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EXHIBIT 10.108
THIRD AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
(WAREHOUSE FACILITY)
THIS THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
(WAREHOUSE FACILITY), dated as of June 22, 2001 (this "Amendment"), is entered
into among the Lenders party hereto, BANKERS TRUST COMPANY, a New York banking
corporation, as administrative agent for the Lenders (the "Administrative
Agent"), DORAL FINANCIAL CORPORATION, a corporation organized under the laws of
the Commonwealth of Puerto Rico ("DFC"), and DORAL MORTGAGE CORPORATION, a
corporation organized under the laws of the Commonwealth of Puerto Rico and a
wholly-owned subsidiary of DFC (together with DFC, each a "Borrower" and
collectively, the "Borrowers"), with reference to the Amended and Restated
Credit Agreement (Warehouse Facility), dated as of June 25, 1999, as amended by
the First Amendment to Amended and Restated Credit Agreement (Warehouse
Facility), dated as of November 30, 1999, among the Borrowers, the
Administrative Agent and the lenders party thereto and the Second Amendment to
Amended and Restated Credit Agreement (Warehouse Facility), dated as of June 23,
2000 (the "Second Amendment"), among the Borrowers, the Administrative Agent and
the Lenders party thereto (as amended, supplemented or otherwise modified from
time to time, the "Credit Agreement"). All capitalized terms used but not
otherwise defined herein shall have the meanings given such terms in the Credit
Agreement.
The Lenders, the Administrative Agent and the Borrowers wish to amend
the Credit Agreement as set forth herein.
ACCORDINGLY, the parties hereto agree as follows:
Section 1. Amendments to Credit Agreement.
(a) The following new definitions shall be added to Section 1.1 of
the Credit Agreement in appropriate alphabetical order:
"'Leverage' shall mean the quotient obtained by dividing (a) Total
Borrower Liabilities by (b) Tangible Book Net Worth."
"'Senior Unsecured Indebtedness' shall mean the amount of all unsecured
Indebtedness of DFC and its consolidated Subsidiaries, other than unsecured
Indebtedness of DFC and its consolidated Subsidiaries which is contractually
subordinate to the Obligations and the Servicing Obligations on terms acceptable
to the Administrative Agent."
(b) The definition of "Maturity Date" set forth in Section 1.1 of
the Credit Agreement shall be amended by replacing "June 22, 2001" with "June
21, 2002".
(c) The second proviso in the first sentence of Section 2.1(b) of
the Credit Agreement and the second sentence of Section 2.8(b) of the Credit
Agreement shall be deleted in their entirety.
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(d) Section 4.14 of the Credit Agreement shall be amended by
replacing "4,000,000,000" with "6,000,000,000".
(e) The text of Section 5.3(a) of the Credit Agreement shall be
deleted in its entirety and replaced with "[Intentionally Omitted]", and Exhibit
S to the Credit Agreement shall be deleted in its entirety.
(f) Section 5.3(b) of the Credit Agreement shall be amended by
replacing "$200,000,000" with "$260,000,000".
(g) Section 5.3(c) of the Credit Agreement shall be amended by
replacing "4,000,000,000" with "6,000,000,000."
(h) Section 5.3 of the Credit Agreement shall be amended by adding
the following new clauses (d), (e), (f), (g) and (h) immediately following
clause (c) thereof:
"(d) 'Maximum Leverage'. Permit Leverage to be greater
than 10.0."
"(e) 'Senior Unsecured Indebtedness Ratio'. Permit the
ratio of the Senior Unsecured Indebtedness to Tangible Book Net Worth to be
greater than 2.00:1.00."
"(f) 'DFC Tangible Book Net Worth'. Permit Tangible Book
Net Worth of DFC and its consolidated Subsidiaries (including, without
limitation, its Non-Mortgage Banking Subsidiaries) at any time to be less than
$450,000.000."
"(g) 'DFC Maximum Leverage'. Permit Leverage of DFC and
its consolidated Subsidiaries (including, without limitation, its Non-Mortgage
Banking Subsidiaries) to be greater than 12.0."
"(h) 'DFC Senior Unsecured Indebtedness Ratio'. Permit the
ratio of the Senior Unsecured Indebtedness of DFC and its consolidated
Subsidiaries (including, without limitation, its Non-Mortgage Banking
Subsidiaries) to Tangible Book Net Worth of DFC and its consolidated
Subsidiaries (including, without limitation, its Non-Mortgage Banking
Subsidiaries) to be greater than 1.25:1.00."
(i) The last unlettered paragraph of Section 5.3 of this Credit
Agreement shall be amended to read in its entirety as follows:
"The determination of compliance with the covenants set forth in
clauses (b), (c), (d) and (e) of this Section 5.3 shall be based upon the
quarterly financial statements delivered to the Administrative Agent as
contemplated in Section 5.1(a)(ii) for the mortgage banking operations of DFC
and its consolidated Subsidiaries (which for greater certainty shall include the
financial results of DMC, SANA Mortgage Bankers, and Centro Hipotecario de
Puerto Rico, Inc., and shall exclude the financial results of the Non-Mortgage
Banking Subsidiaries). The determination of compliance with the covenants set
forth in clauses (f), (g) and (h) of this Section 5.3 shall be based upon the
quarterly financial statements delivered to the Administrative Agent as
contemplated in Section 5.1(a)(ii) for all of the operations of DFC and its
consolidated
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Subsidiaries (which for greater certainty shall include the financial results of
all of such consolidated Subsidiaries, including, without limitation, the
financial results of the Non-Mortgage Banking Subsidiaries) and as used in such
covenants (and for the purpose of making any such determination of compliance
with such covenants) the following defined terms as used in such covenants shall
be amended as follows: (i) clause (b) of the definition of "Tangible Book Net
Worth" shall be amended by deleting subclause (i) thereof; and (ii) the
definition of "Total Borrower Liabilities" shall be amended by deleting the
parenthetical words "(other than its Non-Mortgage Banking Subsidiaries)"
therefrom."
(j) Section 1(v) of the Second Amendment shall be amended to read
in its entirety as follows:
"(v) The following Lenders and their affiliates shall have
the titles set forth below for purposes of the credit facilities contemplated by
the Credit Agreement:
Deutsche Banc Alex. Xxxxx Inc. Arranger, Syndication Agent and
Documentation Agent
Bankers Trust Company Administrative Agent
First Union National Bank Managing Agent
Bank of America N.A. Managing Agent
The acceptance of each such appointment by the related appointee shall be
evidenced by the execution and delivery of this Amendment by such appointee.
Each such appointment shall be subject to, and in its capacity as appointee each
such appointee shall be entitled to the benefit of all of the protections
afforded to an agent under, Section 7 of the Credit Agreement (other than
Section 7.9 of the Credit Agreement which shall apply only to the Administrative
Agent)."
Section 2. Representation and Warranties. The Borrowers represent and
warrant that, on and as of the date hereof and after giving effect to this
Amendment, all of the representations and warranties made by them in the Credit
Agreement and the other Loan Documents are true and correct as if made on and as
of the date hereof and no Potential Default or Event of Default has occurred and
is continuing.
Section 3. Effectiveness. This Amendment shall become effective as of
the date hereof upon delivery to the Administrative Agent of (i) counterparts of
this Amendment, duly executed and delivered by the parties hereto, and (ii)
certified copies of the resolutions of the Board of Directors of each of the
Borrowers evidencing the authorization of such Borrower to enter into this
Amendment.
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Section 4. Counterparts. This Amendment may be executed in any number
of counterparts, all of which taken together shall constitute one agreement, and
any party hereto may execute this Amendment by signing any such counterpart.
Section 5. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 6. Miscellaneous. Except as expressly amended hereby, none of
the terms, covenants and conditions contained in the Credit Agreement, the other
Loan Documents or the Intercreditor Agreement shall be amended or waived, and
all such terms, covenants and conditions shall continue to be, and shall remain,
in full force and effect in accordance with their respective terms. Nothing
contained herein shall operate as a waiver of any right, power or remedy of the
Administrative Agent or the Lenders under the Credit Agreement, any other Loan
Document or the Intercreditor Agreement, or constitute a waiver of any provision
of the Credit Agreement, any other Loan Document or the Intercreditor Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Amendment to be executed and delivered as of the day and year first above
written.
DORAL FINANCIAL CORPORATION,
as a Borrower
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Executive Vice President
and Treasurer
DORAL MORTGAGE CORPORATION,
as a Borrower
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Executive Vice President
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Facility 1 Commitment: BANKERS TRUST COMPANY,
$41,000,000 as Administrative Agent
Facility 2 Commitment: and as a Lender
$1,000,000
By: /s/ Xxxxx X. XxXxxx
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Name: Xxxxx X. XxXxxx
Title: Managing Director
Facility 1 Commitment: FIRST UNION NATIONAL BANK,
$38,000,000 as Managing Agent and as a
Facility 2 Commitment: Lender
$1,000,000
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
Facility 1 Commitment: BANK OF AMERICA, N.A.
$38,000,000 as Managing Agent and as a
Facility 2 Commitment: Lender
$1,000,000
By: /s/ Xxxxx XxXxxxxx
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Name: Xxxxx XxXxxxxx
Title: Principal
Facility 1 Commitment: FLEET NATIONAL BANK
$32,000,000 (formerly BANKBOSTON,
Facility 2 Commitment: N.A.), as a Lender
$1,000,000
By: /s/ Xxxx Xxxxxxxxxxx
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Name: Xxxx Xxxxxxxxxxx
Title: Director
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Facility 1 Commitment: THE BANK OF NEW YORK,
$ 27,000,000 as a Lender
Facility 2 Commitment:
$ 1,000,000
By: /s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
Title: Vice President
Facility 1 Commitment: NATIONAL CITY BANK OF
$27,000,000 KENTUCKY,
Facility 2 Commitment: as a Lender
$1,000,000
By: /s/ Xxxx Xx Xxxxx
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Name: Xxxx Xx Xxxxx
Title: Vice President
Facility 1 Commitment: CREDIT LYONNAIS, NEW YORK
$28,000,000 BRANCH, as a Lender
Facility 2 Commitment:
$1,000,000
By: /s/ W. Xxx Xxxxxxx
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Name: W. Xxx Xxxxxxx
Title: First Vice President
Facility 1 Commitment: COLONIAL BANK,
$19,000,000 as a Lender
Facility 2 Commitment:
$1,000,000
By: /s/ Xxx X. Xxxxxxxx
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Name: Xxx X. Xxxxxxxx
Title: Senior Vice President
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DEUTSCHE BANC ALEX. XXXXX INC.,
as Arranger, Syndication Agent and
Documentation Agent
By: /s/ Xxxxx XxXxxx
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Name: Xxxxx XxXxxx
Title: Managing Director
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