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EXHIBIT 10.81
FIRST AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of June 26, 1998
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.................................................. 14
Section 2.1 Commitments.............................................. 14
Section 2.2 Method of Borrowing and of Conversions/Continuations..... 14
Section 2.3 Conversions/Continuations of Loans....................... 15
Section 2.4 Disbursement of Funds.................................... 15
Section 2.5 Notes.................................................... 16
Section 2.6 Interest................................................. 17
Section 2.7 Termination or Reduction of Commitments.................. 17
Section 2.8 Mandatory Repayments..................................... 17
Section 2.9 Optional Prepayments..................................... 18
Section 2.10 Fees..................................................... 18
Section 2.11 Payments, Etc,........................................... 18
Section 2.12 Eurodollar Rate Not Determinable; Illegality or
Impropriety.............................................. 20
Section 2.13 Reserve Requirements; Change in Circumstances............ 21
Section 2.14 Indemnity................................................ 22
Section 2.15 Taxes.................................................... 23
Section 2.16 Sharing of Setoffs....................................... 24
ARTICLE 3
CONDITIONS TO LOANS......................................................... 24
Section 3.1 Conditions to Loans...................................... 24
ARTICLE 4
REPRESENTATIONS AND WARRANTIES..................................... ........ 27
Section 4.1 Corporate Existence; Compliance with Law and
Contractual Obligations.................................. 27
Section 4.2 Corporate Power; Authorization; Enforceable Obligations.. 27
Section 4.3 No Legal or Contractual Bar.............................. 28
Section 4.4 Financial Information.................................... 28
Section 4.5 No Material Litigation................................... 29
Section 4.6 Taxes.................................................... 29
Section 4.7 Investment Company Act................................... 29
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Section 4.8 Subsidiaries............................................. 29
Section 4.9 Use of Proceeds.......................................... 30
Section 4.10 ERISA.................................................... 30
Section 4.11 Security Interests....................................... 30
Section 4.12 Agency Approvals......................................... 30
Section 4.13 Solvency................................................. 30
Section 4.14 Pledged Servicing Portfolio.............................. 31
Section 4.15 Year 2000 Issue.......................................... 31
ARTICLE 5
COVENANTS................................................................... 31
Section 5.1 Affirmative Covenants.................................... 31
Section 5.2 Negative Covenants of Each Borrower...................... 37
Section 5.3 Additional Negative Covenants............................ 40
ARTICLE 6
EVENTS OF DEFAULT........................................................... 41
Section 6.1 Events of Default........................................ 41
ARTICLE 7
THE AGENT................................................................... 44
Section 7.1 Appointment of Agent..................................... 44
Section 7.2 Nature of Duties of Agent................................ 44
Section 7.3 Lack of Reliance on Agent................................ 44
Section 7.4 Certain Rights of Agent.................................. 45
Section 7.5 Reliance by Agent........................................ 45
Section 7.6 Indemnification of Agent................................. 46
Section 7.7 Agent in its Individual Capacity......................... 46
Section 7.8 Holders of Notes......................................... 46
Section 7.9 Successor Agent.......................................... 46
ARTICLE 8
MISCELLANEOUS PROVISIONS.................................................... 47
Section 8.1 Notices.................................................. 47
Section 8.2 Amendments, Etc.......................................... 48
Section 8.3 No Waiver; Remedies Cumulative........................... 48
Section 8.4 Payment of Expenses, Etc................................. 49
Section 8.5 Right of Setoff.......................................... 50
Section 8.6 Benefit of Agreement..................................... 50
Section 8.7 GOVERNING LAW; SUBMISSION TO JURISDICTION................ 51
Section 8.8 Counterparts............................................. 53
Section 8.9 Headings Descriptive..................................... 53
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Section 8.10 Survival of Representations and Indemnities.............. 53
Section 8.11 Severability............................................. 53
Section 8.12 Indemnification of Collateral Agent...................... 53
Section 8.13 Joint and Several Nature of the Obligations.............. 54
Section 8.14 Certain Waivers.......................................... 54
Section 8.15 Subrogation, Etc......................................... 55
Section 8.16 Confidentiality.......................................... 55
Section 8.17 Integration.............................................. 56
Section 8.18 Effectiveness; Intercreditor Agreement................... 56
Section 8.19 Ratification; No Novation................................ 58
Section 8.20 Waiver of Jury Trial..................................... 58
EXHIBITS
Exhibit A Form of Note
Exhibit B First Amended and Restated Security and Collateral Agency Agreement
Exhibit C Form of Opinion of Borrowers' 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 M Authorized Officers
Exhibit N Form of Assignment and Acceptance
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT is made and dated as of June 26, 1998, 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 Credit Agreement, dated as of November 5,
1997, between the Borrowers, the Banker Trust Company, as agent thereunder, and
the lenders party thereto (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 with respect to which the
Borrowers have direct servicing rights on such date, and (iii) the
aggregate principal amount of Permitted Subordinated Indebtedness
outstanding as of such date, less (b)(i) thirty-five percent (35%) 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
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and capitalized value of 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.
"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 set forth in
Section 8.18.
"AUTHORIZED OFFICERS" shall mean those officers identified on
Exhibit N 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 Hipotecario 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 and Doral Securities) 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
balance sheet of DFC dated as of December 31, 1997) 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.
"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 1 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
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the Pledged Servicing Portfolio (in each case as reflected on the most
recent Pledged Servicing Valuation Report delivered to the Agent, provided
that no collateral value shall be attributed to the FNMA servicing rights
or the FHLMC servicing rights relating to the FNMA/FHLMC Servicing
Portfolio until a duly executed Acknowledgment Agreement from FNMA or
FHLMC, respectively, has been received by the Collateral Agent, and
provided further, that if no Pledged Servicing Valuation Report has been
delivered to the Agent in accordance with Section 5.1(a)(ix)(B) or
5.1(a)(ix)(C), 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 reduced pursuant to Section 8.6(c).
"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.
"DEFAULT RATE" shall have the meaning given such term in Section
2.6(c).
"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.
"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.
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"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.
"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.
"FEES" shall mean all fees payable by the Borrowers to the Agent
and/or the Lenders pursuant to Section 2.10 or otherwise.
"FHA" shall mean the Federal Housing Administration and any
successor thereto.
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"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 (other than Mortgage Loans owned by either
Borrower or its Affiliates that are not covered by a Permitted Affiliate
Servicing Agreement) that are 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 (other than Mortgage Loans owned by either Borrower or its
Affiliates that are not covered by 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
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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).
"INTERCREDITOR AGREEMENT" shall mean the Intercreditor Agreement
dated as of November 5, 1997, between the Agent, the Lenders, and each of
the Warehouse Secured Parties, 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 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.
"MATERIAL AMOUNT" shall mean, at any time, ten percent (10%) of Book
Net Worth, as set forth in the most recent annual or quarterly financial
statement of DFC delivered to the Lenders and used in DFC's Securities and
Exchange Commission 10-K or Securities and Exchange Commission 10-Q
filing, as applicable, absent manifest error in such statement.
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"MATURITY DATE" shall mean June 25, 1999; 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.
"MORTGAGE LOAN" shall mean a one- to four-family residential real
estate-secured loan.
"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.
"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, (i) 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 Collateral Agent
and the 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 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 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 or any other Loan Document), and
(ii) the Warehouse Obligations; provided that any reference in the Loan
Documents to acceleration of the Obligations shall be deemed to refer only
to the acceleration of the obligations referred to in clause (i) above.
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"ORIGINAL CREDIT AGREEMENT" shall mean the Credit Agreement, dated
as of November 5, 1997, between the Borrowers, the Agent and the lenders
party thereto.
"PAYMENT OFFICE" shall mean the Agent's office located at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or such other office as the
Agent shall specify by notice to the Borrowers and the Lenders.
"PBGC" 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.
"PERMITTED SUBORDINATED INDEBTEDNESS" shall mean any Indebtedness
incurred by each Borrower (other than the Obligations) 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/FHLMC 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 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
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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.
"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 set forth 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.
"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.
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"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.
"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 Security and Collateral Agency
Agreement 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
in connection with this Agreement and the other Loan Documents.
"SERVICING PORTFOLIO" shall mean, at any time, the portfolio of
outstanding Mortgage Loans (other than Mortgage Loans owned by the
Borrowers and its Affiliates which are not covered by Permitted Affiliate
Servicing Agreements) 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
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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 ▇▇▇▇▇ Telerate Service (or such other
page as may replace Page 3750 on the Associated Press-Dow ▇▇▇▇▇ 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. 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 ▇▇▇▇▇ 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 and Doral Securities) 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.
"VA" shall mean the Veterans Administration and any successor
thereto.
"WAREHOUSE COMMITMENTS" shall mean the "Commitments" as such term is
defined in the Warehouse Credit Agreement.
"WAREHOUSE CREDIT AGREEMENT" shall mean the First Amended and
Restated Credit Agreement, dated as of September 25, 1996, 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 LOANS" shall mean the "Facility 2 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.
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"WAREHOUSE LOANS" shall mean the "Loans" 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 SECURED PARTIES" shall mean the "Secured Parties" as such
term is defined in the Warehouse Servicing Security Agreement.
"WAREHOUSE SERVICING SECURITY AGREEMENT" shall mean the "Servicing
Security Agreement" as such term is defined in the Warehouse Credit
Agreement.
"YEAR 2000 ISSUE" shall mean the failure of computer software,
hardware and firmware systems and equipment containing embedded computer
chips to properly receive, transmit, process, manipulate, store, retrieve,
re-transmit or in any other way utilize data and information due to the
occurrence of the year 2000 or the inclusion of dates on or after January
1, 2000.
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
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set forth opposite such Lender's name on the signature pages hereto, as such
commitment may be reduced 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 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 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 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.
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(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 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
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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 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.
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(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 (the
"DEFAULT 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 (3rd) 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 (3rd) 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 OR REDUCTION 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 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 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 Loans exceeds the Collateral Value of the Pledged Servicing
Portfolio, the Borrowers shall repay on such date the aggregate principal amount
of the 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 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.
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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 Days'
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 $100,000 or any
multiple of $50,000 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 a facility fee in the amount
and on the date separately agreed to by the Agent and the Borrowers.
(b) The fees set forth in this Section 2.10, once paid, shall not be
refundable under any circumstances.
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) Fees 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
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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), or the occurrence and continuance of a Potential Default or an Event
of Default, all amounts received on any day by the Agent hereunder in respect of
principal of the Loans or under the Security Agreement in respect of the
Collateral described therein shall be applied 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; and third, 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 exists, but the Lenders have not accelerated the Loans
hereunder, then the Agent shall not release any such amounts to the Borrowers
until the earlier of (x) the cure of any Potential Default or Event of Default
or (y) the acceleration of the Loans, and if the event described in clause (x)
occurs first, the amounts shall be released to the Borrowers as described in
this subsection (d), and if the event described in clause (y) occurs first, then
such amounts shall be applied in accordance with Section 2.11(e).
(e) Upon the maturity of the Loans and all other Obligations pursuant to
Section 6.1 or otherwise, all amounts received by the Agent on account of the
Obligations shall be disbursed by the Agent as follows: first, ratably 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; and sixth, to the Borrowers by transfer to such account as
the Borrowers may direct in writing for such purpose.
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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 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 to another Lender (if any other Lender agrees, in
its sole and absolute discretion, to purchase such Loans) or to any other
financial institution reasonably acceptable to the Agent that is willing to make
and maintain Eurodollar Loans. The purchase price for such Loans shall be equal
to the aggregate outstanding principal amount of the Loans of such Lender plus
such Lender's pro rata share of all other accrued and unpaid Obligations.
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 or any other
amounts payable
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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 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
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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 attorney's fees) that such Lender actually
sustains or incurs as a consequence of (i) any failure by the Borrowers to
fulfill on the date of this Agreement 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, (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 (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.
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(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 remit to the Agent the
required receipts or other required documentary evidence, the Borrowers shall
indemnify the Agent, the Collateral Agents 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
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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 Agreements and the Power of Attorney
for each Borrower, duly executed (and notarized where required) by
the parties thereto (which Powers of Attorney shall be
"protocolized" under the laws of Puerto Rico by counsel to the
Borrowers, and filed with the Registry of Powers of Attorneys and
▇▇▇▇▇ by local counsel to the Agent 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;
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(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 date of this Agreement;
(G) an opinion of counsel for the Borrowers in the form of
Exhibit C and covering such other matters as the Agent may
reasonably request, in each case dated the date of this Agreement;
(H) a copy of the Certificate of Incorporation or other
equivalent document available in the applicable jurisdiction 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 the Borrowers, certified by the
Secretary or an Assistant Secretary or other appropriate officer of
each such party as of the date of this Agreement as being accurate
and complete;
(J) a certificate of an executive officer of each of the
Borrowers, in the form of Exhibits D-1 and D-2, respectively, dated
the date of this Agreement;
(K) duly executed acknowledgment agreements from each of FNMA
and FHLMC relating to the validity of the Secured Parties' security
interest in the Pledged Servicing Portfolio;
(L) evidence of (I) the acceptance by the Process Agent of its
appointment pursuant to Section 8.7 and (II) payment of all fees
required by the Process Agent for serving in such capacity;
(M) a copy of the letter delivered to the parties to the
contracts pledged and assigned to the Secured Parties pursuant to
the Loan Documents (together with evidence of such delivery)
notifying such parties of the security interests in such contracts
and the contract rights related thereto granted to the Secured
Parties pursuant to the Loan Documents, which letter shall be in
substantially the form of Attachment 2 to the Security Agreement;
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(N) 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;
(O) a duly executed Intercreditor Agreement; and
(P) a waiver under the Warehouse Credit Agreement duly
executed by each of the Warehouse Lenders.
(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.
(iv) The Borrowers shall have paid all Fees required to have been
paid under the Loan Documents prior to or on the date of this Agreement.
(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, 1997, 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.
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(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.
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,
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(b) except as contemplated by this Agreement and the 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 balance sheet of DFC and its consolidated
Subsidiaries as at December 31, 1997 and the related consolidated statements of
income, retained earnings and cash flows for the fiscal year then ended,
including in each case the related schedules and notes, reported on by Price
Waterhouse, true copies of which have been previously delivered to each of the
Lenders, are complete and correct and fairly present the consolidated financial
condition of DFC and its consolidated Subsidiaries as at the date thereof and
the consolidated results of operations and cash flows for such period, in
accordance with GAAP applied on a consistent basis.
(b) The unaudited consolidated and consolidating balance sheet of each
Borrower and its consolidated Subsidiaries as at June 30, 1997, and the related
unaudited combined statements of income, retained earnings and cash flows for
the six 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) Except for Indebtedness created by this Agreement, 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, 1997, 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
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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 a 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.
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 date of this Agreement other than
DMC, Doral Bank, Centro Hipotecario de Puerto Rico, Inc., First Florida Realty
Corporation and Doral Securities. DFC owns, directly or through another
Subsidiary, 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 date of this Agreement.
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 Multi employer 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
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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 Secured Parties under
the Security Agreement constitute valid and perfected first priority security
interests in the Collateral, and the 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, and 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 PLEDGED SERVICING PORTFOLIO
As of the date of this Agreement, the Mortgage Loans in the Pledged
Servicing Portfolio have an aggregate outstanding principal balance of not less
than $3,500,000,000.
SECTION 4.15 YEAR 2000 ISSUE
Each Borrower and its Subsidiaries have reviewed the effect of the
Year 2000 Issue on the computer software, hardware and firmware systems and
equipment containing embedded microchips owned or operated by or for such
Borrower and its Subsidiaries or used or relied upon in the conduct of their
business (including systems and equipment supplied by others or with which such
computer systems of such Borrower and its Subsidiaries interface). The costs to
such Borrower and its Subsidiaries of any reprogramming required as a result of
the Year 2000 Issue to permit the proper functioning of such systems and
equipment and the proper processing of data, and the testing of such
reprogramming, and of the reasonably foreseeable consequences of the Year 2000
Issue to such Borrower or any of its Subsidiaries (including reprogramming
errors and the failure of systems or equipment supplied by others) are not
reasonably expected to
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result in a Potential Default or Event of Default or to have a material adverse
effect on the business, assets, operations, prospects or condition (financial or
otherwise) of such Borrower or any of its Subsidiaries.
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 (90) days after the end of each fiscal year of DFC, a
consolidated balance sheet of DFC and its consolidated Subsidiaries as at
the end of such year and the related consolidated statements of income,
retained earnings 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 Price Waterhouse 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 financial condition
as at the end of such fiscal year, and the consolidated 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 forty-five (45) days after the end of each fiscal quarter of
DFC, a consolidated and consolidating balance sheet of DFC and its
consolidated Subsidiaries as at the end of such fiscal quarter and the
related consolidated and consolidating statements of income, retained
earnings 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;
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(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 balance sheet of DFC and its consolidated Subsidiaries as at
the end of the previous month and the related consolidated and
consolidating statements of income and retained earnings 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 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 of DFC
specifying the nature thereof and DFC's or DFC's proposed response thereto
and (b) at any time that any representation, warranty or other information
contained in any statement or certificate 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;
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(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 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
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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 thirty
(30) 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, 1998, 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 date of the initial disbursement of the
Loans, a Pledged Servicing Valuation Report, dated as of a recent date;
(C) 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, 1998, 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;
(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, 1998, a Recourse Servicing Portfolio 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, and such information regarding the 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
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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.
(f) GNMA Acknowledgment Agreement. Obtain, execute and deliver an
Acknowledgment Agreement from GNMA relating to the acknowledgment of the Secured
Parties' security interest in the GNMA Servicing Portfolio, if and when
requested by the Administrative Agent in its sole discretion.
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(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 and the 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 ▇▇▇▇▇
and pay any and all fees and charges in connection therewith.
(i) Year 2000 Issue. Take, and shall cause each of its Subsidiaries to
take, all necessary action to complete in all materials respects by June 30,
1999, the reprogramming of computer software, hardware and firmware systems and
equipment containing embedded microchips owned or operated by or for such
Borrower and its Subsidiaries or used or relied upon in the conduct of their
business (including systems and equipment supplied by others or with which such
systems of such Borrower or any of its Subsidiaries interface) required as a
result of the Year 2000 Issue to permit the proper functioning of such computer
systems and other equipment and the testing of such systems and equipment, as so
reprogrammed. At the request of the Agent, such Borrower shall provide, and
shall cause each of its Subsidiaries to provide, to the Agent reasonable
assurance of its compliance with the preceding sentence.
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 or the Servicing Portfolio 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 in
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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 second priority Lien in favor of the Warehouse Secured
Parties under the Warehouse Servicing Security Agreement.
(b) Change of Business. Except as permitted under Section 5.2(e), engage
in any type of business that is unrelated to the mortgage banking and lending
business and the servicing of Mortgage Loans or any related financial service
business 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).
(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 date.
(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 DFC), or (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,
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lease, assign, transfer or otherwise dispose of, more than twenty-five percent
(25%) of its assets based on the book value of all such assets as set forth in
the last audited financial statement of such Borrower whether now owned or
hereafter acquired, except 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) the Borrowers may merge or consolidate with another Person
where DFC is the surviving entity;
(B) 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 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 (I) becomes the sole borrower
under the Loan Documents and affirms the same pursuant to documentation
reasonably satisfactory to Lenders and Agent and (II) 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
(C) 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;
(iv) Allow or suffer to exist any event or condition that presents a
risk of incurring a material liability to the PBGC;
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(v) Amend any Plan so as to require the posting of security 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 inter-company dividends to Borrowers
or Borrowers' Subsidiaries; provided that (I) any Subsidiary of a Borrower may,
subject to subsection (e) above, sell, assign or otherwise transfer any of their
respective assets to such Borrower, (II) DMC may, subject to subsection (e)
above, sell, assign or otherwise transfer its assets to DFC and (III) 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 prior notice to the Agent.
(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 Regulation G, T, U or X 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 (A) "Mortgage
Loans held for sale", (B) "Mortgage-backed securities held for trading" (but
excluding "interest only securities" included therein), and (C) "U.S. Treasury &
Other AAA Rated Investments that are held to maturity or available for sale";
(iii) ninety percent (90%) of "Accrued interest receivable"; (iv) eighty percent
(80%) of the sum of (A) "Mortgage-backed securities held to maturity", (B)
"Accounts receivable and mortgage servicing advances", and (C) "Mortgage-backed
securities available for sale"; (v) eighty percent (80%) of "prepaid and other
assets" (excluding investment in Subsidiaries); (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";
and (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. 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 balance sheet 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 $108,000,000.
(c) Book Net Worth. Permit Book Net Worth at any time to be less than
$126,000,000.
(d) 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 of
Mortgage Loans with an aggregate outstanding principal balance of less than
$3,500,000,000 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 (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
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to be made and such inaccuracy, incompleteness or incorrectness could have a
Material Adverse Effect;
(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
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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 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 Secured Parties shall cease for any reason to
have a valid, perfected, first priority security interest in the Collateral, or
any Person shall take any action to discontinue or to assert the invalidity or
unenforceability of such security interest; 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
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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, 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 willful
misconduct. 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 validity, perfection or priority of any security interest in
the 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.
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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.
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 willful 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
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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
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 willful 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 willful misconduct
after sixty (60) days notice by the Lenders to the Agent of such willful
misconduct.
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(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 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 either
Borrower, it being the intent that notice to either Borrower is effective notice
to the other Borrower. In connection therewith, each Borrower hereby irrevocably
appoints the other Borrower as its agent to receive any and all notices
hereunder or 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 to, 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) increase the Commitments of the
Lenders or subject the Lenders to any additional obligations, (iii) reduce the
principal of, or
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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 Secured Parties on any of the
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 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, or 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, the 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
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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 willful
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
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 to any other financial institution without the prior consent of the
Agent and the Borrowers (such consent not to be unreasonably
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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 shall include a corresponding
portion of such Lender's Commitments, Loans, Warehouse Commitments and Warehouse
Loans, it being the intent of the Lenders that each Lender and each subsequent
Lender added hereunder by way of assignment or otherwise shall have and maintain
the same pro rata interest in all Commitments, Loans, Warehouse Commitments and
Warehouse Loans, and (iii) 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 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 holder of a Note and, if the assignee has expressly assumed,
for the benefit of the Borrowers, the assignor Lender's obligations hereunder,
such assignor Lender shall be relieved of its obligations hereunder 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 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 under the Security Agreement. 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
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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.
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 ▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ 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 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, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ (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
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(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 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 the 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
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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 its
respective Loans, 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 willful 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;
(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 securing, any Obligations;
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(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 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.
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 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
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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 any 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.
SECTION 8.18 EFFECTIVENESS; INTERCREDITOR AGREEMENT.
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(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, each of the following:
(A) this Agreement and the other Loan Documents, including an
additional Security Agreement in substantially the form of
Exhibit B hereto, duly executed and delivered by the parties
hereto and thereto, provided that the execution and delivery
of such Security Agreement shall not affect the Security
Agreement in effect as of the date of this Agreement, which
Security Agreement shall remain in full force and effect;
(B) a certified copy of resolutions of the Board of Directors
of each of the Borrowers approving the execution, delivery and
performance of all documents required to be delivered by such
parties hereunder and the transactions contemplated herein and
therein;
(C) an opinion of Puerto Rico counsel for the Borrowers in
form and substance satisfactory to Agent and covering such
matters as the Agent may reasonably request, dated the
Amendment Effective Date; and
(D) such other documents, instruments and agreements, duly
executed, deemed necessary or appropriate by the Agent.
(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).
(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 for the same to constitute the
legal, valid and binding obligations, enforceable in accordance with
its 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.
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(b) If each of the above conditions has been satisfied, on the Amendment
Effective Date, (A) 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, and (B) the promissory notes delivered to the
lenders pursuant to the Original Credit Agreement shall become void. 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.
(c) Each of the Agent, the Collateral Agent and the Lenders agrees that
the Intercreditor Agreement shall be terminated as of the Amendment Effective
Date without any further action by any party hereto or thereto.
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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, other than the
Security Agreement to be delivered pursuant to Section 8.18(a)(i)(A), 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/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Executive Vice President and Treasurer
DORAL MORTGAGE CORPORATION,
as a Borrower
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Executive Vice President and Treasurer
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Commitment: $9,000,000 BANKERS TRUST COMPANY,
as Agent and as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Principal
Commitment: $9,000,000 FIRST UNION NATIONAL BANK,
as a Lender
By: /s/ R. ▇▇▇▇▇▇ ▇▇▇▇
--------------------------------------
Name: R. ▇▇▇▇▇▇ ▇▇▇▇
--------------------------------------
Title: Vice President
--------------------------------------
Commitment: $9,000,000 BANKBOSTON, N.A. (formerly known as The
Bank of Boston),
as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
--------------------------------------
Title: Vice President
--------------------------------------
Commitment: $9,000,000 THE BANK OF NEW YORK,
as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Title: Vice President
--------------------------------------
Commitment: $9,000,000 NATIONAL CITY BANK OF KENTUCKY,
as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Vice President
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