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EXHIBIT 10.101
SECOND AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
(WAREHOUSE FACILITY)
THIS SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
(WAREHOUSE FACILITY) (the "AMENDMENT"), dated as of June 23, 2000, 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
(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, 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 following new definitions shall be added to Section 1.1 of
the Credit Agreement in appropriate alphabetical order:
""ADJUSTED ASSETS" shall mean, with respect to each asset of
DFC and its consolidated Subsidiaries (other than its Non-Mortgage
Banking Subsidiaries), the quotient obtained by multiplying the value
of such asset as determined in accordance with GAAP, consistently
applied, by the Maximum Liability Factor for such asset as set forth
in Exhibit S."
""AGGREGATE ADJUSTED ASSETS" shall mean, with respect to DFC
and its consolidated Subsidiaries (other than its Non-Mortgage Banking
Subsidiaries), the aggregate amount of all Adjusted Assets of such
entities."
""TOTAL BORROWER LIABILITIES" shall mean the aggregate amount
of all liabilities of DFC and its consolidated Subsidiaries (other
than its Non-Mortgage Banking Subsidiaries) determined in accordance
with GAAP, consistently applied, other than (i) Permitted Subordinated
Indebtedness, and (ii) any preferred stock included as a liability of
such entity in accordance with GAAP."
(b) Clause (l) of the definition of "Eligible Mortgage Loan" shall
be amended to read as follows:
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"(l) if the promissory note for such Mortgage Loan (or any other
documentation relating thereto) has been withdrawn from the possession
of the Collateral Agent on the terms and subject to conditions set
forth in Section 6(a) of the Security Agreement, (i) the promissory
note and any related documentation for such Mortgage Loan has been
shipped by the Collateral Agent directly to an Approved Investor for
purchase, as permitted under Section 6(a) of the Security Agreement,
(ii) such shipment has occurred within the immediately preceding two
(2) Business Days (or within the immediately preceding five (5) days
in the case of Mortgage Loan sales to the FNMA or FHLMC cash window),
and (iii) the collateral value of the Mortgage Loan for which such
note or other documentation has been shipped, when added to the
collateral value of all other Mortgage Loans for which notes or other
documentation have been shipped to an Approved Investor pursuant to
Section 6(a) of the Security Agreement or released to either Borrower
pursuant to Section 6(i) of the Security Agreement, does not exceed
$25,000,000 in the aggregate;"
(c) Clause (r) of the definition of "Eligible Mortgage Loan" shall
be re-lettered as clause (t), the word "and" at the end of clause (q) thereof
shall be deleted, and the following new clauses (r) and (s) shall be added to
the definition of "Eligible Mortgage Loan" immediately following clause (q)
thereof:
"(r) if the promissory note for such Mortgage Loan (or any other
documentation relating thereto) has been withdrawn from the possession
of the Collateral Agent on the terms and subject to conditions set
forth in Section 6(c) of the Security Agreement, (i) the promissory
note and any related documentation for such Mortgage Loan has been
shipped or delivered by the Collateral Agent directly to the
Certificating Custodian, as permitted under Section 6(c) of the
Security Agreement, and (ii) the Certificating Custodian is in
compliance with the requirements set forth in Section 6(c) of the
Security Agreement relating to such Mortgage Loan or other
documentation;
(s) if the promissory note for such Mortgage Loan (or any other
documentation relating thereto) has been withdrawn from the possession
of the Collateral Agent on the terms and subject to conditions set
forth in Section 6(i) of the Security Agreement, (i) such note or
other documentation has been released to the applicable Borrower
pursuant to a trust receipt as permitted under Section 6(i) of the
Security Agreement for the purpose of ultimate sale or for the purpose
of shipping, processing or otherwise dealing with such note or other
documentation in a manner preliminary to their sale, and such Borrower
intends to ship the note and related documentation directly to an
Approved Investor in accordance with the terms of Section 6(a) of the
Security Agreement under cover of a transmittal letter substantially
in the form of Attachment 3-A to the Security Agreement (except for
notes or other documentation which will be returned to the Collateral
Agent after correction of clerical or other non-substantive
documentation problems and which notes or other documentation released
to either Borrower for such purpose have a collateral value that does
not exceed $3,000,000 in the aggregate), (ii) such note and other
documentation have been returned to the Collateral Agent within three
(3) Business Days, and (iii) the collateral value of the Mortgage Loan
for which such note or other documentation has been released, when
added to the collateral value of
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all other Mortgage Loans for which notes or other documentation have
been released to either Borrower pursuant to Section 6(i) of the
Security Agreement or shipped to an Approved Investor pursuant to
Section 6(a) of the Security Agreement, does not exceed $25,000,000 in
the aggregate; and"
(d) The definition of "ELIGIBLE NON-CONFORMING MORTGAGE LOAN" set
forth in Section 1.1 of the Credit Agreement shall be amended by replacing
"$3,000,000" in clause (d) thereof with "$10,000,000".
(e) The definition of "MATURITY DATE" set forth in Section 1.1 of
the Credit Agreement shall be amended by replacing "June 23, 2000" with "June
22, 2001".
(f) The definition of "NON-MORTGAGE BANKING SUBSIDIARIES" set
forth in Section 1.1 of the Credit Agreement shall be amended to read as
follows:
""NON-MORTGAGE BANKING SUBSIDIARIES" shall mean any
Subsidiary of DFC that is not primarily engaged in the business of
mortgage banking as reasonably determined by the Agent from time to
time, including the following: (i) Doral Bank, (ii) Doral Securities,
Inc., (iii) Doral Bank FSB, (iv) Doral Capital, Inc., (v) Doral
Properties, Inc., (vi) Doral Money, Inc., (vii) Doral Agency, Inc.,
and (viii) Doral International, Inc."
(g) The definition of "TOTAL LIABILITIES" set forth in Section 1.1
of the Credit Agreement shall be deleted in its entirety.
(h) Section 2.1(d) of the Credit Agreement shall be amended by
deleting the phrase "; and provided further that the aggregate principal amount
of Facility 2 Tranche C Loans plus the aggregate principal amount of Servicing
Loans outstanding at any time shall not exceed the then current Collateral
Value of the Pledged Servicing Portfolio" at the end of the first sentence
thereof.
(i) Section 2.1 of the Credit Agreement shall be amended by adding
the following new Section 2.1(g) thereto immediately following Section 2.1(f):
"(g) Limitation on Aggregate Facility 2 Loans and
Servicing Loans. Notwithstanding anything contained herein, the
aggregate principal amount of Facility 2 Tranche A Loans, Facility 2
Tranche B Loans and Facility 2 Tranche C Loans plus the aggregate
principal amount of Servicing Loans outstanding at any time shall not
exceed the then current Collateral Value of the Pledged Servicing
Portfolio."
(j) Section 2.8(d) of the Credit Agreement shall be amended by
replacing the phrase "Facility 2 Tranche C Loans" with the phrase "Facility 2
Tranche A Loans, Facility 2 Tranche B Loans and Facility 2 Tranche C Loans"
wherever it appears in such section.
(k) Section 4.8 of the Credit Agreement shall be amended to read
as follows:
"SECTION 4.8 SUBSIDIARIES.
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As of June 23, 2000, 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., (ix)
SANA Mortgage Bankers, (x) Doral Agency, Inc., and (xi) Doral
International, Inc. 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 June 23, 2000 other than SANA Mortgage Bankers."
(l) Section 5.1(a)(i) of the Credit Agreement shall be amended by
replacing the phrase "ninety-five (95) days" with the phrase "one hundred (100)
days".
(m) Section 5.1(a)(ii) of the Credit Agreement shall be amended by
replacing the phrase "fifty (50) days" with the phrase "fifty-five (55) days".
(n) Section 5.1(a) of the Credit Agreement shall be amended by
renumbering clause (xii) thereof as clause (xiii), by deleting the word "and"
at the end of clause (xi) thereof, and by adding thereto immediately following
clause (xi) thereof the following new clause (xii):
"(xii) Federal Reserve Report. As soon as available and in
any event within fifty-five (55) days after the end of each fiscal
quarter of DFC, Federal Reserve Report FR Y-9C Risk Based Capital
Report for DFC and its Subsidiaries and any successor report thereto
or replacement thereof; and"
(o) Section 5.1 of the Credit Agreement shall be amended to add
the following new clause (j) thereto immediately following clause (i) thereof:
"(j) Replacement of Notes and Security Documents. Upon
receipt of an affidavit of an officer of any Lender as to the loss,
theft, destruction or mutilation of any Note held by such Lender or
any security document executed in connection herewith which is not of
public record, and, in the case of any such loss, theft, destruction
or mutilation, upon cancellation of such Note or security document,
issue, in lieu thereof, a replacement note, in the same principal
amount thereof and otherwise of like tenor, or security document."
(p) 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 (i) the
mortgage banking and lending business and the servicing of Mortgage
Loans, or (ii) any related financial services business (including,
without limitation, any activity permitted for banks, savings
associations, savings and loan or bank holding companies, or financial
holding companies), or permit any of DFC's Subsidiaries to engage in
any type of business other than financial services (including, without
limitation, any activity permitted for banks, savings associations,
savings and loan or bank holding companies, or financial holding
companies); provided that the Borrowers may create one or more
Subsidiaries for the purposes of acquiring,
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developing and holding real property to be leased principally to DFC
and DFC's other Subsidiaries."
(q) Section 5.2 of the Credit Agreement shall be amended by adding
the following new clause (p) immediately following clause (o) thereof:
"(p) Well Capitalized Institution. In the case of DFC,
cease to be a "well capitalized institution" in accordance with the
guidelines relating to such institutions promulgated by the Board from
time to time."
(r) Section 5.3 of the Credit Agreement shall be amended by adding
the following new clause (a) immediately preceding clause (b) thereof:
"(a) Total Borrower Liabilities. Permit DFC and its
consolidated Subsidiaries (other than its Non-Mortgage Banking
Subsidiaries) to incur Total Borrower Liabilities in excess of
Aggregate Adjusted Assets. An example of the determination of
compliance with such covenant, for illustrative purposes only, is set
forth in Exhibit S."
(s) Section 5.3(c) of the Credit Agreement shall be deleted in its
entirety and Section 5.3(d) shall be renumbered Section 5.3(c).
(t) The form of "Sample Calculation of Total Borrower Liabilities"
attached as Appendix A hereto shall be added to the Credit Agreement as a new
Exhibit S thereto immediately following Exhibit R thereto.
(u) Hibernia National Bank shall cease to be a Lender under the
Credit Agreement, the other Loan Documents and the Intercreditor Agreement for
all purposes thereof and Bank of America, N.A. shall be added as a Lender under
the Credit Agreement, the other Loan Documents and the Intercreditor Agreement.
The Commitments of the respective Lenders shall be as set forth opposite the
names of the Lenders on the signature pages hereto.
(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:
<TABLE>
<S> <C>
Deutsche Bank Securities Inc. Arranger and Syndication Agent
Deutsche Bank Securities Inc. Documentation Agent
Bankers Trust Company Administrative Agent
First Union National Bank Managing Agent
Bank of America, N.A. Managing Agent
</TABLE>
(w) All references to the "Agent" under the Credit Agreement and
the other Loan Documents shall be deemed to be references to the
"Administrative Agent".
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
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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, (ii) the Amendment to the Amended and Restated Security, Custody and
Collateral Agency Agreement (Warehouse Facility) in the form of Appendix B
hereto, duly executed and delivered by the parties thereto, (iii) a duly
executed Facility 1 Note and Facility 2 Note for Bank of America, N.A., (iv)
reliance letters from New York counsel and Puerto Rico counsel for the
Borrowers addressed to Bank of America, N.A., in the form of Appendix C-1 and
Appendix C-2 hereto, respectively, duly executed by such counsel, and (v) an
opinion letter from Puerto Rico counsel for the Borrowers addressed to the
Lenders in the form of Appendix D hereto.
Section 4. Post-Closing Matters. The Borrowers agree to deliver
to the Administrative Agent not later than forty-five (45) days following the
date hereof, 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 and the Additional Lender Agreement being executed and
delivered by such Borrower concurrently with the execution and delivery of this
Amendment and to consummate the transactions and matters contemplated hereby
and thereby.
Section 5. 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 6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 7. 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, 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/ Mario S. Levis
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Title: Executive Vice President and Treasurer
DORAL MORTGAGE CORPORATION,
as a Borrower
By: /s/ Mario S. Levis
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Name: Mario S. Levis
Title: Executive Vice President
Facility 1 Commitment: BANKERS TRUST COMPANY,
$41,000,000 as Administrative Agent and as a Lender
Facility 2 Commitment:
$1,000,000 By: /s/ Kevin M. McCann
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Kevin M. McCann
Managing Director
Facility 1 Commitment: FIRST UNION NATIONAL BANK,
$38,000,000 as Managing Agent and as a Lender
Facility 2 Commitment:
$1,000,000 By: /s/ R. Steven Hall
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Name: R. Steven Hall
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Title: Vice President
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Facility 1 Commitment: BANK OF AMERICA, N.A.
$38,000,000 as Managing Agent and as a Lender
Facility 2 Commitment:
$1,000,000 By: /s/ Chad Patton
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Name: Chad Patton
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Title: Vice President
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Facility 1 Commitment: FLEET NATIONAL BANK (formerly BANKBOSTON,
$32,000,000 N.A.), as a Lender
Facility 2 Commitment:
$1,000,000 By: /s/ Robert T.P. Storer
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Name: Robert T.P. Storer
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Title: Managing Director
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Facility 1 Commitment: CREDIT LYONNAIS, NEW YORK BRANCH,
$28,000,000 as a Lender
Facility 2 Commitment:
$1,000,000 By: /s/ W. Jay Buckley
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Name: W. Jay Buckley
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Title: First Vice President
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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/ Robert W. Pierson
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Name: Robert W. Pierson
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Title: Vice President
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Facility 1 Commitment: NATIONAL CITY BANK OF KENTUCKY,
$27,000,000 as a Lender
Facility 2 Commitment:
$1,000,000 By: /s/ Robert Ogburn
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Name: Robert Ogburn
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Title: Senior Vice President
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Facility 1 Commitment: COLONIAL BANK,
$19,000,000 as a Lender
Facility 2 Commitment:
$1,000,000 By: /s/ Amy J. Nunneley
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Name: Amy J. Nunneley
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Title: SVP
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