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EXHIBIT 4.6
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PLEDGE AND SECURITY AGREEMENT
BETWEEN
PUERTO RICO INDUSTRIAL, TOURIST,
EDUCATIONAL, MEDICAL AND ENVIRONMENTAL CONTROL
FACILITIES FINANCING AUTHORITY
AND
DORAL PROPERTIES, INC.
DATED NOVEMBER 3, 1999
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This Pledge and Security Agreement has been assigned to Citibank,
N.A., as Trustee under a Trust Agreement dated the date hereof, as amended or
supplemented from time to time, from Puerto Rico Industrial, Tourist,
Educational, Medical and Environmental Control Facilities Financing Authority
to such Trustee. A copy of such Trust Agreement may be inspected at the
corporate trust office of the Trustee at 252 Xxxxx de Xxxx Avenue, Second
Floor, Hato Rey, Puerto Rico.
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TABLE OF CONTENTS
Page
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Section 1. Defined Terms....................................................... 1
Section 2. Grant of Security; Pledge of Mortgage
Note................................................................ 2
Section 3. Rights of the Authority and the Trustee............................. 3
Section 4. Application of Funds................................................ 5
Section 5. Releases from Lien of Mortgage in Connection
with Sale of Minor Parcels.......................................... 5
Section 6. Representations and Warranties...................................... 7
Section 7. Maintenance of Property............................................. 8
Section 8. Compliance with Laws................................................ 9
Section 9. Insurance........................................................... 10
Section 10. Damage, Destruction and Condemnation................................ 12
Section 11. Redemption Upon Occurrence of a Casualty
Or a Taking......................................................... 19
Section 12. Right of Entry...................................................... 19
Section 13. Headings, etc....................................................... 19
Section 14. Usury Laws.......................................................... 20
Section 15. Further Assurances.................................................. 20
Section 16. No Waiver; Cumulative Remedies...................................... 20
Section 17. Amendments, etc. ................................................... 21
Section 18. Addresses for Notices, etc. ........................................ 21
Section 19. Binding Effect...................................................... 22
Section 20. Severability of Provisions.......................................... 22
Section 21. Governing Law....................................................... 23
Section 22. Offsets............................................................. 23
Section 23. Sole Discretion of the Authority.................................... 23
Section 24. Actions and Proceedings............................................. 23
Section 25. Transfer and Assignments............................................ 24
Section 26. Responsibility and Indemnification of the Authority and
the Trustee ........................................................ 24
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PLEDGE AND SECURITY AGREEMENT
Pledge Agreement dated this 3rd day of November, 1999, by and between
DORAL PROPERTIES, INC., a Puerto Rico corporation (the "Borrower"), and PUERTO
RICO INDUSTRIAL, TOURIST, EDUCATIONAL, MEDICAL AND ENVIRONMENTAL CONTROL
FACILITIES FINANCING AUTHORITY, a public corporation and government
instrumentality of the Commonwealth of Puerto Rico (the "Authority").
The Authority and Citibank, N.A. (the "Trustee") are entering into a
Trust Agreement dated as of the date hereof (the "Trust Agreement") pursuant to
which the Authority is issuing its Industrial Revenue Bonds, 1999 Series A
(Doral Financial Center Project) (the "Bonds") for the purpose of providing
funds to make a loan to the Borrower under a Loan and Guaranty Agreement to be
dated the date hereof (the "Loan Agreement"). Pursuant to the Loan Agreement
and the Trust Agreement the Borrower will pay the amounts it is required to pay
under the Loan Agreement directly to the Trustee and the Trustee will make all
payments of principal, premium, if any, and interest due on the Bonds. As a
condition to the making of such loan, the Authority has requested the Borrower
to enter into this Agreement. Pursuant to the Trust Agreement, the Authority is
assigning to the Trustee, as security for the payment of the Bonds, its rights
under the Loan Agreement and under this Agreement, other than certain reserved
rights.
NOW, THEREFORE, in consideration of the premises and the benefits to
be received by the Borrower from the issuance of the Bonds, and in order to
induce the Authority to issue the Bonds, the parties hereto agree as follows:
SECTION 1. DEFINED TERMS. Unless otherwise defined herein, all terms
used herein shall have the meanings assigned to such
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terms in the Trust Agreement or in the Loan Agreement. For purposes of this
Agreement, the following terms shall have the following meanings:
"EVENT OF DEFAULT" shall mean and include any one or more of the
Events of Default specified in the Loan Agreement or the Trust Agreement.
"MINOR PARCELS" means the parcels identified as Parcel B and Parcel C
in the Mortgage.
SECTION 2. GRANT OF SECURITY; PLEDGE OF MORTGAGE NOTE.
(a) As security for the payment and performance of all the
obligations of the Borrower and Guarantor under the Loan Agreement and the
Collateral Documents, whether matured or unmatured, contingent or liquidated
(collectively, the "Secured Obligations"), the Borrower hereby pledges and
assigns, and grants to the Authority and the Trustee, for their benefit and the
benefit of the Bondholders, a continuing lien on and security interest in, all
of the Borrower's rights, title and interest in and to (i) the Mortgage Note,
(ii) all interest, cash, instruments and other property from time to time
received, receivable or otherwise distributed in respect of or in exchange for
the Mortgage Note, and (iii) all proceeds of any and all of the foregoing
(collectively, the "Pledged Collateral").
(b) This Agreement shall constitute a formal pledge and security
agreement, and the Authority, the Trustee and the other beneficiaries hereunder
shall have all the rights, powers and remedies of a pledgee and secured party
provided by the laws of the Commonwealth of Puerto Rico in addition to the
rights and remedies
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provided in this Agreement and under the Mortgage and the Mortgage Note.
(c) The Authority and the Trustee shall each, individually, be
entitled to hold the Mortgage Note in pledge until payment in full of all of
the obligations secured hereby.
(d) Without limiting the generality of the foregoing, this Agreement
secures the payment of all amounts that constitute part of the Secured
Obligations but for the fact that they are unenforceable or not allowable due
to the existence of a bankruptcy, reorganization or similar case or proceeding
involving the Borrower.
SECTION 3. RIGHTS OF THE AUTHORITY AND THE TRUSTEE.
(a) The Authority or the Trustee shall each be entitled, in its sole
and absolute discretion, to take such action or refrain from taking such
action, and to exercise the rights and remedies available to the Authority,
under this Agreement, the Mortgage and the Mortgage Note as the Authority or
the Trustee from time to time may deem appropriate. The Trustee may, upon the
occurrence of an Event of Default, at its option exercise any one or more of
the following rights: foreclose the pledge of the Mortgage Note, foreclose the
Mortgage, and exercise those remedies provided under the Mortgage or under
applicable law, including the remedies available to a secured party under Act
No. 108 of August 17, 1995, of the Legislature of Puerto Rico, as amended,
including, without limitation:
(i) Without notice to or demand upon Borrower, make such
payments and do such acts as the Authority or the Trustee may deem necessary to
protects its security interest in the Pledged Collateral, including, without
limitation, paying, purchasing,
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contesting, or compromising any encumbrance, charge, mortgage, lien or security
interest which is prior to or superior to the security interest granted
hereunder or under the Mortgage, and in exercising any such powers or authority
to pay all expenses, for the account of Borrower, incurred by the Authority or
the Trustee in connection therewith (and all such expenses paid by the
Authority or the Trustee for the account of Borrower shall be secured by the
Collateral Documents); and
(ii) Sell, lease or otherwise dispose of the Pledged
Collateral at public sale, with or without having the Pledged Collateral at the
place of sale, and upon such terms and in such manner as the Authority or the
Trustee may determine, at which sale each of the Authority and the Trustee may
be a purchaser.
(b) The Borrower agrees that, to the extent notice of sale of the
Pledged Collateral shall be required prior to the exercise of any rights of the
Authority or the Trustee under this Section 3, at least thirty (30) days' prior
written notice to the Borrower of the time and place of any public sale or the
time after which any private sale is to be made shall constitute reasonable
notice.
(c) The rights of the Authority or the Trustee under the Collateral
Documents shall be separate, distinct and cumulative, and none of them shall be
in exclusion of the others.
(d) The Borrower agrees that the Authority or the Trustee may, from
time to time, exercise any and all rights and remedies under the Loan
Agreement, the Trust Agreement and the Collateral Documents, including without
limitation commencement of actions against the Borrower to recover sums owing
thereunder and to obtain injunctive relief and specific enforcement of the
covenants hereof and thereof.
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(e) Upon full satisfaction by the Borrower of the Secured
Obligations, the Authority will promptly endorse the Mortgage Note to the order
of the Borrower, without recourse, and deliver the Mortgage Note to the
Borrower.
SECTION 4. APPLICATION OF FUNDS. Any amounts realized from the
exercise of the remedies available to the Authority or the Trustee hereunder
shall be applied in the following order: first, to the payment of all taxes or
assessments on the Property which are liens prior in rank to the Mortgage and
that the Authority or the Trustee may consider necessary or desirable to pay,
except those taxes or assessments subject to which any sale of the Pledged
Collateral shall have been made, second to the payment of the costs and
expenses (including fees and disbursements of counsel) incurred in enforcing
the provisions of the Collateral Documents, which costs and expenses shall be
secured by the Collateral Documents, third, to the payment of any of the
Secured Obligations, as set forth in the Trust Agreement, and fourth, any
excess to be paid to the Borrower, to whomever may be lawfully entitled to
receive the same or as a court may direct.
SECTION 5. RELEASES FROM LIEN OF MORTGAGE IN CONNECTION WITH
SALE OF MINOR PARCELS AND IN CONNECTION WITH REDUCTION OF PRINCIPAL
AMOUNT OF BONDS.
(a) In connection with any sale of a Minor Parcel, the Borrower
shall be entitled, subject to compliance with the conditions set forth in this
Section 5, to release such Minor Parcel from the lien of the Mortgage.
(b) As a condition to any release from the Mortgage described in
clause (a), the Borrower shall be required to deliver to the Trustee the
following:
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(i) an appraisal from a real estate appraiser of recognized
standing acceptable to the Trustee that shall show an appraised value for the
property subject to the Mortgage after such release equal to or exceeding the
outstanding principal amount of the Bonds;
(ii) an opinion of counsel to the effect that (A) the sale of
the Minor Parcel and the execution by the Trustee of the release being
requested by the Borrower is permitted by the Trust Agreement, the Loan
Agreement and the Collateral Documents, and that all conditions to such
execution have been satisfied, (B) such proposed sale and release described in
clause (a) proposed to be taken by the Borrower do not conflict with or would
cause a default under the Collateral Documents, and (C) the execution by the
Borrower of the agreements proposed to be executed have been duly authorized by
the Borrower;
(iii) such mortgage notes, mortgage deeds or other documents
as shall be required to cause the amount secured by the Mortgage to be not less
than the principal outstanding amount of the Bonds; and
(iv) any other documents required by the Trust Indenture Act,
including but not limited to such documents as may be required under Section
314(d) of the Trust Indenture Act.
(c) The Borrower shall be entitled to release the Minor Parcel
identified as Parcel B from the lien of the Mortgage when the outstanding
principal amount of the Bonds is reduced by $854,334, and shall be entitled to
release the Minor Parcel identified as Parcel C from the lien of the Mortgage
when the outstanding principal amount of the Bonds is reduced by an additional
$1,368,950, in the order elected by the Borrower, in
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each case upon delivery to the Trustee of an opinion of counsel to the effect
that (A) the Borrower is entitled to the release of such Minor Parcel and (B)
the release of such Minor Parcel is permitted by the Trust Agreement, the Loan
Agreement and the Collateral Documents.
SECTION 6. REPRESENTATIONS AND WARRANTIES. The Borrower hereby
represents and warrants to the Authority as follows:
(a) That all of the representations and warranties made by the
Borrower in the Mortgage, the Loan Agreement and in any other Related Document
are true and correct as of the date hereof and Borrower hereby repeats and
restates each such representation and warranty herein with the same force and
effect as if originally set forth herein at length;
(b) The Borrower is a corporation duly organized and existing under
the laws of the Commonwealth of Puerto Rico;
(c) The execution, delivery and performance by the Borrower of this
Agreement, the Loan Agreement, the Mortgage Note and the Mortgage are within
the Borrower's powers, have been duly authorized by all necessary action on the
part of the Borrower, do not require any governmental approval, or any other
approval, and do not contravene any statute, regulation, decree or other
governmental restriction in Puerto Rico or in the United States applicable to
the Borrower or contravene any contractual restriction binding on the Borrower
or its property;
(d) This Agreement, the Loan Agreement, the Mortgage Note and the
Mortgage constitute legal, valid and binding obligations of the Borrower
enforceable against the Borrower in accordance with their respective terms,
except as enforcement may be limited by
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bankruptcy, insolvency or other laws of general application relating to the
enforcement of creditors' rights;
(e) The Borrower has good, marketable and insurable title in fee
simple absolute ("pleno dominio") to all of the Property, free and clear of all
mortgages, pledges, assignments, liens, encumbrances, charges, claims, leases
or rights of others of any kind, except Permitted Liens;
(f) The Mortgage is in proper form for recordation in accordance
with Puerto Rico law and, upon its recordation, will constitute a duly
perfected first priority lien on the Property in accordance with Puerto Rico
law, subject only to Permitted Liens;
(g) All mortgage recording taxes, notary fees, and similar related
taxes, stamps, fees and expenses required to be paid in connection with the
execution, recordation or filing of the Mortgage have been paid in full;
(h) This Agreement creates a valid and perfected first priority
security interest in the Mortgage Note securing the payment of the Secured
Obligations upon possession thereof being taken by the Authority or the
Trustee; and
(i) No authorization, approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body is required
either (i) for the pledge of the Mortgage Note pursuant to this Agreement, or
(ii) for the exercise by the Authority or the Trustee of any of its rights and
remedies hereunder.
SECTION 7. MAINTENANCE OF PROPERTY. The Borrower will at all times
maintain, preserve and keep all and each part of the Property as required under
the Loan Agreement.
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SECTION 8. COMPLIANCE WITH LAWS. The Borrower will at all times:
(i) comply with all laws, regulations, decrees, ordinances
and other requirements of any governmental authority having jurisdiction over
the Property relating to permits, licenses, leases, franchises and rights of
the Borrower to conduct its business and the erection, repair and use of the
buildings, structures, machinery, plant and other property covered by the
Mortgage;
(ii) make adequate reserves for, and pay and discharge, all
taxes, assessments and municipal and governmental fees, rates and charges
lawfully required to be paid by the Borrower, as well as all lawful claims for
labor, materials and supplies, and other debts, liabilities and charges which,
if unpaid, may by law become a lien or charge upon the property of the Borrower
or lead to a suspension of its business, and will exhibit to the Authority,
upon its request, receipts for, or other satisfactory evidence of, each such
payment; and
(iii) maintain a valid and perfected first priority security
interest in the Mortgage Note securing the payment of the Secured Obligations,
and for such purposes the Borrower covenants that it will undertake the
recording or filing of this Agreement or any other instrument or document
necessary for the creation, perfection or renewal of any lien created herein,
and will assume the responsibility for the payment of the costs and expenses of
any such recording or filing, if any; provided, further, that the Borrower
shall maintain on file with the Authority and the Trustee such evidence of the
creation, perfection or renewal of any lien created herein.
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SECTION 9. INSURANCE
(a) The Borrower at its expense will keep the Property and all
structures and improvements erected thereon insured against loss or damage by
fire, flood, earthquake, explosion, smoke damage, windstorm and hurricane,
standard extended coverage perils, business interruption, and such other
hazards, and in such amounts, as are normally carried by entities engaged in
the same or a similar business in Puerto Rico.
(b) All policies of insurance shall be issued by an insurer
acceptable to the Authority (or the Trustee, as the Authority's assignee) duly
licensed to do business in the Commonwealth of Puerto Rico and (except for
public liability insurance) shall contain the standard mortgagee
non-contribution clause endorsement or an equivalent endorsement satisfactory
to the Authority (or the Trustee, as the Authority's assignee) naming the
Trustee as loss payee. The public liability policies will name the Trustee as
additional insured. The Borrower shall pay the premiums for the policies as the
same become due and payable. Not later than thirty (30) days prior to the
expiration date of each of the policies, the Borrower will deliver to the
Authority and the Trustee a renewal policy or policies marked "premium paid" or
accompanied by other evidence of payment of premium satisfactory to the
Authority and the Trustee.
(c) In addition to the foregoing requirements, each policy of
insurance required to be carried hereunder shall contain a provision whereby
the insurer (i) agrees that such policy shall not be canceled, modified or
denied renewal without at least thirty (30) days prior written notice to the
Authority and the Trustee, (ii) waives any right to claim any premiums or
commissions against the Authority and the Trustee, and (iii) provides that the
Authority and the Trustee are permitted to make payments to effect
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the confirmation of such policy upon notice of cancellation due to nonpayment
of premiums. In the event any such policy shall contain breach of warranty
provisions, such policy shall provide that in respect of the interests of the
Authority or the Trustee such policy shall not be invalidated by any action or
inaction of the Borrower or any other Person and shall insure the Authority and
the Trustee regardless of any breach or violation of any warranty, declarations
or conditions contained in such policy by the Borrower or any other Person. The
Borrower will not violate or permit to be violated any of the conditions,
provisions, or requirements of any insurance policy required hereunder.
(d) If at any time the Authority or the Trustee is not in receipt of
written evidence that all insurance required hereunder is in force and effect,
the Authority and the Trustee shall have the right, but not the obligation,
with prior written notice to the Borrower, to take such action as the Authority
or the Trustee deems necessary to protect its interest in the Property,
including, without limitation, the obtaining of such insurance coverage as the
Authority or the Trustee deems appropriate, and all expenses incurred by the
Authority and the Trustee in connection with such action or in obtaining such
insurance and keeping it in effect shall be paid by Borrower upon demand and be
secured by the Collateral Documents.
(e) If the Property shall be damaged or destroyed, in whole or in
part, by fire or other casualty, the Borrower shall give prompt notice thereof
to the Authority and the Trustee, and the Authority and the Trustee may make
proof of loss if not promptly made or diligently pursued by the Borrower.
Notwithstanding any damage or destruction to the Property or any part thereof,
the Borrower shall continue to pay all amounts required to be paid under the
Loan Agreement at the time and in the manner provided in the Loan Agreement.
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SECTION 10. DAMAGE, DESTRUCTION AND CONDEMNATION. (a) Unless the
Borrower shall have exercised its option to prepay the amounts payable under
the Loan Agreement pursuant to the provisions of Article VIII thereof, if prior
to full Payment of the Bonds (i) the Property or any portion thereof is
destroyed (totally or partially) or is damaged by fire or other casualty (a
"Casualty"), or (ii) title to any interest in, or the temporary use of, the
Property or any part thereof shall be taken under the exercise of the power of
eminent domain (or any proceedings in lieu thereof) by any governmental body or
by any Person acting under governmental authority (a "Taking"), the Borrower
shall be subject to the provisions of this Section with respect to the
application of insurance, condemnation or other proceeds to which the Borrower
would be entitled by reason of such damage, casualty or taking.
(b) In the event of any Casualty, the Borrower shall give notice
thereof in writing to the Authority and the Trustee, which shall describe the
nature and extent of such damage or destruction, and shall set forth the
Borrower's best estimate at that time of the cost of repair, restoration or
rebuilding (the "Restoration") of the damaged Property and the period of time
required to complete such Restoration. Any amounts received or payable as a
result of a Casualty shall be paid and delivered directly to the Authority or
the Trustee, as the Authority's assignee, by the concerned insurance companies.
The insurance proceeds, net of all the costs, fees and expenses incurred by the
Authority, the Trustee and the Borrower in the collection thereof (the "Net
Insurance Proceeds"), received or payable on account of a Casualty shall be
applied as herein stated.
(i) If the estimated cost of the Restoration does not exceed
$100,000, the Authority or the Trustee shall make available
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to the Borrower the Net Insurance Proceeds with no further requirement or
restriction of any nature, and the Borrower shall be free either to undertake
the Restoration or not to undertake the Restoration.
(ii) If the estimated cost of the Restoration exceeds $100,000
and but does not exceed $20,000,000, and if no default under this Agreement,
the Loan Agreement, the Mortgage, the Mortgage Note or the Trust Agreement
exists, and no event shall have occurred which, with the giving of notice or
the passage of time, or both, would constitute such default, the Net Insurance
Proceeds shall be delivered by the Authority or the Trustee to the Borrower,
who shall promptly and diligently apply the same exclusively to the Restoration
of the Property. In the event the costs and expenses of the Restoration exceed
the Net Insurance Proceeds, the Borrower will pay the difference.
(iii) If the estimated cost of the Restoration exceeds
$20,000,000 or the provisions of clause (i) or (ii) above are otherwise
inapplicable, the Authority, the Trustee, and the Borrower will cause the Net
Insurance Proceeds resulting from any event described in Section 10(a)(i) above
to be deposited with the Trustee, in trust for the benefit of the Bondholders,
until disbursed as provided herein. All Net Insurance Proceeds so deposited
shall be applied as follows:
(A) In the event (1) of a Casualty of all or substantially all of
the Property which, in the judgment of the Borrower, renders the Property
remaining after such Casualty physically or economically not suitable for the
restoration, replacement or rebuilding of such Property to substantially its
condition, character and value immediately prior to the occurrence of such
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Casualty (any such Casualty hereinafter referred to as a "Total Casualty") or
(2) that the Borrower does not elect to or cannot apply the Net Insurance
Proceeds as provided in, or cannot otherwise comply with the conditions of,
Section 10(b)(iii)(B), then the Net Insurance Proceeds shall be applied to the
redemption of Bonds in whole or in part in accordance with Section 8.02(e) of
the Loan Agreement.
(B) In cases other than upon the occurrence of a Total Casualty, the
Borrower may elect to apply the Net Insurance Proceeds toward the cost of the
Restoration of the damaged Property by giving written notice of its intention
as promptly as possible after the occurrence of such Casualty to the Authority
and the Trustee. The Authority or the Trustee shall make available the Net
Insurance Proceeds to the Borrower (to the extent the Authority or the Trustee
has such proceeds available), who shall promptly and diligently apply the same
exclusively to the Restoration of the Property. The Net Insurance Proceeds
shall be disbursed by the Authority or the Trustee to the Borrower from time to
time as the work progresses, pursuant to certifications issued by the Borrower;
provided that prior to the commencement of any work on the Restoration of the
damaged Property and to any disbursement of Net Insurance Proceeds to, or upon
the order of, the Borrower, the Borrower shall submit, deliver or otherwise
deposit with the Authority and the Trustee:
(1) an estimate of the cost of the Restoration of the damaged
Property approved by an architect or engineer licensed in Puerto Rico;
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(2) the plans and specifications for the Restoration of the
damaged Property prepared by an architect or engineer licensed in Puerto Rico;
(3) evidence of insurance coverage which the Borrower
represents to be adequate during the Restoration; and
(4) evidence that the contemplated Restoration of the damaged
Property shall be of a character and nature such that the Property shall return
to the same or similar function than the one they had immediately prior to the
occurrence of the Casualty.
In addition to the foregoing, the following conditions shall be
complied with:
(i) There shall exist no uncured Event of Default under this
Agreement, the Loan Agreement, the Mortgage, the Mortgage Note, or the Trust
Agreement, and no event shall have occurred which, with the giving of notice or
the passage of time, or both, would constitute such an Event of Default.
(ii) The Restoration of the damaged Property shall be done and
completed by the Borrower in an expeditious and diligent fashion, in compliance
with all applicable laws, statutes, ordinances, regulations, orders, rules and
covenants.
(iii) All costs and expenses incurred by the Authority or the
Trustee in connection with making the Net Insurance Proceeds and the funds
deposited by the Borrower pursuant to the provisions hereof available to the
Borrower for the Restoration of the damaged Property, including, without
limitation, counsel fees, shall be paid by the Borrower.
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(iv) In the event that the Borrower fails to comply with any
of the foregoing, the Net Insurance Proceeds on account of a Casualty shall be
applied by the Authority as provided in Section 10(b)(iii)(A) above.
(v) In the event the costs and expenses of the Restoration
exceed the Net Insurance Proceeds, the Borrower will pay the difference.
(c) In the event of a Taking of all or any part of the Property, or
the commencement of any proceedings or negotiations which might result in such
Taking, the Borrower will promptly give written notice thereof to the Authority
and the Trustee generally describing the nature and extent of such Taking or
the nature and extent of the Taking which might result therefrom. The Authority
and the Trustee may each participate jointly with the Borrower in said
proceedings or negotiations, and the Borrower shall deliver to the Authority
and the Trustee all instruments and necessary documents to permit such
participation. The Borrower shall file and prosecute its claim or claims for
any such award or payment in good faith and with due diligence. The Borrower
will pay all reasonable costs, fees, and expenses incurred by the Authority and
the Trustee in connection with any Taking and seeking and obtaining any award
or payment on account thereof, including, without limitation, attorney's fees.
All awards and payments on account of a Taking shall be delivered to
the Authority or the Trustee, as the Authority's assignee. The Borrower shall
execute and deliver any and all assignments, endorsements or other instruments
necessary to assign
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and transfer to the Authority and the Trustee all such awards and payments free
and clear of all liens and encumbrances. The awards and payments on account of
a Taking, net of all the costs, fees and expenses incurred by the Authority,
the Trustee and the Borrower in the collection thereof (the "Net Condemnation
Proceeds"), shall be applied as stated herein. The Authority, the Trustee, and
the Borrower will cause the Net Condemnation Proceeds resulting from any event
described in Section 10(a)(ii) above involving amounts in excess of $20,000,000
to be deposited with the Trustees AS described above. All Net Condemnation
Proceeds so deposited shall be applied as follows:
(i) In the case of a Taking of all or substantially all of
the Property which in the judgment of the Borrower renders the Property
remaining after such Taking physically or economically not feasible or suitable
for the Restoration of such property to substantially its condition, character
and value immediately prior to the occurrence of such Taking (any such Taking
hereinafter referred to as a "Total Taking"), the Net Condemnation Proceeds
shall be applied to the redemption of the Bonds in accordance to Section
8.02(e) of the Loan Agreement.
(ii) In all cases other than upon the occurrence of a Total
Taking, if the Net Condemnation Proceeds do not exceed $100,000, the Trustee
shall make available to the Borrower the Net Condemnation Proceeds with no
further requirements or restriction of any nature.
(iii) In all cases other than upon the occurrence of a Total
Taking, if the Net Condemnation Proceeds exceed $100,000 but
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do not exceed $20,000,000, and if no default under this Agreement, the Loan
Agreement, the Mortgage, the Mortgage Note or the Trust Agreement exists, and
no event shall have occurred which, with the giving of notice or passage of
time, or both, would constitute such default, the Net Insurance Proceeds shall
be delivered by the Authority or the Trustee to the Borrower who shall promptly
and diligently apply the same exclusively to the Restoration of the Property.
In the event such costs and expenses exceed the Net Condemnation Proceeds, the
Borrower will pay the difference.
(iv) In all cases other than upon the occurrence of a Total
Taking, if the Net Condemnation Proceeds shall exceed $20,000,000, the Borrower
may elect to apply the Net Condemnation Proceeds toward the cost of the
Restoration of the Property in the same manner and subject to the same terms
and conditions established for cases other than a Total Casualty in Section
10(b) above.
(d) The Authority shall cooperate fully with Borrower, at the
expense of Borrower, in filing any proof of loss with respect to any insurance
policy covering the casualties described in Section 10(a) hereof and in the
prosecution or defense of any prospective or pending condemnation proceeding
with respect to the Property or any part thereof, or any property of Borrower
in connection with which the Property is used and may, with the prior written
consent of the Authority, litigate in any proceeding resulting therefrom and in
the name and on behalf of the Authority. In no event will the Authority
voluntarily settle, or consent to the settlement of, any proceeding arising out
of any insurance claim or any prospective or pending condemnation proceeding
with respect to the Property or any part
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thereof without the written consent of an Authorized Borrower Representative.
SECTION 11. REDEMPTION UPON OCCURRENCE OF A CASUALTY OR A TAKING. In
the event the Trustee shall, pursuant to the provisions of Section 10 hereof,
be entitled to retain and apply the Net Insurance Proceeds or the Net
Condemnation Proceeds to the redemption of Bonds, the Trustee shall direct the
mandatory redemption of Bonds in accordance with the Loan Agreement and the
Trust Agreement (i) in whole in the event of a Total Taking or a Total Casualty
or (ii) in whole or in part, to the extent of such Net Insurance Proceeds or
Net Condemnation Proceeds, in the event of a Casualty other than a Total
Casualty or a Taking other than a Total Taking. The Trustee shall also apply
the Net Insurance Proceeds or Net Condemnation Proceeds to the redemption of
Bonds to the extent the Borrower exercises its option to prepay the Loan
pursuant to Section 8.03 of the Loan Agreement.
SECTION 12. RIGHT OF ENTRY. The Authority and the Trustee and their
agents shall have the right, after reasonable prior notice to the Borrower, to
enter and inspect the Property during normal business hours.
SECTION 13. HEADINGS, ETC. The headings and captions of the various
Sections of this Agreement are for convenience of reference only and are not to
be construed as defining or limiting, in any way, the scope or intent of the
provisions hereof.
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SECTION 14. USURY LAWS. This Agreement, the Mortgage, the Loan
Agreement and the Mortgage Note are subject to the express condition that at no
time shall the Borrower be obligated or required to pay interest on the
obligations secured thereby and hereby at a rate which could subject the holder
of the Mortgage Note or beneficiary of the above documents to either civil or
criminal liability as a result of being in excess of the maximum interest rate
which the Borrower is permitted by law to contract or agree to pay. If by the
terms of this Agreement, the Loan Agreement, the Mortgage or the Mortgage Note,
the Borrower is at any time required or obligated to pay interest at a rate in
excess of such maximum rate, the rate of interest shall be deemed to be
immediately reduced to such maximum rate and the interest payments in excess of
such maximum rate shall be applied and shall be deemed to have been payments in
reduction of principal.
SECTION 15. FURTHER ASSURANCES. The Borrower hereby agrees to promptly
execute and deliver such additional agreements and instruments and to promptly
take such additional action as the Authority or the Trustee may at any time and
form time to time request in writing in order for the Authority or the Trustee
to obtain the full benefits and rights granted or purported to be granted by
this Agreement and to fully and continually perfect the security interests
created hereby.
SECTION 16. NO WAIVER; CUMULATIVE REMEDIES. No failure or delay on the
part of the Authority or the Trustee in exercising any right, power or remedy
hereunder or under or in connection with the Mortgage Note or the Mortgage
shall operate as a waiver thereof; nor
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shall any single or partial exercise of any such right, power or remedy
preclude any other or further exercise thereof or the exercise of any other
right, power or remedy hereunder or under or in connection with the Mortgage
Note or the Mortgage. The remedies herein and in the Mortgage provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 17. AMENDMENTS, ETC. No amendment, modification, termination,
or waiver of any provision of this Agreement, the Mortgage Note or the Mortgage
nor consent to any departure by the Borrower therefrom shall in any event be
effective unless the same shall be in writing and signed by the Authority and
the Trustee, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given. No notice to or
demand on the Borrower in any case shall entitle the Borrower to any other or
further notice or demand in similar or other circumstances.
SECTION 18. ADDRESSES FOR NOTICES, ETC. All notices requests, demands,
directions and other communications hereunder or in connection with the
Mortgage Note or the Mortgage shall be in writing (including telegraphic
communication) and mailed by certified or registered mail, return receipt
requested, or confirmed telecopier or delivered to the applicable party at the
address indicated below:
If to the Borrower:
Doral Financial Corporation, Inc.
0000 Xxxxxxxx X. Xxxxxxxxx Xxx.
Xxx Xxxx, Xxxxxx Xxxx 00000
Attention: President
Telecopier: 749-8267
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If to the Authority:
Puerto Rico Industrial, Tourist, Educational,
Medical and Environmental Control Facilities
Financing Authority
c/o Government Development Bank for Puerto Rico
X.X.X. Xxx 00000
Xxx Xxxx, Xxxxxx Xxxx 00000
Attention: Executive Director
Telecopier: 726-1440
If to the Trustee:
Citibank, N.A.
252 Xxxxx de Xxxx Avenue, Second Floor
Hato Rey, Puerto Rico 00918
Attention: Xxxxxx Xxxxxxx
Custody/Trust Department
Telecopier: 766-4548
or, as to each party, at such other or additional address as shall be
designated by such party in a written notice to each other party complying as
to delivery with the terms of this Section. All such notices, requests,
demands, directions and other communications shall, when mailed or telecopied,
be effective when deposited in the mail or dispatched by telecopier,
respectively, addressed as aforesaid.
SECTION 19. BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of the Borrower, the Authority and their respective
successors and assigns.
SECTION 20. SEVERABILITY OF PROVISIONS. Any provision of this
Agreement, the Mortgage Note or the Mortgage which is prohibited or
unenforceable in the Commonwealth of Puerto Rico shall be ineffective
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to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof.
SECTION 21. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the Commonwealth of Puerto Rico.
SECTION 22. OFFSETS. The Authority and its assignees shall take the
Mortgage, the Mortgage Note and this Agreement, to the extent permitted by law,
free and clear of all offsets of any nature whatsoever which Borrower may have
against the Authority or its assignees and no such offset shall be interposed
or asserted by the Borrower in any action or proceeding brought by the
Authority or any such assignee and any such right to interpose or assert any
such offset in any such action or proceeding is hereby expressly waived by the
Borrower.
SECTION 23. SOLE DISCRETION OF THE AUTHORITY. Unless expressly stated
to the contrary herein, wherever pursuant to this Agreement, the Mortgage Note
or the Mortgage, the Authority may exercise any right given to it to approve or
disapprove, or any arrangement or term is to be satisfactory to the Authority,
the decision of the Authority to approve or disapprove or to decide that
arrangements or terms are satisfactory or not satisfactory shall be in the sole
discretion of the Authority and shall be final and conclusive.
SECTION 24. ACTIONS AND PROCEEDINGS. The Authority shall have the
right to appear in and defend any action or proceeding brought with respect to
the Property and to bring any action or
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proceeding, in the name or on behalf of the Borrower, which the Authority in
its discretion, feels should be brought to protect its interest in the
Property, and shall proceed in accordance with the Mortgage.
SECTION 25. TRANSFER AND ASSIGNMENTS. The Borrower hereby acknowledges
and consents to the transfer and assignment by the Authority to the Trustee,
pursuant to the terms of the Trust Agreement, of all of the Authority's rights
and interest under the Loan Agreement, the Mortgage, the Mortgage Note and this
Agreement, and acknowledge that upon such transfer and assignment the Trustee
shall be entitled to all of the benefits and security thereof and hereof. The
Authority acknowledges and consents to the transfer and assignment of the
Borrower's interest in this Agreement and the other Collateral Documents in
accordance with and subject to compliance with the terms of the Loan Agreement.
SECTION 26. RESPONSIBILITY AND INDEMNIFICATION OF THE AUTHORITY AND
THE TRUSTEE.
(a) The Authority and the Trustee shall not be under any
obligation to see to the recording or filing of this Agreement or any other
instrument or document necessary for the creation, perfection or renewal of any
lien created herein, and shall not be responsible for the costs and expenses of
any such recording or filing, if any.
(b) The Authority and the Trustee shall not be responsible
for any loss resulting from the sale, lease or disposition of the Pledged
Collateral.
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(c) No provision of this Agreement shall require the
Authority or the Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers.
(d) Except as otherwise provided in the Trust Agreement, the
Trustee shall be under no obligation to perform any action under this
Agreement, and shall not be responsible for any loss or liability resulting
from the performance or the omission to perform any action established herein,
including without limitation any environmental liabilities upon the foreclosure
of the Mortgage Note and the Mortgage; provided further that the Trustee shall
be indemnified by the Borrower against any and all costs and expenses, and
against all liability, of the Trustee derived from this Agreement.
(e) The Authority and the Trustee shall not be under any
obligation to pay the costs and expenses of any Restoration exceeding the Net
Insurance Proceeds in connection with such Restoration.
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IN WITNESS WHEREOF, the parties hereto have caused this
Pledge and Security Agreement to be duly executed by their respective officers
thereunto duly authorized on the date first above written, in San Xxxx, Puerto
Rico.
DORAL PROPERTIES, INC.
By: /s/ Xxxxx X. Xxxxx
----------------------------------
Xxxxx X. Xxxxx
Executive Vice-President
PUERTO RICO INDUSTRIAL, TOURIST,
EDUCATIONAL, MEDICAL AND
ENVIRONMENTAL CONTROL FACILITIES
FINANCING AUTHORITY
By: /s/ Xxxxxx Xxxxx xx Xxxxx
----------------------------------
Xxxxxx Xxxxx xx Xxxxx
Executive Director
Acknowledged:
CITIBANK, N.A.,
as Trustee under the Trust
Agreement
By: /s/ Xxxxx X. Xxxx
--------------------------------
Xxxxx X. Xxxx
Vice President
AGREED AND ACCEPTED:
DORAL FINANCIAL CORPORATION
as Guarantor of the obligations
of the Borrower under this
Agreement
By: /s/ Xxxxxxx Xxxxx
--------------------------------
Xxxxxxx Xxxxx
Chairman of the
Board of Directors and
Chief Executive Officer
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