Contract
Exhibit
99.2
EXECUTION COPY
THIS INSTRUMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE (this “Instrument”), dated as
of November 30, 2005 (“Effective Date”), is by and among Doral Financial Corporation, a corporation
duly organized and existing under the laws of Puerto Rico (the “Company”), Deutsche Bank Trust
Company Americas, a corporation duly organized and existing under the laws of the State of New York
formerly known as Bankers Trust Company (the “Resigning Trustee”), and U.S. Bank National
Association, a national banking association duly organized and existing under the laws of the
United States (the “Successor Trustee”). Capitalized terms not otherwise defined herein shall have
the same meaning ascribed to such terms in the Indenture (as defined below).
RECITALS
WHEREAS, the Resigning Trustee acts as trustee under (i) that certain Indenture dated as of
October 10, 1996 as supplemented by the First Supplemental Indenture dated as of October 19, 1998
(as so supplemented, the “1996 Indenture”) pursuant to which the Company issued its 7.84% Senior
Notes due 2006 and (ii) that certain Indenture dated as of May 14, 1999 as supplemented by the
First Supplemental Indenture dated as of March 30, 2001 (as so supplemented, the “1999 Indenture,”
together with the 1996 Indenture, the “Indentures” and each an “Indenture”) pursuant to which the
Company issued six series of Senior Notes and Floating Rate Senior Notes as set forth on
Exhibit A attached hereto and made a part hereof;
WHEREAS, the Resigning Trustee desires to resign as trustee under each Indenture;
WHEREAS, the Company desires to appoint the Successor Trustee as successor trustee for each
Indenture and the Successor Trustee desires to accept the foregoing appointments;
NOW, THEREFORE, in consideration of the covenants herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Resignation of Resigning Trustee; Acceptance of Resignation; Appointment of Successor
Trustee. Pursuant to Section 608 of the 1996 Indenture and Section 6.10 of the 1999 Indenture,
the Resigning Trustee hereby resigns as indenture trustee under each of the Indentures. The
Company accepts the resignation of the Resigning Trustee as trustee and hereby appoints the
Successor Trustee as trustee under each Indenture and confers on the Successor Trustee all the
rights powers and duties of the Resigning Trustee under each Indenture, except as expressly
reserved by the Resigning Trustee in this Agreement.
2. Company Representations and Warranties. The Company represents and warrants
to the Successor Trustee that:
a. Each Indenture was validly and lawfully executed and delivered by the Company, has
not been amended or modified except in accordance with duly executed and delivered
supplemental indentures, and is in full force and effect at this time.
b. The notes issued under the terms of the Indentures are validly issued and
outstanding securities of the Company and that the principal amounts outstanding are
correctly set forth on Exhibit B.
c. No default or Event of Default has occurred and is continuing as of the date of
this Instrument except as disclosed in writing by the Company to the Successor Trustee on
or before the date hereof.
d. The Company is a corporation organized under the laws of Puerto Rico and is validly
existing and in good standing under the laws of Puerto Rico; and
e. The execution and delivery of this Instrument have been duly authorized by the
Company.
3. Resigning Trustee Representations and Warranties. The Resigning Trustee hereby
represents and warrants to the Successor Trustee that:
a. No covenant or condition contained in the Indentures has been waived by the
Resigning Trustee or, to the knowledge of the responsible officers of the Resigning Trustee
assigned to its corporate trust department, by the Holders of the percentage in aggregate
principal amount of the notes required by the Indentures to effect any such waiver.
b. There is no action, suit or proceeding pending or, to the knowledge of the
responsible officers of the Resigning Trustee assigned to its corporate trust department,
threatened against the Resigning Trustee before any court or governmental authority arising
out of any action or omission by the Resigning Trustee as trustee, paying agent and
security registrar under the Indentures.
c. The Resigning Trustee is not aware of any facts that would constitute the basis for
an indemnification claim by the Resigning Trustee under either of the Indentures.
d. To the best knowledge of the responsible officers of the Resigning Trustee assigned
to its corporate trust department, the Resigning Trustee has lawfully discharged its duties
as trustee under the Indentures.
e. The Resigning Trustee shall endeavor to deliver to Successor Trustee, as of or
immediately after the Effective Date hereof, all of the documents listed in Exhibit
C hereto, including other documents reasonably obtainable as mutually agreed upon, and
shall further deliver such other related documents as may be reasonably requested by the
Successor Trustee from time to time.
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f. The execution and delivery of this Instrument have been duly authorized by the
Resigning Trustee, and this Instrument constitutes the Resigning Trustee’s legal, valid,
binding and enforceable obligation.
g. The amounts set forth on Exhibit B attached hereto and made a part hereof
constitute the outstanding principal amounts due and owing under the notes issued pursuant
to the terms of each of the Indentures, the date through which interest has been paid under
the respective notes and the amount held in any trust account maintained by the Resigning
Trustee in its role as trustee under the terms of each Indenture.
h. To the best knowledge of the responsible officers of the Resigning Trustee assigned
to its corporate trust department, the Indentures have not been amended or modified except
as provided in the supplemental indentures provided to the Successor Trustee hereunder and
each such Indenture is in full force and effect.
i. The Resigning Trustee is holding no money or tangible property in trust under
either of the Indentures.
4. Company Certification. The Company hereby certifies to the Successor Trustee and
the Resigning Trustee that the Company and the officer of the Company who has executed this
Instrument is duly authorized to (a) accept the Resigning Trustee’s resignation as trustee under
each Indenture, (b) appoint the Successor Trustee as trustee under each Indenture and (c) execute
and deliver such agreements and other instruments as may be necessary or desirable to effectuate
the succession of the Successor Trustee as trustee under each Indenture. The Company further
represents and warrants to the Successor Trustee and the Resigning Trustee that, to the extent
necessary under Section 608 of the 1996 Indenture and Section 6.10 of the 1999 Indenture, the
Company has obtained the requisite board resolution appointing the Successor Trustee and approving
of the matters contained herein.
5. Successor Trustee Representations and Warranties. The Successor Trustee represents
and warrants to the Resigning Trustee and the Company that:
a. Subject to the representations herein, the Successor Trustee is eligible and
qualified under each Indenture and under the Trust Indenture Act of 1939, as amended, to
act as trustee under each Indenture as of the date hereof.
b. This Instrument has been duly authorized, executed and delivered on behalf of the
Successor Trustee, and this Instrument constitutes the Successor Trustee’s legal, valid,
binding and enforceable obligation.
6. Acceptance by Successor Trustee. The Successor Trustee hereby accepts the
appointment as trustee under paragraph 1 of this Instrument and shall hereby be vested with all the
rights, powers and duties of the Resigning Trustee thereunder as of the Effective Date, except as
expressly provided otherwise in this Instrument. The Successor Trustee, however, assumes no
responsibility for any actions or omissions occurring or not occurring prior to the Effective Date.
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7. Assignment etc. by Resigning Trustee. The Resigning Trustee hereby confirms,
assigns, transfers, delivers and conveys to the Successor Trustee, as indenture trustee under each
Indenture, upon the trusts expressed in each Indenture, all rights, powers, trusts privileges,
duties and obligations which the Resigning Trustee now holds under and by virtue of each Indenture,
and effective as of such date does hereby assign over to the Successor Trustee any and all property
and money held by the Resigning Trustee under and by virtue of each Indenture, with like effect as
if the Successor Trustee was originally named as trustee under each Indenture.
8. Paying Agent/Registrar. The Resigning Trustee does not resign as registrar and
paying agent under each Indenture, but it agrees and the Company agrees that from and after the
Effective Date, all amounts owing under either Indenture by the Company shall be paid by the
Company to the Successor Trustee, in the first instance, for subsequent distribution to the
Resigning Trustee, in its capacity as paying agent, and by such paying agent thereafter in
accordance with the relevant Indenture.
9. Additional Documentation. The Resigning Trustee, for the purposes of more fully
and certainly vesting in and confirming to the Successor Trustee the rights, powers, trusts,
privileges, duties and obligations hereby assigned, transferred, delivered and conveyed, agrees,
upon reasonable request of the Successor Trustee, to execute, acknowledge and deliver such further
instruments of conveyance and further assurance and to do such other things as may reasonably be
required by the Successor Trustee. The Company hereby agrees to execute and deliver such further
agreements and other instruments as may be reasonably necessary or desirable to effectuate the
succession of the Successor Trustee under each of the Indentures.
10. Additional Agreements by Company. Pursuant to Section 608 of the 1996 Indenture
and Section 6.10 of the 1999 Indenture, the Company will provide notice to the holders of the notes
issued pursuant to the Indentures of the resignation of the Resigning Trustee and the appointment
of the Successor Trustee as indenture trustee under each of the Indentures.
11. Survival of Certain Rights of Resigning Trustee. Notwithstanding this Instrument
and the resignation of the Resigning Trustee, the Resigning Trustee shall retain all rights and
entitlements relating to its service as Indenture Trustee or trustee under each Indenture arising
or accruing on or before the Effective Date, including without limitation, all entitlements to the
payment of its fees and reimbursement of its expenses. In the event and to the extent the
Successor Trustee shall exercise any lien upon the distributions to holders of the notes or
otherwise becomes entitled to receive payment of any fees and expenses as trustee under each
Indenture for any reason at a time when the fees and expenses of the Resigning Trustee have not
been fully paid, it shall do so for both its own fees and expenses and the outstanding Resigning
Trustee, for any fees and expenses of the Resigning Trustee incurred in connection with its duties
under each Indenture prior to the Effective Date.
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12. Choice of Laws. This Instrument shall be governed by and construed in accordance
with the laws of the State of New York.
13. Counterparts. This Instrument may be executed in any number of counterparts, each
of which, when so executed and delivered, shall be an original, but all counterparts shall
constitute but one Instrument.
14. Effectiveness. This Instrument and the resignation, appointment and acceptance
effected hereby shall be effective as of the close of business on the date first set forth above
(the “Effective Date”), upon the execution and delivery hereof by each of the parties hereto.
15. Notices. All notices, whether faxed or mailed, will be deemed received when sent
to the following addresses:
TO THE SUCCESSOR TRUSTEE:
Xxxxx Xxxxx
Vice President
U.S. Bank National Association
Corporate Trust Services
One Federal Street – Third Floor
Xxxxxx, Xxxxxxxxxxxxx 00000
Vice President
U.S. Bank National Association
Corporate Trust Services
One Federal Street – Third Floor
Xxxxxx, Xxxxxxxxxxxxx 00000
TO THE RESIGNING TRUSTEE:
Deutsche Bank Trust Company Americas
Xxxxxxx Xxxx
Deutsche Bank Trust Company Xxxxxxxx
XX XXX00-0000
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Deutsche Bank Trust Company Xxxxxxxx
XX XXX00-0000
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
TO THE COMPANY:
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IN WITNESS WHEREOF, the parties hereto have executed this Instrument as of the first date set
forth above.
| Doral Financial Corporation | ||||||
| By Name |
/s/ Xxxx X. Xxxx, III
|
|||||
| Its | Chairman of the Board and Chief | |||||
| Executive Officer | ||||||
| Deutsche Bank Trust Company Americas | ||||||
| By | /s/ Xxxxxxx Xxxx | |||||
| Name | Xxxxxxx Xxxx | |||||
| Its | Vice President | |||||
| U.S. Bank National Association | ||||||
| By | /s/ Xxxxx X. Xxxxx | |||||
| Name | Xxxxx X. Xxxxx | |||||
| Its | Vice President | |||||
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Exhibit A
| 1. | $625,000,000 face amount of Floating Rate Senior Notes due July 20, 2007, of which $350,000,000 were issued July 20, 2004, $125,000,000 were issued September 1, 2004 and $150,000,000 were issued September 20, 2004, with CUSIP No. 00000XXX0. |
| 2. | $115,000,000 face amount of Floating Rate Senior Notes due December 7, 2005, issued June 7, 2004, with CUSIP No. 00000XXX0. |
| 3. | $100,000,000 face amount of 7.65% Senior Notes due March 26, 2016, issued March 30, 2001, with CUSIP No.00000XXX0. |
| 4. | $30,000,000 face amount of 7.00% Senior Notes due April 26, 2012, issued April 10, 2002, with CUSIP No. 00000XXX0. |
| 5. | $40,000,000 face amount of 7.10% Senior Notes due April 26, 2017, issued April 10, 2002, with CUSIP No.00000XXX0. |
| 6. | $30,000,000 face amount of 7.15% Senior Notes due April 26, 2022, issued April 10, 2002, with CUSIP No. 00000XXX0. |
Exhibit B
| Amount Held in | ||||||||||
| Date Interest Paid | Trust Account as of | |||||||||
| Notes | Outstanding Principal | Through | date hereof | |||||||
$75,000,000 face
amount 7.84% Senior
Notes due 2006
|
$ | 75,000,000 | October 10, 2005 | 0 | ||||||
$625,000,000 face
amount Floating
Rate Senior Notes
due July 20, 2007
|
$ | 625,000,000 | October 20, 2005 | 0 | ||||||
$115,000,000 face
amount of Floating
Rate Senior Notes
due December 7,
2005
|
$ | 115,000,000 | September 7, 2005 | 0 | ||||||
$100,000,000 face
amount of Senior
Notes due March 26,
2016
|
$ | 100,000,000 | October 26, 2005 | 0 | ||||||
$30,000,000 face
amount of Senior
Notes due April 26,
2012
|
$ | 30,000,000 | October 26, 2005 | 0 | ||||||
$40,000,000 face
amount of Senior
Notes due April 26,
2017
|
$ | 40,000,000 | October 26, 2005 | 0 | ||||||
$30,000,000 face
amount of Senior
Notes due April 26,
2022
|
$ | 30,000,000 | October 26, 2005 | 0 | ||||||
Exhibit C
Documents to be delivered by Resigning Trustee to Successor Trustee as to each of the
Indentures:
1. Copies of the most recent of each of the SEC reports delivered by the Company
pursuant to such Indenture.
2. Copy of such Indenture, including any and all supplements, amendments or
modifications thereto.
3. File of Closing Documents associated with the Indenture.
4. Copy of the most recent Compliance Certificate delivered pursuant to the Indenture.
