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EXHIBIT 10.75
THIRD AMENDMENT TO
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
THIS THIRD AMENDMENT TO FIRST AMENDED AND RESTATED CREDIT AGREEMENT
(the "Amendment"), dated as of June 27, 1997, is entered into between the
Lenders party hereto, BANKERS TRUST COMPANY, a New York banking corporation, as
agent for the Lenders (the "Agent"), FIRST FINANCIAL CARIBBEAN CORPORATION, a
corporation organized under the laws of the Commonwealth of Puerto Rico
("FFCC"), and DORAL MORTGAGE CORPORATION, a corporation organized under the laws
of the Commonwealth of Puerto Rico and a wholly-owned subsidiary of FFCC ("DMC",
and together with FFCC, each a ABorrower" and collectively, the ABorrowers"),
with reference to the First Amended and Restated Credit Agreement, dated as of
September 25, 1996, between the Lenders, the Agent and the Borrowers (as amended
by the First Amendment to First Amended and Restated Credit Agreement and
Certain Other Loan Documents dated as of January 8, 1997, the Second Amendment
to First Amended and Restated Credit Agreement dated as of March 28, 1997, and
as further amended, supplemented or otherwise modified from time to time, the
ACredit Agreement"). All capitalized terms used but not otherwise defined herein
shall have the meanings given such terms in the Credit Agreement.
The Lenders, the 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 definition of "ADJUSTED TANGIBLE NET WORTH" in Section 1.1 of
the Credit Agreement shall be amended to read as follows:
"ADJUSTED TANGIBLE NET WORTH" shall mean, as of any date, (a)
the sum of: (i) Book Net Worth as of such date, (ii) one
percent (1.0%) of the outstanding principal balance of
mortgage loans with respect to which the Borrowers have direct
servicing rights on such date, and (iii) the aggregate
principal amount of Permitted Subordinated Indebtedness
outstanding as of such date, less (b)(i) fifty percent (50%)
of all excess servicing fees receivable (or if excess
servicing fees receivable are recharacterized as "interest
only securities" on the consolidated and consolidating balance
sheet of FFCC and its consolidated Subsidiaries, then fifty
percent (50%) of the amount of such securities reflected on
FFCC=s consolidated balance sheet), (ii) all purchased loan
administration contracts and (iii) all other assets that would
be classified as intangible assets under GAAP, including
purchased and capitalized value of servicing rights, goodwill
(whether representing the excess cost over book
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value of assets acquired or otherwise), patents,
trademarks, trade names, copyrights, franchises, deferred
charges (including unamortized debt discount and expense,
organization and acquisition costs and research and product
development costs), and in accordance with FASB 65, as amended
by FASB 122, by the Financial Accounting Standards Board, any
originated mortgage servicing rights."
(b) The percentage "0.95%" in clause (ii) of the definition of
"COLLATERAL VALUE OF THE PLEDGED SERVICING PORTFOLIO" in Section 1.1 of the
Credit Agreement shall be changed to "1.0%".
(c) Clause (n) of the definition of "ELIGIBLE MORTGAGE LOAN" in Section
1.1 of the Credit Agreement shall be amended to read as follows:
"(n) if such Mortgage Loan is included in the Facility 1
Tranche B Borrowing Base, such Mortgage Loan has not been
included in such Borrowing Base for a period in excess of
three hundred and sixty-five (365) days from the date such
Mortgage Loan was first included in such Borrowing Base, and
if such Mortgage Loan is included in the Facility 1 Tranche A
Borrowing Base, such Mortgage Loan has not been included in
the Facility 1 Tranche A Borrowing Base (as an unpooled
Mortgage Loan) for a period in excess of thirty (30) days from
the date such Mortgage Loan was first included in the Facility
1 Tranche A Borrowing Base and has not been included in the
Facility 1 Tranche A Borrowing Base and the Facility 1 Tranche
B Borrowing Base (as an unpooled Mortgage Loan) for a
cumulative period in excess of three hundred and sixty-five
(365) days from the date such Mortgage Loan was first included
in the Facility 1 Tranche B Borrowing Base; provided that if
such Mortgage Loan has been included in the Facility 1 Tranche
B Borrowing Base for a period in excess of one hundred and
eighty (180) days from the date such Mortgage Loan was first
included in such Borrowing Base, or if such Mortgage Loan has
been included in the Facility 1 Tranche A Borrowing Base (as
an unpooled Mortgage Loan) and has been included in the
Facility 1 Tranche A Borrowing Base and the Facility 1 Tranche
B Borrowing Base (as an unpooled Mortgage Loan) for a
cumulative period in excess of one hundred and eighty (180)
days from the date such Mortgage Loan was first included in
the Facility 1 Tranche B Borrowing Base, then if the original
principal amount of such Mortgage Loan, when added to the
original principal amount of any other such Mortgage Loans
included in the Facility 1 Borrowing Base for a period in
excess of one hundred and eighty (180) days, exceeds
$50,000,000, then such Mortgage Loan shall be deemed to have
no collateral value for purposes of computing the Collateral
Value of the Facility 1 Borrowing Base."
In addition, Exhibit H-1 to the Credit Agreement (Facility 1 Tranche A and B
Borrowing Base Certificate) shall be modified to conform to the amendment to the
Credit Agreement set forth in this Section 1(c).
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(d) The definition of "MATURITY DATE" in Section 1.1 of the Credit
Agreement shall be amended to read as follows:
""MATURITY DATE" shall mean June 27, 1998; provided that upon
the written request of the Borrowers to the Agent, the Lenders
may elect to extend the Maturity Date on terms as they may
deem appropriate in their sole discretion."
(e) Section 5.2(b) of the Credit Agreement shall be amended to read as
follows:
"(b) Change of Business. Except as permitted under
Section 5.2(e), engage in any type of business that is
unrelated to the mortgage banking and lending business and the
servicing of mortgage loans or any related financial service
business or permit any of FFCC=s Subsidiaries to engage in any
type of business other than financial services (including,
without limitation, any activity permitted for banks, savings
associations, or savings and loan or bank holding companies)."
(f) The parenthetical at the end of Section 5.2(c) of the Credit
Agreement shall be amended to read as follows:
"(including, without limitation, any activity permitted for
banks, savings associations, or savings and loan or bank
holding companies)."
(g) Section 5.2(d) of the Credit Agreement shall be amended to read as
follows:
"(d) Transactions with Affiliates. Enter into, or
permit any of its Subsidiaries directly or indirectly to enter
into, any transaction (including the purchase, sale, lease or
exchange of any property, the making or borrowing of any loan
or the rendering of any service) with any Affiliate on terms
that are less favorable to such Borrower or such Subsidiary
than those that might be obtained at the time from Persons who
are not Affiliates, other than the existing Master Purchase,
Servicing and Collections Agreement dated as of September 15,
1993 with Doral Federal Savings Bank ("Doral Federal"), the
Amended and Restated Master Production Agreement among FFCC,
DMC and Doral Federal dated as of October 1, 1995, as amended
by the First Amendment to Master Production Agreement, dated
as of March 1, 1996 and the Master Servicing and Collection
Agreement between FFCC and Doral Federal, dated as of October
1, 1995, as amended by the First Amendment to Master Servicing
and Collection Agreement, dated as of March 1, 1996, each as
in effect on such respective date."
(h) Section 5.3(a) of the Credit Agreement shall be amended to read as
follows:
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"(a) Total Liabilities. Permit FFCC on a consolidated
basis (excluding any Subsidiaries that are not primarily
engaged primarily in the business of mortgage banking as
reasonably determined by the Agent) to incur Total Liabilities
in excess of the sum of (i) one-hundred percent (100%) of
ACash" or Acash equivalents"; (ii) ninety-five percent (95%)
of the sum of (A) AMortgage Loans held for sale" and (B)
AMortgage-backed securities held for trading"; (iii) ninety
percent (90%) of "Accrued interest receivable"; (iv) eighty
percent (80%) of the sum of (A) Mortgage-backed securities
held to maturity", and (B) AAccounts receivable and mortgage
servicing advances"; (v) eighty percent (80%) of "prepaid and
other assets" (excluding investment in Subsidiaries); (vi)
fifty percent (50%) of the sum of (A) AProperty, leasehold
improvements and equipment" and (B) AReal estate held for
sale"; (vii) fifty percent (50%) of "Excess servicing fees
receivable" (or if excess servicing fees receivable are
recharacterized as "interest only securities" on the
consolidated and consolidating balance sheet of FFCC and its
consolidated Subsidiaries, then fifty percent (50%) of the
amount of such securities reflected on FFCC=s consolidated
balance sheet); and (viii) 1.0% of the principal amount of
Mortgage Loans owned by Persons not affiliated with FFCC or
DMC or any of their Affiliates (unless covered by a Permitted
Affiliate Servicing Agreement) for which FFCC or DMC owns the
direct servicing rights. All quoted terms used in the
preceding sentence shall have the same meanings, and shall
continue to be calculated and classified in the same manner,
as the terms used in the balance sheet of FFCC and its
consolidated Subsidiaries referred to in Section 4.4(a)."
(i) Section 5.3(b) of the Credit Agreement shall be amended to read as
follows:
"(b) Adjusted Tangible Net Worth. Permit
Adjusted Tangible Net Worth at any time to be less than
$100,000,000."
(j) Section 5.3(c) of the Credit Agreement shall be amended to read as
follows:
"(c) Book Net Worth. Permit Book Net Worth at
any time to be less than $106,000,000."
Section 2. Representations and Warranties. The Borrowers represent and
warrant that, on and as of the date hereof, 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 Agent of counterparts of this Amendment ,
duly executed and delivered by the parties
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hereto, together with a certified copy of resolutions of the Board of Directors
of each of the Borrowers approving the execution, delivery and performance of
this Amendment and the transactions contemplated herein.
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, the
Credit Agreement and the other Loan Documents shall remain in full force and
effect. Nothing contained herein shall operate as a waiver of any right, power
or remedy of the Agent or the Lenders under the Credit Agreement or any other
Loan Document, nor constitute a waiver of any provision of the Credit Agreement
or any other Loan Document.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the day and year first above written.
FIRST FINANCIAL CARIBBEAN CORPORATION,
as a Borrower
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
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Title: Executive V.P. & Treasurer
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DORAL MORTGAGE CORPORATION,
as a Borrower
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
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Title: Executive Vice President
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BANKERS TRUST COMPANY,
as Agent and as a Lender
By: /s/ Xxxxx X. XxXxxx
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Name: Xxxxx X. XxXxxx
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Title: Vice President
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FIRST UNION NATIONAL BANK OF NORTH CAROLINA,
as a Lender
By: /S/ R. Xxxxxx Xxxx
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Name: R. Xxxxxx Xxxx
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Title: Vice President
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BANKBOSTON, N.A. (formerly known as
The Bank of Boston),
as a Lender
By: /S/ Xxxx X. Xxxxxxxxxxx
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Name: Xxxx X. Xxxxxxxxxxx
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Title: Vice President
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THE BANK OF NEW YORK,
as a Lender
By: /S/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
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Title: Vice President
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NATIONAL CITY BANK OF KENTUCKY,
as a Lender
By: /S/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Vice President
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