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EXHIBIT 10.85(A)
$15,000,000
CREDIT AGREEMENT
Dated as of April 9, 1999
Among
DORAL FINANCIAL CORPORATION
as the Borrower
and
FIRSTBANK PUERTO RICO
as the Lender
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CREDIT AGREEMENT
Dated as of April 9, 1999
DORAL FINANCIAL CORPORATION, a Puerto Rico corporation (the
"Borrower"), and FIRSTBANK PUERTO RICO, a banking corporation validly organized
and existing under the laws of the Commonwealth of Puerto Rico (the "Lender")
agree as follows:
ARTICLE 1
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. CERTAIN DEFINED TERMS. Unless otherwise defined in this
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):
"Advance" means an advance by the Lender to the Borrower
pursuant to Article 2.
"Affiliate" means with respect to any Person, any other Person
(i) which directly or indirectly through one or more intermediaries controls, or
is controlled by, or is under common control with, such Person, (ii) which
directly or indirectly, of record or beneficially, owns or holds ten percent
(10%) or more of the shares of any class of the capital stock of such Person
having voting powers, or (iii) ten percent (10%) or more of the shares of such
stock of which are owned or held, directly or indirectly, of record or
beneficially, for such Person. For the purposes of this Agreement, the term
"control" means the posses sion, directly or indirectly, of the power to direct
or cause the direction of management and policies of a Person, whether through
ownership of common stock, by contract or otherwise; all of the Borrower's
officers, shareholders owning ten percent (10%) or more of the common stock of
the Borrower, directors, subsidiary corporations, joint venturers and partners
shall be deemed to be the Borrower's Affiliates.
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"Agreement" or "this Agreement" shall include all amendments,
modifications and supplements hereto and shall refer to this Agreement as the
same may be in effect at the time such reference becomes operative.
"Base Rate" means, for any period, a fluctuating interest rate
per annum as shall be in effect from time to time, which rate per annum shall at
all times be equal to the rate of interest announced publicly by The Chase
Manhattan Bank ("Chase") in New York, New York, from time to time, as Chase's
base rate. The Base Rate is a reference rate and does not necessarily represent
the lowest or best rate actually charged to any customer of Chase and Chase may
make commercial and other loans at rates of interest at, above or below the Base
Rate.
"Borrower" has the meaning assigned to that term in the
Preamble.
"Borrower's Computer Systems" has the meaning assigned to that
term in Section 4.1(w).
"Borrowing" has the meaning assigned to that term in Section
2.1.
"Business Day" means a day of the year on which banks are not
required or authorized to close in San ▇▇▇▇, Puerto Rico.
"Capitalized Lease" has the meaning assigned to that term in
the definition of Debt.
"Closing Date" means the date of this Agreement and when used
in respect to an Advance, the date of such Advance.
"Code" means the United States Internal Revenue Code of 1986,
as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"Collateral" means and includes all real and personal property
(tangible and intangible, corporeal and incorporeal) and all rights, title and
interest in which a security interest is granted, or purported to be granted, in
accordance with the terms of this Agreement.
"Commitment" has the meaning assigned to that term in Section
2.1.
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"Commonwealth" means the Commonwealth of Puerto Rico and its
political subdivisions, municipalities, agencies and instrumentalities.
"Debt" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all Obligations of such
Person for the deferred purchase price of property or services (other than trade
payables and accrued expenses incurred in the ordinary course of such Person's
business), (c) all Obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments, (d) all Obligations of such Person
created or arising under any conditional sale or other title retention agreement
with respect to property acquired by such Person (even through the rights and
remedies of the seller or lender under such agreement in the event of default
are limited to repossession or sale of such property), (e) the principal
component of all Obligations of such Person as lessee under leases that have
been or should be, in accordance with Generally Accepted Accounting Principles,
recorded as capital leases ("Capitalized Leases") which principal component has
been or should, at the time of determination, be capitalized on a balance sheet
in accordance with Generally Accepted Accounting Principles, (f) all
Obligations, contingent or otherwise, of such Person under acceptance, letter of
credit or similar facilities, (g) all Obligations of such Person to purchase,
redeem, retire, defease or otherwise make any payment in respect of any capital
stock of or other ownership or profit interest in such Person or any other
Person or any warrants, rights or options to acquire such capital stock, (h) all
Debt of others referred to in clauses (a) through (g) above guaranteed directly
or indirectly in any manner by such Person, or in effect guaranteed directly or
indirectly by such Person through an agreement (i) to pay or purchase such Debt
or to advance or supply funds for the payment or purchase of such Debt, (ii) to
purchase, sell or lease (as lessee or lessor) property, or to purchase or sell
services, primarily for the purpose of enabling the debtor to make payment of
such Debt or to assure the holder of such Debt against loss, (iii) to supply
funds to or in any other manner invest in the debtor (including any agreement to
pay for property or services
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irrespective of whether such property is received or such services are rendered)
to assure a creditor against loss or (iv) otherwise to assure a creditor against
loss, and (v) all Debt referred to in clauses (a) through (g) above secured by
(or for which the holder of such Debt has an existing right, contingent or
otherwise, to be secured by) any Lien on property (including, without
limitation, accounts and contract rights) owned by such Person, even though such
Person has not assumed or become liable for the payment of such Debt in an
amount equal to the lesser of the amount of the Debt secured by the Lien or the
fair market value of such property.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be given or
time elapse or both.
"Environmental Action" means any administrative, regulatory
or judicial action, suit, demand, demand letter, claim, notice of non-compliance
or violation, investigation, proceeding, consent order or consent agreement
relating in any way to any Environmental Law or any Environmental Permit
including, without limitation, (a) any claim by any Governmental Authority for
enforcement, cleanup, removal, response, remedial or other actions or damages
pursuant to any Environmental Law and (b) any claim by any third party seeking
damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from hazardous or toxic materials or arising from
alleged injury to health, safety or the environment.
"Environmental Law" means any federal, state or local
(including, without limitation, the Commonwealth of Puerto Rico) law, rule,
regulation, order, writ, judgment, injunction, decree, determination or award
relating to the environment, health, safety or hazardous or toxic materials,
including, without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act, the Resource Conservation and Recovery Act, the
Hazardous Materials Transportation Act, the Clean Water Act, the Toxic
Substances Control Act, the Clean Air Act, the Safe Drinking Water Act, the
Atomic Energy Act, the Federal Insecticide, Fungicide and
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Rodenticide Act and the Occupational Safety and Health Act, each as amended from
time to time.
"Environmental Permit" means any permit, approval,
identification number, license or other authorization required under any
Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"Event of Default" has the meaning assigned to that term in
Section 6.1.
"Existing Debt" has the meaning assigned to that term in
Section 4.1(q).
"Fiscal Year" means the twelve-month period commencing on
January 1 and ending on December 31 of every year.
"Generally Accepted Accounting Principles" means generally
accepted accounting principles consistently applied and maintained throughout
the period indicated and consistent with the prior financial practice of the
Borrower, except for changes mandated by the Financial Accounting Standards
Board or any similar accounting authority of comparable standing.
"Governmental Approval" means any applicable consent, permit,
license or other approval issued by any agency, department, bureau, division or
other instrumentality of any Governmental Authority.
"Governmental Authority" means any municipal, Commonwealth,
state or federal governmental authority (domestic or foreign) having
jurisdiction over the Borrower or the transactions contemplated in this
Agreement.
"Lender" has the meaning assigned to that term in the
Preamble.
"LIBOR" means, as of a particular date of determination, the
three (3) months offered rate for funds in United States dollars in the London
interbank market, as published by Telerate Systems, Inc. (currently on page 3750
of its financial information reporting services) as of 11:00 a.m. London Time,
on the date which is two Business Days prior to such date of determination, or
if such quotations are no longer published or otherwise cease to be
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available, then the offer quotation for the rate of interest on such deposits as
published in The Wall Street Journal on the date of publication of such journal
immediately preceding the date of determination.
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance on title
to real property.
"Loan Documents" means this Agreement, the Note and, on and
after the date of delivery thereof, each other agreement, document or instrument
delivered under the terms of this Agreement or any other Loan Document, in each
case as amended or otherwise modified from time to time.
"Material Adverse Change" means any material adverse change
in the business, financial condition, operations, performance or properties of
(i) the Borrower or (ii) the Borrower and its Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on
(a) the business, financial condition, operations, performance or properties of
(i) the Borrower, or (ii) the Borrower and its Subsidiaries taken as a whole,
(b) the rights and remedies of the Lender under any Loan Document or (c) the
ability of the Borrower to perform its Obligations under any Loan Document to
which it is or is to be a party.
"Note" means the promissory note of the Borrower payable to
the order of the Lender, in substantially the form of Exhibit B, evidencing the
aggregate indebtedness of the Borrower to the Lender resulting from the Advances
made to the Borrower by the Lender.
"Notice of Borrowing" has the meaning assigned to that term in
Section 2.2(a).
"Obligations" means, with respect to any Person, any
obligation of such Person of any kind (including, without limitation,
overdrafts), including, without limitation, any liability of such Person on any
claim, whether or not the right of any creditor to payment in respect of such
claim is reduced to
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judgment, liquidated, unliquidated, fixed, contingent, matured, disputed,
undisputed, legal, equitable, secured or unsecured, and whether or not such
claim is discharged, stayed or otherwise affected by any proceeding referred to
in Section 6.1(f). With out limiting the generality of the foregoing, the
Obligations of the Loan Parties under the Loan Documents include (a) the
obligation to pay principal, interest, charges, expenses, fees, attorneys' fees
and disbursements, indemnities and other amounts payable by any Loan Party under
any Loan Document, and (b) the obligation to reimburse any amount in respect of
any of the foregoing that the Lender, in its sole discretion, may elect to pay
or advance on behalf of such Loan Party.
"Permitted Liens" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding shall have
been commenced: (a) Liens for taxes, assessments and governmental charges or
levies to the extent not required to be paid under Section 5.1(i) ; (b) Liens
imposed by law, such as materialmen's, mechanics', carriers', workmen's and
repairmen's Liens and other similar Liens arising in the ordinary course of
business securing obligations that are not overdue for a period of more than
thirty (30) days; (c) pledges or deposits to secure obligations under workers'
compensation laws or similar legislation or to secure public or statutory
obligations; (d) easements, rights of way and other encumbrances on title to
real property that do not render title to the property encumbered thereby
unmarketable or materially adversely affect the use of such property for its
present purposes; (e) Liens securing surety, indemnity and performance bonds
entered into in the ordinary course of business as to which full reserves are
maintained; and (f) Liens in existence on the Closing Date, without giving
effect to any extensions or renewals thereof.
"Person" means and includes any individual, sole
proprietorship, partnership, joint venture, trust, unincorporated organization,
association, corporation, institution, entity, party or government (whether
national, federal, state, county, city, municipal, or otherwise, including,
without limitation, any
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instrumentality, division, agency, body or department thereof), and including
the Borrower.
"Plan" means each employee plan or other plan maintained for
the employees of the Borrower or any Subsidiary of the Borrower and covered by
Title IV or ERISA.
"Solvent" means, as to any Person, that (a) the fair value and
present fair saleable value of such Person's assets is in excess of the total
amount of such Person's stated liabilities; (b) the present fair saleable value
of such Person's assets is in excess of the amount that will be required to pay
such Person's probable liability on such Person's Debt as such Debt becomes
absolute and mature; (c) such Person does not have unreasonably small capital to
carry on the business in which such Person is engaged and all businesses in
which such Person is about to engage; and (d) such Person has not incurred Debt
beyond such Person's ability to pay such Debt as it matures.
"Subsidiary" means any corporation of which more than fifty
percent (50%) of the outstanding capital stock having ordinary voting power to
elect a majority of the board of directors of such corporation is at the time
directly or indirectly owned or controlled by the Borrower or by one or more
Subsidiaries.
"Termination Date" means the earlier of (i) April 30, 2000 and
(ii) the date of termination of this Agreement pursuant to Section 6.1.
"Termination Event" means (i) a Reportable Event described in
Section 4043 of ERISA and the regulations issued thereunder (other than a
Reportable Event not subject to the provision for 30-day notice to the PBGC
under such regulations), or (ii) the withdrawal of the Borrower or any Affiliate
of the Borrower from a Plan during a Plan year in which it was a "substantial
employer" as defined in Section 4001(a) (2) of ERISA, or (iii) the filing of a
notice of intent to terminate a Plan or the treatment of a Plan amendment as a
termination under Section 4041 of ERISA, or (iv) the institution of proceedings
to terminate a Plan by the PBGC under Section 4042 of ERISA, or (v) any other
event or condition which might constitute grounds
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under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Plan.
"Year 2000 Plan" has the meaning assigned to that term in
Section 5.1(l).
Year 2000 Problem" has the meaning assigned to that term in
Section 4.1(w).
SECTION 1.2. COMPUTATION OF TIME PERIODS. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
means "to but excluding".
SECTION 1.3. ACCOUNTING TERMS. All accounting terms not specifically
defined herein shall be construed in accordance with Generally Accepted
Accounting Principles consistent with those applied in the preparation of the
financial statements referred to in Section 4.1(e).
ARTICLE 2
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.1. THE ADVANCE. The Lender agrees, on the terms and
conditions hereinafter set forth, to make revolving credit advances (each an
"Advance" and collectively, the "Advance") to the Borrower from time to time on
any Business Day during the period from the Closing Date up to and including the
Termination Date in an aggregate principal amount not to exceed FIFTEEN MILLION
DOLLARS ($15,000,000) (the "Commitment"). The proceeds of the Advances shall be
used by the Borrower to pay reasonable closing and legal costs and expenses
incurred in connection with this Agreement and the other Loan Documents and for
working capital requirements of the Borrower in respect to the business in which
the Borrower is presently engaged. Each borrowing under this Section 2.1 (a
"Borrowing") shall be in an aggregate principal amount of not less than $50,000
or an integral multiple of $25,000 in excess thereof. Within the such limits,
the Borrower may borrow, repay and reborrow under this Section 2.1.
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SECTION 2.2. MAKING THE ADVANCES.
(a) (i) Each Borrowing shall be made on notice, given not
later than 1:00 P.M. (Puerto Rico time) on the Business Day prior to the date of
the proposed Borrowing, by the Borrower to the Lender. Each such notice from the
Borrower of such Borrowing (a "Notice of Borrowing") shall be by telephone,
telecopier, telex or cable (in each such case confirmed immediately in writing)
or by personal delivery, in substantially the form of Exhibit A hereto,
specifying therein the (i) requested date of such Borrowing and (ii) aggregate
amount of such Borrowing. Upon fulfillment of the applicable conditions set
forth in Article 3 and compliance with the terms of this Agreement, the Lender
will make such funds available to the Borrower at the Lender's address set forth
in this Agreement.
(ii) The Lender shall be entitled to rely on any
telephonic notice given by the Borrower pursuant to subsection (a)(i) above
(regardless of whether or not such telephonic notice is subsequently confirmed
in writing, but with out prejudice to the Borrower's obligation to deliver such
writ ten confirmation) which the Lender in good faith believes to be from a
responsible officer of the Borrower, and the Borrower hereby waives any right
that it may have to dispute the accuracy of the Lender's transcription or record
of such telephonic notice.
(b) Each Notice of Borrowing shall be irrevocable and binding
on the Borrower.
SECTION 2.3. FEES. (a) The Borrower shall pay to the Lender such
structuring fees, commitment fees and/or other fees as the Borrower and the
Lender may have agreed to from time to time.
(b) All fees provided for herein shall be fully earned when
due and shall not be subject to proration or rebate upon the early termination
of this Agreement or any Commitment hereunder for any reason.
SECTION 2.4. REPAYMENT. The Borrower shall repay to the Lender the
aggregate outstanding principal amount of the Advances made to the Borrower by
no later than the Termination Date.
SECTION 2.5. INTEREST. (a) The Borrower shall pay interest on the
unpaid principal amount of the Advances made by the Lender
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from the date of the Advance until such principal amount is paid in full, at a
rate per annum equal at all times to the sum of the LIBOR plus 150 basis points
payable monthly in arrears on the first Business Day of each month and on the
date such Advance is paid in full. The interest rate on the Advances shall be
determined by the Lender on a quarterly basis and fixed for such quarter. The
Lender shall give prompt notice to the Borrower of the applicable interest rate
as determined by the Lender for purposes of this Section 2.5 (a).
(b) Upon the occurrence and during the continuance of a
payment or monetary Event of Default and/or an Event of Default having a
Material Adverse Effect, the Borrower shall pay interest on the unpaid principal
amount of the Advances owing to the Lender or any other amount payable hereunder
which is not paid when due, from the date such amount shall be due until such
amount shall be paid in full, payable in arrears on the date such amount shall
be paid in full and on demand, at a rate per annum equal at all times to three
percent (3%) per annum above the Base Rate.
SECTION 2.6. INCREASED COSTS. (a) If, due to either the introduction of
or any change (including any change by way of imposition or increase of reserve
requirements) in, or in the interpretation of, any law or regulation occurring
after the Closing Date there shall (i) impose, modify or deem applicable any
reserve, special deposit or similar requirement against assets held by, or
deposits in or for the account of, or loans by, or any other acquisition of
funds for contributions by the Lender; or (ii) impose on the Lender any other
condition regarding this Agreement; or (iii) subject the Lender to any tax
(including, without limitation, United States interest equalization tax), levy,
impost, duty, charge, fee, deduction or withholding on or from payments due from
the Borrower hereunder; or (iv) change the basis of taxation of payments due
hereunder from the Borrower to the Lender (other than by a change in taxation of
the overall net income of the Lender); or (v) the compliance with any guideline
or request from any central bank or other Governmental Authority (whether or not
having the force of law) issued after the Closing Date, and as a result of any
of the above there shall be any increase in the cost
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to the Lender of agreeing to make or making, funding or maintaining the unpaid
balance of the Advance, then the Borrower shall from time to time, upon notice
and demand by the Lender, pay to the Lender additional amounts sufficient to
compensate the Lender for such increased cost. A certificate as to the amount of
such increased cost, submitted to the Borrower by the Lender, shall be
conclusive and binding for all purposes, absent manifest error. The Lender will
determine the amount of the increased cost payable under this sub-section (a)
acting reasonably and in good faith and using averaging and attribution methods
among its customers which are fair and reasonable.
(b) If the Lender determines that compliance with any law or
regulation or any guideline or request from any central bank or other
Governmental Authority (whether or not having the force of law) affects or would
affect the amount of capital required or expected to be maintained by the Lender
or any corporation controlling the Lender and that the amount of such capital
is increased by or based upon the existence of the Lender's commitment to lend
hereunder and other commitments of this type (considering the Lender's policy
regarding capital adequacy), then, upon notice and demand by the Lender, the
Borrower shall pay to the Lender, from time to time as specified by the Lender,
additional amounts sufficient to compensate the Lender or such corporation in
the light of such circumstances, to the extent that the Lender reasonably and in
good faith determines such increase in capital to be allocable to the existence
of the Lender's commitment to lend hereunder (using averaging and attribution
methods among its customers which are fair and reasonable). A certificate as to
such amounts submitted to the Borrower by the Lender shall be conclusive and
binding for all purposes, absent manifest error.
SECTION 2.7. PAYMENTS AND COMPUTATIONS. (a) The Borrower shall make
each payment hereunder and under the Note not later than 2:00 P.M. (Puerto Rico
time) on the day when due in United States dollars to the Lender.
(b) The Borrower hereby authorizes the Lender, if and to the
extent payment owed to the Lender is not made when due hereunder or under the
Note held by the Lender, to charge from time
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to time against any or all of the Borrower's accounts with the Lender any amount
so due.
(c) All computations of interest shall be made by the Lender
on the basis of a year of 360 days, in each case for the actual number of days
(including the first day but excluding the last day) occurring in the period for
which such interest are payable. Each determination by the Lender of an interest
rate hereunder shall be conclusive and binding for all purposes, absent manifest
error.
(d) Whenever any payment hereunder or under the Note shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest, provided, however,
that if such extension would cause the next succeeding Business Day to occur in
the next following calendar month, then the day of such payment shall occur on
the next preceding Business Day.
ARTICLE 3
CONDITIONS OF LENDING
SECTION 3.1. CONDITIONS PRECEDENT TO INITIAL BORROWING. The obligation
of the Lender to make an Advance on the occasion of the initial Borrowing is
subject to the following conditions precedent:
(a) There shall have occurred no Material Adverse Change since
December 31,1998.
(b) There shall exist no action, suit, investigation,
litigation or proceeding affecting the Borrower and/or any of its Subsidiaries
or, to the knowledge of the Borrower, threatened before any court, governmental
agency or arbitrator that (i) is reasonably likely to have a Material Adverse
Effect or (ii) purports to affect the legality, validity or enforceability of
this Agreement, the Note, any other Loan Document or the consummation of the
transactions contemplated hereby or thereby.
(c) The Lender shall have received on the Closing Date, each
dated such day (unless otherwise specified), in form and
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substance satisfactory to the Lender (unless otherwise specified) and (except
for the Note) in sufficient copies for the Lender:
(i) The Note of the Borrower to the order of the
Lender; and
(ii) This Agreement.
(d) The Lender shall have received certified copies of all
corporate action taken by the Borrower approving each Loan Document to which it
is a party, and of all documents evidencing all other necessary corporate action
and Governmental Approvals, if any, with respect to each such Loan Document.
(e) The Lender shall have received a certificate of the
Secretary or Assistant Secretary of the Borrower certifying the names and true
signatures of the officers of the Borrower authorized to sign each Loan Document
to which it is a party and the other documents to be delivered by it hereunder.
(f) A favorable opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇-Munich, Esq., Vice
President and General Counsel of the Borrower in the form previously agreed to
by the Lender and the Borrower, and as to such other matters as the Lender may
reasonably request.
(g) The Lender shall have received certificates of good
standing acceptable to the Lender showing that the Borrower is in good standing
in the Commonwealth of Puerto Rico, a copy certified by the Secretary or the
Assistant Secretary of the Borrower dated not more than thirty (30) days prior
to the date of execution of this Agreement of the Articles of Incorporation and
By-Laws of the Borrower.
(h) A certificate of the Borrower, signed on behalf of the
Borrower by an authorized officer of the Borrower, dated the Closing Date,
certifying as to (A) the truth of the representations and warranties contained
in the Loan Documents as though made on and as of the date of the Closing Date,
and (B) the absence of any event occurring and continuing, or resulting from the
initial Borrowing, that constitutes a Default.
(i) Such financial, business and other information regarding
the Borrower revolving as the Lender shall have requested, including, without
limitation, information as to possible contingent liabilities, tax matters,
environmental
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matters, obligations under ERISA and welfare plans, collective bargaining
agreements and other arrangements with employees, annual financial statements
for the Borrower dated as of December 31, 1998, and interim financial statements
for the Borrower dated the end of the most recent fiscal quarter for which
financial statements are available.
(j) Payment by the Borrower to the Lender of all reasonable
costs and expenses of the Lender (including, without limitation, attorney's
fees) incurred in connection with the preparation, negotiation, execution and
delivery of this Agreement and the other Loan Documents and the consummation of
the transactions contemplated hereby and thereby.
(k) The representations and warranties contained in each Loan
Document are true and correct in all material respects on and as of the date of
the initial Borrowing before and after giving effect to such Borrowing and to
the application of the proceeds therefrom.
(l) No event has occurred and is continuing, or would result
from the Advance, or from the application of the proceeds therefrom, which
constitutes a Default.
(m) The Lender shall have received such other approvals,
consents, waivers, opinions or documents as the Lender may reasonably request.
SECTION 3.2. CONDITIONS PRECEDENT TO EACH BORROWING. The obligation of
the Lender to make an Advance on the occasion of each Borrowing (including the
initial Borrowing) shall be subject to the further conditions precedent that on
the date of such Borrowing:
(a) The following statements shall be true and each of the
giving of the applicable Notice of Borrowing and the acceptance by the Borrower
of the proceeds of such Borrowing shall constitute a representation and warranty
by the Borrower (as to each Loan Document to which it is a party) that on the
date of such Borrowing such statements are true:
(i) The representations and warranties contained
in each Loan Document are true and correct in all material respects on and as of
the date of such Borrowing before and after giving effect to such Borrowing and
to the application of the proceeds therefrom,
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as though made on and as of such date (except to the extent any representation
or warranty is made as of a specific date, in which case such representation or
warranty shall be true and correct in all material respects as of such date),
and
(ii) No event has occurred and is continuing, or would
result from such Borrowing, or from the application of the proceeds therefrom,
which constitutes a Default.
(b) The Lender shall have received such other approvals,
opinions or documents as the Lender may reasonably request.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
SECTION 4.1. REPRESENTATIONS AND WARRANTIES OF THE BORROWER. In order
to induce the Lender to make the Advances, the Borrower makes the following
representations and warranties to the Lender, each and all of which shall
survive the execution and delivery of this Agreement:
(a) The Borrower is a corporation duly organized, validly
existing in the Commonwealth of Puerto Rico and is in good standing under the
laws of the Commonwealth of Puerto Rico, is qualified and conducts business in
the States of Florida, Illinois and New York and the Borrower does not conduct
business in any other jurisdiction where the nature of its business or assets
requires it to be so qualified to do business, except where the failure to so
qualify would not have a Material Adverse Effect on the business or the assets
of the Borrower. The Borrower has all requisite corporate power and authority to
conduct its business, to own its property and to execute, deliver and perform
all of its obligations under this Agreement, the Note and each of the other Loan
Documents to which it is or will be a party.
(b) The execution, delivery and performance by the Borrower of
the Loan Documents to which it is or will be a party, have been duly authorized
by all necessary corporate action of the Borrower and do not and will not (A)
contravene the organization documents and/or by-laws of the Borrower, (B)
violate in any material respect any provision of any applicable law, rule,
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regulation, order, writ, judgment, injunction, decree, determination or award,
(C) constitute or result in a material breach of or constitute a material
default under any indenture or loan or credit agreement or any other agreement,
lease or instrument to which the Borrower and/or any its Subsidiaries is a party
or by which its properties may be bound or affected, or (D) result in, or
require, the creation or imposition of any mortgage, deed of trust, pledge,
Lien, security interest or other charge or encumbrance of any nature (other than
as required hereunder) upon or with respect to any of the properties now owned
or hereafter acquired by the Borrower and/or its Subsidiaries. Neither the
Borrower nor its Subsidiaries is in default under any such law, rule,
regulation, order, writ, judgment, injunction, decree, determination or award,
or in breach of any such indenture, agreement, lease or instrument, the
violation or breach of which is reasonably likely to have a Material Adverse
Effect.
(c) No authorization or approval or other action by, and no
notice to or filing with, any Governmental Authority or regulatory body is
required for the due execution, delivery and performance by the Borrower of the
Loan Document to which it is or will be a party, or for the consummation of the
transactions contemplated hereby or thereby. The Borrower has all material
licenses, permits, rights, variances and other Governmental Approvals that are
necessary to perform its various obligations under the Loan Documents, to own
and operate its properties and assets and to conduct its business as currently
conducted.
(d) This Agreement is, and each other Loan Document to which
the Borrower is or will be a party when delivered hereunder will be, legal,
valid and binding obligations of the Borrower enforceable against the Borrower
in accordance with their respective terms, except to the extent enforceability
thereof may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditor's rights generally and by
equitable principles (regardless of whether enforcement is sought in equity or
at law).
(e) The balance sheet of the Borrower as of December 31, 1998
and the related statements of income and retained earnings of
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the Borrower for the period ended on December 31, 1998, copies of which have
been furnished to the Lender, fairly present the financial condition of the
Borrower as of such date and the results of the operations of the Borrower for
the period ended on such date, all in accordance with Generally Accepted
Accounting Principles consistently applied, and since such date, there has been
no Material Adverse Change in such condition or operations.
(f) There is no pending or, to the best of the Borrower's
knowledge, threatened action or proceeding affecting the Borrower and/or its
Subsidiaries before any court, governmental agency or arbitrator which, (i) if
adversely deter mined, is reasonably likely to have a Material Adverse Effect or
(ii) purports to affect the legality, validity or enforceability of this
Agreement, the Note or any other Loan Document or the consummation of the
transactions contemplated hereby or thereby.
(g) Except for Doral Securities, Inc., the Borrower and its
other Subsidiaries are not engaged in the business of extending credit for the
purpose of purchasing or carrying margin stock (within the meaning of Regulation
U issued by the Board of Governors of the Federal Reserve System), and no
proceeds of the Advances will be used by the Borrower to purchase or carry any
margin stock or to extend credit to others for the purpose of purchasing or
carrying any margin stock.
(h) The Borrower and its Subsidiaries are Solvent.
(i) The Borrower and its Subsidiaries have filed all federal,
state, Commonwealth and local tax returns required to be filed and have paid all
taxes shown thereon to be due, including interest and penalties, or have
provided adequate reserves therefor; no unpaid or uncontested assessments have
been made against the Borrower and its Subsidiaries by any taxing authority, nor
has any penalty or deficiency been assessed by any such authority, which in the
aggregate for all such assessments, penalties and deficiencies may have a
Material Adverse Effect. All contested assessments which may have a Material
Adverse Effect have been disclosed to the Lender and adequate reserves have been
made therefor. Such tax returns properly reflect the income and taxes of the
Borrower and its Subsidiaries for the periods covered thereby,
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subject only to reasonable adjustments required by the corresponding taxing
authorities upon audit and having no Material Adverse Effect on the financial
condition, business or results of operations of the Borrower.
(j) No Reportable Event has occurred with respect to any Plan
of the Borrower and its Subsidiaries, and neither the Borrower nor its
Subsidiaries has any current or past service liability under any Plan.
(k) No Termination Event has occurred or is reasonably
expected to occur with respect to any Plan of the Borrower and/or its
Subsidiaries and neither the Borrower nor its Subsidiaries has any current or
past service liability under any Plan.
(l) Neither the Borrower nor its Subsidiaries has incurred any
actual withdrawal liability under ERISA with respect to any Plan.
(m) Neither the business nor the properties of the Borrower
and its Subsidiaries are affected by any labor dispute which could have a
Material Adverse Effect.
(n) No written information, exhibit or report furnished by
the Borrower to the Lender in connection with the negotiation of this Agreement,
taken together, contained any material misstatement of fact or omitted to state
a material fact or any fact necessary to make the statements contained therein
not misleading in light of the circumstances in which they were given.
(o) (i) The operations and properties of the Borrower and its
Subsidiaries comply in all material respects with all applicable Environmental
Laws; (ii) all necessary Environmental Permits have been obtained and are in
effect for the operations and properties of the Borrower and its Subsidiaries
and the Borrower and its Subsidiaries are in compliance in all material
respects with all such Environmental Permits; (iii) none of the operations or
properties of the Borrower and/or its Subsidiaries is subject to any
Environmental Action alleging the violation of any Environmental Law; (iv) no
circumstances known to the Borrower exist that could form the basis of an
Environmental Action against the Borrower and/or its Subsidiaries or any of
their properties that could have a Material Adverse Effect or cause any such
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property to be subject to any restrictions which could have a Material Adverse
Effect on ownership, occupancy, use or transferability under any Environmental
Law; (v) none of the operations of the Borrower and/or its Subsidiaries are the
subject of a federal, state, Commonwealth or local investigation evaluating
whether any remedial action is needed to respond to a release of any hazardous
or toxic waste, substance or constituent, or any other substance into the
environment, which remedial action may have a Material Adverse Effect on the
Borrower's and/or its Subsidiaries' business operations, financial condition or
the value of any Collateral; and (vi) the Borrower and its Subsidiaries do not
have any contingent liability in connection with any release of any hazardous or
toxic waste, substance or constituent, or any other substance into the
environment which contingent liability, if liquidated, would not be adequately
covered (in the reasonable determination of the Lender) by insurance or other
indemnification rights and which, in the reasonable determination of the Lender,
would not have a Material Adverse Effect on the Borrower's and/or its
Subsidiaries' business operations or financial condition. The Borrower and its
Subsidiaries have not filed any notice under any Environmental Law indicating
past or present treatment, storage or disposal of a hazardous waste or reporting
a spill or release of a hazardous or toxic waste, substance or constituent, or
any other hazardous substance into the environment.
(p) Except for Doral Securities, Inc., neither the Borrower
nor its other Subsidiaries, is an "investment company", or an "affiliated
person" of, or "promoter" or "principal underwriter" for, an "investment
company", as such terms are defined in the Investment Company Act of 1940, as
amended. Neither the making of an Advance, nor the application of the proceeds
or repayment thereof by the Borrower, nor the consummation of the other
transactions contemplated hereby, will violate any provision of the Investment
Company Act of 1940, as amended, or any rule, regulation or order of the
Securities and Exchange Commission thereunder.
(q) Set forth in the Financial Statements most recently
submitted to the Lender is a complete and accurate list of all Debt
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showing as of the date set forth thereon the principal amount outstanding
thereunder (the "Existing Debt").
(r) Neither the Borrower nor its Subsidiaries is a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", as such terms are defined in the Public Utility Holding
Company Act of 1935, as amended.
(s) The Borrower has good and marketable title to all assets
and properties shown or reported in the Financial Statements most recently
submitted to the Lender and all such assets and properties are free and clear of
any encumbrances, mortgages, pledges, charges, leases, security interest and any
other type of lien, encumbrance and/or title restriction, except those reflected
in the Financial Statements.
(t) The Borrower and its Subsidiaries hold all franchises and
licenses required for their operations and said licenses and franchises are in
full force and effect and no other approval, application, filing, registration,
consent or other action of any local, state or federal authority is, or will be
required to enable the Borrower and its Subsidiaries to exploit any such
franchise and licenses. The Borrower nor its Subsidiaries have received any
notice from the granting body or any other Governmental Authority with respect
to any breach of any covenant under, or any default with respect to, any such
franchises or licenses. Before and upon giving effect to this Agreement and the
Loan Documents no default shall have occurred and be continuing under any such
franchises and licenses. All material consents and approvals of, filings and
registration with and all other actions in respect of, all Governmental
Authorities or instrumentalities required to maintain any franchises and
licenses in full force and effect prior to the scheduled date of expiration
thereof have been, or, prior to the time when required, will have been,
obtained, given, filed or taken and are or will be in full force and effect.
(u) All policies of insurance of any kind or nature owned by
or issued to the Borrower, including, without limitation, policies of life,
fire, theft, product liability, public liability, property damage, other
casualty, employee fidelity, worker's
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compensation, employee health and welfare, title, property and liability
insurance, are in full force and effect and are of a nature and provide such
coverage as is sufficient and as is customarily carried by companies of the size
and character of the Borrower. The Borrower has not been refused insurance for
which it applied or had any policy of insurance terminated (other than at its
request).
(v) The proceeds of the Advance shall be used and applied only
for the purposes set forth in Section 2.1 hereof.
(w) The Borrower represents and warrants to the Lender that:
(i) in the normal course of the operation of its business it uses computer
hardware and software for the storage and processing of data (collectively the
"Borrower's Computer Systems") including financial information, inventory,
client lists and other data which is of critical importance to the operation of
its business; (ii) as of the date hereof the Borrower's Computer Systems are in
adequate condition for the purposes for which they are used and intended; (iii)
it is distinctly aware of the existence of the so called year 2000 problem in
the computer field (the "Year 2000 Problem"), which consists generally of the
fact that present programming of the vast majority of computer software and
hardware does not provide for the recognition of dates after December 31, 1999,
and that accordingly, upon the advent of the Year 2000 it is expected that
hardware and software which has not been reprogrammed or replaced, as conditions
may require, will cease to operate or will otherwise operate erratically, all of
which would cause a significant loss of data and other efficiencies to the
Borrower's business, including potentially material financial losses; (iv) the
Borrower believes that it is taking, or has taken, any and all necessary steps
to assure that its significant clients, material suppliers, and any other Person
which individually or in the aggregate has or could have a Material Adverse
Effect on the operations, financial or otherwise of the Borrower's business
including, without limitation, technology, telecommunications, software and
hardware providers, are able to meet the requirements of the Year 2000 Problem,
(v) as of the date hereof, the Borrower reasonably believes that it has
substantially completed or will be in a position to substantially
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complete on or before October 31, 1999 all required modifications, conversions,
changes or replacements to the Borrower's Computer Systems so that the Year 2000
Problem shall not materially adversely affect the Borrower's business; (vi) in
this connection, the Borrower will deliver when requested by the Lender, a
certificate from its independent certified public accountants certifying that
the Borrower has successfully met and/or complied with all necessary
modifications to the Borrower's Computer systems so that the Borrower's business
shall not be adversely affected by the Year 2000 Problem.
ARTICLE 5
COVENANTS OF THE BORROWER
SECTION 5.1. AFFIRMATIVE COVENANTS. So long as an Advance shall remain
unpaid or the Lender shall have any Commitment hereunder and until satisfaction
of all other obligations of the Borrower hereunder, the Borrower will:
(a) Comply and cause its Subsidiaries to comply, in all
material respects, with all applicable laws, rules, regulations and orders
except where such non-compliance is not reasonably likely to have a Material
Adverse Effect.
(b) (i) Maintain and cause its Subsidiaries to maintain all of
its properties (real and personal) insured at all times by responsible,
reputable and financially sound insurance companies or associations in such
amounts and covering loss or damage by fire, earthquake and windstorm and such
other risks as are usually carried by companies engaged in similar businesses
and owning similar properties as the Borrower, and maintain adequate product
liability insurance and other insurance against liability to persons for such
risks and hazards and in such amounts as are usually carried by companies
engaged in similar businesses; and (iii) from time to time at the request of the
Lender, the Borrower shall deliver to the Lender a detailed schedule indicating
all insurance policies then in force.
(c) Furnish to the Lender:
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(i) as soon as available and in any event within
45 days after the close of each of the first three quarters of the Borrower's
Fiscal Year and within 90 days after the end of the last fiscal quarter of each
Fiscal Year of the Borrower, quarterly unaudited financial statements of the
Borrower and its Subsidiaries on a separate and combined basis, including
balance sheets, income statements and cash flow statements, prepared according
to Generally Accepted Accounting Principles. The financial statements referred
to above shall be accompanied by a certificate signed by the Chief Financial
Officer or Treasurer of the Borrower identifying any Event of Default hereunder
and/or any existing fact or circumstance which, with the lapse of time or the
giving of notice or both, would result in an Event of Default hereunder, and
certifying that no other default has occurred under this Agreement, and that no
other fact or circumstance exists which, with the lapse of time or the giving of
notice or both, would result in an Event of Default hereunder;
(ii) as soon as available and in any event within
120 days after the close of each Fiscal Year of the Borrower, audited financial
statements of the Borrower and its Subsidiaries on a separate and combined
basis, including balance sheets, income statements and cash flow statements,
prepared according to Generally Accepted Accounting Principles, as of the end of
such year, certified, without exception or qualification, by independent
certified public accountants of recognized national standing satisfactory to the
Lender. The financial statement referred to above shall be accompanied by a
special report of such independent certified public accountant stating that in
the course of their regular audit of the business of the Borrower, which audit
was conducted by such accounting firm in accordance with generally accepted
auditing standards, nothing came to their attention which would lead them to
conclude that an Event of Default has occurred and is continuing, or if, such
Event of Default has come to their attention, a statement as to the nature
thereof;
(iii) promptly, but in any event within ten (10)
Business Days after the Borrower knows or has reason to know of the existence of
a Default, a statement of the Chief Financial Officer or Treasurer of the
Borrower setting forth details of such Default
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and the action which the Borrower has taken or will take with respect thereto;
(iv) promptly, but in any event within ten (10)
Business Days after receipt by the Borrower of service of process or other
notice of commencement thereof, notice of all actions, suits, investigations,
litigation and proceedings before any court or governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign, which
requests a monetary judgment not covered by insurance against, or other type of
monetary relief not covered by insurance from, the Borrower which could result
in a Material Adverse Effect, and promptly after the occurrence thereof notice
of any material adverse change in the status or the financial effect on the
Borrower of such actions, suits, investigations, litigation and proceedings;
(v) promptly, but in any event within ten (10)
Business Days after receipt thereof, copies of the following: (i) any notice of
tax deficiency received from the Puerto Rico Treasury Department or any other
taxing authority of the Commonwealth, (ii) any notice of municipal license tax
deficiency received from the Finance Director of any of the municipalities of
the Commonwealth and (iii) any notice of property tax deficiency received from
the Municipal Revenue Collections Center of Puerto Rico; provided that this
subsection (v) shall only apply to deficiencies which could result in a Material
Adverse Effect;
(vi) promptly, but in any event within ten (10)
Business Days after the Borrower knows or has reason to know of the existence
thereof, notice of any condition or occurrence on any property of the Borrower
and/or its Subsidiaries that results in noncompliance with, or liability under,
any Environmental Law or Environmental Permit with respect to the Borrower
and/or its Subsidiaries and which noncompliance or liability could result in a
Material Adverse Effect;
(vii) promptly, but in any event within ten (10)
Business Days after the Borrower knows or has reason to know of the existence
thereof, notice of any material labor dispute to which the Borrower and/or its
Subsidiaries may become a party, any strikes or walkouts relating to any of its
or their facilities;
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(viii) promptly, but in any event within ten (10)
Business Days after the occurrence thereof, notice of the default by the
Borrower and/or its Subsidiaries under any note, indenture, loan agreement,
mortgage, lease, deed or other similar agreement which could result in a
Material Adverse Effect.
(d) Obtain, preserve and maintain and cause its Subsidiaries
to obtain, preserve and maintain, (i) its corporate existence and going concern
status, and (ii) all rights (charter and statutory) and all approvals,
authorizations, licenses, permits and franchises of all Governmental Authorities
necessary to enable the Borrower to operate and maintain its property, business
and operations as currently conducted other than such rights, approvals,
authorizations, licenses, permits and franchises which failure to obtain,
preserve or maintain could not reasonably be expected to have a Material Adverse
Effect.
(e) Keep proper books of record and account and cause its
Subsidiaries to keep proper books of record and account, in which full and
correct entries shall be made of all financial transactions and the assets and
businesses of the Borrower in accordance with Generally Accepted Accounting
Principles consistently applied.
(f) Maintain and preserve all of its properties which are
necessary or reasonably useful for the proper conduct of its businesses in good
working order and condition, ordinary wear and tear excepted, and in material
compliance with all applicable standards and rules imposed by all Governmental
Authorities with jurisdiction, except where the failure to do so is not,
individually or in the aggregate, reasonably likely to result in a Material
Adverse Effect; and at all times do or cause to be done all things necessary to
obtain, preserve, renew and keep in full force and effect all copyrights,
trademarks, service marks and trade names, except where the failure to do so is
not, individually or in the aggregate, reasonably likely to result in a Material
Adverse Effect.
(g) Utilize the proceeds of the Advances for the purposes set
forth in Section 2.1.
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(h) File and cause its Subsidiaries to file all federal,
state, Commonwealth and local tax returns and other reports required by law to
be filed, except if the failure to timely file such returns and reports would
not result in a Material Adverse Effect; maintain and cause its Subsidiaries to
maintain adequate reserves for the payment of all taxes, assessments,
governmental charges and levies imposed upon the Borrower and/or its
Subsidiaries, its income or its profits; pay and discharge all such taxes,
assessments, governmental charges and levies imposed upon the Borrower and its
Subsidiaries or against its properties prior to the date on which penalties
accrue, except to the extent that the same may be contested by the Borrower
and/or its subsidiaries in good faith by appropriate proceedings and adequate
reserves have been made therefor, unless and until a Lien resulting therefrom
attaches to its property and becomes enforceable against its other creditors;
and prior to their becoming overdue, promptly notify the Lender in writing as to
any such taxes, assessments and governmental charges which it intends to
contest.
(i) Continue and cause its Subsidiaries to continue to be
Solvent.
(j) Conduct and cause its Subsidiaries to conduct its business
so as to comply in all material respects with all applicable Environmental Laws
and Environmental Permits; provided, however, that nothing contained in this
subsection shall prohibit the Borrower and/or its Subsidiaries from contesting,
in good faith by appropriate legal proceedings, any such Environmental Law or
Environmental Permit or the interpretation or application thereof, provided,
further, that the Borrower shall and shall cause its Subsidiaries to comply with
the order of any court or other governmental body of applicable jurisdiction
relating to such Environmental Laws and Environmental Permits unless the
Borrower and/or its Subsidiaries shall then be prosecuting an appeal or
proceedings for review and shall have secured a stay of enforcement or execution
or other arrangement postponing enforcement or execution pending such appeal or
proceedings for review. If the Borrower and/or its Subsidiaries shall (iii)
receive notice that any violation of any Environmental Law or Environmental
Permit may have been
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committed or is about to be committed by the Borrower and/or its Subsidiaries,
(iv) receive notice that any Environmental Action has been filed or is about to
be filed against the Borrower and/or its Subsidiaries alleging violations of any
Environmental Law or Environmental Permit or requiring the Borrower and/or its
Subsidiaries to take any action in connection with the release of toxic or
hazardous substances into the environment, (v) receive any notice from a
federal, state, Commonwealth or local governmental agency or private party
alleging that the Borrower and/or its Subsidiaries may be liable or responsible
for costs associated with a response to or cleanup of a release of a toxic or
hazardous substance into the environment or any damages caused thereby, (vi)
receive any notice that the Borrower and/or its Subsidiaries is subject to
federal, state, Commonwealth or local investigation evaluating whether any
remedial action is needed to respond to the release of any hazardous or toxic
waste, substance or constituent, or any other substance into the environment, or
(vii) receive any notice that any properties or assets of the Borrower and/or
its Subsidiaries are subject to a Lien in favor of any governmental entity for
any liability under Environmental Laws or damages arising from or costs incurred
by such governmental entity in response to a release of a hazardous or toxic
waste, substance or constituent, or any other substance into the environment,
then the Borrower shall promptly but in any event within five (5) Business Days
after the Borrower's receipt thereof, provide the Lender with a copy of such
notice.
(k) Conduct all transactions with any of its Affiliates on
terms that are fair and reasonable and no less favorable to the Borrower than it
would obtain in a comparable arm's-length transaction with a Person not an
Affiliate.
(l) Take all necessary and appropriate action and steps to
address and remedy all and any deficiencies in the Borrower's Computer Systems
which relate to the Year 2000 Problem that could be reasonably expected to
adversely affect the operations, financial or otherwise, of the Borrower's
business, including without limitation estimating the cost of making all such
modifications to the Borrower's Computer Systems. In this respect,
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it agrees further to maintain the Lender at all times reasonably informed of its
progress in making all applicable modifications, conversions, changes or
replacements to the Borrower's Computer Systems (the "Year 2000 Plan") so that
the Year 2000 Problem shall not materially adversely affect the operations,
financial or otherwise, of the Borrower's business. The Borrower will further
require its accountants to certify together with their review of the annual
financial statements that they have reviewed the Borrower's compliance with its
representations concerning its Year 2000 Plan and have found them to be true and
correct in all material respects.
SECTION 5.2. NEGATIVE COVENANTS. So long as an Advance shall remain
unpaid or the Lender shall have any Commitment hereunder and until full payment
of the Note and all other obligation of the Borrower hereunder, the Borrower
will not, without the prior written consent of the Lender:
(a) Create, incur, guarantee, endorse, assume or suffer to
exist or permit any of its Subsidiaries to create, incur, guarantee, endorse,
assume or suffer to exist, any Lien upon any of its properties or assets and/or
any Debt, direct, contingent or otherwise, except (i) Debt hereunder and under
the Note; (ii) trade payables and accruals incurred in the ordinary course of
business; (iii) the Existing Debt; (iv) Permitted Liens; and (v) any Debt and/or
Lien which does not result in a Material Adverse Effect.
(b) Declare or pay any dividends, purchase, redeem, retire,
defease or otherwise acquire for value any of its capital stock or any warrants,
rights or options to acquire such capital stock now or hereafter outstanding,
return any capital to its stockholders as such, make any distribution of assets,
capital stock, warrants, rights, options, obligations or securities to its
stockholders as such, or permit any Subsidiary of the Borrower to purchase,
redeem, retire, defease or otherwise acquire for value any capital stock of the
Borrower or of any Subsidiary of the Borrower or any warrants, rights or options
to acquire such capital stock, provided, however, that if no Default has
occurred and is continuing, the Borrower may declare and pay cash dividends in
any Fiscal Year not to exceed its retain earnings for such Fiscal Year.
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(c) Sell, lease, transfer or otherwise dispose of, or permit
any Subsidiary of the Borrower to sell, lease, transfer or otherwise dispose of,
any asset (including, without limitation, receivables, machinery, equipment,
leases, leaseholds, realty, trademarks, trade names, goodwill and other tangible
and intangible assets), except in the ordinary course of business and so long
as such sale, lease, transfer or otherwise does not result in a Material Adverse
Effect.
(d) Wind up, liquidate, dissolve itself.
(e) Make or permit any of its Subsidiaries to make any
material change in the nature of the business carried on by the Borrower and its
Subsidiaries as of the date hereof, or make any material change in the
Borrower's business objectives, purposes or operations, except if any such
change does not result in a Material Adverse Effect.
(f) Assume, guarantee, endorse or otherwise be or become
liable upon or permit any Subsidiary to assume, guarantee, endorse or otherwise
be or become liable upon, the obligations of any Person, except by the
endorsement of negotiable instruments for deposit or collection or similar
transactions in the ordinary course of business or if any such assumption,
guarantee, endorsement or liability does not result in a Material Adverse
Effect.
(g) Create or enter into, or permit any of its Subsidiaries to
create or enter into, any Plan except in compliance in all material respects
with all applicable laws and regulations.
(h) Enter into or be a party to, or permit any of its
Subsidiaries to enter into or be a party to, any transaction with any of its
Affiliates, except in the ordinary course of business and pursuant to the
reasonable requirements of the Borrower's or such Subsidiary's business and upon
fair and reasonable terms which are no less favorable to the Borrower or such
Subsidiary than the Borrower or such Subsidiary would obtain in a comparable
arm's length transaction with a Person which is not the Borrower's Affiliate.
(i) Amend, or permit any Subsidiary to amend, in connection
with any provision relating to capital stock or otherwise in any way adverse in
any material respect to the interest of the
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Lender, the Articles of Incorporation or By-Laws of the Borrower or such
Subsidiary, except to the extent required in order to comply with applicable law
or if any such amendment does not result in a Material Adverse Effect. In any
event, the Borrower shall give the Lender not less than thirty (30) days written
notice after amending the Articles of Incorporation or By-Laws of the Borrower
or any of its Subsidiaries.
ARTICLE 6
EVENTS OF DEFAULT
SECTION 6.1. EVENTS OF DEFAULT. If any of the following events ("Events
of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay when due any amount of
principal and/or interest or the Borrower shall fail to pay any other amounts or
fees fifteen (15) days after the same become due; or
(b) The Borrower shall fail to perform or observe any term,
covenant or agreement contained in Sections 5.1 (a), (c), (d), (g), (h), (i) or
(j) or Section 5.2; or
(c) The Borrower shall fail to perform or observe any other
term, covenant or agreement contained in this Agreement and/or in any other Loan
Document on its part to be performed or observed, and in any such case any such
failure shall remain unremedied for a period of thirty (30) days after written
notice thereof shall have been given to the Borrower by the Lender; or
(d) Any representation or warranty made by the Borrower (or
any of its officers) under or in connection with any Loan Document to which it
is a party shall, when taken as a whole, prove to have been incorrect in any
material respect when made; or
(e) The Borrower or any Subsidiary thereof shall fail to pay
any principal of, premium or interest on any Debt that is outstanding in a
principal amount of $1,000,000 or more in the aggregate (excluding Debt
evidenced by the Note) (as the case may be), when due and owing (whether at
scheduled maturity, by required prepayment, acceleration, demand or otherwise)
or any other default under any agreement or instrument relating to any such
Debt, or any other event, shall occur, if the effect of such default or event is
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to accelerate, or to permit the acceleration of, or to permit the acceleration
after the giving of notice or passage of time or both, of, the maturity of such
Debt; or any such Debt shall be declared to be due and payable, or required to
be prepaid (other than by a regularly scheduled required prepayment), prior to
the stated maturity thereof; or
(f) The Borrower or any of its Subsidiaries shall generally
not pay its debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general assignment for the
benefit of all its creditors; or any proceeding shall be instituted by or
against the Borrower or any of its Subsidiaries seeking to adjudicate it a
bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of any order for relief or the appointment of a
receiver, trustee, or other similar official for it or for any substantial part
of its property and, in the case of any such proceeding instituted against it
(but not instituted by it) that is being diligently contested by it in good
faith, either such proceeding shall remain undismissed or unstayed for a period
of sixty (60) days or any of the actions sought in such proceeding (including,
without limitation, the entry of any order for relief against, or the
appointment of a receiver, trustee, custodian or other similar official for, it
or any substantial part of its property) shall occur; or the Borrower or any of
its Subsidiaries shall take any corporate action to authorize any of the actions
set forth above in this subsection (f); or
(g) Any Reportable Event which the Lender believes might
constitute grounds for termination of any Plan maintained by the Borrower or any
of its Subsidiaries shall have occurred or if a United States District Court
appoints a trustee to administer any such Plan, or if the PBGC shall institute
proceedings to terminate any such Plan or to appoint a trustee therefor; or if
any Termination Event with respect to a Plan shall have occurred, and sixty (60)
days thereafter, (i) such Termination Event (if correctable) shall not have been
corrected and (ii) the then
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present value of such Plan's vested benefits exceeds the then current value of
assets accumulated in such Plan; or if the Borrower or any of its Subsidiaries
as employer under a Plan shall have made a complete or partial withdrawal from
such Plan and the Plan sponsor of such Plan shall have notified such withdrawing
employer that such employer has incurred an actual withdrawal liability which
materially adversely affects the financial condition of the Borrower; or
(h) Any final and unappealable judgment or order for the
payment of money in excess of $1,000,000 which is not covered by insurance shall
be rendered against the Borrower or any of its Subsidiaries and either (i)
enforcement proceedings shall have been commenced by any creditor upon such
judgment or order or (ii) there shall be any period of thirty (30) consecutive
days during which a stay of enforcement of such judgment or order, by reason of
a pending appeal or otherwise, shall not be in effect; or
(i) Any material provision of any Loan Document after delivery
thereof pursuant to this Agreement shall for any reason (other than pursuant to
the terms hereof or thereof) cease to be valid and binding on or enforceable
against any party to it (other than the Lender), or any such party shall so
state in writing; or
(j) There shall have occurred a condition or a change of
circumstances which, taken as a whole, has or could reasonably be expected to
have a Material Adverse Effect on the assets, properties, operations,
performance or financial condition of the Borrower and/or its Subsidiaries.
then, and in any such event, the Lender may by notice to the Borrower, declare
the Note, all interest thereon and all other amounts payable under this
Agreement to be forthwith due and payable, whereupon the Note, all such interest
and all such amounts shall become and be forthwith due and payable, without
presentment, demand, protest or further notice of any kind, all of which are
hereby expressly waived by the Borrower; provided, however, that in the event of
an actual or deemed entry of an order for relief with respect to the Borrower
under the Federal Bankruptcy Code, the obligation of the Lender to make Advances
shall automatically be terminated and the Note, all such interest and all such
amounts
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shall automatically become and be due and payable, without presentment,
demand, protest or any notice of any kind, all of which are hereby expressly
waived by the Borrower.
ARTICLE 7
MISCELLANEOUS
SECTION 7.1. AMENDMENTS, ETC. No amendment or waiver of any provision
of this Agreement, the Note or any other Loan Documents, nor consent to any
departure by the Borrower there from, shall in any event be effective unless the
same shall be in writing and signed by the Lender (and, in the case of any such
amendment, by the Borrower), and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given.
SECTION 7.2. NOTICES, ETC. All notices and other communications
provided for hereunder shall be in writing (including telecopier, telegraphic,
telex or cable communication) and mailed, telecopied, telegraphed, telexed,
cabled or delivered personally or by courier, if to the Borrower, at 1159
Roosevelt Avenue, Puerto Nuevo, San ▇▇▇▇, Puerto Rico, Attention: President
(Facsimile Number: ▇▇▇-▇▇▇-▇▇▇▇; and if to the Lender, at ▇.▇. ▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: President (Facsimile No.
787-787-1245); or as to each party, at such other address as shall be designated
by such party in a written notice to the other parties. All such notices and
communications shall, when mailed, telecopied, telegraphed, telexed or cabled,
be effective three (3) days after being deposited in the mails, on the day when
transmitted by telecopier, on the day when delivered to the telegraph company,
on the day when confirmed by telex answerback or on the day when delivered to
the cable company, respectively, and when delivered personally or by courier, on
the day when delivery is made. Notwithstanding the foregoing, notices and
communications to the Lender pursuant to Article 2 shall not be effective until
received by the Lender.
SECTION 7.3. NO WAIVER; REMEDIES. No failure on the part of the Lender
to exercise, and no delay in exercising, any right hereunder or under the Note
shall operate as a waiver thereof; nor shall any single or partial exercise of
any such right preclude any
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other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
SECTION 7.4. COSTS, EXPENSES AND TAXES; INDEMNIFICATION. (a) The
Borrower agrees to pay on demand all reasonable costs and expenses of the Lender
in connection with the preparation, execution, delivery, administration,
modification and amendment of this Agreement, the Note, the Loan Documents and
the other documents to be delivered hereunder and under the other Loan
Documents. The Borrower further agrees to pay on demand all reasonable costs and
expenses, if any (including, without limitation, reasonable counsel fees and
expenses), in connection with the enforcement (whether through negotiations,
legal proceedings or otherwise) after the occurrence of an Event of Default of
this Agreement, the Note, the Loan Documents and the other documents to be
delivered hereunder, including, without limitation, reasonable counsel fees and
expenses in connection with the enforcement of rights under this Section 7.4(a).
(b) The Borrower hereby agrees to indemnify and hold harmless
the Lender and each of its Affiliates and its officers, directors, employees,
agents, advisors and representatives (each, an "Indemnified Party") from and
against any and all claims, damages, losses, liabilities and expenses
(including, without limitation, the reasonable fees and expenses of counsel),
joint or several, that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or by
reason of, or in connection with the preparation for a defense of, any
investigation, litigation or proceeding arising out of, related to or in
connection with (i) the transactions contemplated by this Agreement and the
other Loan Documents or any use made or proposed to be made with the proceeds of
the Advance or (ii) the actual or alleged presence of hazardous materials on any
property of the Borrower or any Environmental Action relating in any way to the
Borrower in each case whether or not such investigation, litigation or
proceeding is brought by the Borrower, its partners, directors, shareholders or
creditors or an Indemnified Party or any Indemnified Party is otherwise a party
thereto and whether or not the transactions contemplated hereby are
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consummated, except to the extent such claim, damage, loss, liability or expense
is found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party's gross negligence or
willful misconduct. The Borrower further agrees that no Indemnified Party shall
have any liability (whether direct or indirect, in contract or tort or
otherwise) to the Borrower or its creditors for or in connection with the
transactions contemplated by this Agreement and the other Loan Documents, except
to the extent that such liability is found in a final non-appealable judgment by
a court of competent jurisdiction to have resulted from such Indemnified Party's
gross negligence or willful misconduct; provided, however, that the provisions
of this Section shall not in any way alter any contractual obligation or
contractual remedy of any Indemnified Party. The Borrower also agrees not to
assert any claim against the Lender, any of its Affiliates, or any of its
respective directors, officers, employees, attorneys and agents, on any theory
of liability, for special, indirect, consequential or punitive damages arising
out of or otherwise relating to any of the transactions contemplated herein or
in any other Loan Document or the actual or proposed use of the proceeds of the
Advances.
(c) If the Borrower fails to pay when due any reasonable
costs, expenses or other amounts payable by it under any Loan Document,
including, without limitation, fees and expenses of counsel and indemnities,
such amount may be paid on behalf of the Borrower by the Lender in its sole
discretion.
SECTION 7.5. RIGHT OF SET-OFF. Upon the occurrence and during the
continuance of any Event of Default the Lender is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by the Lender
to or for the credit or the account of the Borrower against any and all of the
Obligations of the Borrower now or hereafter existing under this Agreement, the
Note held by the Lender and the other Loan Documents, whether or not the Lender
shall have made any demand under this Agreement, the Note, such other Loan
Documents and although such Obligations may be unmatured. The Lender agrees
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promptly to notify the Borrower after any such set-off and application made by
the Lender, provided that the failure to give such notice shall not affect the
validity of any such set-off and application. The rights of the Lender under
this Section are in addition to other rights and remedies (including, without
limitation, other rights of set-off) which the Lender may have.
SECTION 7.6. BINDING EFFECT. This Agreement shall become effective when
it shall have been executed by the Borrower and the Lender and thereafter shall
be binding upon and inure to the benefit of the Borrower, the Lender and their
respective successors and assigns, except that the Borrower shall have no right
to assign its rights hereunder or any interest herein without the prior written
consent of the Lender.
SECTION 7.7. ASSIGNMENTS AND PARTICIPATIONS. (a) The Lender may assign
to one or more banks or other entities all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of the Advance owing to it, the Note held by it and the remaining Loan
Documents). Prompt notice of such assignment shall be given by the Lender to the
Borrower.
(b) The Lender may sell participations to one or more banks or
other entities in or to all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of the Advance
owing to it and the Note held by it).
(c) The Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section,
disclose to the assignee or participant or proposed assignee or participant, any
information relating to the Borrower furnished to such Lender by or on behalf of
the Borrower; provided that, prior to any such disclosure, the assignee or
participant or proposed assignee or participant shall agree to preserve the
confidentiality of any confidential information relating to the Borrower
received by it from the Lender pursuant to the terms of Section 7.12.
SECTION 7.8. SEVERABILITY OF PROVISIONS. Any provision of this
Agreement which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the
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extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof or affecting the validity or enforceability of such
provision in any other jurisdiction.
SECTION 7.9. SURVIVAL OF COVENANTS. All covenants, agreements,
representations and warranties made by the Borrower in this Agreement or in any
other Loan Document or any instrument, document or certificate delivered
pursuant hereto or thereto shall be deemed to have been material and relied on
by the Lender, notwithstanding any investigation made by the Lender, and shall
survive the execution and delivery of this Agreement and of such instrument,
document or certificate until repayment of all amounts due hereunder and under
the Note; provided, however, that the Obligations of the Borrower under Section
7.4 of this Agreement shall survive such repayment.
SECTION 7.10. APPLICATION OF PAYMENTS. The Lender shall have the
continuing and exclusive right to correctly apply or reverse and re-apply any
and all payments to any portion of the Obligations of the Borrower. To the
extent that the Borrower makes a payment or payments to the Lender which payment
or any part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside or required to be repaid to a trustee, receiver or any
other party under any bankruptcy law or state, Commonwealth or federal law, or
equitable cause, then, to the extent of such payment received, the Obligations
of the Borrower or part thereof intended to be satisfied shall be revived and
continue in full force and effect, as if such payment had not been received by
the Lender.
SECTION 7.11. EXECUTION IN COUNTERPARTS. This Agreement may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this Agreement by
telecopier shall be effective as delivery of a manually executed counterpart of
this Agreement.
SECTION 7.12. CONFIDENTIALITY. The Lender agrees to keep confidential
all non-public information pertaining to the Loan Parties which is provided to
it by any such parties in accordance
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with the Lender's customary procedures for handling confidential information of
this nature, and shall not disclose such information to any Person except (i) to
the extent such information is public when received by the Lender or becomes
public thereafter due to the act or omission of any party other than the Lender,
(ii) to the extent such information is independently obtained from a source
other than the Borrower and such information from such source is not, to the
Lender's knowledge, subject to any obligation of confidentiality or, if such
information is subject to an obligation of confidentiality, that disclosure of
such information is permitted, (iii) to any Affiliate of the Lender, counsel,
auditor, examiner or any regulatory authority having jurisdiction over the
Lender, accountants and other consultants retained by the Lender, (iv) in
connection with any litigation or the enforcement of the rights of the Lender
under this Agreement or any other Loan Document, (v) to the extent required by
any applicable statute, rule or regulation or court order (including, without
limitation, by way of subpoena) or pursuant to the request of any Governmental
Authority having jurisdiction over the Lender, or (vi) to the extent disclosure
to other Persons is appropriate in connection with any proposed or actual
assignment or grant of a participation to such other Person (who will in turn be
required to maintain confidentiality as if it were the Lender party to this
Agreement). In no event shall the Lender be obligated or required to return any
such information or other materials furnished by the Borrower pursuant to this
Agreement or the other Loan Documents.
SECTION 7.13. WAIVER OF JURY TRIAL. THE BORROWER AND THE LENDER HEREBY
IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
RELATING TO ANY OF THE LOAN DOCUMENTS, THE ADVANCE OR THE ACTIONS OF THE LENDER
IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
SECTION 7.14. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the Commonwealth of Puerto Rico.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
BORROWER:
DORAL FINANCIAL CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: Mario ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Vice President
and Treasurer
LENDER:
FIRSTBANK PUERTO RICO
By: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Vice President
42
EXHIBIT B
[FORM OF NOTE]
PROMISSORY NOTE
$15,000,000
FOR VALUE RECEIVED, DORAL FINANCIAL CORPORATION, a Puerto Rico
corporation, (the "Borrower"), hereby promises to pay to FIRSTBANK PUERTO RICO
(the "Lender") at the offices of the Lender, ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, the principal sum of FIFTEEN MILLION DOLLARS
($15,000,000) (or such lesser amount as shall equal the aggregate unpaid
principal amount of the Advances made by the Lender to the Borrower under the
Credit Agreement), in lawful money of the United States of America and in
immediately available funds, on the dates and in the principal amounts provided
in the Credit Agreement, and to pay interest on the unpaid principal amount of
the Advance, at such offices, in like money and funds, for the period commencing
on the date of such
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Advance until such Advance shall be paid in full, at the rate per annum and on
the dates provided in the Credit Agreement.
The date, amount and interest rate of the Advance made by the Lender to
the Borrower, and each payment made on account of the principal thereof, shall
be recorded by the Lender on its books and, prior to any transfer of this Note,
endorsed by the Lender on the schedule attached hereto or any continuation
thereof, provided that the failure of the Lender to make any such recordation or
endorsement shall not affect the obligation of the Borrower to make a payment
when due of any amount owing under the Credit Agreement or hereunder in respect
of the Advance made by the Lender.
This Note is the Note referred to in the Credit Agreement dated as of
April ___, 1999 (as modified and supplemented and in effect from time to time,
the "Credit Agreement") between the Borrower and the Lender and evidences the
Advance made by the Lender thereunder. Terms used but not defined in this Note
have the respective meanings assigned to them in the Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity of
this Note upon the occurrence of certain events upon the terms and conditions
specified therein.
This Note shall be governed by, and construed in accordance with, the
laws of the Commonwealth of Puerto Rico.
DORAL FINANCIAL CORPORATION
By:
--------------------------------
Name:
Title:
Affidavit No.
--------
Acknowledged and subscribed before me in San ▇▇▇▇, Puerto Rico, on this
___ day of _________, 1999, by the following person who is personally known to
me: ______________________________
--------------------------------------------------------------------------------
--------------------------
Notary Public
44
SCHEDULE OF ADVANCES
This Note evidences the Advance made under the within described Credit
Agreement to the Borrower, on the date, in the principal amount and bearing
interest at the rates set forth below, subject to the payments and prepayments
of principal set forth below:
Principal Amount Unpaid
Amount of Interest Paid or Principal Notation
Date Made Advance Rate Prepaid Amount Made By
--------- ------- ---- ------- ------ -------
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EXHIBIT A
NOTICE OF BORROWING
________________, 199___
FirstBank Puerto Rico
▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
Gentlemen:
The undersigned Borrower refers to the Credit Agreement, dated as of
April ____, 1999 (the "Credit Agreement", the terms defined therein being used
herein as therein defined), among the undersigned and FirstBank Puerto Rico, and
hereby gives you notice, irrevocably, pursuant to Section 2.2 of the Credit
Agreement that the undersigned hereby requests a Borrowing under the Credit
Agreement, and in that connection sets forth below the information relating to
such Borrowing (the "Proposed Borrowing") as required by Section 2.2(i) of the
Credit Agreement:
(a) The Business Day of the Proposed Borrowing is ________,
199____.
(b) The aggregate amount of the Proposed Borrowing is
$-------.
The undersigned hereby certifies that the following statements are true
on the date hereof, and will be true on the date of the Proposed Borrowing:
(1) the representations and warranties contained in the Credit
Agreement and in each other Loan Document are true and correct in all material
respects on and as of the date of the Proposed Borrowing and to the application
of the proceeds therefrom, as though made on and as of such date (except to the
extent any representation or warranty is made as of a specific date, in which
case such representation and warranty shall be true and correct in all material
respects as of such date); and
46
(2) no event has occurred and is continuing, or would result from such
Proposed Borrowing or from such Proposed Borrowing or from the application of
the proceeds therefrom, which constitutes a Default.
Very truly yours,
DORAL FINANCIAL CORPORATION
By:
---------------------------
Name:
Title:
