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EXHIBIT 10.97
FIRST AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
(SERVICING FACILITY)
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
(SERVICING FACILITY) (the "AMENDMENT"), dated as of November 30, 1999, is
entered into between the Lenders party hereto, BANKERS TRUST COMPANY, a New
York banking corporation, as agent for the Lenders (the "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 ("DMC", and together with DFC, each a "BORROWER"
and collectively, the "BORROWERS"), with reference to the Amended and Restated
Credit Agreement (Servicing Facility), dated as of June 25, 1999, between the
Borrowers, the 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 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" set forth in
Section 1.1 of the Credit Agreement shall be deleted in its entirety.
(b) The definition of "BOOK NET WORTH" set forth in Section 1.1 of
the Credit Agreement shall be deleted in its entirety, all references to "Book
Net Worth" in the Credit Agreement shall be deemed to be references to "Book
Net Worth" in the Credit Agreement shall be deemed to be references to
"Tangible Book Net Worth", and the following definition shall be added to
Section 1.1 of the Credit Agreement immediately following the definition of
"SUBSIDIARY":
""TANGIBLE BOOK NET WORTH" shall mean (a) the net worth,
determined in accordance with GAAP consistently applied, of DFC on a
consolidated basis, less (b) the sum of (i) all investments in,
advances to and retained earnings of the Non-Mortgage Banking
Subsidiaries, and (ii) all other assets that would be classified as
intangible assets under GAAP, including goodwill (whether representing
the excess cost over book value of assets acquired or otherwise),
patents, trademarks, trade names, copyrights, franchises, deferred
charges (including unamortized debt discount and expense, organization
and acquisition costs and research and product development costs)."
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(c) The following definition shall be added to Section 1.1 of the
Credit Agreement immediately following the definition of
"MULTIEMPLOYER PLAN":
""NON-MORTGAGE BANKING SUBSIDIARIES" shall mean the
following Subsidiaries of DFC: (i) Doral Bank, (ii) Doral
Securities Inc., (iii) Doral Bank FSB, (iv) Doral Capital,
Inc., (v) Doral Properties, Inc., (vi) Doral Money, Inc., and
(vii) any other Subsidiary that is not primarily engaged in
the business of mortgage banking as reasonably determined by
the Agent."
(d) The definition of "TOTAL LIABILITIES" set forth in Section 1.1
of the Credit Agreement shall be amended to read as follows:
""TOTAL LIABILITIES" shall mean (a) the sum of (i) the
aggregate amount of all liabilities of each Borrower and each of its
consolidated Subsidiaries (other than the Non-Mortgage Banking
Subsidiaries) determined in accordance with GAAP, consistently
applied, other than Permitted Subordinated Indebtedness, and (ii) all
indebtedness and liabilities of Non-Mortgage Banking Subsidiaries
assumed or guaranteed by each Borrower and each of its consolidated
Subsidiaries (other than the Non-Mortgage Banking Subsidiaries), or
secured by any Lien upon property owned by any such Person, whether or
not such indebtedness is assumed, or in respect of which such Person
is secondarily or contingently liable (other than by endorsement of
instruments in the course of collection), including contingent
reimbursement obligations of such Person under undrawn letters of
credit, whether by reason of any agreement to acquire such
indebtedness or to supply or advance sums or otherwise, less (b) the
sum of (i) the aggregate amount of intercompany payables owing from
one Borrower to the other Borrower, (ii) the aggregate amount of
intercompany payables owing by either Borrower to Doral Securities,
Inc. and (iii) an amount not exceeding $45,000,000 in indebtedness
owing by Doral Properties, Inc. guaranteed by DFC relating to an
industrial revenue bond financing issued to finance DFC's new
corporate headquarters and related facilities."
(e) Section 4.8 of the Credit Agreement shall be amended to read
as follows:
"SECTION 4.8 SUBSIDIARIES.
As of November 30, 1999, DFC has no
Subsidiaries other than (i) DMC, (ii) Doral Bank, (iii)
Centro Hipotecario de Puerto Rico, Inc., (iv) Doral
Properties, Inc., (v) Doral Securities, Inc., (vi) Doral Bank
FSB, (vii) Doral Money, Inc., (viii) Doral Capital, Inc., and
(ix) SANA Mortgage Bankers. DFC owns, directly or through
another Subsidiary of DFC, one hundred percent (100%) of the
stock of each such Subsidiary, and all of the stock of each
such Subsidiary has been duly issued and is fully paid and
nonassessable. DMC has no Subsidiaries as of November 30,
1999 other than SANA Mortgage Bankers."
(f) Section 5.3(a) of the Credit Agreement shall be deleted in its
entirety.
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(g) Section 5.3(b) of the Credit Agreement shall be amended to
read as follows:
"(b) Tangible Book Net Worth. Permit Tangible Book Net
Worth at any time to be less than $200,000,000."
(h) Section 5.3(c) of the Credit Agreement shall be amended to
read as follows:
"(c) Tangible Book Net Worth Leverage. Permit the ratio of
Total Liabilities to Tangible Book Net Worth at any time to
exceed 11.0:1.0."
(i) Section 5.3 of the Credit Agreement shall be amended by
adding the following paragraph immediately following Section
5.3(d):
"The determination of compliance with all covenants set forth
in this Section 5.3 shall be based upon the quarterly
financial statements delivered to the 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."
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 hereto.
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
and the other Loan Documents 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 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed 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
BANKERS TRUST COMPANY,
as Agent and as a Lender
By: /s/ Xxxxx X. XxXxxx
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Name: Xxxxx X. XxXxxx
Title: Managing Director
FIRST UNION NATIONAL BANK,
as a Lender
By: /s/ R. Xxxxxx Xxxx
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Name: R. Xxxxxx Xxxx
Title: Vice President
BANKBOSTON, N.A., as a Lender
By: /s/ Xxxx X. Xxxxxxxxxxx
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Name: Xxxx X. Xxxxxxxxxxx
Title: Vice President
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THE BANK OF NEW YORK,
as a Lender
By:
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Name:
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Title:
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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
Title: Senior Vice President
CREDIT LYONNAIS, NEW YORK BRANCH,
as a Lender
By: /s/ W. Xxx Xxxxxxx
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Name: W. Xxx Xxxxxxx
Title: Vice President
HIBERNIA NATIONAL BANK,
as a Lender
By: /s/ Xxxxxxxxx X. Xxxxx
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Name: Xxxxxxxxx X. Xxxxx
Title: Vice President
COLONIAL BANK,
as a Lender
By: /s/ Xxxxxxxxx X. Xxxxxxx
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Name: Xxxxxxxxx X. Xxxxxxx
Title: Senior Vice President and Director
