
Warehouse Collateral, except as provided in the Security Agreement or (vii)
amend this Section 8.2 or Section 8.6; and (b) no amendment, waiver or consent
shall, unless in writing and signed by the Agent, affect the rights or duties
of the Agent under this Agreement or any other Loan Document.
SECTION 8.3 NO WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of the Agent or any Lender in
exercising any right or remedy hereunder or under any other Loan Document and
no course of dealing between the Borrowers, on the one hand, and the Agent or
any Lender, on the other hand, shall operate as a waiver thereof, nor shall any
single or partial exercise of any right or remedy hereunder or under any other
Loan Document preclude any other or further exercise thereof or the exercise of
any other right or remedy hereunder or thereunder. The rights and remedies
expressly provided herein and in the other Loan Documents are cumulative and
not exclusive of any rights or remedies that the Agent or any Lender would
otherwise have. No notice to or demand on the Borrowers not required hereunder
or under the other Loan Documents in any case shall entitle
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the Borrowers to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the Agent or any Lender
to any other or further action in any circumstances without notice or demand.
SECTION 8.4 PAYMENT OF EXPENSES, ETC.
The Borrowers shall:
(a) (i) pay all reasonable out-of-pocket costs and expenses
of the outside legal counsel of the Agent in connection with the preparation,
execution and delivery of, this Agreement and the other Loan Documents, and any
amendment, modification or supplement hereof or thereof, and (ii) pay all
reasonable out-of-pocket costs and expenses of the Agent and each Lender in the
preservation of rights under, enforcement of, and, after the occurrence of a
Potential Default or an Event of Default, any refinancing, the renegotiating or
the restructuring of, this Agreement and the other Loan Documents and the
documents and instruments referred to herein and therein including in
connection with any bankruptcy, insolvency, liquidation, reorganization or
similar proceeding and any amendment, waiver or consent relating hereto and
thereto (including the reasonable fees and disbursements of counsel (including
allocated costs of internal counsel) for the Agent and, in the case of
enforcement, for each of the Lenders);
(b) pay and hold the Agent and each of the Lenders harmless from
and against any and all present and future stamp and other similar taxes with
respect to the foregoing matters and save the Agent and each Lender harmless
from and against any and all liabilities with respect to or resulting from any
delay or omission to pay such taxes; and
(c) indemnify the Agent and each Lender, and their respective
officers, directors, employees, representatives and agents from, and hold each
of them harmless against, any and all out-of-pocket costs, losses, liabilities,
claims, damages or expenses actually incurred by any of them (whether or not
any of them is designated a party thereto) arising out of or by reason of any
investigation, litigation or other proceeding related to any actual or proposed
use by the Borrowers of the proceeds of any of the Loans or the Borrowers'
entering into and performing of the Loan Documents to which they are a party,
including the reasonable fees and disbursements of counsel (including allocated
costs of internal counsel) incurred in connection with any such investigation,
litigation or other proceeding; provided that neither the Agent nor any Lender
shall have the right to be indemnified hereunder for its own gross negligence
or wilful misconduct as evidenced by a final judgment of a court of competent
jurisdiction. If and to the extent that the obligations of the Borrowers under
this Section 8.4 are unenforceable for any reason, the Borrowers hereby agrees
to make the maximum contribution to the payment and satisfaction of such
obligations that is permissible under applicable law.
SECTION 8.5 RIGHT OF SETOFF.
Subject to Section 2.16, in addition to and not in limitation
of all rights of offset that any Lender may have under applicable law, for so
long as any Event of Default has occurred and is continuing and whether or not
any Lender has made any demand or the Obligations have matured, such Lender
shall have the right to appropriate and apply to the payment of the Obligations
all deposits (general or special, time or demand, provisional or final) then or
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thereafter held by, and other indebtedness or property then or thereafter owing
to the Borrowers by, such Lender, whether or not related to any Loan Document
or any transaction hereunder.
SECTION 8.6 BENEFIT OF AGREEMENT.
(a) This Agreement shall be binding upon and inure to the benefit
of and be enforceable by the respective successors and assigns of the parties
hereto; provided that neither of the Borrowers may assign or transfer any of
its interest or delegate any of its obligations under the Loan Documents
without the prior written consent of the Lenders and any such assignment or
transfer without the prior written consent of the Lenders shall be null and
void.
(b) Subject to the provisions of Section 2.13(c), any Lender may
make, carry or transfer Loans at, to or for the account of, any of its branch
offices or the office of an Affiliate of such Lender.
(c) Subject to the limitations set forth below, no Lender may
assign its rights or delegate its obligations under this Agreement and the
other Loan Documents and the Intercreditor Agreement to any other financial
institution without the prior consent of the Agent and, unless an Event of
Default has occurred and is continuing, the Borrowers (such consent not to be
unreasonably withheld); provided that (i) no Lender may make an assignment
hereunder to a Person (other than an Affiliate of such Lender or an existing
Lender) that is not a financial institution, (ii) each assignment of all or a
portion of a Lender's Commitment shall include a corresponding portion of such
Lender's Loans, (iii) no Lender may assign less than $2,500,000 of its
Commitment in any single assignment, and (iv) an assignment fee in the amount
of $3,500 for each assignment hereunder shall be payable to the Agent by the
applicable assignee. Any assignment or delegation specifically prohibited by
the preceding sentence shall be null and void. Notwithstanding the foregoing,
any Lender may assign its rights and delegate its obligations under this
Agreement and the other Loan Documents and the Intercreditor Agreement to any
Affiliate of such Lender without notice to or consent by the Borrowers, the
Agent, or any other Person, provided the fee set forth in the proviso to the
immediately preceding sentence shall be paid. Each assignment by a Lender
hereunder shall be made pursuant to an Assignment and Acceptance in
substantially the form of Exhibit N hereto. In the case of an assignment by a
Lender, upon the effective date of such assignment as set forth in the
Assignment and Acceptance executed by such Lender, the assignee shall have, to
the extent of such assignment (unless otherwise provided thereby), the same
rights and benefits as it would have if it were a Lender under the Loan
Documents and the Intercreditor Agreement and the holder of a Note and, if the
assignee has expressly assumed, for the benefit of the Borrowers, the assignor
Lender's obligations hereunder and under the other Loan Documents and the
Intercreditor Agreement, such assignor Lender shall be relieved of its
obligations hereunder and under the other Loan Documents and the Intercreditor
Agreement to the extent of such assignment and assumption.
(d) Each Lender may transfer, grant or assign participations in
all or any part of such Lender's interests and obligations hereunder pursuant
to this Section to another financial institution, provided that (i) such Lender
shall remain a "Lender" for all purposes of this Agreement and the transferee
of such participation shall not constitute a Lender hereunder and (ii) no
participant under any such participation shall have rights to approve any
amendment to or waiver of this Agreement or any other Loan Document except to
the extent such amendment or
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waiver would (x) extend the final scheduled maturity of any of the Loans or the
Commitment in which such participant is participating, (y) reduce the interest
rate (other than as a result of waiving the applicability of any post-default
increases in interest rates) or fees applicable to any of the Loans or
Commitments or postpone the payment of any thereof or (z) release any
Collateral or Warehouse Collateral except as provided in the Security Agreement
or the Warehouse Security Agreement, respectively. In the case of any such
participation, the participant shall not have any rights under this Agreement
or any of the other Loan Documents (the participant's rights against the
granting Lender in respect of such participation to be those set forth in the
agreement with such Lender creating such participation) and all amounts payable
by the Borrowers hereunder shall be determined as if such Lender had not sold
such participation, provided that such participant shall be entitled to receive
additional amounts under Sections 2.13, 2.14 and 2.15 on the same basis as if
it were a Lender.
(e) Any Lender may furnish any information concerning the
Borrowers and its Affiliates in the possession of such Lender from time to time
to Affiliates, participants and assignees, and prospective participants and
assignees, of such Lender. No Lender or its Affiliates may furnish such
information to any prospective assignee or participant without the prior
written consent of DFC, which consent will not be unreasonably withheld. Any
prospective assignee or participant shall be required to execute a
confidentiality agreement in the form of Exhibit J before receiving any such
information.
(f) Any Lender may at any time pledge all or any portion of its
rights under the Loan Documents to a Federal Reserve Bank without notice to or
consent of either Borrower, the Agent or any other Lender. No such pledge shall
release the transferor Lender from its obligations hereunder.
(g) So long as no Potential Default or Event of Default has
occurred and is continuing, the Borrowers may at any time propose that one or
more commercial banks (each, an "APPLICANT LENDER") become an additional Lender
hereunder. At such time, the Borrowers shall notify each of the Lenders of (i)
the identity of such Applicant Lender, (ii) the proposed increase in the
aggregate Commitments resulting from the addition of such Applicant Lender as a
Lender hereunder, and (iii) such Applicant Lender's proposed Commitment (which
must be not less than $2,500,000). Upon the Applicant Lender's addition as a
Lender hereunder, such Applicant Lender shall become a party to this Agreement
and the Intercreditor Agreement and a Lender hereunder and under the other Loan
Documents and the Intercreditor Agreement, shall be entitled to all rights,
benefits and privileges accorded a Lender under this Agreement and under the
other Loan Documents and the Intercreditor Agreement, and shall be subject to
all obligations of a Lender under this Agreement and under the other Loan
Documents and the Intercreditor Agreement.
(h) The addition of any Applicant Lender as a Lender hereunder
shall become effective upon the occurrence of each of the following events:
(i) the Agent shall have given its prior written consent
to such Applicant Lender, which consent shall not be unreasonably
withheld, delayed or conditioned;
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(ii) such Applicant Lender, the Borrowers and the Agent
shall have mutually agreed on the date (the "ADJUSTMENT DATE") on
which such Applicant Lender shall become a Lender hereunder and under
the other Loan Documents and the Intercreditor Agreement; and
(iii) on such Adjustment Date:
(A) such Applicant Lender, the Borrowers and the
Agent shall execute and deliver to each of the other
signatories thereto an Additional Lender Agreement in
substantially the form of Exhibit O hereto, the Agent shall
deliver a copy of such executed Additional Lender Agreement
and a copy of the Commitment Notice attached as Schedule I
thereto to each of the Lenders, and the Commitments of each
of the Lenders shall be modified as set forth in such
Commitment Notice;
(B) the Borrowers shall execute and deliver to
such Applicant Lender (x) a duly executed Note, (y) a
reliance letter from counsel to the Borrowers addressed to
such Applicant Lender and in form and substance satisfactory
to such Applicant Lender, providing that such Applicant
Lender may rely on any opinion letters of such counsel
addressed to the existing Lenders, as if such opinion letters
were addressed directly to such Applicant Lender, and (z)
certified copies of the resolutions of the Board of Directors
of each of the Borrowers evidencing the authorization of such
Borrower to enter into such Additional Lender Agreement and
consummate the transactions and matters contemplated thereby;
and
(C) no Potential Default or Event of Default
shall have occurred and be continuing as of such date.
SECTION 8.7 GOVERNING LAW; SUBMISSION TO JURISDICTION.
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER AND UNDER THE NOTES SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
OR THE OTHER LOAN DOCUMENTS TO WHICH EITHER BORROWER IS A PARTY MAY BE BROUGHT
IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX LOCATED IN NEW YORK COUNTY OR OF THE
UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE BORROWERS HEREBY ACCEPTS
FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE
JURISDICTION OF THE AFORESAID COURTS. THE PARTIES HERETO HEREBY IRREVOCABLY AND
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UNCONDITIONALLY WAIVE TRIAL BY JURY, AND, TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, EACH OF THE BORROWERS HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED
ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO
THE BRINGING OR MAINTAINING OF ANY SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE
JURISDICTIONS.
(c) EACH OF THE BORROWERS IRREVOCABLY AND UNCONDITIONALLY CONSENTS
TO THE SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH
ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, TO EACH SUCH BORROWER AT ITS SAID ADDRESS,
SUCH SERVICE TO BECOME EFFECTIVE THIRTY (30) DAYS AFTER SUCH MAILING. IN
ADDITION, EACH BORROWER HEREBY IRREVOCABLY APPOINTS CT CORPORATION, 0000
XXXXXXXX, XXX XXXX, XXX XXXX 00000 (THE "PROCESS AGENT") TO RECEIVE, FOR IT AND
ON ITS BEHALF, SERVICE OF PROCESS IN ANY PROCEEDINGS OR ACTIONS IN NEW YORK. IF
FOR ANY REASON THE PROCESS AGENT IS UNABLE TO ACT AS SUCH, EACH BORROWER WILL
PROMPTLY NOTIFY THE AGENT AND WITHIN THIRTY (30) DAYS APPOINT A SUBSTITUTE
PROCESS AGENT ACCEPTABLE TO THE AGENT.
(d) NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE AGENT OR ANY
LENDER TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE
LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST EITHER BORROWER IN ANY OTHER
JURISDICTION.
(e) EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE
MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER
IN ANY LEGAL ACTION OR PROCEEDING REFERRED TO IN THIS SECTION 8.7, ANY SPECIAL,
EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES. THIS WAIVER IS MADE KNOWINGLY AND
VOLUNTARILY.
SECTION 8.8 COUNTERPARTS.
This Agreement may be executed in any number of counterparts
and by the different parties hereto on separate counterparts, each of which
when so executed and delivered shall be an original, but all of which shall
together constitute one and the same instrument.
SECTION 8.9 HEADINGS DESCRIPTIVE.
The headings of the several sections and subsections of this
Agreement, and the Table of Contents, are inserted for convenience only and
shall not in any way affect the meaning or construction of any provision of
this Agreement.
SECTION 8.10 SURVIVAL OF REPRESENTATIONS AND INDEMNITIES.
All covenants, agreements, representations and warranties
made herein and in any certificate delivered pursuant hereto shall survive the
making by the Lenders of the Loans and
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the execution and delivery to the Agent for the account of the Lenders of the
Notes regardless of any investigation made by the Agent or the Lenders and of
the Agent's and any Lender's access to any information and shall continue in
full force and effect so long as any Obligation is outstanding and unpaid. The
Borrowers' obligations under Sections 2.13, 2.14, 2.15 and 8.4 and under any
other indemnification provisions of the Loan Documents and each Lender's
obligations under Sections 7.6 and 8.12 and under any other indemnification
provisions of the Loan Documents shall survive the termination of this
Agreement for any reason whatsoever and payment of the Notes.
SECTION 8.11 SEVERABILITY.
In case any one or more of the provisions contained in this
Agreement or the Notes should be invalid, illegal or unenforceable in any
respect in any jurisdiction, the validity, legality and enforceability of such
provisions shall not be affected or impaired in any other jurisdiction, nor
shall the remaining provisions contained herein and therein in any way be
affected or impaired thereby.
SECTION 8.12 INDEMNIFICATION OF COLLATERAL AGENT.
To the extent that the Collateral Agent is not reimbursed and
indemnified by the Borrowers pursuant to the Security Agreement, each Lender
will reimburse and indemnify the Collateral Agent, in proportion to the unpaid
principal amount of its outstanding Loans, or if no Loans are then outstanding,
in proportion to its Commitment, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including reasonable attorneys' fees and disbursements) or
disbursements of any kind or nature whatsoever that may be imposed on, incurred
by or asserted against the Collateral Agent in performing its duties under the
Loan Documents, in any way relating to or arising out of the Loan Documents;
provided that no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Collateral Agent's gross
negligence or wilful misconduct as evidenced by a final judgment of a court of
competent jurisdiction. The Collateral Agent shall be entitled to rely on the
provisions of this Section 8.12 as if they were a party to this Agreement.
SECTION 8.13 JOINT AND SEVERAL NATURE OF THE OBLIGATIONS.
The Borrowers agree that any and all of the Obligations of
the Borrowers hereunder and under each other Loan Document shall be the joint
and several obligation of each of them notwithstanding any absence herein or
therein of a reference such as "jointly and severally" with respect to any such
obligation.
SECTION 8.14 CERTAIN WAIVERS.
Each of the Borrowers agrees that its joint and several
liability under this Agreement and each of the other Loan Documents shall be
absolute, unconditional and irrevocable irrespective of:
(a) any lack of validity, legality or enforceability of the
Obligations of the other Borrower or any other Person under this Agreement or
any other Loan Document;
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(b) the failure of any Lender:
(i) to assert any claim or demand or to enforce any right
or remedy against the other Borrower or any other Person (including
any guarantor) under the provisions of this Agreement or any other
Loan Document or otherwise, or
(ii) to exercise any right or remedy against any guarantor
of, or Collateral or Warehouse Collateral securing, any Obligations;
(c) any change in the time, manner or place or payment of, or in
any other term of, all or any of the Obligations, or any other extension,
compromise or renewal of any Obligation with respect to the other Borrower or
any other Person;
(d) any reduction, limitation, impairment or termination of any of
the Obligations of the other Borrower or any other Person for any reason,
including any claim of waiver, release, surrender, alteration or compromise,
and the liability of each of the Borrowers shall not be subject to (and each of
them hereby waives any right to or claim of) any defense or setoff,
counterclaim, recoupment or termination whatsoever by reason of the invalidity,
illegality, non-genuineness, irregularity, compromise, unenforceability of, or
any other event or occurrence affecting, any of the Obligations of the other
Borrower or any other Person;
(e) any rescission, waiver, amendment or other modification of, or
any consent to departure from, any of the Obligations of the other Borrower or
any other Person under the terms of this Agreement or any other Loan Document;
(f) any exchange, release or non-perfection of any Collateral or
Warehouse Collateral, or any release, amendment or waiver of, or consent to
departure from, any guaranty or other agreement from the other Borrower or any
other Person, securing any of the Obligations; or
(g) any other circumstances which might otherwise constitute a
defense available to, or a legal or equitable discharge of, the other Borrower
or any surety or any guarantor. Each of the Borrowers waives any right to
require that any resort be made by any Lender to any of the Collateral or the
Warehouse Collateral.
SECTION 8.15 SUBROGATION, ETC.
At any time that a payment is made by either Borrower with
respect to the Obligations, such Borrower shall have a right of contribution
against the other Borrower in the maximum amount permitted by applicable law,
which right of contribution shall be subject to adjustment at the time of any
subsequent payment with respect to the Obligations; provided, that the maximum
aggregate liability of either Borrower with respect to such contribution rights
of the other Borrower shall not exceed the maximum amount of liability that
such first Borrower can incur without rendering such contribution rights void
or voidable under applicable law relating to fraudulent conveyance or
fraudulent transfers, and not for any greater amount, and provided further,
that neither Borrower will exercise any such contribution rights or any other
rights which it may acquire by reason of any payment made hereunder, whether by
way of rights of subrogation, reimbursement or otherwise, until the prior
payment, in full and in cash, of all Obligations and the termination of all
Commitments. Any amount paid to either Borrower on
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account of any payment made hereunder prior to the payment in full of all
Obligations other than intercompany payments or reimbursements made in the
ordinary course of the businesses of each Borrower shall be held in trust for
the benefit of the Agent and the Lenders and shall immediately be paid to the
Agent and credited and applied against the Obligations, whether matured or
unmatured, in accordance with the terms of this Agreement and the other Loan
Documents. In furtherance of the foregoing, for so long as any Obligation or
any Commitment remains outstanding, each Borrower shall refrain from taking any
action or commencing any proceeding against the other Borrower (or its
successors or assigns, whether in connection with a bankruptcy proceeding or
otherwise) to recover any amounts in respect of payments made under this
Agreement to the Agent and the Lenders.
SECTION 8.16 CONFIDENTIALITY.
Each Lender agrees not to disclose, without the prior written
consent of the Borrowers, any of the financial information or other information
of the Borrowers or any Affiliate of either of the Borrowers, designated in
writing by either Borrower as "confidential" and obtained under or in
connection with this Agreement or any of the other Loan Documents.
Notwithstanding the foregoing, each Lender may disclose such information: (a)
as is permitted under Section 8.6; (b) as is required by law or by subpoena or
similar court order, or by any governmental, regulatory or supervisory
authority or official or as otherwise required to be provided by the Lender in
the ordinary course of its business; (c) to counsel to such Lender in
connection with the transactions contemplated by this Agreement and the other
Loan Documents; (d) to independent auditors and other advisers retained by such
Lender; and (e) to the Agent or the Collateral Agent as contemplated by this
Agreement and the other Loan Documents. In addition, unless specifically
prohibited by applicable law or court order, each Lender shall, to the extent
practical, notify the Borrowers of any subpoena or similar court order or of
any request by any governmental, regulatory or supervising authority or
official (other than any such request in connection with an examination of the
financial condition of such Lender by such authority) for disclosure of any
such information prior to disclosure of such information so that the Borrowers
may seek an appropriate protective order. Notwithstanding the foregoing, the
Lenders shall have no obligation to keep any such information confidential if
such information (i) becomes generally available to the public other than as a
result of the disclosure by any Lender in violation of this Section 8.16, (ii)
is available to any Lender on a non-confidential basis prior to its disclosure
to such Lender by the Borrower or, if applicable, by the Lender from whom such
Lender has purchased its participation or assignment, or (iii) becomes
available to any Lender on a non-confidential basis from a source other than
the Borrower or, if applicable, the Lender from whom such Lender has purchased
its participation or assignment; and any Lender may disclose any such
information in connection with any litigation to which such Lender is party
relating to this Agreement or any of the other Loan Documents.
SECTION 8.17 INTEGRATION.
This Agreement and the other Loan Documents represent the
entire agreement of the Borrowers, the Agent and the Lenders with respect to
the subject matter hereof and thereof, and there are no promises, undertakings,
representations or warranties by the Agent or any Lender relative to the
subject matter hereof or thereof not expressly set forth or referred to herein
or in the other Loan Documents.
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SECTION 8.18 EFFECTIVENESS.
(a) This Agreement shall become effective as of the date (the
"AMENDMENT EFFECTIVE DATE"), on which each of the following conditions have
been satisfied to the satisfaction of the Agent:
(i) the Borrowers shall have delivered to the Agent, in
form and substance and in quantities reasonably satisfactory to the
Agent and its counsel, all of the instruments and documents described
in Section 3.1(a);
(ii) the Borrowers shall have paid all fees and other
Obligations required to have been paid under the Original Credit
Agreement, this Agreement and the other Loan Documents prior to or on
the Amendment Effective Date;
(iii) all conditions precedent set forth in Section 3.1(b)
shall have been satisfied at and as of such date (both before and
after giving effect to this Agreement and the other Loan Documents);
and
(iv) all acts and conditions (including the obtaining of
any necessary regulatory approvals and the making of any required
filings, recordings or registrations) required to be done and
performed and to have happened prior to the execution, delivery and
performance of this Agreement and the other Loan Documents and for the
same to constitute the legal, valid and binding obligations of the
Borrowers, enforceable in accordance with their respective terms,
shall have been done and performed and shall have happened in due and
strict compliance with all applicable laws or if any of such have not
been done, performed or happened, such has been expressly disclosed to
the Agent and waived by all of the Lenders in writing.
(b) If each of the above conditions has been satisfied, on the
Amendment Effective Date, all Loans outstanding under the Original Credit
Agreement shall remain outstanding and shall be deemed to be Loans under this
Agreement governed by the terms hereof. Upon receiving the Notes delivered
pursuant to subsection (a)(i) above, each Lender that was a party to the
Original Credit Agreement shall promptly cancel its promissory note delivered
under the Original Credit Agreement and return such promissory note to the
Borrowers. No failure of a Lender to cancel or return such promissory note
shall affect the validity of the new Notes delivered hereunder.
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SECTION 8.19 RATIFICATION; NO NOVATION.
Except as set forth herein and therein, all Loan Documents,
including the Security Agreement, are hereby ratified and confirmed in all
respects. The term "Loan Documents", as used in the Loan Documents, shall mean
the Loan Documents as amended hereby and thereby. The parties do not intend for
this Agreement or any of the other Loan Documents to effect, nor does this
Agreement or any of the Loan Documents constitute, a novation of the
obligations of the Borrowers evidenced by the Original Credit Agreement and the
Loan Documents referred to therein. This Agreement and the other Loan Documents
constitute an amendment and restatement of the terms governing such
obligations.
SECTION 8.20 WAIVER OF JURY TRIAL.
THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH RESPECT TO THE SUBJECT
MATTER OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the day and year first above written.
DORAL FINANCIAL CORPORATION,
as a Borrower
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Xxxxx X. Xxxxx
Executive Vice President and Treasurer
DORAL MORTGAGE CORPORATION,
as a Borrower
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Xxxxx X. Xxxxx
Executive Vice President
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Commitment: $12,000,000 BANKERS TRUST COMPANY,
as Agent and as a Lender
By: /s/ Xxxxx X. XxXxxx
--------------------------------------
Xxxxx X. XxXxxx
Principal
Commitment: $7,000,000 FIRST UNION NATIONAL BANK,
as a Lender
By: /s/ R. Xxxxxx Xxxx
------------------------------------
Name: R. Xxxxxx Xxxx
------------------------------------
Title: Vice President
------------------------------------
Commitment: $7,000,000 BANKBOSTON, N.A. (formerly known as The
Bank of Boston),
as a Lender
By: /s/ Xxxx X. Xxxxxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxxxxx
------------------------------------
Title: Vice President
------------------------------------
Commitment: $7,000,000 THE BANK OF NEW YORK,
as a Lender
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
------------------------------------
Title: Vice President
------------------------------------
Commitment: $7,000,000 NATIONAL CITY BANK OF KENTUCKY,
as a Lender
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Xxxxxx X. Xxxxxx
------------------------------------
Vice President
------------------------------------
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Commitment: $5,000,000 CREDIT LYONNAIS, NEW YORK BRANCH,
as a Lender
By: /s/ W. Xxx Xxxxxxx
------------------------------------
Name: W. Xxx Xxxxxxx
------------------------------------
Title: Vice President
------------------------------------
Commitment: $5,000,000 HIBERNIA NATIONAL BANK,
as a Lender
By: /s/ Xxxxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxxxx X. Xxxxx
------------------------------------
Title: Assistant Vice President
------------------------------------
Commitment: $5,000,000 COLONIAL BANK,
as a Lender
By: /s/ Xxx X. Xxxxxxxx
------------------------------------
Name: Xxx X. Xxxxxxxx
------------------------------------
Title: Senior Vice President
------------------------------------
