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EXHIBIT 10.98
FIRST AMENDMENT TO WAREHOUSING LOAN AGREEMENT
THIS FIRST AMENDMENT dated as of the 23rd day of December, 1999 by and
among DORAL FINANCIAL CORPORATION, a corporation organized and existing under
the laws of the Commonwealth of Puerto Rico (hereinafter referred to as "DFC"),
DORAL MORTGAGE CORPORATION, a corporation organized and existing under the laws
of the Commonwealth of Puerto Rico (hereinafter referred to as "DMC" and,
collectively with DFC, the "Borrowers"), and CITIBANK, N.A., a national banking
association (hereinafter referred to as the "Bank").
WITNESSETH
WHEREAS, the Borrowers and the Bank entered into a Warehousing Loan
Agreement dated as of April 29, 1999 (the "Credit Agreement"; all capitalized
terms used herein which are not otherwise defined shall have the meanings set
forth in the Credit Agreement); and
WHEREAS, the Borrowers and the Bank desire to amend the Credit
Agreement in order to increase the Commitment and to effect certain other
amendments set forth below;
NOW, THEREFORE, the Borrowers and the Bank hereby amend the Credit
Agreement as hereinafter set forth.
SECTION 1. AMENDMENTS TO CREDIT AGREEMENT. The Credit Agreement is,
effective as of the date hereof and subject to the satisfaction of the
conditions precedent set forth in Section 2 hereof, hereby amended as follows:
(a) Section 2.1 is hereby amended to read, in its entirety,
as follows:
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"2.1 WAREHOUSING LOAN FACILITY. The Bank agrees, on the
terms and conditions hereinafter set forth, to make revolving credit
advances (each, an "Advance") from time to time to the Borrowers in an
aggregate principal amount not to exceed SEVENTY-FIVE MILLION DOLLARS
($75,000,000) at any time outstanding (the "Warehousing Loan Facility")
for the purpose of (i) warehousing first mortgage loans (hereinafter
referred to as "Mortgage Loans") secured by Mortgages on completed
single-family units (detached houses, townhouses and condominium
units), (each, a "Regular Sub-line Advance") and (ii) financing
Mortgage Loans held by the Borrowers that have been included in a GNMA
Pool with respect to which a GNMA Certificate shall be issued (each, a
"Gestation Sub-line Advance")."
(b) Section 3.1 is hereby amended to modify the Disbursement
Percentage applicable to Uncommitted FHA/VA Mortgage Loans to 97%.
(c) Exhibit A of the Credit Agreement is hereby amended to
include the Allonge attached hereto as Exhibit A.
SECTION 2. CONDITIONS OF EFFECTIVENESS. This Amendment shall become
effective when, and only when, the Bank shall have received all of the following
documents, each document (unless otherwise indicated) being dated the date
hereof, in form and substance satisfactory to the Bank:
(a) Certified copies of (i) the resolutions of the Board of
Directors of the Borrowers approving this Amendment and the matters contemplated
herein and (ii) all documents evidencing other necessary corporate action and
governmental approvals, if any, with respect to this Amendment and the matters
contemplated herein.
(b) Allonge to the Promissory Note in the form of Exhibit A
executed by the Borrowers.
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SECTION 3. REFERENCE TO AND EFFECT ON THE LOAN DOCUMENTS.
(a) Upon the effectiveness of Sections 1 and 2 hereof, on and
after the date hereof each reference in the Credit Agreement to "this
Agreement," "hereunder," "hereof" or words of like import referring to the
Credit Agreement, and each reference in the other Loan Documents to "the Credit
Agreement," "there under," "thereof" or words of like import referring to the
Credit Agreement, shall mean and be a reference to the Credit Agreement as
amended hereby.
(b) Each Security Agreement executed on April 29, 1999 is
hereby amended (i) by substituting Schedule II thereto with Schedule II attached
hereto and (ii) to reflect the amendment of the Credit Agreement by this
Amendment, in order that the Credit Agreement, as so amended, shall continue to
be secured by such Agreement as part of the Obligations (as defined therein).
(c) Except as specifically amended above, the Loan Documents
shall remain in full force and effect and such Loan Documents are hereby in all
respects ratified and confirmed.
SECTION 4. WAIVER. The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of the Bank under any of the Loan Documents, nor
constitute a waiver of any provision of any of the Loan Documents.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE BORROWERS.
The Borrowers represent and warrant as follows:
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(a) The execution, delivery and performance by the Borrowers
of this Amendment, and all other Loan Documents, as amended, to which any
Borrower is or will be a party, have been duly authorized by all necessary
corporate action of each Borrower and do not and will not i) contravene the
charter or by-laws of the any Borrower, ii) violate in any material respect any
provision of any applicable law, rule, regulation (including, without
limitation, Regulation X of the Board of Governors of the Federal Reserve
System), order, writ, judgment, injunction, decree, determination or award
presently in effect, iii) result in a breach of or constitute a default under
any indenture or loan or credit agreement or any other agreement, lease or
instrument to which any Borrower or any Subsidiary of the Borrowers is a party
or by which they or their properties may be bound or affected, or iv) 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 any Borrower; to the best of each Borrower's knowledge
neither Borrower nor any Subsidiary of the Borrowers is in default under any
such law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award or any such indenture, agreement, lease or instrument.
(b) No authorization, 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 Borrowers of
this Amendment, or any of the Loan Documents, as amended, to which any Borrower
is or is to be a party.
(c) There is no pending or threatened action or proceeding
affecting any Borrower or any of their Subsidiaries before any court,
governmental agency or arbitrator, which, if
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adversely determined, would materially affect the financial condition or
operations of the Borrowers or any Subsidiary or which purports to affect the
legality, validity or enforceability of this Amendment or any of the other Loan
Documents, as amended.
(d) This Amendment, and each of the other Loan Documents,
as amended, to which each Borrower is a party constitute the legal, valid and
binding obligations of the respective Borrower enforceable against the
corresponding Borrower in accordance with their respective terms, except as
their enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting the rights of creditors in
general.
(e) The representations and warranties contained in the
Credit Agreement are correct on and as of the date hereof as though made on and
as of this date.
(f) No event has occurred and is continuing which
constitutes an Event of Default or would constitute an Event of Default but for
the requirement that notice be given or time elapse or both.
SECTION 6. NO NOVATION. It is not the intention of the parties hereto
to cause a novation of the Obligations. Except as specifically amended hereby,
the Credit Agreement shall remain in full force and effect.
SECTION 7. COSTS, EXPENSES AND TAXES. The Borrowers agree to reimburse
all costs and expenses of the Bank incurred in connection with the preparation,
execution, delivery, administration, modification and amendment of this
Amendment and the other instruments and documents to be delivered hereunder,
including, without limitation, the reasonable fees and out-of-pocket expenses
of counsel for the Bank with respect thereto and
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with respect to advising the Bank as to its rights and responsibilities
hereunder and thereunder. The Borrowers further agree to reimburse the Bank for
all costs and expenses, if any (including, without limitation, reasonable
counsel fees and expenses), incurred by the Bank in connection with the
enforcement (whether through negotiations, legal proceedings or otherwise) of
this Amendment and the other instruments and documents to be delivered
hereunder, including, without limitation, reasonable counsel fees and expenses
in connection with the enforcement of rights under this Section 7. In addition,
the Borrowers shall pay any and all documentary stamp and other taxes, if any,
payable or determined to be payable in connection with the execution and
delivery of this Amendment and the other instruments and documents to be
delivered hereunder, and agrees to save the Bank harmless from and against any
and all liabilities with respect to or resulting from any delay in paying or
omission to pay such taxes.
SECTION 8. GOVERNING LAW. This Amendment shall be governed by, and
construed in accordance with, the laws of the Commonwealth of Puerto Rico.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
DORAL FINANCIAL CORPORATION DORAL MORTGAGE CORPORATION
By: /s/ Xxxxx X. Xxxxx By: /S/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx Xxxxx X. Xxxxx
Executive Vice President Executive Vice President
and Treasurer
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Affidavit No. __________
Acknowledged and subscribed to before me in San Xxxx, Puerto Rico, this
_______________ day of December, 1999, by the following person, who is
personally known to me: Xxxxx X. Xxxxx, of legal age, married, executive and
resident of San Xxxx, Puerto Rico as Executive Vice President and Treasurer of
Doral Financial Corporation and as Executive Vice President of Doral Mortgage
Corporation.
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Notary Public
CITIBANK, N.A.
By: /s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
Vice President
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EXHIBIT A
ALLONGE
The terms of that certain "Promissory Note" (hereinafter the "Note") in
the principal amount of $50,000,000 executed on April 29, 1999 under Affidavit
No. 7288 of Notary Xxxxxxxxx X. Xxxxxxx are hereby amended and modified as of
the date hereof, as follows:
1. The principal amount of the Note is hereby increased, as of the date
hereof, to SEVENTY-FIVE MILLION THOUSAND DOLLARS ($75,000,000).
2. The references in the Note to the "Loan Agreement" shall mean and be
to the Warehousing Loan Agreement among Doral Financial Corporation, Doral
Mortgage Corporation and Citibank, N.A. dated as of April 29, 1999, as amended
on December 23, 1999 and as it may be hereafter amended, supplemented or
modified.
3. It is not the intention of the parties to cause a novation of the
indebtedness evidenced by the Note.
4. Except as amended hereby, all other terms and conditions of the Note
shall remain unchanged and in full force and effect.
EXECUTED in San Xxxx, Puerto Rico, as of the 23rd day of December,
1999.
DORAL FINANCIAL CORPORATION DORAL MORTGAGE CORPORATION
By: /s/ Xxxxx X. Xxxxx By:
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Xxxxx X. Xxxxx Xxxxx X. Xxxxx
Executive Vice President Executive Vice President
and Treasurer
Affidavit No. __________
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Acknowledged and subscribed to before me in San Xxxx, Puerto Rico, this
__ day of December, 1999, by the following person, who is personally known to
me: Xxxxx X. Xxxxx, of legal age, married, executive and resident of San Xxxx,
Puerto Rico as Executive Vice President and Treasurer of Doral Financial
Corporation and as Executive Vice President of Doral Mortgage Corporation.
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Notary Public
ACCEPTED AND AGREED TO,
as of the date above
indicated
CITIBANK, N.A.
By:
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Xxxxx Xxxxxxx
Vice President
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SCHEDULE II
ASSIGNED AGREEMENTS
Party Date Amount
----- ---- ------
1. Banco Popular December 1, 1999 $175,000,000
de Puerto Rico
2. Westernbank October 8, 1999 $ 50,000,000
