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EXHIBIT 4.2
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TRUST AGREEMENT
BETWEEN
PUERTO RICO INDUSTRIAL, TOURIST, EDUCATIONAL,
MEDICAL AND ENVIRONMENTAL CONTROL
FACILITIES FINANCING AUTHORITY
AND
CITIBANK, N.A.
AS TRUSTEE
----------------------
DATED NOVEMBER 3, 1999
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SECURING
$44,765,000
INDUSTRIAL REVENUE BONDS,
1999 SERIES A
(DORAL FINANCIAL CENTER PROJECT)
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RECONCILIATION AND TIE BETWEEN
TRUST INDENTURE ACT OF 1939 AND
TRUST AGREEMENT DATED AS OF NOVEMBER 3, 1999
TRUST INDENTURE INDENTURE SECTION
ACT SECTION
ss. 310 (a)(1) .......................... 913
(a)(2) .......................... 913
(a)(3) .......................... Not Applicable
(a)(4) .......................... Not Applicable
(b) .......................... 914
915
ss. 311(a) .......................... 917
(b) .......................... 917
ss. 312(a) .......................... Not Applicable
(b) .......................... 918(a)
(c) .......................... 918(b)
ss. 313(a) .......................... 919(a)
(b) .......................... 919(a)
(c) .......................... 919(a)
(d) .......................... 919(b)
ss. 314(a) .......................... 920(a)
(a)(4) .......................... 101
920(b)
(b) .......................... 920(c)
(c)(1) .......................... 103
(c)(2) .......................... 103
(c)(3) .......................... Not Applicable
(d) .......................... 920(d)
(e) .......................... 103
ss. 315(a) .......................... 905(a)
(b) .......................... 815
(c) .......................... 905(b)
(d) .......................... 905(c)
(e) .......................... 816
ss. 316(a)(1)(A) .......................... 808
(a)(1)(B) .......................... 814
(a)(2) .......................... Not Applicable
(b) .......................... 809
ss. 317(a)(1) .......................... 804
(a)(2) .......................... 805
(b) .......................... 505
ss. 318(a) .......................... 104
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Trust Agreement.
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TABLE OF CONTENTS
PAGE
ARTICLE I - Definitions; Rules of Construction;
Conflict with Trust
Indenture Act.................................................. 8
Section 101. Meaning of Words and Terms......................................... 8
Section 102. Rules of Construction.............................................. 20
Section 103. Compliance Certificates
and Opinions. ........................................ 20
Section 104. Conflict with Trust
Indenture Act......................................... 21
ARTICLE II - Form, Execution, Authentication,
Delivery and Exchange of Bonds................................. 21
Section 201. Limitation on Issuance
of Bonds.............................................. 21
Section 202. Form of Bonds...................................................... 21
Section 203. Details of Bonds................................................... 22
Section 204. Authentication of Bonds............................................ 26
Section 205. Exchange of Bonds.................................................. 26
Section 206. Negotiability, Registration
of Transfer of Bonds.................................. 27
Section 207. Ownership of Bonds; Transfer
of Title.............................................. 28
Section 208. Authorization of Bonds.............................................. 29
Section 209. Temporary Bonds..................................................... 34
Section 210. Mutilated, Destroyed, Stolen
or Lost Bonds......................................... 35
Section 211. Book-Entry Bonds................................................... 37
ARTICLE III - Redemption of Bonds......................................................... 43
Section 301. Redemption of Bonds................................................ 43
Section 302. Redemption Notice.................................................. 47
Section 303. Effect of Calling for
Redemption............................................ 49
Section 304. Redemption of Portion
of Bond............................................... 49
Section 305. Cancellation....................................................... 50
ARTICLE IV - Construction Fund........................................................... 50
Section 401. Construction Fund.................................................. 50
Section 402. Payments from the
Construction Fund..................................... 51
Section 403. Items of Cost...................................................... 51
Section 404. Requisites for Payments
from Construction Fund................................ 53
Section 405. Reliance on Requisitions........................................... 54
Section 406. Balance in Construction Fund....................................... 54
ARTICLE V - Bond Fund................................................................... 55
Section 501. Creation of Bond Fund.............................................. 55
Section 502. Payments into Bond Fund............................................ 55
Section 503. Use of Moneys in Bond Fund......................................... 56
Section 504. Application and Pledge of
Moneys in the Bond Fund............................... 57
Section 505. Money Withdrawn from Bond
Fund Held in Trust.................................... 58
Section 506. Cancellation of Bonds Upon
Payment............................................... 59
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ARTICLE VI - Depositaries of Moneys, Security
for Deposits and Investment
of Funds....................................................... 59
Section 601. Security for Deposits.............................................. 59
Section 602. Investment of Moneys............................................... 61
ARTICLE VII - Particular Covenants
and Provisions................................................. 62
Section 701. Covenant to Pay Bonds;
Bonds Limited Obligations
of Authority.......................................... 62
Section 702. Covenant to Perform and
Authority of the Authority............................ 63
Section 703. Covenant as to the Loan
Agreement and the
Collateral Documents.................................. 64
Section 704. Covenant to Perform Further
Acts.................................................. 65
Section 705. Trustee May Enforce
Authority's Rights under
Loan Agreement........................................ 65
ARTICLE VIII - Default and Remedies....................................................... 66
Section 801. Extension of Interest.............................................. 66
Section 802. Defaults........................................................... 66
Section 803. Acceleration of Maturities......................................... 67
Section 804. Enforcement of Remedies............................................ 69
Section 805. Trustee May File
Claim in Bankruptcy................................... 71
Section 806. Pro Rata Application
of Funds.............................................. 72
Section 807. Effect of Discontinuance
of Proceedings........................................ 75
Section 808. Holders of a Majority in
Principal Amount of Bonds
May Control Proceedings............................... 76
Section 809. Restrictions Upon Actions
by Individual Bondholder.............................. 76
Section 810. Receiver........................................................... 78
Section 811. Actions by Trustee................................................. 78
Section 812. No Remedy Exclusive................................................ 79
Section 813. No Delay or Omission Construed
to Be a Waiver........................................ 79
Section 814. Waiver of Past Defaults............................................ 79
Section 815. Notice of Default.................................................. 80
Section 816. Undertaking for Costs.............................................. 80
ARTICLE IX - Concerning the Trustee..................................................... 81
Section 901. Acceptance of Trusts............................................... 81
Section 902. Trustee Entitled to Indemnity...................................... 81
Section 903. Trustee Not Responsible
for Insurance, Taxes or
Execution of this Agreement
by the Authority...................................... 82
Section 904. Trustee Not Responsible for
Acts of the Authority
or Application of Monies
Applied in Accordance with this
Agreement............................................. 83
Section 905. Certain Duties
and Responsibilities of
the Trustee........................................... 84
Section 906. Compensation....................................................... 87
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Section 907. Semi-Annual Statement of
Funds on Deposit...................................... 88
Section 908. Notice of Default.................................................. 89
Section 909. Trustee May Be a Bondholder........................................ 89
Section 910. Trustee Not Responsible
for Recitals.......................................... 90
Section 911. Trustee Not Responsible
for Recording......................................... 90
Section 912. Trustee May Rely on
Certificates.......................................... 91
Section 913. Qualification of the Trustee....................................... 91
Section 914. Disqualification;
Conflicting Interests................................. 92
Section 915. Resignation and Removal
of Trustee............................................ 92
Section 916. Successor Trustee.................................................. 94
Section 917. Preferential Collection of
Claims against Borrower
or Guarantor.......................................... 96
Section 918. Communication to Bondholders....................................... 96
Section 919. Reports by Trustee................................................. 98
Section 920. Reports of Borrower and
Guarantor............................................. 98
Section 921. Money Held in Trust................................................ 100
Section 922. Continuing Disclosure.............................................. 100
ARTICLE X - Execution of Instruments by
Bondholders and Proof of
Ownership of Bonds............................................. 101
Section 1001. Execution of Instruments
by Bondholders and Proof
of Ownership of Bonds................................. 101
ARTICLE XI - Supplements and Amendments to
Agreement...................................................... 103
Section 1101. Supplements and Amendments
Not Requiring Bondholder
Consent............................................... 103
Section 1102. Supplements and
Amendments Requiring Consent
of Holders of a Majority
in Principal Amount
of Bonds.............................................. 104
Section 1103. Supplements and Amendments
Deemed Part of Agreement.............................. 106
Section 1104. Discretion of Trustee in
Entering into Supplements
and Amendments........................................ 107
Section 1105. Consent of Borrower and
the Guarantor Required................................ 107
ARTICLE XII - Supplements and Amendments to
the Loan Agreement and the
Collateral Documents........................................... 108
Section 1201. Supplements and Amendments
Not Requiring Consent................................. 108
Section 1202. Supplements and
Amendments Requiring Consent
of Holders of a Majority
in Principal Amount
of Bonds.............................................. 109
Section 1203. Consent of Trustee Required........................................ 110
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ARTICLE XIII - Defeasance................................................................ 110
Section 1301. Defeasance........................................................ 110
ARTICLE XIV - Miscellaneous Provisions.................................................. 113
Section 1401. Covenants of Authority
Bind Its Successors.................................. 113
Section 1402. Notices........................................................... 113
Section 1403. Substitute Mailing................................................ 115
Section 1404. Rights under Agreement............................................ 115
Section 1405. Severability...................................................... 115
Section 1406. Covenants of Authority
Not Covenants of
Officials Individually............................... 116
Section 1407. Commonwealth Law Governs.......................................... 116
Section 1408. Payments Due on Saturdays,
Sundays and Holidays................................. 117
Section 1409. Headings Not Part
of Agreement......................................... 117
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NUMBER FOUR (4)
TRUST AGREEMENT
In the City of San ▇▇▇▇, Commonwealth of Puerto Rico, on this third
(3rd) day of November, nineteen hundred ninety-nine
(1999).
BEFORE ME
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, Attorney-at-Law and Notary Public in and
for the Commonwealth of Puerto Rico with residence in San ▇▇▇▇, Puerto Rico and
offices on the ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ (▇▇▇) ▇▇▇▇▇, ▇▇▇ Tower in San
▇▇▇▇, Puerto Rico.
APPEAR
AS THE PARTY OF THE FIRST PART: PUERTO RICO INDUSTRIAL, TOURIST,
EDUCATIONAL, MEDICAL AND ENVIRONMENTAL CONTROL FACILITIES FINANCING AUTHORITY
(the "Authority"), a public corporation and governmental instrumentality of the
Commonwealth of Puerto Rico (the "Commonwealth"), Employer Identification
Number ▇▇-▇▇▇▇▇▇▇, represented herein by its Assistant Executive Director,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, of legal age, married, executive and a resident of
Guaynabo, Puerto Rico, who has been duly authorized to appear herein on behalf
of the Authority and who agrees to produce evidence of such authority whenever
and wherever required.
AS PARTY OF THE SECOND PART: CITIBANK, N.A., a national banking
association having a corporate trust office in San ▇▇▇▇, Puerto Rico, which is
authorized to exercise corporate trust powers (said bank and any other bank or
trust company becoming successor trustee under this Agreement being hereinafter
sometimes called the "Trustee"), Employer Identification Number
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▇▇-▇▇▇▇▇▇▇, and represented herein by its Vice President, ▇▇▇▇▇ ▇▇▇▇, of legal
age, married, banker and a resident of Guaynabo, Puerto Rico, who has been duly
authorized to appear herein on behalf of the Trustee and who agrees to produce
evidence of such authority whenever and wherever required.
I, the Notary, DO HEREBY CERTIFY that I am personally acquainted with
the appearing parties herein and by their statements as to their respective
ages, civil status, professions and residences. They assure me that they have,
and in my judgment they do have, the necessary legal capacity and knowledge of
the English language to execute this public instrument. Wherefore, they freely
and voluntarily
STATE
FIRST: That by Act Number One Hundred Twenty-One (121) of the
Legislature of Puerto Rico, approved June twenty-seven (27), nineteen hundred
seventy-seven (1977), as amended (the "Act"), the Authority was created a body
corporate and politic constituting a public corporation and governmental
instrumentality of the Commonwealth.
SECOND: That the Authority is authorized under the Act to borrow money
and issue revenue bonds for the purpose of providing funds to pay all or any
part of the cost of any industrial, tourist, educational, medical and
environmental control facility, the principal of and the premium, if any, and
the interest on which bonds shall be payable solely from the funds provided by
the obligor under a loan agreement in respect of such project.
THIRD: That the Authority has determined to issue
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its Industrial Revenue Bonds, 1999 Series A (Doral Financial Center Project) in
the aggregate principal amount of FORTY-FOUR MILLION SEVEN HUNDRED SIXTY-FIVE
THOUSAND DOLLARS ($44,765,000) (the "Bonds") and to lend the proceeds thereof
to Doral Properties, Inc. (the "Borrower") for the purpose of providing funds,
together with other available funds, to (i) pay the cost of acquisition,
development, construction and equipping of a new building and related
facilities to be known as the Doral Financial Center, (ii) pay the interest due
on the Bonds during the construction of the Project (as herein defined) and
(iii) pay certain expenses incurred in connection with the authorization and
issuance of the Bonds by the Authority.
FOURTH: That simultaneously with the issuance of the Bonds, the
Borrower and the Authority will enter into a loan and guaranty agreement, dated
as of the Date of Issuance (as herein defined) (which loan and guaranty
agreement, together with any and all amendments and supplements thereto as
herein permitted, is herein called the "Loan Agreement"), pursuant to which the
Authority will lend the proceeds of the Bonds to the Borrower.
FIFTH: That the Authority is entering into this Agreement for the
purpose of issuing the Bonds, and securing the payment thereof by assigning
certain of its rights and interests under the Loan Agreement, including its
rights to a portion of the payments thereunder.
SIXTH: That in order to assure the full and timely payment of the
Bonds to be issued hereunder, Doral Financial Corporation has, under the Loan
Agreement,
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guaranteed the timely payment of principal of and interest on the Bonds when
due
SEVENTH: That in order to further secure its obligations under the
Loan Agreement, the Borrower has entered into a Pledge and Security Agreement
with the Authority, dated the date hereof, pledging in favor of the Authority a
mortgage note secured by a mortgage on the real property where the Project will
be located and the buildings and fixtures forming part thereof. To further
secure the payment of the Bonds, the Authority proposes to assign its rights
under said Pledge Agreement to the Trustee for the benefit of the bondholders.
EIGHTH: That the Authority has determined that the Bonds and the
certificate of authentication to be endorsed thereon by the Trustee shall be
substantially in the form attached hereto as Exhibit A with such variations,
omissions and insertions as are required or permitted by this Agreement.
WHEREAS, the execution and delivery of this Agreement and the Loan
Agreement have been duly authorized by resolution of the Authority;
WHEREAS, all acts, conditions and things required by the Puerto Rican
Federal Relations Act, the Constitution and laws of the Commonwealth, including
the Act, and the rules and regulations of the Authority to happen, exist and be
performed precedent to and in the execution and delivery of this Agreement have
happened, exist and have been performed as so required in order to make this
Agreement a legal, valid and binding trust agreement securing the Bonds
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in accordance with its terms and in order to make the Loan Agreement a legal,
valid and binding agreement in accordance with its terms; and
WHEREAS, the Trustee has accepted the trusts created by this Agreement
and in evidence thereof has joined in the execution hereof;
NOW, THEREFORE, THIS AGREEMENT WITNESSETH, that in consideration of
the foregoing, of the acceptance by the Trustee of the trusts hereby created,
and of the purchase and acceptance of the Bonds by the Holders (as hereinafter
defined) thereof, and for the purpose of fixing and declaring the terms and
conditions upon which the Bonds are to be issued, executed, authenticated,
delivered, secured and accepted by all persons who shall from time to time be
or become Holders thereof, and to secure the payment of all Bonds at any time
issued and outstanding (as hereinafter defined) under this Agreement and the
interest and the redemption premium, if any, thereon according to their tenor,
purport and effect, and to secure the performance and observance of all the
covenants, agreements and conditions, expressed or implied, therein and herein
contained, the Authority has executed and delivered this Agreement, and by this
Agreement does hereby pledge, assign and transfer unto the Trustee, and its
successor or successors, in trust:
I. All right, title and interest of the Authority in and to the
Loan Agreement (except for those certain rights that are set forth in the next
sentence of this clause) and the Collateral Documents, it being the intent and
purpose hereof that the
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pledge, assignment and transfer to the Trustee of the payments and other sums
due and to become due under the Loan Agreement shall be effective and operative
immediately and the Trustee shall have the right to collect and receive said
payments and other sums for application in accordance with the provisions
hereof at all times during the period from and after the date of this Agreement
until the indebtedness hereby secured shall have been fully paid and
discharged. The Authority specifically reserves from this assignment its rights
under the Loan Agreement to receive notices, reports and other statements given
both to the Authority and the Trustee, its rights under Sections 4.04, 4.05,
4.07, 5.06, 5.07 and 7.04 of the Loan Agreement to payment of certain costs and
expenses and to indemnification, and to individual and corporate rights to
exemption from liability under Sections 5.04, 9.14 and 9.15 of the Loan
Agreement; provided that the reservation of the aforementioned rights shall not
prevent the Trustee from enforcing the same on behalf of the Authority and the
Holders. The Authority is to remain liable to observe and perform all the
conditions and covenants in the Loan Agreement provided to be observed and
performed by it;
II. All money and securities held by the Trustee in all of the funds
or accounts established under this Agreement; and
III. All proceeds derived from the exercise of any remedies
hereunder;
as security for the payment of the principal of and the premium, if any, on the
Bonds and the interest
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thereon, and as security for the satisfaction of any other obligation assumed
by it in connection with such Bonds, and it is so mutually agreed and
covenanted by and between the parties hereto, for the equal and proportionate
benefit and security of all and each present and future Holders of the Bonds
issued under this Agreement, without preference, priority or distinction as to
lien or otherwise, except as otherwise hereinafter provided, of any one Bond
over any other Bond, by reason of priority in the issue, sale or negotiation
thereof or otherwise.
TO HAVE AND TO HOLD all the same forever, with all privileges and
appurtenances hereby pledged, assigned and transferred or agreed or intended so
to be, in trust to the Trustee and its successor or successors and to them and
their assigns forever, subject, however, to the rights of the Borrower under
the Loan Agreement and to the exceptions, reservations and matters therein and
herein recited; but IN TRUST, nevertheless, for the equal and proportionate
benefit and security of the Holders, from time to time, of the Bonds
authenticated and delivered hereunder and outstanding without preference,
priority or distinction as to lien or otherwise, except as may otherwise be
provided herein, of any one Bond over any other Bond, by reason of priority in
the issue, sale or negotiation thereof or otherwise;
PROVIDED, HOWEVER, that if the Authority, its successors or assigns,
shall well and truly pay, or cause to be paid, or provide for the payment,
pursuant to the provisions of this Agreement, of the principal of all the Bonds
and the interest and any redemption
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premium due or to become due thereon, at the times and in the manner mentioned
in the Bonds and this Agreement, according to the true intent and meaning
thereof and hereof, and shall cause the payments to be made into the Bond Fund
as required under this Agreement, and shall pay or cause to be paid to the
Trustee all sums of money due or to become due to it in accordance with the
terms and provisions hereof, then upon such performance and payments this
Agreement and the rights hereby granted shall cease and terminate as provided
in Article XIII hereof, and thereupon the Trustee shall cancel and discharge
this Agreement and execute and deliver to the Authority and the Borrower such
instruments as shall be required to evidence the discharge hereof; otherwise
this Agreement is to be and remain in full force and effect.
THIS AGREEMENT FURTHER WITNESSETH, and it is expressly declared, that
all Bonds issued and secured hereunder are to be issued, authenticated,
delivered, and dealt with, and the payments under the Loan Agreement and other
revenues and funds hereby pledged, assigned and transferred are to be dealt
with and disposed of under, upon and subject to the terms, conditions,
stipulations, covenants, agreements, trusts, uses and purposes as hereinafter
expressed, and the Authority has agreed and covenanted, and does hereby agree
and covenant, with the Trustee and with the respective Holders, from time to
time, of Bonds, or any part thereof, as follows, that is to say:
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ARTICLE I
DEFINITIONS; RULES OF CONSTRUCTION;
CONFLICT WITH TRUST INDENTURE ACT
SECTION 101. MEANING OF WORDS AND TERMS. In addition to words and
terms elsewhere defined in this Agreement, the following words and terms as
used in this Agreement shall have the following meanings:
"Act" means Act Number One Hundred Twenty-One (121) of the Legislature
of Puerto Rico, approved June twenty-seven (27), nineteen hundred seventy-seven
(1977), as amended, and all future acts supplemental thereto or amendatory
thereof.
"Act of Bankruptcy" means the filing of a petition commencing a case
under the United States Bankruptcy Code by or against the Borrower or the
Guarantor.
"Administrative Fee" means the one time fee to the Authority in the
amount of one half of one percent (1/2 of 1%) of the principal amount of the
Bonds.
"Affiliate" shall have the meaning given to that term in Section 1.01
of the Loan Agreement.
"Agreement" means this Trust Agreement, together with all agreements
supplemental hereto or amendatory hereof as herein permitted.
"Amortization Requirements" means, with respect to the Term Bonds, the
principal amounts fixed initially in Exhibit B to this Agreement for the
retirement of Term Bonds by purchase or redemption on each June one (1) and
December one (1) of each year pursuant to Section 301(e) hereto, commencing on
June one (1), two thousand ten (2010), or payment at maturity in the case of
the final Amortization Requirement for each Term Bond.
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On or before the forty-fifth (45th) day next preceding any Interest
Payment Date on which Term Bonds are to be retired pursuant to the Amortization
Requirement therefor, the Authority or the Borrower may purchase and deliver to
the Trustee for cancellation Term Bonds required to be redeemed on such
Interest Payment Date in any aggregate principal amount desired and receive a
credit against the required Amortization Requirement on account of such Term
Bonds in the amount of one hundred percent (100%) of the principal amount of
any such Term Bonds so purchased and delivered.
If on the forty-fifth (45th) day next preceding any Interest Payment
Date on which Term Bonds are to be retired pursuant to the applicable
Amortization Requirement, the Trustee determines that the total principal
amount of Term Bonds of the same maturity date as the Term Bonds to be retired
which have already been retired by purchase or redemption (or called for
redemption under the provisions of Article III of this Agreement) prior to such
date, is greater than the aggregate amount of Amortization Requirements for
each preceding Interest Payment Date, then the Amortization Requirement for
subsequent Interest Payment Dates shall be reduced by the amount of such excess
as shall be specified in an Officer's Certificate of the Borrower delivered to,
and accepted by, the Trustee.
Prior to June one (1), two thousand ten (2010), there shall be no
Amortization Requirement. The aggregate amount of the Amortization Requirements
for the Term Bonds, together with the amount due upon the
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final maturity of such Term Bonds, shall be equal to the aggregate principal
amount of the Term Bonds.
"Authority" means Puerto Rico Industrial, Tourist, Educational,
Medical and Environmental Control Facilities Financing Authority, a body
corporate and politic constituting a public corporation and governmental
instrumentality of the Commonwealth and any successor thereto.
"Authority Representative" means the Authority Representative as
defined in Section 1.01 of the Loan Agreement.
"Beneficial Owner" means, whenever used with respect to a Bond, the
person in whose name such Bond is recorded as the beneficial owner of such Bond
by a Participant on the records of such Participant.
"Bond Fund" means the "Industrial Revenue Bonds, 1999 Series A (Doral
Financial Center Project) Bond Fund," a fund created and designated by the
provisions of Section 501 of this Agreement.
"Bondholder", "Holder", or "owner" of a Bond, means a person in whose
name a Bond is registered in the registration books provided for in Section 206
of this Agreement.
"Bonds" means the Bonds issued under the provisions of Section 208 of
this Agreement.
"Borrower" means Doral Properties, Inc., a corporation organized and
existing under the laws of the Commonwealth, which has elected to be treated as
a special partnership under Subchapter K of Chapter 3 of Subtitle A of the
Puerto Rico Internal Revenue Code of 1994, as amended, and its successors and
permitted assigns and any surviving, resulting or transferee
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entity.
"Borrower Representative" has the meaning given to that term in
Section 1.01 of the Loan Agreement.
"Business Day" means any day of the year other than a Saturday, Sunday
or other day on which commercial banks in the Commonwealth or New York, New
York, are generally closed for business to the
public.
"Closing" has the meaning given to that term in Section 1.01 of the
Loan Agreement.
"Code" means the United States Internal Revenue Code of 1986, as
amended, and the rules and regulations thereunder.
"Collateral Documents" means the Mortgage, the Mortgage Note and the
Pledge Agreement, as amended from time to time.
"Commission" means the Securities and Exchange Commission.
"Commonwealth" means the Commonwealth of Puerto Rico.
"Completion Date" means the date of completion of the construction of
the Project as that date shall be certified as provided in Section 3.05 of the
Loan Agreement.
"Construction Fund" means the "Industrial Revenue Bonds, 1999 Series A
(Doral Financial Center Project) Construction Fund," a fund created and
designated by the provisions of Section 401 of this Agreement.
"Construction Fund Transfer Date" has the meaning specified in Section
406 of this Agreement.
"Cost" has the meaning specified in Section 403 of this Agreement.
"Costs of Issuance" means all items of expense
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relating to the authorization, sale and issuance of the Bonds, the initial or
acceptance fee of the Trustee, legal, accounting and financial advisory fees
and expenses, underwriting fees and expenses, filing and rating agencies' fees
and printing and engraving costs incurred in connection with the authorization,
sale and issuance of the Bonds, the execution of this Agreement, the Loan
Agreement, the Collateral Documents and all other documents in connection
therewith, and payment of all fees, costs and expenses for the preparation of
the Loan Agreement, this Agreement, the Collateral Documents, the Bonds, and
any other fees and expenses necessary or incident to the issuance and sale of
the Bonds, and the documents contemplated by any of the foregoing.
"Date of Issuance" means November third (3rd), nineteen hundred
ninety-nine (1999), the date of the initial delivery and sale of the Bonds.
"Defaulted Interest" has the meaning specified in Section 203 of this
Agreement.
"Defeasance Obligations" means (i) noncallable Government Obligations
and, to the extent from time to time permitted by law, (ii) obligations issued
or guaranteed by the Federal National Mortgage Association, Federal Home Loan
Mortgage Corporation, Farm Credit System, Federal Home Loan Banks or Student
Loan Marketing Association, (iii) Defeased Municipal Obligations and (iv)
evidences of ownership of a proportionate interest in the obligations specified
in clause (ii) and in specified Defeased Municipal Obligations, which
obligations described in clause (ii) and Defeased Municipal Obligations are
held by a
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bank or trust company organized and existing under the laws of the United
States of America or any state or territory thereof as custodian.
"Defeased Municipal Obligations" means obligations of state, territory
or local government issuers which are rated in the highest rating category by a
Rating Agency, provision for the payment of the principal of and interest on
which shall have been made by deposit with a trustee or escrow agent of
noncallable Government Obligations, the maturing principal of and interest on
such Government Obligations, when due and payable, shall provide sufficient
money to pay the principal of and redemption premium, if any, and interest on
such obligations of state, territory or local government issuers.
"DTC" means The Depository Trust Company, a limited purpose trust
company organized under the laws of the State of New York, and its successors
and assigns.
"D&P" means Duff & ▇▇▇▇▇▇, its successors and assigns.
"Event of Default" means, with respect to this Agreement, each of
those events set forth in Section 802 hereof.
"Event of Taxability" has the meaning given to that term in Section
1.01 of the Loan Agreement.
"Executive Director" shall mean the Executive Director or the
Assistant Executive Director of the Authority for the time being, or if there
is no Executive Director or Assistant Executive Director, then any person
designated by the Board of Directors of the Authority or authorized by the
by-laws of the
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Authority to perform the functions of the Executive Director.
"Government Obligations" means (i) direct obligations of, or
obligations the timely payment of principal of and the interest on which are
unconditionally guaranteed by, the United States of America and (ii) any
certificates or other evidences of ownership interest in obligations or in
specified portions thereof (which may consist of specified portions of the
principal thereof or the interest thereon) of the character described in clause
(i).
"Guarantor" means Doral Financial Corporation
"Independent Accountants" shall have the meaning given to that term in
Section 1.01 of the Loan Agreement.
"Interest Payment Date" means the first (1st) day of each calendar
month, commencing on December one (1), nineteen hundred ninety-nine (1999).
"Loan" shall have the meaning given to that term in Section 1.01 of
the Loan Agreement.
"Loan Agreement" means the Loan Agreement, as that term is defined in
paragraph FOURTH of the preamble to this Agreement.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., its successors and
assigns.
"Mortgage" means the first mortgage on the Property constituted by
Deed Number Fifty-Three (53) of Constitution of First Mortgage executed before
Notary Public ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Ibanez, on November three (3), nineteen hundred
ninety-nine (1999).
"Mortgage Note" means the mortgage note of the
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Borrower, in a principal amount of not less than the aggregate principal amount
of the Bonds, to be secured by the Mortgage.
"Officer's Certificate" means (i) with respect to the Borrower or the
Guarantor a certificate signed by any two of the following officers; the
president, chief executive officer, chief financial officer, treasurer or any
vice president of the Borrower or the Guarantor, as the context requires. One
of the officers signing an Officer's Certificate given pursuant to Section
920(b) shall be the principal executive, financial or accounting officer of the
Borrower or the Guarantor, as the case may be, and (ii) with respect to the
Authority a certificate signed by two Authorized Representatives.
"Opinion of Counsel" means an opinion in writing signed by an attorney
or firm of attorneys acceptable to the Trustee who may be counsel for the
Authority or the Borrower or other
counsel.
"Outstanding" or "outstanding" when used with reference to Bonds,
means, as of a particular date, all Bonds theretofore issued and authenticated
under this Agreement, except:
(a) Bonds theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(b) Bonds for the payment of which moneys or Defeasance
Obligations the principal of and the interest on which Defeasance
Obligations, when due, without reinvestment, will be sufficient to
pay, on the date when such Bonds are to be paid or redeemed, the
principal amount and premium, if any, and the
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interest accruing to such date on the Bonds to be paid or redeemed,
have been deposited with the Trustee in trust for the Holders of such
Bonds;
(c) Bonds deemed to have been paid in accordance with Section
1301 of this Agreement; or
(d) Bonds in exchange for or in lieu of which other Bonds
have been authenticated and delivered pursuant to this Agreement;
provided, however, that in determining whether the Holders of the
requisite principal amount of Bonds Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Bonds owned or
held by or for the account of the Borrower or any Affiliate thereof shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Bonds which the
Trustee knows to be so owned shall be so disregarded.
"Participant" means each broker-dealer, bank or other financial
institution for which DTC or any other Securities Depository holds securities
as a Securities Depository.
"Payment of the Bonds" means payment of the principal of and premium,
if any, and interest on all or a portion of the Bonds in accordance with their
terms, whether through payment at maturity or purchase or redemption or
provision for such payment in such a manner that such Bonds or such portion
shall be deemed to have been paid under the second paragraph of
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Section 1301 of this Trust Agreement.
"person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"Pledge Agreement" means the Pledge and Security Agreement, dated as
of November three (3), nineteen hundred ninety-nine (1999) by and between the
Borrower and the Authority, pursuant to which the Borrower delivers the
Mortgage Note to the Authority in pledge as security for the Borrower's
obligations under the Loan Agreement.
"Predecessor Bonds" of any particular Bond means every previous Bond
evidencing all or a portion of the same debt as that evidenced by such
particular Bond, and, for purposes of this definition, any Bond authenticated
and delivered under Section 210 hereof in lieu of a lost, destroyed, mutilated
or stolen Bond shall be deemed to evidence the same debt as the lost,
destroyed, mutilated or stolen Bond.
"principal" means, with respect to a Bond, the amount of such Bond
stated to be payable at its maturity.
"Project" has the meaning given to that term in Section 1.01 of the
Loan Agreement.
"Property" means the property identified in and encumbered by the
Mortgage.
"Rating Agency" means, initially, S&P, Moody's and D&P or, if S&P,
Moody's or D&P shall elect to discontinue the rating on the Bonds, any
nationally
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recognized securities rating organization designated by the Authority and the
Borrower then rating the Bonds.
"Regular Record Date" means the fifteenth (15th) day of the month
immediately preceding an Interest Payment Date.
"Representation Letter" means the Representation Letter from the
Authority, the Borrower and the Trustee to DTC with respect to the Bonds,
which, so long as DTC shall be the Securities Depository for the Bonds, shall
be deemed to be part of this Agreement and shall be a binding obligation of the
Authority and the Trustee.
"Secretary" means the Secretary or any Assistant Secretary of the
Authority, or if there is no secretary or assistant secretary, then any person
designated by the Board of Directors of the Authority or authorized by the
by-laws of the Authority to perform the functions of the Secretary.
"Securities Depository" means DTC, or any other securities depository
(or any of its designees to the Trustee) appointed for the Bonds.
"Serial Bonds" means the Bonds which are stated to mature on June one
(1) and December one (1) of each year commencing with the Bonds maturing in the
month of June contained in year two thousand three (2003) and ending in the
month of December contained in year two thousand nine (2009).
"Special Record Date" means a date fixed by the Trustee for the
payment of any Defaulted Interest on Bonds pursuant to Section 203 hereof.
"S&P" means Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., a
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corporation organized and existing under the laws of the State of New York, its
successors and assigns.
"Term Bonds" means the Bonds that are stated to mature on December one
(1), two thousand fourteen (2014), June one (1), two thousand twenty-six (2026)
and December one (1), two thousand twenty-nine (2029).
"Trust Indenture Act" means the Trust Indenture Act of Nineteen Hundred
Thirty-Nine (1939) as in force at the date as of which this Agreement was
executed; provided, however, that in the event the Trust Indenture Act of
Nineteen Hundred Thirty-Nine (1939) is amended after such date, "Trust Indenture
Act" means, to the extent required by such amendment, the Trust Indenture Act of
Nineteen Hundred Thirty-Nine (1939), as so amended.
"Trustee" means the Trustee acting as such under this Agreement,
whether the original or any successor trustee.
"Underwriters" means the initial purchasers of the Bonds pursuant to
the terms of that certain Bond Purchase Agreement dated October twenty-eighth
(28th), nineteen hundred ninety-nine (1999).
SECTION 102. RULES OF CONSTRUCTION. Words of the masculine gender
shall be deemed and construed to include correlative words of the feminine and
neuter genders. Unless the context shall otherwise indicate, "Bond,"
"Bondholder," "owner," "Holder" and "person" shall include the plural as well
as the singular number.
SECTION 103. COMPLIANCE CERTIFICATES AND OPINIONS. Upon any
application or request by the Authority, the Borrower or the Guarantor to the
Trustee to take any
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action under any provision of this Agreement, the requesting party shall
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Agreement relating to the proposed
action have been complied with and an Opinion of Counsel, who may be counsel
for the Authority, the Borrower or the Guarantor and shall be appointed by
order of the Borrower or the Guarantor, stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Agreement
relating to such particular application or request, no additional certificate
or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Agreement shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of
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each such individual, such condition or covenant has been complied
with
SECTION 104. CONFLICT WITH TRUST INDENTURE ACT. If any provision
hereof limits, qualifies or conflicts with a provision of the Trust Indenture
Act that is required under such Act to be a part of and govern this Agreement,
the latter provision shall control. If any provision of this Agreement modifies
or excludes any provision of the Trust Indenture Act that may be so modified or
excluded, the latter provision shall be deemed to apply to this Agreement as so
modified or shall be deemed to be excluded, as the case may be.
ARTICLE II
FORM, EXECUTION, AUTHENTICATION, DELIVERY
AND EXCHANGE OF BONDS
SECTION 201. LIMITATION ON ISSUANCE OF BONDS. No Bonds may be issued
under this Agreement except in accordance with the provisions of this Article.
SECTION 202. FORM OF BONDS. The definitive Bonds are issuable as fully
registered Bonds without coupons, in denominations of not less than FIVE
THOUSAND DOLLARS ($5,000) and any integral multiple thereof. The definitive
form of Bonds shall be substantially in the form attached hereto as Exhibit A
with such appropriate variations, omissions and insertions as may be necessary
or appropriate to conform to the provisions of this Agreement. All Bonds may
have endorsed thereon such legends or text as may be necessary or appropriate
to conform to any applicable rules and regulations of any governmental
authority or of any securities exchange on which the
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Bonds may be listed or traded or any usage or requirement of law with respect
thereto or as may be authorized by the Authority and approved by the Trustee.
SECTION 203. DETAILS OF BONDS. The Bonds shall be dated their Date of
Issuance, shall bear interest until their payment, such interest to the
maturity or prior redemption thereof being payable monthly on the first (1st)
day of each month, and shall be stated to mature (subject to the right of prior
redemption), all as hereinafter provided.
Each Bond shall bear interest from the Interest Payment Date next
preceding the date on which it is authenticated, unless it is (a) authenticated
on an Interest Payment Date, in which case it shall bear interest from such
Interest Payment Date, or (b) authenticated prior to the first Interest Payment
Date, in which case it shall bear interest from its date; provided, however,
that if at the time of authentication of any Bond interest is in default, such
Bonds shall bear interest from the date to which interest shall have been paid
or duly provided for.
Interest on the Bonds shall be computed on the basis of a three
hundred and sixty (360) day year of twelve (12) months of thirty (30) days
each.
The Bonds shall be signed by, or bear the facsimile signatures of, the
Executive Director of the Authority and of the Secretary or any Assistant
Secretary of the Authority. A facsimile of the official seal of the Authority
shall be printed on the Bonds.
In case any officer whose signature or a facsimile of whose signature
shall appear on any Bonds shall
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cease to be such officer before the delivery of such Bonds, such signature or
such facsimile shall nevertheless be valid and sufficient for all purposes as
if he had remained in office until such delivery, and also any Bond may bear
the facsimile signatures of or may be signed by such persons as at the actual
time of the execution of such Bond shall be the proper officers to sign such
Bond although at the date of issue of such Bond such persons may not have been
such officers.
The principal of and premium, if any, and the interest on the Bonds
shall be payable in any coin or currency of the United States of America which
on the respective dates of payment thereof is legal tender for the payment of
public and private debts. The principal of and premium, if any, on all Bonds
shall be payable only to the registered owner or his legal representative at
the corporate trust office of the Trustee upon the presentation and surrender
of such Bonds as the same shall become due and payable. Interest on each Bond
which is payable, and is punctually paid or duly provided for on any Interest
Payment Date shall be paid to the person in whose name such Bond (or one or
more Predecessor Bonds) is registered at the close of business on the Regular
Record Date by check mailed to each such registered owner at its address as it
appears on the registration books kept by the Trustee pursuant to Section 206
hereof.
Interest on any Bond which is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date (herein called "Defaulted
Interest")
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shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date solely by virtue of such Holder having been such Holder;
and such Defaulted Interest may be paid by the Authority, at its election in
each case, as provided in clause one or two
below:
one. The Authority may elect to make payment of any Defaulted
Interest to the persons in whose names the Bonds (or their respective
Predecessor Bonds) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Authority shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be
paid on each Bond and the date of the proposed payment (which date
shall be such as will enable the Trustee to comply with the next
sentence hereof), and at the same time the Authority shall deposit or
shall cause to be deposited with the Trustee an amount of money equal
to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the
persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix the Special Record Date for
the payment of such Defaulted Interest which shall be not more than
fifteen (15) days and not fewer than ten (10) days prior to the date
of the proposed payment and not fewer than ten (10) days after the
receipt by the Trustee of the notice of the proposed payment.
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The Trustee shall promptly notify the Authority and the Borrower of such Special
Record Date and, in the name and at the expense of the Borrower, shall cause
notice of the proposed payment of such Defaulted Interest and the Special Record
Date therefor to be mailed, first-class postage prepaid, to each Holder of such
Bonds at his address as it appears in the registration books maintained by the
Trustee under Section 206 hereof not fewer than ten (10) days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the persons in whose names such Bonds (or
their respective Predecessor Bonds) are registered at the close of business on
such Special Record Date and shall no longer be payable pursuant to the
following clause two.
two. The Authority may make payment of any Defaulted
Interest in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Bonds affected may
be listed, and upon such notice as may be required by such exchange,
if, after notice given by the Authority to the Trustee of the proposed
payment pursuant to this clause, such payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Bond
delivered under this Agreement upon registration of transfer of or in exchange
for or in lieu of any other Bond shall carry the rights to interest accrued and
unpaid, and to accrue, which were
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carried by such other Bond.
SECTION 204. AUTHENTICATION OF BONDS. Only such of the Bonds as shall
have endorsed thereon a certificate of authentication substantially in the form
set forth in Exhibit A hereof, duly executed by the Trustee, shall be entitled
to any benefit or security under this Agreement. No Bond shall be valid or
become obligatory for any purpose unless and until such certificate of
authentication shall have been duly executed by the Trustee, and such
certificate of the Trustee upon any such Bond shall be conclusive evidence that
such Bond has been duly authenticated and delivered under this Agreement. The
Trustee's certificate of authentication on any Bond shall be deemed to have been
duly executed if signed by an authorized officer of the Trustee, but it shall
not be necessary that the same officer sign the certificate of authentication on
all of the Bonds that may be issued hereunder at any one time.
SECTION 205. EXCHANGE OF BONDS. Bonds may be exchanged at the option of
the registered owner thereof, upon surrender thereof at the corporate trust
office of the Trustee, together with an assignment duly executed by the
registered owner or his attorney or legal representative in such form as shall
be satisfactory to the Trustee, for an equal aggregate principal amount of Bonds
of the same maturity, of any denomination or denominations authorized by this
Agreement and bearing interest at the same rate, and in the same form as the
Bonds surrendered for exchange.
The Authority shall make provision for the exchange
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of the Bonds at the corporate trust office of the
Trustee.
SECTION 206. NEGOTIABILITY, REGISTRATION OF TRANSFER OF BONDS. The
Trustee shall keep books for the registration of transfers of Bonds as provided
in this Agreement. Said registration books shall be available at all reasonable
times for inspection by the Authority, the Borrower, the Guarantor and their
agents and representatives, and the Trustee shall provide to the Borrower and
the Guarantor and the Authority, upon their written request, an accurate copy of
the names and addresses of the Holders set forth on such books.
The transfer of any Bond may be registered only upon the books kept for
the registration and registration of transfers of Bonds upon surrender thereof
to the Trustee, together with an assignment duly executed by the registered
owner or such owner's attorney or legal representative in such form as shall be
satisfactory to the Trustee. Upon any such registration of transfer, the
Authority shall execute and the Trustee shall authenticate and deliver in
exchange for such Bond a new registered Bond or Bonds, registered in the name of
the transferee, of the same maturity, of any denomination or denominations
authorized by this Agreement in the aggregate principal amount equal to the
principal amount of such Bond and bearing interest at the same rate.
In all cases in which Bonds shall be exchanged or the transfer of Bonds
shall be registered hereunder, the Authority shall execute and the Trustee shall
authenticate and deliver at the earliest practicable
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time Bonds in accordance with the provisions of this Agreement. All Bonds
surrendered in any such exchange or registration of transfer shall forthwith be
cancelled by the Trustee. The Authority or the Trustee may impose a reasonable
fee or service charge for every such exchange or registration of transfer of
Bonds sufficient to reimburse it for any tax or other governmental charge
required to be paid with respect to such exchange or registration of transfer.
Neither the Authority nor the Trustee shall be required to make any such
registration of transfer or exchange of Bonds during a period beginning at the
opening of business fifteen (15) days before the day of the mailing of a notice
of redemption of Bonds and ending at the close of business on the day of such
mailing, or after any Bond has been selected for redemption in whole or in part,
except the unredeemed portion of any Bond being redeemed in part.
SECTION 207. OWNERSHIP OF BONDS; TRANSFER OF TITLE. As to any Bond, the
person in whose name such Bond is registered shall be deemed and regarded as the
absolute owner thereof for all purposes, and payment of or on account of the
principal of and the interest on any such Bond shall be made only to or upon the
order of the registered owner thereof or his legal representative. All such
payments shall be valid and effectual to satisfy and discharge the liability
upon such Bond including interest thereon, to the extent of the sum or sums so
paid.
The owner of any Bond is hereby granted the power to transfer absolute
title thereto by assignment thereof to a bona fide purchaser for value (present
or
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antecedent) without notice of prior defenses or equities or claims of ownership
enforceable against his assignor or any person in the chain of title and before
the maturity of such Bond. Every prior owner of any Bond shall be deemed to have
waived and renounced all of his equities or rights therein in favor of every
assignee and every assignee shall acquire absolute title thereto and to all
rights represented thereby.
SECTION 208. AUTHORIZATION OF BONDS. There shall be issued under and
secured by this Agreement Bonds of the Authority in the aggregate initial
principal amount of FORTY-FOUR MILLION SEVEN HUNDRED SIXTY-FIVE THOUSAND DOLLARS
($44,765,000) for the purpose of providing funds, together with other available
funds, to (i) pay the Cost of the Project, and (ii) pay a portion of the Costs
of Issuance. The Bonds shall be dated the Date of Issuance, shall be numbered
from RA- one (1) upwards, in the case of Serial Bonds, and RB-one (1) upwards,
in the case of Term Bonds, and shall be designated "Puerto Rico Industrial,
Tourist, Educational, Medical and Environmental Control Facilities Financing
Authority, Industrial Revenue Bonds, 1999 Series A (Doral Financial Center
Project)." The interest rate or rates, maturity dates (subject to prior
redemption), amounts of the Bonds maturing on such dates, and the Amortization
Requirements for the Term Bonds shall be as set forth in Exhibit B hereto.
The Bonds shall be executed substantially in the form and manner set
forth in Exhibit A and shall be deposited with the Trustee for authentication,
but
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before the Bonds shall be delivered by the Trustee, there shall be filed with
the Trustee the following:
(a) a copy, certified by the Secretary or any Assistant
Secretary of the Authority, of the resolution of the Authority
authorizing the issuance of and awarding such Bonds, specifying the
interest rate or rates for the Bonds, authorizing the execution of the
Loan Agreement and this Agreement, designating the Trustee and
directing the authentication and delivery of the Bonds to or upon the
order of the purchasers mentioned therein upon payment of the purchase
price therein set forth and the accrued interest, if any, on said
Bonds;.
(b) an executed counterpart of the Loan Agreement;
(c) the Mortgage Note, a copy of the Mortgage, and a mortgagee
title insurance policy insuring the Mortgage as a first priority
mortgage on the Property, subject to no other liens or encumbrances
other than those permitted by the Loan Agreement;
(d) an executed counterpart of the Pledge Agreement;
(e) an opinion of counsel to the Borrower and the Guarantor,
addressed to the Trustee and the Underwriters, substantially to the
effect that the execution and delivery of the Loan Agreement has been
duly authorized by the Borrower and the Guarantor, that the Collateral
Documents have been duly authorized by the Borrower, that the Loan
Agreement and the Collateral Documents are in the form so authorized
and have been duly executed by the Borrower and the Guarantor, as
applicable, and that, assuming
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proper authorization and the execution of the Loan Agreement and the
Collateral Documents by the Authority, the Loan Agreement is a legal,
valid and binding agreement of the Borrower and the Guarantor and the
Collateral Documents are legal, valid and binding agreements of the
Borrower, enforceable against the Borrower and the Guarantor, as the
case may be, in accordance with their terms, except to the extent that
the enforceability of the Loan Agreement and the Collateral Documents
may be limited by bankruptcy, insolvency or other laws affecting
creditors' rights generally and subject to general principles of equity
(regardless of whether said enforceability is considered in a
proceeding in equity or at law) and subject to such other standard
exceptions or qualifications as are acceptable to counsel to the
Authority and the Underwriters, the Pledge Agreement is effective to
create a valid and enforceable security interest in favor of the
Authority and the Trustee over the Mortgage Note, which security
interest will be perfected upon delivery of the Mortgage Note to the
Authority, and, upon filing of the Mortgage in the appropriate section
of the Registry of Property of Puerto Rico, the Mortgage will create a
valid and enforceable mortgage lien over the real property described
therein;
(f) an opinion of counsel, who may be counsel for the
Authority, addressed to the Trustee and the Underwriters, substantially
to the effect that: (i) the Authority has the legal right and power to
enter into this Agreement, the Loan Agreement and the Pledge Agreement,
and has duly authorized and validly
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executed and delivered this Agreement, the Loan Agreement and the
Pledge Agreement, and each such agreement is legally valid and binding
upon the Authority and enforceable in accordance with its terms, except
to the extent that the enforceability thereof may be limited by
bankruptcy, insolvency or other laws affecting creditors' rights
generally and subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or
at law), (ii) this Agreement creates a legally valid and effective
pledge, assignment and transfer in trust of the moneys, securities and
funds held or set aside under this Agreement as security for the Bonds,
subject to the application thereof to the purposes and on the
conditions permitted by this Agreement, and that no filing or recording
of any document is necessary in order to make such pledge, assignment
and transfer in trust effective or to continue it in effect (or
specifying the place or places, if any, where such filing or recording
is necessary and furnishing any officially authenticated certificates,
or other documents by which such filing or recording is evidenced and
stating that such filings or recordings have been made and stating that
no other filing or recording is necessary), (iii) the issuance of the
Bonds will not violate any provision of law or of the by-laws of the
Authority or result in the breach of, or constitute a default under,
any agreement, indenture or other instrument to which the Authority is
a party or by which it may be bound, (iv) no authorization, consent or
approval or withholding of
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objection of any governmental body or regulatory authority is requisite
to the legal issue of said Bonds by the Authority (unless such opinion
shall show that no authorization, consent or approval or withholding of
objection is requisite to the legal issue of said Bonds, it shall
specify and furnish any officially authenticated certificates, or other
documents, by which such authorization, consent or approval or
withholding of objection is evidenced and stating that no other
authorization, consent or approval or withholding of objection is
required), (v) the Bonds are legally valid and binding direct
obligations of the Authority enforceable in accordance with their terms
and the terms of this Agreement and have been duly and validly
authorized and issued in accordance with applicable law and this
Agreement, and (vi) the conditions precedent to the delivery of the
Bonds have been fulfilled, and covering such other matters as the
Trustee or the Underwriters may reasonably request;
(g) an Officer's Certificate of the Authority that the
conditions precedent to the delivery of the Bonds has been fulfilled;
and
(h) such other opinions or certificates as the Trustee may
reasonably require or that may be required under the Trust Indenture
Act.
When the documents mentioned in clauses (a) to (h), inclusive, of this
Section shall have been filed with the Trustee and when the Bonds shall have
been executed as required by this Agreement, the Trustee shall authenticate and
deliver the Bonds to or upon the order of the Underwriters, but only upon
payment
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to the Trustee of the purchase price of the Bonds and the accrued interest
thereon, if any. The Trustee shall be entitled to rely upon such resolutions,
certificates and opinions as to all matters stated therein.
Simultaneously with the delivery of the Bonds, the net proceeds
(including accrued interest, if any) of the Bonds shall be deposited to the
credit of the Construction Fund.
SECTION 209. TEMPORARY BONDS. Until definitive Bonds are ready for
delivery, there may be executed, and upon request of the Authority, the Trustee
shall authenticate and deliver, in lieu of definitive Bonds and subject to the
same limitations and conditions, printed, typewritten, engraved or lithographed
temporary Bonds, in the form of fully registered Bonds without coupons in such
denominations, or in the form of a single registered Bond without coupons in a
denomination equal to the initial aggregate principal amount of such definitive
Bonds, substantially of the tenor of the Bonds set forth in this Agreement and
with such appropriate omissions, insertions and variations as may be
required.
Until definitive Bonds are ready for delivery, any temporary Bond may,
if so provided by the Authority by resolution, be exchanged at the corporate
trust office of the Trustee, without charge to the Holder thereof, for an equal
aggregate principal amount of temporary fully registered Bonds of authorized
denominations, of like tenor, of the same maturity and bearing interest at the
same rate.
If temporary Bonds are issued, the Authority shall
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cause the definitive Bonds to be prepared and to be executed and delivered to
the Trustee, and the Trustee, upon presentation to it at its corporate trust
office of any temporary Bond, shall cancel the same and authenticate and deliver
in exchange therefor at the place designated by the Holder, without charge to
the Holder thereof, a definitive Bond or Bonds of an equal aggregate initial
principal amount, of the same maturity and bearing interest at the same rate as
the temporary Bond surrendered. Until so exchanged the temporary Bonds shall in
all respects be entitled to the same benefit and security of this Agreement as
the definitive Bonds to be issued and authenticated hereunder.
SECTION 210. MUTILATED, DESTROYED, STOLEN OR LOST BONDS. If (a) any
mutilated Bond is surrendered to the Trustee or the Trustee receives evidence to
its satisfaction of the destruction, loss or theft of any Bond, and (b) there is
delivered to the Trustee such security or indemnity as may be required by the
Trustee to save the Trustee, the Authority, the Borrower and the Guarantor
harmless, then, in the absence of notice to the Authority, the Borrower, the
Guarantor or the Trustee that such Bond has been acquired by a bona fide
purchaser, the Authority shall execute and upon its request the Trustee shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, stolen or lost Bond, a new Bond or Bonds of the same tenor, aggregate
principal amount, maturity and interest rate and bearing a number not
contemporaneously outstanding; provided, however, that if any such mutilated,
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destroyed, lost or stolen Bond shall have become or shall be about to become due
and payable, or shall have become subject to redemption in full, instead of
issuing a new Bond, the Authority may pay such Bond without surrender thereof,
except that any mutilated Bond shall be surrendered. If, after the delivery of
such new Bond or payment of a destroyed, lost or stolen Bond pursuant to the
proviso to the preceding sentence, a bona fide purchaser of the original Bond in
lieu of which such new Bond was issued presents for payment such original Bond,
the Authority and the Trustee shall be entitled to recover such new Bond (or
such payment) from the person to whom it was delivered or any person taking such
new Bond from such person, except a bona fide purchaser, and shall be entitled
to recover upon the security or indemnity provided therefor to the extent of any
damage, loss, cost or expenses incurred by the Authority, the Borrower, the
Guarantor or the Trustee in connection therewith.
Subject to the provisions of the first paragraph of this Section 210,
every Bond issued pursuant to the provisions of this Section in exchange or
substitution for any Bond which is mutilated, destroyed, stolen or lost shall
constitute an additional contractual obligation of the Authority, whether or not
the destroyed, stolen or lost Bond shall be found at any time, or be enforceable
by anyone, and shall be entitled to all the benefits of this Agreement equally
and proportionately with any and all other Bonds duly issued under this
Agreement. All Bonds shall be held and owned upon the express condition that the
foregoing provisions are exclusive with respect to the
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replacement or payment of mutilated, destroyed, stolen or lost Bonds, and shall
preclude any and all other rights or remedies, notwithstanding any law or
statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without
their surrender.
Upon the issuance of any new Bond under this Section, the Trustee may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other reasonable expenses
(including the fees and expenses of the Trustee) connected therewith.
SECTION 211. BOOK-ENTRY BONDS. (a) Except as provided in subparagraph
(c) of this Section 211, the registered owner of all Bonds shall be the
Securities Depository and, as long as the Securities Depository shall be DTC,
the Bonds shall be registered in the name of Cede & Co., as nominee for DTC. All
provisions of this Article II (other than those provisions contained in Section
208), during the time the Bonds are registered in the name of the nominee of
DTC, shall be superseded by the provisions of this Section 211 and the rules of
the Securities Depository applicable thereto to the extent of any conflict
therewith. Payments of principal or interest for any Bond registered in the name
of Cede & Co. shall be made to the account of Cede & Co. at the address
indicated for Cede & Co. in the registration books kept by the Trustee. The
"Bonds" referred to in this Section 211 shall refer to the Bonds registered in
the name of Cede & Co.
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(b) The Bonds shall be initially issued in the form of
separate, single, authenticated fully-registered Bonds in the amount of
each separately stated maturity. Upon initial issuance, the ownership
of each such Bond shall be registered in the registration books kept by
the Trustee in the name of Cede & Co., as nominee of the Securities
Depository. As long as certificates for the Bonds are not issued
pursuant to Section 211(c) hereof, the Trustee and the Authority may
treat the Securities Depository (or its nominee) as the sole and
exclusive owner of the Bonds registered in its name for the purposes of
payment of the principal or redemption price of or interest on the
Bonds, selecting the Bonds or portions thereof to be redeemed, giving
any notice permitted or required to be given to the owners of such
Bonds hereunder, registering the transfer of Bonds, obtaining any
consent or other action to be taken by Bondholders and for all other
purposes whatsoever; and neither the Trustee nor the Authority shall
have any responsibility or obligation to any Participant, any
Beneficial Owner or any other person claiming a beneficial ownership
interest in the Bonds under or through the Securities Depository or any
Participant, or any other person which is not shown on the registration
books of the Trustee as being an owner of Bonds, with respect to the
accuracy of any records maintained by the Securities Depository or any
Participant, the payment to the Securities Depository or any
Participant of any amount in respect of the principal or redemption
price of or interest on the Bonds; any notice which is permitted or
required to be
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given to Bondholders under this Agreement; the selection by the
Securities Depository or any Participant of any person to receive
payment in the event of a partial redemption of the Bonds; or any
consent given or other action taken by the Securities Depository as
owner of Bonds. The Trustee shall pay all principal and redemption
price of and interest on the Bonds only to or "upon the order of" the
Securities Depository (as that term is used in the Uniform Commercial
Code as adopted in the State of New York), and all such payments shall
be valid and effective to fully satisfy and discharge the Authority's
obligations with respect to the principal or redemption price of and
interest on the Bonds to the extent of the sum or sums so paid. Except
as provided in (c) below, no person other than the Securities
Depository shall receive an authenticated Bond for each separate stated
maturity evidencing the obligation of the Authority to make payments of
the principal or redemption price of and interest on the Bonds pursuant
to this Agreement. Upon delivery by the Securities Depository to the
Trustee of written notice to the effect that the Securities Depository
has determined to substitute a new nominee in place of Cede & Co., the
Bonds will be transferable to such new nominee in accordance with
subparagraph (g) below.
(c) In the event the Authority determines that it is in the
best interest of the Authority not to continue the book-entry system of
transfer for the Bonds or that the interest of the owners of the Bonds
might be adversely affected if the book-entry system of transfer is
continued, the Authority shall notify
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Citibank, N.A., if Citibank, N.A. is the current Trustee and Citibank,
N.A. may resign as Trustee, as provided in Section 915 of this
Agreement. The determination of the Authority not to continue the
book-entry system shall not be effective prior to the acceptance of a
successor Trustee. After such acceptance, and in all other cases in
which the Authority determines to discontinue the book-entry system as
mentioned above, the Authority shall notify the Securities Depository,
the Guarantor and the Trustee, whereupon the Securities Depository will
notify the Participants, of the availability through the Securities
Depository of certificates for the Bonds. In such event, the Trustee
shall issue, transfer and exchange certificates for the Bonds as
requested by the Securities Depository and any Participant or
Beneficial Owner in appropriate amounts in accordance with subparagraph
(g) below. The Securities Depository may determine to discontinue
providing its services with respect to the Bonds at any time by giving
notice to the Authority and the Trustee and discharging its
responsibilities with respect thereto under applicable law, or the
Authority may determine that the Securities Depository is incapable of
discharging its responsibilities and may so advise the Securities
Depository. In either such event, the Authority shall either establish
its own book-entry system or use reasonable efforts to locate another
Securities Depository. Under such circumstances (if there is no
successor Securities Depository), the Authority and the Trustee shall
be obligated to deliver certificates for the Bonds as
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described in subparagraph (g) below. In the event certificates for the
Bonds are so issued, the provisions of this Agreement shall apply to
such Bond certificates in all respects, including, among other things,
the printing of certificates, the transfer and exchange of such
certificates and the method of payment of principal or redemption price
of and interest on such certificates. Whenever the Securities
Depository requests the Authority and the Trustee to do so, the Trustee
and the Authority will cooperate with the Securities Depository in
taking appropriate action after reasonable notice (i) to make available
one or more separate certificates evidencing the Bonds to any
Participant having Bonds credited to its account with the Securities
Depository, in the event the book-entry system of transfer for the
Bonds is discontinued, or (ii) to arrange for another Securities
Depository to maintain custody of certificates evidencing the Bonds
(d) Notwithstanding any other provision of this Agreement to
the contrary, so long as any Bond is registered in the name of Cede &
Co., as nominee of DTC, all payments with respect to the principal or
redemption price of and interest on such Bond and all notices with
respect to such Bond shall be made and given, respectively, to DTC as
provided in the Representation Letter.
(e) In connection with any notice or other communication to be
provided to owners of Bonds pursuant to this Agreement by the Authority
or the
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Trustee or with respect to any consent or other action to be taken by
owners of Bonds, the Authority or the Trustee, as the case may be,
shall establish a record date for such consent or other action and give
the Securities Depository notice of such record date not less than
fifteen (15) calendar days in advance of such record date to the extent
possible. Such notice to the Securities Depository shall be given only
when the Securities Depository is the sole Bondholder.
(f) A Securities Depository that is a Holder of one or more
Bonds, may make, give or take, by a proxy or proxies duly appointed in
writing, any request, demand, authorization, direction, notice,
consent, waiver or other action provided in this Agreement to be made,
given or taken by Holders, and a Securities Depository that is a Holder
of one or more Bonds may provide its proxy or proxies to the Beneficial
Owners of interests in any such Bonds through such Securities
Depository's standing instructions and customary practices.
(g) In the event that any transfer or exchange of Bonds is
permitted under subparagraph (b) or (c) hereof, such transfer or
exchange shall be accomplished upon receipt by the Trustee from the
registered owner thereof of the Bonds to be transferred or exchanged
and appropriate instruments of transfer to the permitted transferee,
all in accordance with the applicable provisions of this Agreement. In
the event Bond certificates are issued to owners other than Cede & Co.,
its successor as nominee for DTC as owner of all the Bonds, or another
Securities Depository as owner of all the Bonds, the provisions of this
Agreement shall also apply to, among other things, the printing of such
certificates
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and the methods of payment of principal or redemption price of and
interest on such certificates.
ARTICLE III.
REDEMPTION OF BONDS
SECTION 301. REDEMPTION OF BONDS. The Bonds shall be subject to
redemption prior to their maturity as provided in this Article III.
(a) The Bonds shall be called for redemption in part, to the
extent of any Bond proceeds that are required to be transferred to the
Bond Fund for the redemption of Bonds pursuant to Section 406 hereof,
at a redemption price equal to the principal amount thereof as of the
redemption date, without premium, plus accrued interest to the date
fixed for redemption, such redemption to be made on the next Interest
Payment Date occurring not less than forty-five (45) days after the
Construction Fund Transfer Date.
(b) In the event that the Authority and the Trustee shall
receive written notice pursuant to Section 8.01(b) of the Loan
Agreement that the Borrower shall have elected to prepay all or a
portion of the amounts payable under Section 4.01 of the Loan Agreement
pursuant to Section 8.01(a) of the Loan Agreement, then the Bonds at
the time outstanding shall be called for redemption in whole or in
part, as directed by the Borrower, on any date selected by the
Borrower, on or after December one (1), two thousand nine (2009) at a
redemption price equal to the principal amount of the Bonds to be
redeemed as of the date fixed for redemption (which date shall not be
less than forty-five (45) days from the date that
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notice of such redemption is received by the Trustee), plus accrued
interest to the date fixed for redemption plus a premium of two percent
(2%) of such principal amount if redeemed on or prior to November
thirty (30), two thousand ten (2010), one percent (1%) if redeemed on
or after December one (1), two thousand ten (2010) and on or prior to
November thirty (30), two thousand eleven (2011) and without premium if
redeemed on December one (1), two thousand eleven (2011) and
thereafter.
(c) In the event the Borrower shall have become obligated to
prepay all or a portion of the amounts payable under Section 4.01 of
the Loan Agreement in accordance with Section 8.02(c) or Section
8.02(e) of the Loan Agreement, the Bonds shall be called for redemption
in whole or in part, as applicable, at a redemption price equal to the
principal amount thereof plus accrued interest to the date fixed for
redemption, without premium, which redemption date shall be the next
Interest Payment Date occurring not less than forty-five (45) days
after the Borrower becomes obligated to make such prepayment pursuant
to Sections 8.02(c) or 8.02(e) of the Loan Agreement.
(d) In the event that the Borrower shall have become obligated
to prepay the entire amount payable under Section 4.01 of the Loan
Agreement in accordance with Section 8.02(d) of the Loan Agreement, the
Bonds shall be called for redemption in whole, on the Interest Payment
Date occurring not less than forty-five (45) days after receipt by the
Trustee of the notice delivered pursuant to Section 8.02(d) of the Loan
Agreement, at a redemption price equal to the
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principal amount thereof, plus interest accrued to the date fixed for
redemption, without premium.
(e) The Term Bonds maturing on December one (1), two thousand
fourteen (2014), are subject to mandatory redemption, in part,
beginning on June one (1), two thousand ten (2010), and each Interest
Payment Date thereafter at a redemption price equal to one hundred
percent (100%) of the principal amount thereof plus accrued interest to
the date of redemption, without premium, in a principal amount equal to
the Amortization Requirements specified on Exhibit B hereto (subject to
adjustments for any prior purchase or redemption of said Term Bonds).
The Term Bonds maturing on June one (1), two thousand
twenty-six (2026), are subject to mandatory redemption, in part,
beginning on June one (1), two thousand fifteen (2015), and each
Interest Payment Date thereafter at a redemption price equal to one
hundred percent (100%) of the principal amount thereof plus accrued
interest to the date of redemption, without premium, in a principal
amount equal to the Amortization Requirements specified on Exhibit B
hereto (subject to adjustments for any prior purchase or redemption of
said Term Bonds).
The Term Bonds maturing on December one (1), two thousand
twenty-nine (2029), are subject to mandatory redemption, in part,
beginning on December one (1), two thousand twenty-six (2026), and each
Interest Payment Date thereafter at a redemption price equal to one
hundred percent (100%) of the principal amount
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thereof plus accrued interest to the date of redemption, without
premium, in a principal amount equal to the Amortization Requirements
specified on Exhibit B hereto (subject to adjustments for any prior
purchase or redemption of said Term Bonds).
(f) In the event that the Authority and the Trustee shall
receive written notice pursuant to Section 8.03 of the Loan Agreement
that the Borrower shall have elected to prepay all or a portion of the
amounts payable under Section 4.01 of the Loan Agreement pursuant to
Section 8.03 of the Loan Agreement, then the Bonds at the time
outstanding shall be called for redemption in whole or in part, as
directed by the Borrower, at a redemption price equal to the principal
amount of the Bonds to be redeemed plus accrued interest to the date
fixed for redemption, without premium, which redemption date shall not
be less than forty-five (45) days from the date that notice of such
redemption is received by the Trustee.
(g) Except in the case of a redemption of Term Bonds under
Section 301(e), if less than all of the outstanding Bonds shall be
called for redemption, the Bonds shall be redeemed in inverse order of
maturity, unless otherwise directed by the Borrower. If fewer than all
of the particular Bonds of any one maturity shall be called for
redemption, the Bonds or portions of Bonds of any maturity to be
redeemed shall be selected by the Trustee by such method as the Trustee
shall deem fair and appropriate; provided, however, that the portion of
any Bond to be redeemed shall be in the principal amount equal to FIVE
THOUSAND DOLLARS ($5,000) or some multiple thereof, and that, in
selecting Bonds for redemption, the Trustee shall
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treat each Bond as representing that number of Bonds which is obtained
by dividing the principal amount of such Bond by FIVE THOUSAND DOLLARS
($5,000).
On the forty-fifth (45th) day preceding each Interest Payment
Date for which there is a Amortization Requirement, the Trustee shall
proceed to select for redemption from the Bonds outstanding of the
maturity date to be redeemed a principal amount of Bonds of such
maturity date equal to such Amortization Requirement, and shall call
such Bonds for redemption on such Interest Payment Date and give notice
of such call in accordance with Section 302 hereof.
(h) Anything in this Agreement to the contrary
notwithstanding, any amount less than FIVE THOUSAND DOLLARS ($5,000)
remaining with the Trustee after a partial redemption of Bonds pursuant
to this Section 301 shall remain deposited in the Bond Fund until the
next succeeding Interest Payment Date, at which time such funds and any
interest or income earned thereon shall be used to pay interest on the
Bonds.
(i) In the event that redemptions under Section 301(b) and
Section 301(e) occur on the same Interest Payment Date, the Trustee
shall first select the Bonds subject to redemption under Section 301(e)
and, thereafter, select the Bonds subject to redemption under Section
301(b).
SECTION 302. REDEMPTION NOTICE. Except as stated in Section 211 with
respect to notices to DTC, at least thirty (30) days before the redemption date
of any Bonds, the Trustee shall cause a notice of any such redemption, either in
whole or in part, signed by the Trustee to be mailed, first-class, postage
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prepaid, to all Bondholders whose Bonds are to be redeemed and to the Guarantor.
Each such notice shall set forth (a) the date fixed for redemption, (b) the
redemption price to be paid, (c) if fewer than all of the Bonds then outstanding
shall be called for redemption, the distinctive numbers and letters, if any, of
such Bonds to be redeemed and, in the case of Bonds to be redeemed in part only,
the portion of the principal amount thereof to be redeemed, (d) that on the date
fixed for redemption, such redemption price will become due and payable upon
each Bond or portion thereof called for redemption, and that interest thereon
shall cease to accrue on and after said redemption date, (e) the place where
such Bonds or portions thereof called for redemption are to be surrendered for
payment of such redemption price, and (f) such other information as may be
required to comply with the requirements of Securities Exchange Act of 1934
Release No. 34-23856, dated December three (3), nineteen hundred eighty-six
(1986) (the "Redemption Release"). In addition, the Trustee shall cause a copy
of the above notice of redemption to be sent to the persons specified in
Sections B and D of the Redemption Release at least two (2) Business Days before
notice is given in accordance with the preceding sentence. In case any Bond is
to be redeemed in part only, the notice of redemption which relates to such Bond
shall state also that on or after the redemption date, upon surrender of such
Bond, a new Bond or Bonds of the same maturity and series, bearing interest at
the same rate and in a principal amount equal to the unredeemed portion of such
Bond,
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will be issued. Failure to comply with the requirements of the Redemption
Release shall not affect the validity of the proceedings for the redemption of
any Bonds, and failure to mail such notice to any Holder or any defect in any
notice so mailed shall not affect the validity of the proceedings for the
redemption of the Bonds of any other Holders.
SECTION 303. EFFECT OF CALLING FOR REDEMPTION. On the date designated
for redemption, notice having been mailed in the manner and under the conditions
here inabove provided, the Bonds or portions of Bonds so called for redemption
shall become and be due and payable at the redemption price provided herein for
redemption of such Bonds or portions of Bonds on such date. If Bonds or portions
of Bonds have been duly called for redemption under the provisions of this
Article III, and if sufficient moneys for payment of the redemption price
(including premium, if any,) plus accrued interest, if any, on such Bonds, or
portions of Bonds, to the date fixed for redemption, are held in a separate
account by the Trustee in trust for the Holders of the Bonds or portions of
Bonds to be redeemed, as provided in this Agreement, then interest on the Bonds
or portions of Bonds so called for redemption shall cease to accrue, such Bonds
or portions of Bonds shall cease to be entitled to any benefit or security under
this Agreement or to be deemed outstanding, and the Holders of such Bonds or
portions of Bonds shall have no rights in respect thereof except to receive
payment of the redemption price thereof (including premium, if any,) plus
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accrued interest to the date of redemption, and, to the extent provided in
Section 304 hereof, to receive Bonds for any unredeemed portions of Bonds.
SECTION 304. REDEMPTION OF PORTION OF BOND. In case part but not all of
a Bond that is outstanding shall be selected for redemption, the registered
owner thereof or his attorney or legal representative shall present and
surrender such Bond to the Trustee for payment of the principal amount thereof
so called for redemption and the redemption premium, if any, on such principal
amount, and the Authority shall execute and the Trustee shall authenticate and
deliver to or upon the order of such registered owner or his attorney or legal
representative, without charge therefor, for the unredeemed portion of the
principal amount of the Bond so surrendered, either a new Bond or Bonds, at the
option of the owner or his attorney or legal representative, of the same
maturity, bearing interest at the same rate, and of any denomination or
denominations authorized by this Agreement.
SECTION 305. CANCELLATION. Upon presentation and surrender, as
hereinabove provided, Bonds redeemed under this Article III or purchased by or
on behalf of the Borrower shall be cancelled by the Trustee.
ARTICLE IV
CONSTRUCTION FUND
SECTION 401. CONSTRUCTION FUND. A special fund is hereby created and
designated the "Industrial Revenue Bonds, 1999 Series A (Doral Financial Center
Project) Construction Fund" (the "Construction Fund"), to the credit of which
such deposits shall be made as are required by the provisions of Section 208 of
this
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Agreement. Any moneys received by the Trustee from any other source for the
payment of Costs of the Project or the payment of Costs of Issuance shall also
be deposited to the credit of the Construction Fund.
Subject to the provisions of Sections 404, 406 and 602 of this
Agreement, the moneys in the Construction Fund shall be held by the Trustee in
trust and shall be subject to a lien and charge in favor of the Holders of the
Bonds issued and outstanding under this Agreement, and for the further security
of such Holders, until paid out or transferred as herein provided.
SECTION 402. PAYMENTS FROM THE CONSTRUCTION FUND. Payment of the Cost
of the Project shall be made from the Construction Fund. All payments from the
Construction Fund shall be subject to the provisions and restrictions set forth
in this Article IV.
SECTION 403. ITEMS OF COST. For the purposes of this Agreement, the
Cost of the Project shall embrace all costs permitted by the Act in connection
with the construction, development and equipping of the Project, including
without limitation:
(a) Payment to the Borrower, the Guarantor and the Authority,
as the case may be, of such amounts, if any, as shall be necessary to
reimburse the Borrower, the Guarantor and the Authority in full for all
advances and payments made by them or either of them or for their
accounts, with respect to the Project at any time after February eleven
(11), nineteen hundred ninety-eight (1998) for expenditures in
connection with the acquisition of any property required for the
Project, the preparation of any preliminary study or
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planning of the Project, or any aspect of either thereof and any
reports or analyses concerning the Project, the construction,
development and equipping of the Project, interest on the Bonds during
construction (which shall mean as to the Bonds a period beginning with
the date of delivery of the Bonds and ending on the date the
acquisition and construction of the Project shall have been completed),
and the acquisition of all real or personal property deemed necessary
in connection with the Project, or any one or more of said expenditures
(including architectural, engineering and supervisory services);
(b) Payment in full of the outstanding indebtedness secured by
a mortgage on the Project and owed to Scotiabank in the amount of TWO
MILLION ONE HUNDRED FORTY-TWO THOUSAND THREE HUNDRED THIRTY-ONE DOLLARS
AND TWENTY-TWO CENTS ($2,142,331.22), plus the costs related to the
cancellation of such mortgage;.
(c) Payment of the Administrative Fee;.
(d) Payment of the Costs of Issuance, related to the cost of
cancelling any existing mortgage lien on the Property and of executing
and recording the Mortgage, and the cost of the mortgagee title
insurance policy insuring the Mortgage, all of which may be paid from
the proceeds of the Bonds without reference to this limitation;
(e) Payment for labor, services, materials and supplies used
or furnished in site improvement and in the acquisition, construction
and equipping of the Project, payment for the cost of the acquisition,
construction and installation of utility services or
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other facilities, and all real and personal property deemed
necessary in connection with the Project and payment for the
miscellaneous expenses incidental to, and deposits required in
connection with, any of the foregoing items; and
(f) Payment of any other costs and expenses relating to the
development and construction of the Project or the authorization,
issuance and sale of the Bonds.
SECTION 404. REQUISITES FOR PAYMENTS FROM CONSTRUCTION FUND. (a)
Payments of Costs of the Project from the Construction Fund shall be made by the
Trustee upon the order of the Borrower in accordance with the provisions of
this Section, but no such payment shall be made unless and until the Trustee
shall receive a requisition, prepared and signed by a Borrower Representative
and, if the Authority so determines by written notice to the Trustee which the
Trustee has received prior to its making such payment, approved by an Authority
Representative; provided, however, that such approval by the Authority shall not
be withheld if the requisition is consistent with the Act, the Loan Agreement
and this Agreement, stating:
(i) the item number of each such payment,
(ii) the name of the person (including the Borrower or the
Guarantor) to whom each such payment is due,.
(iii) the respective amounts to be paid and to whom such
amounts shall be paid, and
(iv) that obligations in the stated amounts have been incurred
and are presently due and payable, or
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reimbursable to the Borrower or the Guarantor, and that each item
thereof is a proper charge against the Construction Fund, and has not
been previously paid from the Construction Fund.
Upon receipt of any such order and accompanying requisition, the
Trustee shall pay such obligation from the Construction Fund. If prior to
payment of any item in an order the Borrower should for any reason desire not to
pay such item, the Borrower shall give notice of such decision to the Trustee.
In making any disbursement, the Trustee shall pay each such obligation directly
to the Borrower or to any payee designated by a Borrower Representative,
including the Guarantor, as set forth in the order of the Borrower directing
such disbursement.
SECTION 405. RELIANCE ON REQUISITIONS. All requisitions and orders
received by the Trustee, as required in this Article IV as conditions of payment
from the Construction Fund, may be relied upon by the Trustee, and shall be
retained by the Trustee, subject to examination at all reasonable times by the
Borrower, the Authority, the Guarantor, any Bondholder and the agents and
representatives thereof.
SECTION 406. BALANCE IN CONSTRUCTION FUND. Upon the earlier of (i) the
Completion Date, (ii) the third anniversary of the Date of Issuance or such
later date as may be approved by the Authority and (iii) the receipt by the
Trustee of a certificate signed by a Borrower Representative and approved by an
Authority Representative to the effect that the Project will not be completed
(the earlier to occur of (i), (ii) and (iii) above being the "Construction Fund
Transfer
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Date"), any balance remaining in the Construction Fund (other than amounts
retained by the Trustee to pay Costs of the Project not then due and payable or
for which the liability for payment is in dispute) shall be transferred to the
Bond Fund and used to pay the redemption price of Bonds called for redemption
pursuant to Section 301(a) hereof.
(b) In the event that the Borrower exercises the option under
Section 8.01(a) of the Loan Agreement to prepay in full the amounts
payable under Section 4.01 of the Loan Agreement, the Trustee shall,
upon the direction of the Borrower, deposit in the Bond Fund, on the
date the prepayment is made, any balance remaining in the Construction
Fund.
(c) If the principal amount of all outstanding Bonds shall
have become due and payable pursuant to a declaration in accordance
with Section 803 of this Agreement or the giving of a redemption notice
pursuant to Section 301 of this Agreement, the Trustee shall transfer
to the Bond Fund any funds remaining in the Construction Fund.
ARTICLE V
BOND FUND
SECTION 501. CREATION OF BOND FUND. A special fund is hereby created
and designated "Industrial Revenue Bonds, 1999 Series A (Doral Financial Center
Project) Bond Fund." The moneys in the Bond Fund shall be held by the Trustee in
trust and applied as hereinafter provided and, pending such application, shall
be subject to a lien and charge in favor, and for the further security, of the
Holders until paid out or transferred as herein provided.
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SECTION 502. PAYMENTS INTO BOND FUND. There shall be deposited to the
credit of the Bond Fund:
(i) all amounts paid by the Borrower under Sections 4.01,
8.01, 8.02 and 8.03 of the Loan Agreement for the payment of principal
of, redemption premium, if any, and interest on the Bonds;
(ii) all amounts paid by the Guarantor under the Loan
Agreement, from time to time, for the payment of the principal amount
of, or interest on the Bonds;
(iii) any amount in the Construction Fund transferred to
the Bond Fund in accordance with the provisions of Section 406 of this
Agreement;
(iv) all amounts received by the Trustee from the exercise
of remedies hereunder and under the Collateral Documents (net of
expenses incurred by the Trustee); and
(v) all other moneys received by the Trustee under and
pursuant to any of the provisions of the Loan Agreement, the Pledge
Agreement or otherwise which are permitted or required, or are
accompanied by directions from the Borrower, the Guarantor or the
Authority that such moneys are to be paid into the Bond Fund
The Trustee shall establish a separate account or subaccount within the
Bond Fund corresponding to the source of moneys specified in this Section 502
for each deposit made into the Bond Fund so that the Trustee may at all times
ascertain the source and date of deposit of the funds in each such account or
subaccount.
The Trustee is authorized to receive at any time payments from the
Borrower or the Guarantor pursuant
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to the Loan Agreement or otherwise, for deposit in the Bond Fund.
SECTION 503. USE OF MONEYS IN BOND FUND. Except as otherwise provided
in this Agreement or the Pledge Agreement, moneys in the Bond Fund shall be used
solely for the payment of the principal (whether at maturity or upon
acceleration or redemption or otherwise) of, and premium, if any, and interest
due or to become due on the Bonds.
On each Interest Payment Date, the Trustee shall withdraw from the Bond
Fund moneys deposited to the credit of the Bond Fund pursuant to Section 502
hereof, and remit by first class mail or by wire transfer, if applicable, as
provided in Section 203 of this Agreement, to each Holder the amounts required
for paying the interest on the Bonds as such interest becomes due and payable.
On or before each Interest Payment Date on which the payment of principal, and
premium, if any, becomes due and payable, the Trustee shall withdraw from the
Bond Fund and set aside or deposit in trust sufficient moneys for paying the
principal of and redemption premium, if any, on all Bonds as such principal and
premium, if any, become due, whether at maturity, upon acceleration or
redemption or otherwise.
Any moneys received by the Trustee pursuant to the Pledge Agreement
from insurance, casualty or condemnation proceeds or otherwise, will be applied
as set forth in the Pledge Agreement.
Any provision in this Agreement to the contrary notwithstanding, no
payment of the principal of and premium, if any, and interest on Bonds held by
or on
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behalf of the Borrower shall be made by the Trustee.
Any profit realized from the investment of moneys deposited to the
credit of the Bond Fund may be withdrawn by the Borrower.
SECTION 504. APPLICATION AND PLEDGE OF MONEYS IN THE BOND FUND. Subject
to the terms and conditions set forth in this Agreement, and except as otherwise
provided in Section 503 hereof, moneys held for the credit of the Bond Fund
shall be held in trust and disbursed by the Trustee for (a) the payment of
interest on the Bonds issued hereunder, other than Bonds held by the Borrower,
as such interest becomes due and payable, or (b) the payment of the principal of
such Bonds, other than Bonds held by the Borrower, as such principal becomes due
and payable, or (c) the payment of the redemption price of such Bonds, other
than Bonds held by the Borrower, before their respective maturities, or (d)
subject to the prior payment in full or provision for payment in full of the
amounts described in the preceding clauses (a), (b) and (c), the payment of the
principal of or premium, if any, or interest on the Bonds issued thereunder and
held by or on behalf of the Borrower as the same becomes due and payable, and
such moneys are hereby pledged to secure, and are charged with, the payments
mentioned in this Section.
SECTION 505. MONEY WITHDRAWN FROM BOND FUND HELD IN TRUST. All money
which the Trustee shall have withdrawn from the Bond Fund or shall have received
from any other source and set aside for the purpose of paying any of the Bonds
hereby secured, either at the maturity thereof or upon call for redemption or
for
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the purpose of paying any interest on the Bonds hereby secured, shall be held in
trust for the respective Holders of such Bonds. Any money that is so withdrawn
or set aside and that remains unclaimed by the Holders for a period of two (2)
years after the date on which such Bonds shall have become due and payable may,
be paid by the Trustee to the Borrower, as a Borrower Representative shall
direct, and thereafter the Holders shall look only to the Borrower for payment
and then only to the extent of the amount so received without any interest
thereon, and the Authority and the Trustee shall have no responsibility with
respect to such money. Until paid to the Borrower, any moneys so withdrawn or
set aside shall remain uninvested.
SECTION 506. CANCELLATION OF BONDS UPON PAYMENT. All Bonds paid,
redeemed, or purchased by or on behalf of the Borrower, either at or before
maturity, shall be delivered to the Trustee when such payment, redemption or
purchase is made, and such Bonds shall be cancelled. All Bonds cancelled under
any of the provisions of this Agreement shall be held by the Trustee until such
time as they are destroyed by the Trustee. The Trustee shall execute a
certificate in quadruplicate describing the details of all Bonds so destroyed,
and an executed certificate shall be filed with each of the Authority, the
Guarantor and the Borrower and the other executed certificate shall be retained
by the Trustee.
ARTICLE VI
DEPOSITARIES OF MONEYS, SECURITY FOR DEPOSITS
AND INVESTMENT OF FUNDS
SECTION 601. SECURITY FOR DEPOSITS. All moneys
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deposited with the Trustee under the provisions of this Agreement, the Loan
Agreement or the Collateral Documents shall be held in trust and applied only in
accordance with the provisions of this Agreement and shall not, except as
otherwise provided in Section 902 of this Agreement, be subject to lien or
attachment by any creditor of the Authority or the Borrower. Such money shall be
held in trust and applied in accordance with the provisions of this Agreement.
All moneys deposited with the Trustee under this Agreement, the Loan
Agreement or the Collateral Documents in excess of the amount guaranteed by the
Federal Deposit Insurance Corporation or any successor or similar federal agency
shall be continuously secured for the benefit of the Authority and the Holders
of the Bonds, either (a) by lodging with a bank or trust company approved by the
Authority and by the Trustee, as custodian or, if then permitted by law, by
setting aside under control of the trust department of the bank holding such
deposit, as collateral security, Government Obligations or, with the approval of
the Trustee, other marketable securities eligible as security for the deposit of
trust funds under regulations of the Comptroller of the Currency of the United
States of America or applicable Commonwealth law or regulations, having a market
value (exclusive of accrued interest) not less than the amount of such deposit,
or (b) if the furnishing of security as provided in clause (a) above is not
permitted by applicable law, in such other manner as may then be required or
permitted by applicable Commonwealth or federal laws
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and regulations regarding the security for, or granting a preference in the case
of, the deposit of trust funds; provided, however, that it shall not be
necessary for the Trustee to give security for any moneys which shall be
represented by the investments purchased under the provisions of this Article as
an investment of such moneys.
Subject to the provisions of Section 602, all money deposited with the
Trustee shall be credited to the particular fund or account to which such money
belongs.
SECTION 602. INVESTMENT OF MONEYS. Moneys held for the credit of all
funds and accounts established hereunder, except as provided in Article XIII
hereof, shall be invested and reinvested by the Trustee in such investments,
including but not limited to deposits, investment agreements or other
obligations of the Borrower, the Guarantor or any of their respective Affiliates
or subsidiaries, as directed by a Borrower Representative, or if no such
instruction is given, such moneys shall remain uninvested. Any such investment
shall mature not later than the respective dates when the money held for the
credit of such funds or accounts will be required for the purposes intended.
Investment obligations credited to any fund or account established
under this Agreement shall be held by or under the control of the Trustee and
while so held shall be deemed at all times to be part of such fund or account,
and any interest accruing on and any profit realized therefrom shall be credited
to such fund or account and any loss resulting from such
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investment shall be charged to such fund or account. Neither the Trustee nor the
Authority shall be liable or responsible for any loss resulting from any such
investment, which shall be the sole responsibility of the Borrower.
The Trustee shall sell at the best price attainable or reduce to cash a
sufficient amount of such investment obligations whenever it shall be necessary
to do so in order to provide money to make any payment or transfer of money from
any such fund or account. The Trustee shall not be liable or responsible for any
loss resulting from any such investment.
Whenever a payment or transfer of money between two or more of the
funds or accounts established pursuant to Articles IV and V of this Trust
Agreement is permitted or required, such payment or transfer may be made in
whole or in part by transfer of one or more investment obligations.
ARTICLE VII
PARTICULAR COVENANTS AND PROVISIONS
SECTION 701. COVENANT TO PAY BONDS; BONDS LIMITED OBLIGATIONS OF
AUTHORITY. The Authority covenants that it will cause to be paid, when due, the
principal of, and redemption premium, if any, and interest on the Bonds on the
dates and in the manner provided herein and in said Bonds according to the true
intent and meaning thereof; provided, that it is understood that such
obligations are not general obligations of the Authority but are limited
obligations payable solely from the payments required to be made by the Borrower
and the Guarantor under the Loan Agreement,
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any other revenues and funds derived under the Loan Agreement and the money
attributable to proceeds of the Bonds and the income from the investment
thereof, proceeds derived from the exercise of remedies under the Collateral
Documents, and not from any other source or fund. Any amount in the Bond Fund
available for any payment of the principal of and premium, if any, or interest
on the Bonds shall be credited against any amount required to be caused by the
Authority so to be paid. Except as in this Agreement otherwise provided, such
principal, premium and interest are payable solely from the payments required to
be made by the Borrower under Section 4.01 of the Loan Agreement and from any
other revenues and funds derived under the Loan Agreement and this Agreement to
the extent provided herein, which payments under the Loan Agreement, proceeds,
revenues and funds to the extent provided in this Agreement are hereby pledged
to the payment thereof in the manner and to the extent hereinabove particularly
specified.
The Bonds issued under the provisions of this Agreement and the
premium, if any, and interest thereon shall not constitute an indebtedness of
either the Commonwealth or any of its political subdivisions, other than the
Authority, and neither the Commonwealth nor any of such political subdivisions,
other than the Authority, shall be liable thereon, but the Bonds shall be
payable solely from the revenues and proceeds provided therefor, and the
Authority is not obligated to pay the Bonds or the premium, if any, or interest
thereon except from the revenues, property and proceeds pledged therefor.
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SECTION 702. COVENANT TO PERFORM AND AUTHORITY OF THE AUTHORITY. The
Authority shall faithfully perform at all times all of its covenants,
undertakings, and agreements contained in this Agreement, in any Bond executed,
authenticated and delivered hereunder, or in any proceedings of the Authority
pertaining thereto and filed with the Trustee and will faithfully observe and
perform at all times any and all covenants, undertakings, stipulations and
provisions of the Loan Agreement on its part to be observed or performed. The
Authority represents that it is duly authorized under the Constitution and laws
of the Commonwealth, particularly the Act, to issue the Bonds authorized hereby,
to enter into this Agreement and the Pledge Agreement, to assign the Loan
Agreement and the Pledge Agreement and to pledge the payments, receipts,
proceeds and other funds derived from the Loan Agreement in the manner and to
the extent herein set forth as security for the Bonds; that all action on its
part for the issuance of the Bonds and the execution and delivery of this
Agreement, the Loan Agreement and the Pledge Agreement has been duly and
effectively taken; and that such Bonds in the hands of the Holders thereof are
and will be valid and enforceable limited obligations of the Authority according
to the tenor and import thereof.
SECTION 703. COVENANT AS TO THE LOAN AGREEMENT AND THE COLLATERAL
DOCUMENTS. The Authority covenants that it will fulfill its obligations, and
that it will require the Borrower to perform its duties and obligations under
the Loan Agreement and the Collateral Documents. The Authority shall promptly
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notify the Trustee, the Guarantor and the Borrower of any actual or alleged
Event of Default of which it has knowledge and shall not execute or agree to any
change, amendment, modification or supplement to this Agreement, the Collateral
Documents or the Loan Agreement, except as is provided in the Loan Agreement and
this Agreement. The Authority shall administer the Loan Agreement and the
Collateral Documents in accordance with their terms and shall not agree to any
reduction, abrogation, waiver, diminution or other modification in any manner
and to any extent whatsoever of the obligation of the Borrower or the Guarantor
to make the payments required under Section 4.01 of the Loan Agreement and
otherwise as provided in the Loan Agreement.
SECTION 704. COVENANT TO PERFORM FURTHER ACTS. The Authority covenants
that it will do, execute, acknowledge and deliver or cause to be done, executed,
acknowledged and delivered, such agreements supplemental hereto and such further
acts, instruments and transfers as the Trustee may reasonably require for the
better pledging unto the Trustee all and singular the payments and any other
revenues and other funds pledged hereby to the payment of the principal of and
premium, if any, and interest on the Bonds.
SECTION 705. TRUSTEE MAY ENFORCE AUTHORITY'S RIGHTS UNDER LOAN
AGREEMENT. The Loan Agreement, a duly executed counterpart of which has been
filed with the Trustee, sets forth the covenants and obligations of the
Authority, the Borrower and the Guarantor, including a provision in Section 9.11
thereof that subsequent to the issuance of the Bonds and prior to
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Payment of the Bonds, the Loan Agreement may not be effectively amended,
changed, modified, altered or terminated except in accordance with this
Agreement, and reference is hereby made to the Loan Agreement for a detailed
statement of said covenants and obligations of the Borrower and the Guarantor
under the Loan Agreement, and the Authority agrees that the Trustee, subject to
the provisions of the Loan Agreement and this Agreement reserving certain rights
to the Authority and respecting actions by the Trustee in its name or in the
name of the Authority, may enforce all rights of the Authority and all
obligations of the Borrower and the Guarantor under and pursuant to the Loan
Agreement and the Collateral Documents for and on behalf of the Bondholders
whether or not the Authority is in default hereunder.
ARTICLE VIII
DEFAULT AND REMEDIES
SECTION 801. EXTENSION OF INTEREST. In case the time for the payment of
the interest on any Bond shall be extended, whether or not such extension be by
or with the consent of the Authority, such interest shall not be entitled in
case of default hereunder to the benefit or security of this Agreement except
subject to the prior payment in full of the principal of all Bonds then
outstanding and of all interest the time for the payment of which shall not have
been extended.
SECTION 802. DEFAULTS. Each of the following events is hereby declared
an Event of Default:
(a) payment of the principal of any of the Bonds shall
not be made when the same shall become due and payable, whether at
maturity or by proceedings for
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redemption, acceleration or pursuant to an Amortization Requirement or
otherwise; or
(b) payment of any installment of interest on any of the
Bonds shall not be made when the same shall become due and payable and
such failure to pay interest shall continue for a period of five (5)
days; or
(c) the Borrower or the Guarantor shall commence a
voluntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or shall consent to the entry
of an order for relief in an involuntary case under any such law, or
shall consent to the appointment of or taking possession by a receiver,
custodian, liquidator, assignee, trustee or sequestrator (or other
similar official) of itself or of any substantial part of its property,
or shall make a general assignment for the benefit of creditors, or
shall fail generally to pay its debts as they become due, or shall take
any action in furtherance of any of the foregoing; or
(d) a court having jurisdiction in the premises shall
enter a decree or order for relief in respect of the Borrower or the
Guarantor in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or
appointing a receiver, custodian, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Borrower or the
Guarantor or of any substantial part of its properties, or ordering the
winding up or liquidation of its affairs, and the continuance of such
decree or order unstayed and in effect for a period of sixty (60)
consecutive days; or
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(e) an event of default under the Loan Agreement as
defined in Section 7.01 thereof (other than an event of default
described in clauses (a), (b), (c) or (d) above) shall have occurred,
and such event of default shall not have been remedied or waived.
SECTION 803. ACCELERATION OF MATURITIES. (a) Upon the happening and
continuance of any Event of Default, the Trustee may, and upon the written
request of the Holders of not less than twenty-five percent (25%) in aggregate
principal amount of the Bonds then outstanding shall, by a notice in writing to
the Authority, the Borrower and the Guarantor, declare the principal of all of
the Bonds then outstanding (if not then due and payable), to be immediately due
and payable, and upon such declaration the same shall become and be immediately
due and payable after the date of such notice, anything contained in the Bonds
or in this Agreement to the contrary notwithstanding.
(b) If at any time after the principal of Bonds shall
have been so declared to be due and payable, and before the entry of
final judgment or decree in any suit, action or proceeding instituted
on account of such default, or before the completion of the enforcement
of any other remedy under this Agreement, moneys shall have accumulated
in the Bond Fund sufficient to pay the principal of all Bonds then
outstanding (except the principal of any Bonds then due and payable
only because of a declaration under this Section 803 and the interest
accrued on such Bonds since the last Interest Payment Date to which
interest shall have been paid or duly provided for), interest on
overdue installments of interest (to the extent
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permitted by law) at the rate or rates then borne by the Bonds, and the
charges, compensation, expenses, disbursements, advances and
liabilities of the Trustee and all other amounts then payable by the
Authority hereunder shall have been paid or a sum sufficient to pay the
same shall have been deposited with the Trustee, and every other
default known to the Trustee in the observance or performance of any
covenant, condition, agreement or provision contained in the Bonds or
in this Agreement (other than a default in the payment of the principal
of such Bonds then due and payable only because of a declaration under
this Section 803), shall have been cured or waived as provided in
Section 814 of this Agreement, then and in every such case the Trustee,
upon the written direction of the Holders of not less than a majority
in aggregate principal amount of the Bonds then outstanding, by a
notice in writing to the Authority, the Guarantor and the Borrower,
rescind and annul such declaration and its consequences, but no such
rescission or annulment shall extend to or affect any subsequent
default or impair any right consequent thereon. Promptly after any such
declaration under subsection (a) of this Section 803, the Trustee shall
cause a notice thereof to be mailed, first class, postage prepaid to
all Bondholders. Failure to mail any such notice, or any defect in any
notice so mailed, shall not affect the proceedings for such
declaration.
SECTION 804. ENFORCEMENT OF REMEDIES. Upon the happening and
continuance of any Event of Default specified in Section 802 hereof and the
acceleration
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of the Bonds as provided in Section 803 hereof, then and in every such case the
Trustee may, and upon the written direction of the Holders of not less than
twenty-five percent (25%) in aggregate principal amount of the Bonds then
outstanding hereunder, shall proceed, subject to the provisions of Section 902
hereof, to protect and enforce its rights and the rights of the Bondholders
under applicable laws, under the Loan Agreement, the Collateral Documents and
this Agreement by such suits, actions or special proceedings in equity or at
law, or by proceedings in the office of any board or officer having
jurisdiction, either for the specific performance of any covenant or agreement
contained therein or herein or in aid or execution of any power therein or
herein granted or for the enforcement of any proper legal or equitable remedy,
as the Trustee, being advised by counsel, shall deem most effectual to protect
and enforce such rights.
In the enforcement of any remedy under this Agreement, the Trustee in
its own name and as trustee of an express trust shall be entitled to ▇▇▇ for,
enforce payment of and recover judgment for, any and all amounts then or after
any default becoming, and at any time remaining, due from the Authority for
principal, premium, if any, interest or otherwise under any of the provisions of
this Agreement or of the Bonds and unpaid, with interest, to the extent
permitted by law, on overdue payments of principal, premium, if any, and
interest at the rate or rates of interest specified in the Bonds, together with
any and all costs and expenses of collection and of all
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proceedings hereunder and under the Bonds, without prejudice to any other right
or remedy of the Trustee or of the Bondholders, and to recover and enforce any
judgment or decree against the Authority, but solely as provided herein and in
the Bonds, for any portion of such amounts remaining unpaid, and interest, costs
and expenses as above provided, and to collect (but solely from moneys in the
Bond Fund and any other moneys available for such purpose), in any manner
provided by law, the moneys adjudged or decreed to be payable.
SECTION 805. TRUSTEE MAY FILE CLAIM IN BANKRUPTCY. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other similar judicial
proceeding relative to the Authority, the Borrower or the Guarantor or to
property of the Authority, the Borrower or the Guarantor or the creditors of any
of them, the Trustee (irrespective of whether the principal of the Bonds shall
then be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Borrower
for the payments equal to overdue principal or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal, and premium, if any, and interest owing and unpaid in
respect of the Bonds and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation,
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expenses, disbursements and advances of the Trustee, its agents and
counsel) and of the Bondholders allowed in such judicial proceeding;
and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any receiver, custodian, assignee, trustee, liquidator,
sequestrator (or other similar official) in any such judicial
proceeding is hereby authorized by each Bondholder to make such
payments to the Trustee, and in the event that the Trustee shall
consent to the making of such payments directly to the Bondholders, to
pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee under Section
902 hereof.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Bondholder any plan
of reorganization, arrangement, adjustment or composition affecting the Bonds
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Bondholder in any such proceeding.
SECTION 806. PRO RATA APPLICATION OF FUNDS. Anything in this Agreement
to the contrary notwithstanding, if at any time the moneys in the Bond Fund to
the extent Bondholders have a right to such funds under this Agreement, shall
not be sufficient to pay the principal amount of or interest on the Bonds as the
same shall become due and payable (either by their terms or by acceleration
under the provisions of
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Section 803 of this Article) such moneys, together with any moneys then
available or thereafter becoming available for such purpose, whether through the
exercise of the remedies provided for in this Article or otherwise, shall be
applied, following the satisfaction of any payments due to the Trustee under the
provisions of Sections 902 and 906 of this Agreement, as follows:
(a) If the principal amount of all the Bonds shall not
have become due and payable or shall not have been declared due and
payable, all such moneys shall be applied:
first: to the payment to the persons entitled thereto
of all installments of interest then due and payable in the
order in which such installments became due and payable, with
interest on such installments of interest, to the extent
permitted by law, at the rate of such interest from the
respective dates upon which such installments became due and
payable, and, if the amount available shall not be sufficient
to pay in full any particular installment, together with
interest thereon, then to the payment first of the interest on
such installment, ratably, according to the amount of such
interest due on such date, and then to the payment of such
installment, ratably, according to the amounts due on such
installment, to the persons entitled thereto, without any
discrimination or preference except as to any difference in
the respective rates of interest specified in the Bonds;
second: to the payment to the persons entitled
thereto of the unpaid principal of any Bonds which shall have
become due and payable (other than Bonds
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deemed to have been paid in accordance with Article XIII
hereof) in the order of their due dates, with interest on the
principal amount of such Bonds at the respective rates
specified therein from the respective dates upon which such
Bonds became due and payable, and, if the amount available
shall not be sufficient to pay in full the principal of the
Bonds due and payable on any particular date, together with
such interest, then to the payment first of such interest,
ratably, according to the amount of such interest due on such
date, and then to the payment of such principal ratably,
according to the amount of such principal due on such date, to
the persons entitled thereto without any discrimination or
preference except as to any difference in the respective rates
of interest specified in the Bonds; and
third: to the payment of the interest on and the
principal of the Bonds, and to the redemption of Bonds, all in
accordance with the provisions of this Agreement.
(b) If the principal of all the Bonds shall have become
due and payable or shall have been declared due and payable, all such
moneys shall be applied to the payment of the principal, premium, if
any, and interest (including interest on any overdue installment of
interest to the extent permitted by law) then due upon the Bonds
without preference or priority of principal over interest or of
interest over principal or of any installment of interest over any
other installment of interest, or of any Bond over any other Bond,
ratably, according to the amounts due respectively for principal,
interest and premium, if
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any, to the persons entitled thereto without any discrimination or
privilege except as to any difference in the respective rates of
interest specified in the Bonds.
The provisions of subsections (a) and (b) of this Section are in all
respects subject to the provisions of Section 801 hereof.
Whenever moneys are to be applied by the Trustee pursuant to the
provisions of this Section, such moneys shall be applied by the Trustee at such
times, and from time to time, as the Trustee in its sole discretion shall
determine, having due regard to the amount of such moneys available for
application and the likelihood of additional moneys becoming available for such
application in the future; the setting aside of such moneys in trust for the
proper purpose shall constitute proper application by the Trustee; and the
Trustee shall incur no liability whatsoever to the Authority, to any Bondholder
or to any other person for any delay in applying any such moneys, so long as the
Trustee acts diligently, having due regard to the circumstances, and ultimately
applies the same in accordance with such provisions of this Agreement as may be
applicable at the time of application by the Trustee. Whenever the Trustee shall
exercise such discretion in applying such moneys, it shall fix the date (which
shall be an Interest Payment Date unless the Trustee shall deem another date
more suitable) upon which such application is to be made and upon such date
interest on the amounts of principal to be paid on such date shall cease to
accrue. The Trustee shall give such notice as it may deem appropriate of
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the fixing of any such date, and shall not be required to make payment to the
Holder of any Bond until such Bond shall be surrendered to the Trustee for
appropriate endorsement, or for cancellation if fully paid.
SECTION 807. EFFECT OF DISCONTINUANCE OF PROCEEDINGS. In case any
proceeding taken by the Trustee on account of any default shall have been
discontinued or abandoned for any reason, then, and in every such case, the
Authority, the Trustee, the Guarantor, the Borrower and the Bondholders shall be
restored to their former positions and rights hereunder, respectively, and all
rights, remedies, powers and duties of the Trustee shall continue as though no
proceeding had been taken.
SECTION 808. HOLDERS OF A MAJORITY IN PRINCIPAL AMOUNT OF BONDS MAY
CONTROL PROCEEDINGS. Anything in this Agreement to the contrary notwithstanding
(but subject, however, to Sections 803 and 804 hereof), the Holders of a
majority in aggregate principal amount of the Bonds then outstanding hereunder
shall have the right, subject to the provisions of Sections 902 and 906 hereof,
by an instrument or concurrent instruments in writing executed and delivered to
the Trustee, to direct the time, method and place of conducting all remedial
proceedings to be taken by the Trustee hereunder or exercising any trust or
power conferred upon the Trustee, provided that (i) such direction shall not be
otherwise than in accordance with law and the provisions of this Agreement, and
(ii) subject to the provisions of Section 901 hereof, the Trustee may take any
other action deemed proper by the Trustee
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which is not inconsistent with such direction.
SECTION 809. RESTRICTIONS UPON ACTIONS BY INDIVIDUAL BONDHOLDER. No
Holder of any of the Bonds shall have any right to institute any suit, action or
proceeding in equity or at law on any Bond or for the execution of any trust
hereunder or for any other remedy hereunder unless such Holder previously shall
have given to the Trustee written notice of the event of default on account of
which such suit, action or proceeding is to be instituted, and unless also the
Holders of not less than twenty-five percent (25%) in aggregate principal amount
of the Bonds then outstanding shall have made written request of the Trustee
after the right to exercise such powers or right of action, as the case may be,
shall have accrued, and shall have afforded the Trustee a reasonable opportunity
either to proceed to exercise the powers hereinabove granted or to institute
such action, suit or proceeding in its or their name, and unless, also, there
shall have been offered to the Trustee reasonable security and indemnity against
the costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee shall have refused or neglected to comply with such request within a
reasonable time; and such notification, request and offer of indemnity are
hereby declared in every such case, at the option of the Trustee, to be
conditions precedent to the execution of the powers and trusts of this Agreement
or to any other remedy hereunder provided that no such indemnity shall be
required by the Trustee to exercise the remedy set forth in Section 803. It is
understood and intended that,
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except as otherwise above provided or provided in the immediately succeeding
paragraph, no one or more Holders of the Bonds hereby secured shall have any
right in any manner whatever by his or their action to affect, disturb or
prejudice the security of this Agreement, or to enforce any right hereunder
except in the manner herein provided, that all suits, actions and proceedings at
law or in equity shall be instituted, had and maintained in the manner herein
provided and for the benefit of all Holders of such outstanding Bonds, and that
any individual right of action or other right given to one or more of such
Holders by law is restricted by this Agreement to the rights and remedies herein
provided.
Notwithstanding any other provision in this Agreement, the owner of any
Bond shall have the right which is absolute and unconditional to receive payment
of the principal of and premium, if any, and interest on such Bond when due
(whether at maturity, upon redemption or otherwise), and to institute suit for
the enforcement of any such payment, and such right shall not be impaired
without the consent of such owner.
SECTION 810. RECEIVER. Upon the occurrence of an Event of Default and
upon the filing of a suit or other commencement of judicial proceedings to
enforce the rights of the Trustee and of the Bondholders under this Agreement,
the Trustee shall be entitled, as a matter of right, to the appointment of a
receiver or receivers of the payments under the Loan Agreement pending such
proceedings, with such powers as the court making such appointment shall confer,
whether or
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not any such amounts payable shall be deemed sufficient ultimately to satisfy
the Bonds outstanding hereunder.
SECTION 811. ACTIONS BY TRUSTEE. All rights of action and claims under
this Agreement or under any of the Bonds secured hereby, enforceable by the
Trustee, may be prosecuted and enforced by it without the possession of any of
the Bonds or the production thereof in the trial or other proceeding relative
thereto, and any such suit, action or proceeding instituted by the Trustee shall
be brought in its name for the benefit of all of the Holders of such Bonds,
subject to the provisions of this Agreement.
SECTION 812. NO REMEDY EXCLUSIVE. No remedy herein conferred upon or
reserved to the Trustee, or to the Holders of the Bonds, is intended to be
exclusive of any other remedy or remedies herein provided, and each and every
such remedy shall be cumulative and shall be in addition to every other remedy
given hereunder or by law.
SECTION 813. NO DELAY OR OMISSION CONSTRUED TO BE A WAIVER. No delay or
omission of the Trustee, or of any Holder of the Bonds to exercise any right or
power accruing upon any default shall impair any such right or power or shall be
construed to be a waiver of any such default or any acquiescence therein; and
every power and remedy given by this Agreement to the Trustee and the Holders of
the Bonds, respectively, may be exercised from time to time and as often as may
be deemed expedient.
SECTION 814. WAIVER OF PAST DEFAULTS. The Holders of not less than a
majority in aggregate principal
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amount of the Bonds then outstanding may on behalf of the Holders of all the
Bonds then outstanding waive any past default under Section 802(e) hereof and
its consequences except a default in respect of a covenant or provision of the
Loan Agreement which under Article XII hereof cannot be modified or amended
without the consent of the Holder of each outstanding Bond affected.
Upon such waiver, such default shall cease to exist, and any event of
default arising therefrom shall be deemed to have been cured, for every purpose
of this Agreement; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 815. NOTICE OF DEFAULT. If a default occurs hereunder and a
trust officer of the Trustee has actual knowledge of such default, the Trustee
shall give the Holders of the Bonds, the Borrower, the Guarantor and each Rating
Agency notice of such default as and to the extent provided in the Trust
Indenture Act; provided, however, that in the case of any default of the
character specified in Section 801(e) which in turn is due to any default
specified in 7.01(c) or (d) of the Loan Agreement, no such notice to Holders
shall be given until at least 30 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of Default.
SECTION 816. UNDERTAKING FOR COSTS. All parties to this Agreement
agree, and each Holder of any Bond by his acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require,
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in any suit for the enforcement of any right or remedy under this Agreement, or
in any suit against the Trustee for any action taken or omitted by it as
Trustee, the filing by any party litigant in such suit of an undertaking to pay
the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Bondholder, or group of Bondholders, holding in the aggregate
more than 10% in principal amount of the Bonds then outstanding, or to any suit
instituted by any Bondholder for the enforcement of the payment of the principal
of or interest on any Bond on or after the respective payment dates therefor
expressed in such Bond (or, in the case of redemption, on or after the
applicable redemption date).
ARTICLE IX
CONCERNING THE TRUSTEE
SECTION 901. ACCEPTANCE OF TRUSTS. The Trustee accepts and agrees to
execute the trusts imposed upon it by this Agreement, but only upon the terms
and conditions set forth in this Article and subject to the provisions of this
Agreement, to all of which the parties hereto and the respective Holders of the
Bonds agree. The Trustee also accepts, and agrees to do and perform, the duties
and obligations imposed upon it by and under the Loan Agreement, but only upon
the terms and conditions set forth in the Loan Agreement and
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this Agreement.
SECTION 902. TRUSTEE ENTITLED TO INDEMNITY. With the exception of
Section 803 hereof, the Trustee shall be under no obligation to institute any
suit, or to take any remedial proceedings under this Agreement, the Collateral
Documents or under the Loan Agreement, or to enter any appearance in or in any
way defend against any suit, in which it may be made a defendant, or to take any
steps in the execution of the trusts hereby created or in the enforcement of any
rights and powers hereunder or under the Collateral Documents or the Loan
Agreement until it shall be indemnified to its satisfaction against any and all
costs and expenses, outlays and counsel fees and other reasonable disbursements,
and against all liability; the Trustee may, nevertheless, begin suit, or appear
in and defend suit, or do anything else in its judgment proper to be done by it
as such Trustee, without prior indemnity, and in such case the Authority shall
reimburse and indemnify the Trustee from funds available therefor under the
Collateral Documents or the Loan Agreement for all liabilities, costs and
expenses, outlays and counsel fees and other reasonable disbursements properly
incurred in connection therewith. The Trustee shall be paid interest on any
funds advanced hereunder, at rates customarily charged by the Trustee, which
rates shall in no event be less than the prime rate charged by the Trustee to
commercial customers. Except as otherwise provided in Section 803 hereof, if the
Authority shall fail to make such reimbursement or indemnification, the Trustee
may reimburse or indemnify itself from any
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monies in its possession under the provisions of this Agreement and shall be
entitled to a preference over any of the Bonds outstanding hereunder.
SECTION 903. TRUSTEE NOT RESPONSIBLE FOR INSURANCE, TAXES OR EXECUTION
OF THIS AGREEMENT BY THE AUTHORITY. The Trustee shall not be under any
obligation to effect or maintain insurance or to renew any policies of insurance
or to inquire as to the sufficiency of any policies of insurance carried by the
Borrower, or to report, or make or file claims or proof of loss for, any loss or
damage insured against or which may occur, or to keep itself informed or advised
as to the payment of any taxes or assessments, or to require any such payment to
be made. The Trustee shall have no responsibility in respect of the validity,
sufficiency, due execution or acknowledgment of this Agreement by the Authority
or the validity or sufficiency of the security provided hereunder or, except as
to the authentication thereof, in respect of the validity of the Bonds or the
due execution or issuance thereof. The Trustee shall not be under any obligation
to see that any duties herein imposed upon any party other than itself, or any
covenants herein contained on the part of any party other than itself to be
performed, shall be done or performed, and the Trustee shall be under no
obligation for failure to see that any such duties or covenants are so done or
performed.
SECTION 904. TRUSTEE NOT RESPONSIBLE FOR ACTS OF THE AUTHORITY OR
APPLICATION OF MONIES APPLIED IN ACCORDANCE WITH THIS AGREEMENT. The Trustee
shall not be liable or responsible because of the failure of the
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Authority or the Borrower or of any of their employees or agents to make any
collections or deposits or to perform any act herein required of the Authority
or the Borrower or because of the loss of any monies arising through the
insolvency or the act or default or omission of any other depositary in which
such monies shall have been deposited under the provisions of this Agreement.
The Trustee shall not be responsible for the application of any of the proceeds
of the Bonds or any other monies deposited with it and paid out, withdrawn or
transferred hereunder if such applications, payment, withdrawal or transfer
shall be made in accordance with the provisions of this Agreement. The
immunities and exemptions from liability of the Trustee hereunder shall extend
to its directors, officers, employees and agents.
SECTION 905. CERTAIN DUTIES AND RESPONSIBILITIES OF THE TRUSTEE. (a)
Except during the continuance of an Event of Default specified in Section 802 of
this Agreement,
One. The Trustee undertakes to perform such duties
and only such duties as are specifically set forth in this
Agreement, and no implied covenants or obligations shall be
read into this Agreement or the Loan Agreement against the
Trustee; and
Two. In the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Agreement
or the Loan Agreement; but in the case of any such
certificates or opinions
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which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to
the requirements of this Agreement or the Loan Agreement.
(b) In case an event of default specified in Section 802
of this Agreement has occurred and is continuing, the Trustee shall
exercise such of the rights and powers vested in it by this Agreement,
and use the same degree of care and skill in their exercise as a
prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(c) None of the provisions of this Agreement shall be
construed to relieve the Trustee from liability for its own negligent
action, its own negligent failure to act, or its own willful
misconduct, except that
One. This subsection shall not be construed to limit
the effect of subsection (a) of this Section;
Two. The Trustee shall not be liable for any error of
judgment made in good faith by a responsible officer or
officers of the Trustee, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
Three. The Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith
in accordance with the direction of the Holders of not less
than a majority in aggregate Principal amount of the Bonds
then outstanding relating to the time, method and place of
conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred
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upon the Trustee, under the provisions of this Agreement; and
Four. No provision of this Agreement, the Loan
Agreement or the Collateral Documents shall require 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,
if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Agreement or the Loan Agreement relating to
the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions
of this Section.
(e) Except as otherwise above provided in this Section:
One. The Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, Bond, or other paper or
document believed by it to be genuine and to be signed or
presented by the proper party or parties;
Two. Whenever in the administration of this
Agreement, prior to the occurrence of an event of default
specified in Section 802 hereof, the Trustee shall deem it
desirable that a matter be proved or established prior to
taking or suffering any action hereunder, such matters (unless
other evidence in respect thereof be herein specifically
prescribed) may
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be deemed to be conclusively proved and established by a
certificate of a Borrower Representative and such certificate,
in the absence of bad faith on the part of the Trustee, shall
be full warrant to the Trustee for any action taken or
suffered by it under the provisions of this Agreement upon the
faith thereof;
Three. The Trustee may consult with counsel of its
choice and at cost to the Borrower, and the advice of such
counsel or any written opinion of counsel shall be full and
complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and
in reliance thereon;
Four. The Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, Bond, or
other paper or document but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts
or matters as it may see fit, and if the Trustee shall
determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises
of the Borrower, personally or by agent or attorney; provided,
however, that the aforesaid right of examination shall be
exercised only upon such reasonable and necessary terms and
conditions as the Borrower shall prescribe, which conditions
shall be deemed to include, but not be limited to, reasonable
notice and those conditions necessary to protect the
Borrower's trade secrets and proprietary rights; and
Five. The Trustee may execute any of the trusts
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or powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys and the Trustee
shall not be responsible for any misconduct or negligence on
the part of any agent or attorney appointed with due care by
it hereunder or under the Loan Agreement.
(f) So long as the Trustee shall be responsible for the payment of
Principal and interest on the Bonds, including payments incidental to a
redemption pursuant to Article III of this Agreement, it shall comply with any
and all withholding or information reporting requirements imposed by the
applicable tax laws.
SECTION 906. COMPENSATION. The Authority shall cause the Borrower to
pay to the Trustee its reasonable fees and expenses in accordance with Section
4.04(a) of the Loan Agreement. The Trustee reserves the right to charge
additional reasonable fees for additional services not contemplated in this
Agreement as well as extraordinary services upon the occurrence and during the
continuance of an Event of Default. Such additional fees will be reasonable and
calculated based on the costs and expenses incurred by the Trustee and on the
number of hours, employees and internal and external resources dedicated by the
Trustee to such services. If the Borrower shall fail to make any payment
required by this Section 906, the Trustee may, but shall be under no obligation
to, make such payment from any monies in its possession under the provisions of
this Agreement and shall be entitled to a preference therefor over any of the
Bonds outstanding hereunder.
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SECTION 907. SEMI-ANNUAL STATEMENT OF FUNDS ON DEPOSIT. It shall be the
duty of the Trustee, on or before July one (1), two thousand (2000), and
semiannually thereafter, to file with the Authority, the Guarantor and the
Borrower a statement setting forth in respect of the six (6) calendar months
preceding the last Interest Payment Date:
(a) the amount withdrawn or transferred by it and the amount deposited
with it on account of each fund held by it under the provisions of this
Agreement,
(b) the amount on deposit with it at the end of such period to the
credit of each such fund,
(c) a brief description of all the obligations held by it as an
investment of monies in each such fund,
(d) the amounts applied to the payment, purchase or redemption of Bonds
and a description of the Bonds so paid, purchased, or redeemed,
(e) the amount applied to the payment of interest on the Bonds, and
(f) any other information which the Authority, the Guarantor or the
Borrower may reasonably request from time to time.
All records and files pertaining to the Project and the trusts
hereunder in the custody of the Trustee shall be open at all reasonable times to
the inspection of the Authority, the Guarantor and the Borrower and their agents
and representatives.
SECTION 908. NOTICE OF DEFAULT. Except upon the happening of any event
of default specified in clause (a) or (b) of Section 802, the Trustee shall not
be obliged to take notice or be deemed to have notice of
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any event of default hereunder or under the Loan Agreement, unless specifically
notified in writing of such event of default by the Holders of not less than
twenty-five percent (25%) in aggregate Principal amount of the Bonds hereby
secured and then out standing.
SECTION 909. TRUSTEE MAY BE A BONDHOLDER. The bank, national banking
association, or trust company acting as Trustee under this Agreement, and its
directors, officers, employees or agents, may in good faith buy, sell, own, hold
and deal in any of the Bonds, and may join in the capacity of a Bondholder in
any action which any Bondholder may be entitled to take with like effect as if
such bank or trust company were not the Trustee under this Agreement, may
engage, as principal or agent, or be interested in any financial or other
transaction with the Authority or the Borrower, may maintain any and all other
general banking and business relations with the Authority with like effect and
in the same manner as if the Trustee were not a party to this Agreement, and may
act as depository, trustee or agent for any committee or body of Holders of the
Bonds issued under and secured by this Agreement or other obligations of the
Authority with like effect and in the same manner as if the Trustee
were not a party to this Agreement; and no implied covenant shall be read into
this Agreement against the Trustee in respect of such matters.
SECTION 910. TRUSTEE NOT RESPONSIBLE FOR RECITALS. The recitals,
statements and representations contained herein and in the Bonds (excluding the
Trustee's certificates of authentication on the Bonds) shall be
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taken and construed as made by and on the part of the Authority and not by the
Trustee, and the Trustee shall not be under any responsibility for the
correctness of the same. The Trustee makes no representations as to the validity
or sufficiency of this Agreement, the Loan Agreement, the Collateral Documents
or of the Bonds. The Trustee shall not be accountable for the use or
application, other than as herein provided, of any of the proceeds of the Bonds.
SECTION 911. TRUSTEE NOT RESPONSIBLE FOR RECORDING. The Trustee shall
not be under any obligation to see to the recording or filing of this Agreement,
the Loan Agreement, the Collateral Documents or any other instrument or
otherwise to the giving to any person of notice of the provisions hereof or
thereof.
SECTION 912. TRUSTEE MAY RELY ON CERTIFICATES. The Trustee shall be
protected and shall incur no liability in acting or proceeding, or in not acting
or not proceeding, in good faith, reasonably and in accordance with the terms of
this Agreement, upon any resolution, order, notice, request, consent, waiver,
certificate, statement, affidavit, requisition, Bond or other paper or document
which it shall in good faith reasonably believe to be genuine and to have
been adopted or signed by the proper board or person or to have been prepared
and furnished pursuant to and in accordance with the provisions of the Loan
Agree ment, or upon the written opinion of any attorney, engineer, accountant or
other expert believed by it to be qualified in relation to the subject matter,
and the Trustee shall not be under any duty to make any investigation or inquiry
as to any statement contained
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or matters referred to in any such instrument.
SECTION 913. QUALIFICATION OF THE TRUSTEE. There shall at all times be
a Trustee hereunder which shall be a corporation organized and doing business
under the laws of the United States of America, the Commonwealth or any state,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least FIFTY MILLION DOLLARS ($50,000,000), subject to
supervision or examination by federal, Commonwealth or state authority, and
having its principal trust office in the Commonwealth or in one of the states of
the United States of America. If such corporation publishes reports of condition
at least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect specified in Section 914 hereof.
SECTION 914. DISQUALIFICATION; CONFLICTING INTERESTS. If the Trustee
has or shall acquire a conflicting interest within the meaning of the Trust
Indenture Act, the Trustee shall either eliminate such interest or resign, to
the extent and in the manner provided by, and subject to the provisions of, the
Trust Indenture Act and this Agreement.
SECTION 915. RESIGNATION AND REMOVAL OF TRUSTEE.
(a) No resignation or removal of the Trustee and
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no appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor
Trustee under Section 916 hereof.
(b) The Trustee may resign at any time by giving written
notice thereof to the Authority, the Borrower and the Guarantor. If an
instrument of acceptance by a successor Trustee shall not have been
delivered to the Trustee within thirty (30) days after the giving of
such notice of resignation, the retiring Trustee may petition any court
of competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by demand of
the Holders of a majority in Principal amount of the Bonds then
outstanding, signed in person by such Holders or by their attorneys,
legal representatives or agents and delivered to the Trustee, the
Authority, the Guarantor and the Borrower (such demand to be effective
only when received by the Trustee, the Authority, the Guarantor and the
Borrower).
(d) If at any time:
one. The Trustee shall fail to comply with
Section 914(a) hereof and shall fail to resign after written
request therefor by the Borrower or by any Bondholder who
shall have been a bona fide Bondholder for at least six (6)
months, or
two. The Trustee shall cease to be eligible under
Section 913 hereof and shall fail to resign after written
request therefor by the Borrower, the Guarantor or by any
Bondholder who shall have been a bona fide Bondholder for at
least six months, or
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three. The Trustee shall become incapable of acting
or shall be adjudged a bankrupt or insolvent or a receiver of
the Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Authority, the Guarantor or
the Borrower may remove the Trustee, or (ii) subject to
Section 802 hereof, any Bondholder who has been a bona fide
Bondholder for at least six months may, on behalf of himself
and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause, the Authority with the approval of the Borrower
and the Guarantor shall promptly appoint a successor Trustee. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by
an instrument or concurrent instruments in writing executed by the
Holders of a majority in Principal amount of the Bonds then outstanding
delivered to the Authority, the Borrower, the Guarantor and the
retiring Trustee, the successor Trustee so appointed shall, forthwith,
but only upon receipt of the written approval of such proposed
successor Trustee by the Guarantor and upon its acceptance of such
appointment, become the successor Trustee and supersede the successor
Trustee
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appointed by the Authority and approved by the Borrower and the
Guarantor. If no successor Trustee shall have been so appointed by the
Authority and approved by the Borrower or the Bondholders and accepted
appointment in the manner hereinafter provided, any Bondholder who has
been a bona fide Holder of a Bond for at least six (6) months may, on
behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee.
(f) The Authority shall give written notice by first
class mail, postage prepaid, of each resignation and each removal of
the Trustee and each appointment of a successor Trustee to all
Bondholders. Each notice shall include the name and address of the
corporate trust office of the successor Trustee.
SECTION 916. SUCCESSOR TRUSTEE. Every successor Trustee appointed
hereunder shall execute, acknowledge and deliver to its predecessor, and also to
the Authority and the Borrower, an instrument in writing accepting such
appointment hereunder, and thereupon such successor Trustee without any further
act, shall become fully vested with all the rights, immunities, powers and
trusts, and subject to all the duties and obligations, of its predecessors; but
such predecessor shall, nevertheless, on the written request of its successor or
of the Authority and upon payment of the expenses, charges and other
disbursements of such predecessor which are payable pursuant to the provisions
of Section 906 hereof, execute and deliver an instrument transferring to such
successor Trustee all the rights, immunities, powers and trusts of such
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predecessor hereunder; and every predecessor Trustee shall deliver all
property and monies held by it hereunder to its successor, subject,
nevertheless, to its preference, if any, provided for in Sections 902
and 906 hereof. Should any instrument in writing from the Authority be
required by any successor Trustee for more fully and certainly vesting
in such Trustee the rights, immunities, powers and trusts hereby vested
or intended to be vested in the predecessor Trustee, any such
instrument in writing shall and will, on request, be executed,
acknowledged and delivered by the Authority.
Notwithstanding any of the foregoing provisions of this Article, any
bank or trust company having power to perform the duties and execute
the trusts of this Agreement and otherwise qualified to act as Trustee
hereunder with or into which the bank or trust company acting as
Trustee, may be converted, merged or consolidated, or to which the
corporate trust business assets as a whole or substantially as a whole
of such bank or trust company may be sold, shall be deemed the
successor of the Trustee without the execution or filing of any paper
or any further act on the part of any of the parties hereto.
SECTION 917. PREFERENTIAL COLLECTION OF CLAIMS AGAINST BORROWER OR
GUARANTOR. If and when the Trustee shall be or become a creditor of the Borrower
or the Guarantor (or any other obligor upon the Bonds), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the collection of
claims against the Borrower or the Guarantor (or any such other obligor).
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SECTION 918. COMMUNICATION TO BONDHOLDERS. (a) If three (3) or more
Holders of Bonds (hereinafter referred to as "applicants") apply in writing to
the Trustee, and furnish to the Trustee reasonable proof that each such
applicant has owned a Bond for a period of at least six (6) months preceding the
date of such application, and such application states that the applicants desire
to communicate with other Holders of Bonds with respect to their rights under
this Agreement or under the Bonds and is accompanied by a copy of the form of
proxy or other communication which such applicants propose to transmit, then the
Trustee shall, within five (5) Business Days after receipt of such application,
at its election, either
(i) afford such applicants access to the registration
books kept by the Trustee under the provisions of Section 206
hereof, or
(ii) inform such applicants as to the approximate number
of Holders of Bonds whose names and addresses appear in said
registration books, and as to the approximate cost of mailing
to such Bondholders the form of proxy or other communication,
if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to said
registration books, the Trustee shall, upon the written request of such
applicants, mail to each Bondholder a copy of the form of proxy or other
communication which is specified in such request, with reasonable promptness
after a tender to the Trustee of the material to be mailed and of payment, or
provision for the payment, of the reasonable expenses of mailing, unless within
five (5)
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days after such tender, the Trustee shall mail to such applicants and
file with the Commission together with a copy of the material to be mailed, a
written statement to the effect that, in the opinion of the Trustee, such
mailing would be contrary to the best interests of the Holders of Bonds or would
be in violation of applicable law. Such written statement shall specify the
basis of such opinion. If the Commission, after opportunity for a hearing on the
objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have
been met and shall enter an order so declaring, the Trustee shall mail copies of
such material to all Bondholders with reasonable promptness after the entry of
such order and the renewal of such tender; otherwise the Trustee shall be
relieved of any obligation or duty to such applicants respecting their
application.
(b) Each and every Bondholder, by receiving and holding
the same, agrees with the Authority and the Trustee that neither
Authority nor the Trustee shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the
Bondholders in accordance with Section 918(a), regardless of the source
from which such information was derived, and that the Trustee shall not
be held accountable by reason of mailing any material pursuant to a
request made under Section 918(a).
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SECTION 919. REPORTS BY TRUSTEE. (a) The Trustee shall transmit to the
Bondholders such reports concerning the Trustee and its actions under this
Agreement as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such
transmission to Bondholders, be filed by the Trustee with each stock exchange
upon which the Bonds are listed, if any, and also with the Commission. The
Authority will cause the Borrower to notify the Trustee when the bonds are
listed on any stock exchange.
SECTION 920. REPORTS OF BORROWER AND GUARANTOR. (a) The Authority will
cause the Borrower and the Guarantor to file with the Trustee and the
Commission, and transmit to Bondholders, such information, documents and other
reports, and such summaries thereof, as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant to such Act;
provided that any such information, documents or reports required to be filed
with the Commission pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934 shall be filed with the Trustee within fifteen (15) days after the
same is so required to be filed with the Commission.
(b) The Borrower and the Guarantor will deliver to the
Trustee, within one hundred twenty (120) days after the end of each
fiscal year of the Borrower and the Guarantor ending after the date
hereof, an Officer's Certificate, stating whether or not to the best
knowledge of the signers thereof the Borrower or
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the Guarantor is in default in the performance and observance of any of
the terms, provisions and conditions of this Agreement (without regard
to any period of grace or requirement of notice provided hereunder)
and, if the Borrower or the Guarantor shall be in default, specifying
all such defaults and the nature and status thereof of which they may
have knowledge.
(c) Promptly after the execution and delivery of this
Agreement and of each supplement to this Agreement, the Borrower and
the Guarantor will furnish the Trustee with an Opinion of Counsel,
stating that in the opinion of such counsel this Agreement or such
supplement, as the case may be, has been properly recorded or filed for
record so as to make effective of record the lien intended to be
created and reciting the details of such action or stating that in the
opinion of such counsel no such action is necessary to make such lien
effective, and on or before November three (3) in each subsequent year
the Borrower and the Guarantor will furnish the Trustee with an Opinion
of Counsel, either stating that in the opinion of such counsel such
action has been taken with respect to the recording or filing or
rerecording or refiling of this Agreement and of each supplement as is
necessary to maintain the lien of this Agreement of record, and
reciting the details of such action, or stating that in the opinion of
such counsel no such action is necessary to maintain such lien.
(d) To the extent applicable, the Authority shall cause
the Borrower and the Guarantor to furnish to the Trustee such
certificates or opinions of an engineer,
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appraiser or other expert as shall be required by the Trust Indenture
Act in connection with any release of Property from the lien of the
Mortgage in accordance with the Pledge Agreement.
SECTION 921. MONEY HELD IN TRUST. Money held by the Trustee in trust
under this Agreement need not be segregated from other funds except to the
extent required by law. Subject to the provisions of Section 602 hereof, the
Trustee shall be under no liability for interest on any money received by it
under this Agreement except as otherwise agreed with the Authority or the
Borrower.
SECTION 922. CONTINUING DISCLOSURE. If the Guarantor fails to comply
with any of the provisions of the Continuing Disclosure Agreement (as defined in
Section 1.01 of the Loan Agreement), the Trustee may (and, at the request of the
Underwriters or the Holders of at least twenty-five percent (25%) aggregate
principal amount of Bonds, shall) or (if such Holder stipulates that no
challenge is made to the adequacy of any information provided) any Holder (or if
the Holder of any Bond is not the beneficial owner, the beneficial owner of any
Bond) may take actions as may be necessary and appropriate, including seeking
specific performance by court order, to cause the Guarantor to comply with its
obligations under Section 1.01 of the Loan Agreement.
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ARTICLE X
EXECUTION OF INSTRUMENTS BY BONDHOLDERS AND
PROOF OF OWNERSHIP OF BONDS
SECTION 1001. EXECUTION OF INSTRUMENTS BY BONDHOLDERS AND PROOF OF
OWNERSHIP OF BONDS. (a) Any request, direction, consent or other instrument in
writing required or permitted by this Agreement to be signed or executed by
Bondholders may be in any number of concurrent instruments of similar tenor and
may be signed or executed by such Bondholders or their attorneys or legal
representatives. Proof of the execution of any such instrument and of the
ownership of Bonds shall be sufficient for any purpose of this Agreement and
shall be conclusive in favor of the Trustee with regard to any action taken by
it under such instrument if made in the following manner:
(i) The fact and date of the execution by any person
of any such instrument may be proved by the verification of
any officer in any jurisdiction who, by the laws thereof, has
power to take affidavits within such jurisdiction, to the
effect that such instrument was subscribed and sworn to before
him, or by an affidavit of a witness to such execution. Where
such execution is by a person other than an individual such
verification or affidavit shall also constitute sufficient
proof of the authority of the signer.
(ii) The ownership of Bonds shall be proved by the
registration books kept under the provisions of Section 206
hereof.
Nothing contained in this Section shall be construed as
limiting the Trustee to such proof, it being intended that the Trustee
may accept any other evidence of the matters herein stated which may be
sufficient. Any request or consent of the Holder of any Bond shall bind
every future Holder of the same Bond or any Bond issued in place of
such Bond in relation to anything done by the Trustee in pursuance of
such request or consent.
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(b) If the Authority shall solicit from the Holders any
request, direction, consent or other instrument in writing required or
permitted by this Agreement to be signed or executed by Bondholders,
the Authority may, at its option, fix in advance a record date for the
determination of Holders entitled to give such request, direction,
consent or other instrument, but the Authority shall have no obligation
to do so. If such a record date is fixed, such request, direction,
consent or other instrument may be given before or after such record
date, but only the Holders of record at the close of business on such
record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Bonds have
authorized or agreed or consented to such request, direction, consent
or other instrument, and for that purpose the Bonds shall be computed
as of such record date; provided that no such consent by the Holders on
such record date shall be deemed effective unless such consent shall
become effective pursuant to the provisions of this Agreement not later
than six (6) months after the record date.
ARTICLE XI
SUPPLEMENTS AND AMENDMENTS TO AGREEMENT
SECTION 1101. SUPPLEMENTS AND AMENDMENTS NOT REQUIRING BONDHOLDER
CONSENT. The Authority and the Trustee may, without the consent or approval of,
or notice to, any of the Bondholders, at any time and from time to time, enter
into such supplements and amendments to this Agreement, in form satisfactory to
the Trustee, as shall not, in the opinion of the
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Trustee, be detrimental to the interests of the Bondholders (which
supplements and amendments shall thereafter form a part hereof):
(a) to cure any ambiguity or formal defect or omission or
to make any other changes with respect to matters or questions arising
under this Agreement which shall not be inconsistent with the
provisions of this Agreement, or
(b) to grant to or confer upon the Trustee for the
benefit of the Bondholders, any additional rights, remedies, powers,
authority or security that may lawfully be granted to or conferred upon
the Bondholders or the Trustee, or
(c) to add to the covenants of the Authority for the
benefit of the Bondholders or to surrender any right or power herein
conferred upon the Authority, or
(d) to add to this Agreement or any supplement or
amendment hereto such other terms, conditions and provisions as may be
required by the Trust Indenture Act or similar federal statute.
SECTION 1102. SUPPLEMENTS AND AMENDMENTS REQUIRING CONSENT OF HOLDERS
OF A MAJORITY IN PRINCIPAL AMOUNT OF BONDS. With the consent of the Holders of
not less than a majority in aggregate principal amount of the Bonds at the time
outstanding, the Authority and the Trustee may, from time to time and at any
time, enter into supplements and amendments to this Agreement for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of any supplement or amendment to this Agreement
or of modifying in any manner the
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rights of the Holders of the Bonds; provided, however, that nothing herein
contained shall permit, or be construed as permitting, without the consent of
each Bondholder affected, (a) an extension of the time for the payment of the
principal of and premium, if any, or the interest on any Bond, or (b) a
reduction in the principal amount of any Bond or the redemption premium or the
rate of interest thereon, or (c) the creation of any lien or security interest
with respect to the Loan Agreement or the payments thereunder, other than the
lien created by this Agreement, or (d) a preference or priority of any Bond or
Bonds over any other Bond or Bonds, or (e) a reduction in the aggregate
principal amount of the Bonds required for consent to such supplement or
amendment or any waiver hereunder. Nothing herein contained, however, shall be
construed as making the approval by Bondholders of the execution of any
supplemental agreement as authorized in Section 1001 hereof.
It shall not be necessary for the consent of the Holders of Bonds under
this Section to approve the particular form of any proposed supplement or
amendment but it shall be sufficient if such consent shall approve the substance
thereof.
If at any time the Authority shall request the Trustee to enter into
any supplement or amendment to this Agreement for any of the permitted purposes
of this Section, the Trustee shall, at the expense of the Authority, cause
notice of the proposed execution of such supplement or amendment to be mailed,
postage prepaid, to all Bondholders. Such notice shall briefly set forth the
nature of the proposed
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supplement or amendment and shall state that copies thereof are on file at the
corporate trust office of the Trustee for inspection by all Bondholders. The
Trustee shall not, however, be subject to any liability to any Bondholder by
reason of its failure to mail the notice required by this Section, and any such
failure or any defect in such notice shall not affect the validity of such
supplement or amendment when consented to as provided in this Section.
Whenever, at any time within one (1) year after the date of the mailing
of such notice, the Authority shall deliver to the Trustee an instrument or
instruments in writing purporting to be executed by the Holders of not less than
a majority in aggregate principal amount of the Bonds then outstanding, which
instrument or instruments shall refer to the proposed supplement or amendment
described in such notice and shall specifically consent to and approve the
execution thereof in substantially the form of the copy thereof referred to in
such notice, thereupon, but not otherwise, the Trustee may execute such
supplement or amendment in substantially such form, without liability or
responsibility to any Holder of any Bond, whether or not such Holder shall have
consented thereto.
If the Holders of not less than a majority in aggregate principal
amount of the Bonds outstanding at the time of the execution of such supplement
or amendment or any record date established in connection therewith pursuant to
Section 1001(b) hereof shall have consented to and approved the execution as
herein provided, no Holder of any Bond shall have any right
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to object to the execution of such supplement or amendment, or to object to any
of the terms and provisions contained therein or the operation thereof or in any
manner to question the propriety of the execution thereof, or to enjoin or
restrain the Trustee or the Authority from executing the same or from taking any
action pursuant to the provisions thereof.
SECTION 1103. SUPPLEMENTS AND AMENDMENTS DEEMED PART OF AGREEMENT. The
Trustee is authorized to join with the Authority in the execution of any
supplement or amendment herein provided. Any supplement or amendment to this
Agreement executed in accordance with the provisions of this Article shall
thereafter form a part of this Agreement, and all of the terms and conditions
contained in any such supplement or amendment as to any provision authorized to
be contained therein shall be and shall be deemed to be part of the terms and
conditions of this Agreement for any and all purposes. Upon the execution of any
supplement or amendment to this Agreement pursuant to the provisions of this
Article, this Agreement shall be and be deemed to be modified and amended in
accordance therewith, and the respective rights, duties and obligations under
this Agreement of the Authority, the Trustee and all Holders of Bonds then
outstanding shall thereafter be determined, exercised and enforced hereunder,
subject in all respects to such modifications and amendments. In case of the
execution and delivery of any supplement or amendment, express reference may be
made thereto in the text of any Bonds issued thereafter, if deemed necessary or
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desirable by the Trustee.
SECTION 1104. DISCRETION OF TRUSTEE IN ENTERING INTO SUPPLEMENTS AND
AMENDMENTS. In each and every case provided for in this Article, the Trustee
shall not be obligated to execute any proposed supplement or amendment, if the
rights, obligations and interests of the Trustee would be thereby affected, and
the Trustee shall not be under any responsibility or liability to the Authority,
the Borrower or to any Bondholder or to anyone whomsoever for its refusal in
good faith to enter into any such supplement or amendment if such supplement or
amendment is deemed by it to be contrary to the provisions of this Article.
The Trustee shall be entitled to receive, and shall be fully protected
in relying upon, an opinion of any counsel, as conclusive evidence that any such
proposed supplement or amendment does or does not comply with the provisions of
this Agreement, and that it is or is not proper for it, under the provisions of
this Article, to join in the execution of such supplement or
amendment.
SECTION 1105. CONSENT OF BORROWER AND THE GUARANTOR REQUIRED. Anything
herein to the contrary notwithstanding, any amendment, modification or
supplement to this Agreement pursuant to this Article XI shall not become
effective unless and until the Borrower and the Guarantor shall have consented
thereto in writing.
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ARTICLE XII
SUPPLEMENTS AND AMENDMENTS TO
THE LOAN AGREEMENT AND THE COLLATERAL DOCUMENTS
SECTION 1201. SUPPLEMENTS AND AMENDMENTS NOT REQUIRING CONSENT. The
Authority, the Borrower and the Guarantor may enter into, and the Trustee may
consent to, from time to time and at any time, such amendments and supplements
to the Loan Agreement and the Collateral Documents, in form satisfactory to the
Trustee, as shall not be inconsistent with the terms and provisions thereof and,
in the opinion of the Trustee shall not be detrimental to the interests of the
Bondholders (which supplements and amendments shall thereafter form a part
thereof),
(a) to identify more precisely the Project, or
(b) to cure any ambiguity or formal defect or omission in
the Loan Agreement or the Collateral Documents or in any supplement
thereto, or
(c) to grant to or confer upon the Authority or Trustee
for the benefit of the Bondholders any additional rights, remedies,
powers, authority or security that may lawfully be granted to or
conferred upon the Authority, the Bondholders or the Trustee, or
(d) to add to the covenants of the Borrower or the
Guarantor, for the benefit of the Bondholders or to surrender any right
or power therein conferred upon the Borrower or the Guarantor, or
(e) to make any other change to the Loan Agreement which,
in the judgment of the Trustee, will not restrict, limit or reduce the
obligation of the Borrower or the Guarantor to make the payments under
the Loan Agreement required to pay the principal of or interest on the
Bonds, or otherwise impair the security of the Bondholders under this
Agreement or the Collateral Documents, provided such action shall not
materially adversely affect the interests of the
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Bondholders, or
(f) to implement the provisions of Section 5 of the
Pledge Agreement, including by executing such consents and releases as
shall be required by the Borrower and contemplated in such Section 5.
SECTION 1202. SUPPLEMENTS AND AMENDMENTS REQUIRING CONSENT OF HOLDERS
OF A MAJORITY IN PRINCIPAL AMOUNT OF BONDS. Except for supplements or amendments
provided for in Section 1201, the Authority shall not enter into and the Trustee
shall not consent to any supplement or amendment to the Loan Agreement or the
Collateral Documents unless notice of the proposed execution of such supplement
or amendment shall have been given to the Holders and the Holders of not less
than a majority in aggregate principal amount of the Bonds then outstanding
shall have consented to and approved the execution thereof, all as provided for
in Section 1102 hereof in the case of supplements and amendments to this
Agreement and with the same effect as provided in Section 1103; provided that
the Trustee shall be entitled to exercise its discretion in consenting or not
consenting to any such supplement or amendment, and to rely on an Opinion of
Counsel, in the same manner as provided for in Section 1104 hereof in the case
of supplements and amendments to this Agreement.
SECTION 1203. CONSENT OF TRUSTEE REQUIRED. Anything herein to the
contrary notwithstanding, any such supplement or amendment pursuant to this
Article XII shall not become effective unless and until the Trustee shall have
consented thereto in writing.
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ARTICLE XIII
DEFEASANCE
SECTION 1301. DEFEASANCE. If there is paid or caused to be paid from
the Bond Fund to the Holders of all of the Bonds secured hereby the principal
of, premium, if any, and interest which is and shall thereafter become due and
payable thereon, together with all other sums payable hereunder by the
Authority, then and in that case the rights, title and interest of the Trustee
hereunder shall cease and terminate, and such Bonds shall cease to be entitled
to any lien, benefit or security under this Agreement. In such event, the
Trustee shall transfer and assign to the Borrower all property then held by the
Trustee, shall execute such documents as may be reasonably required by the
Authority or the Borrower to evidence such transfer and assignment and shall
turn over to the Borrower any surplus in the Bond Fund and any balance remaining
in the Construction Fund. If the Authority shall pay or cause to be paid to the
Holders of less than all of the outstanding Bonds the principal of, premium, if
any, and interest which is and shall thereafter become due and payable upon such
Bonds, such Bonds, or portions thereof, shall cease to be entitled to any lien,
benefit or security under this Agreement.
Any outstanding Bond, or any portion thereof in the principal amount of
FIVE THOUSAND DOLLARS ($5,000) or any multiple thereof, shall be deemed to have
been paid within the meaning and with the effect expressed in this Section 1301
when the whole amount of the principal of, premium, if any, and interest on such
Bond shall have been paid or when (a) in case said
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Bonds or portions thereof have been selected for redemption in accordance with
Section 301 hereof prior to their maturity, the Borrower shall have given to the
Trustee irrevocable instructions to give in accordance with the provisions of
Section 302 hereof notice of redemption of such Bonds, or portions thereof, (b)
there shall be on deposit with the Trustee moneys or Defeasance Obligations
which shall not contain provisions permitting the redemption thereof other than
at the option of the holder, the principal of and the interest on which when
due, and without any reinvestment thereof, will provide moneys which shall be
sufficient to pay when due the principal of and interest due and to become due
on said Bonds or portions thereof on or prior to the redemption date or maturity
date thereof, as the case may be, (c) in the event said Bonds, or portions
thereof, do not mature and are not to be redeemed within the next succeeding
sixty (60) days, the Borrower shall have given the Trustee irrevocable
instructions to give notice, as soon as practicable in the same manner as a
notice of redemption is given pursuant to Section 302 hereof, to the Holders of
said Bonds, or portions thereof, stating that the deposit of moneys or
Defeasance Obligations required by clause (b) of this paragraph has been made
with the Trustee and that said Bonds are deemed to have been paid in accordance
with this Section and stating such maturity or redemption date upon which moneys
are to be available for the payment of the principal of and interest on said
Bonds, or portions thereof, (d) the Trustee shall have received an opinion of
counsel
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experienced in bankruptcy matters, satisfactory to the Trustee, the Guarantor
and the Authority, to the effect that the payment to the Bondholders of the
moneys described in clause (b) of this paragraph would not constitute a voidable
preference under the provisions of the United States Bankruptcy Code in the
event of an Act of Bankruptcy, and (e) the Trustee shall have received an
Opinion of Counsel experienced in federal tax matters satisfactory to the
Trustee and the Authority, to the effect that the deposit of the moneys or
Defeasance Obligations described in clause (b) of this paragraph would not
adversely affect the treatment of the interest received by Bondholders as income
from sources within the Commonwealth for purposes of the Code or otherwise would
not result in an Event of Taxability (assuming continuing compliance by the
Borrower with the source of income covenants set forth in the Loan Agreement).
Neither the moneys nor the Defeasance Obligations deposited with the Trustee
pursuant to this Section nor principal or interest payments on any such
obligations shall be withdrawn or used for any purpose other than, and shall be
held in trust for, the payment of the principal of and interest on said Bonds,
or portions thereof. If the Defeasance Obligations deposited with the Trustee
pursuant to this Section are purchased with proceeds of refunding bonds issued
by the Authority, such Defeasance Obligations must meet the requirements of the
Act. If payment of less than all of the Bonds is to be provided for in the
manner and with the effect expressed in this Section, the Trustee shall select
such Bonds, or portions thereof, in the
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manner specified in Section 301 hereof for selection for redemption of less
than all of the Bonds in the principal amounts designated to the Trustee by the
Borrower.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
SECTION 1401. COVENANTS OF AUTHORITY BIND ITS SUCCESSORS. In the event
of the dissolution of the Authority, all of the covenants, stipulations,
obligations and agreements contained in this Agreement by or on behalf of or for
the benefit of the Authority shall bind or inure to the benefit of the successor
or successors of the Authority from time to time and any officer, board,
commission, authority, agency or instrumentality to whom or to which any power
or duty affecting such covenants, stipulations, obligations and agreements shall
be transferred by or in accordance with law.
SECTION 1402. NOTICES. Any notice, demand, direction, request or other
instrument authorized or required by this Agreement to be given to or filed with
the Authority, the Trustee, the Borrower or the Guarantor shall be in writing
and shall be deemed to have been sufficiently given or filed for all purposes of
this Agreement if mailed, by registered mail, return receipt requested, postage
prepaid, or if delivered by hand or by telecopier, with verification of receipt
by the addressee, addressed as follows:
If to the Authority: Puerto Rico Industrial, Tourist, Educational,
Medical and Environmental Control Facilities Financing Authority, c/o Government
Development Bank for Puerto Rico, Minillas Government
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▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ and Baldorioty ▇▇ ▇▇▇▇▇▇, Stop 22, Santurce, Puerto Rico
00911, Attention: Executive Director.
If to the Borrower: Doral Properties, Inc., 1159 ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇., ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Chief Executive Officer.
If to the Trustee: Citibank, N.A., 252 ▇▇▇▇▇ de ▇▇▇▇ Avenue, 2nd Floor,
Hato Rey, Puerto Rico, 00918, Attention: Trust/Custody Department Head.
If to the Guarantor: Doral Financial Corporation, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Chief Executive Officer.
With a copy in each case to: Standard & Poor's Ratings Service, ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇'▇ Investors Services, ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and Duff & ▇▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇.
All documents received by the Trustee under the provisions of this
Agreement, or photographic copies thereof, shall be retained in its possession
until this Agreement shall be released in accordance with the provisions of the
Agreement, subject at all reasonable times, during regular business hours and
upon reasonable prior notice to the Trustee, to the inspection of the Authority
and the Bondholders and the agents and representatives thereof.
A duplicate copy of each notice, certificate, request or other
communication given hereunder to the Authority, the Borrower, the Trustee or the
Guarantor, shall also be given to each of the others. The Authority, the
Trustee, the Borrower and the Guarantor may, by notice given hereunder,
designate any further
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or different addresses to which subsequent notices, certificates or other
communications shall be sent.
SECTION 1403. SUBSTITUTE MAILING. In case, by reason of the suspension
of regular mail service as a result of a strike, work stoppage or similar
activity, it shall be impractical to mail notice of any event to Bondholders
when such notice is required to be given pursuant to any provision of this
Agreement, any manner of giving notice as shall be satisfactory to the Trustee
and the Authority shall be deemed to be a sufficient giving of such notice.
SECTION 1404. RIGHTS UNDER AGREEMENT. Except as herein otherwise
expressly provided, nothing in this Agreement expressed or implied is intended
or shall be construed to confer upon any person other than the parties hereto,
the Borrower, the Guarantor and the Holders of the Bonds any right, remedy or
claim, legal or equitable, under or by reason of this Agreement or any provision
hereof, this Agreement and all its provisions being intended to be and being for
the sole and exclusive benefit of the parties hereto, the Borrower, the
Guarantor and the Holders from time to time of the Bonds issued hereunder.
SECTION 1405. SEVERABILITY. In case any one or more of the provisions
of this Agreement or of the Bonds issued hereunder shall for any reason be held
to be illegal or invalid, such illegality or invalidity shall not affect any
other provision of this Agreement or of the Bonds, but this Agreement and the
Bonds shall be construed and enforced as if such illegal or invalid provision
had not been contained therein. In case any covenant, stipulation, obligation or
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agreement contained in the Bonds or in this Agreement shall for any reason be
held to be in violation of law, then such covenant, stipulation, obligation or
agreement shall be deemed to be the covenant, stipulation, obligation or
agreement of the Authority to the full extent permitted by law.
SECTION 1406. COVENANTS OF AUTHORITY NOT COVENANTS OF OFFICIALS
INDIVIDUALLY. No covenant, stipulation, obligation or agreement contained herein
or in the Bonds shall be deemed to be a covenant, stipulation, obligation or
agreement of any present or future member, agent or employee of the Authority in
his individual capacity, and neither the members of the Board of Directors of
the Authority nor any other officer of the Board of Directors of the Authority
or the Authority executing the Bonds shall be liable personally on the Bonds or
be subject to any personal liability or accountability by reason of the issuance
thereof. No member of the Board of the Authority and no officer, agent or
employee of the Board of the Authority shall incur any personal liability in
acting or proceeding or in not acting or not proceeding, in good faith,
reasonably and in accordance with the terms of this Agreement.
SECTION 1407. COMMONWEALTH LAW GOVERNS. This Agreement shall be
governed by and construed in accordance with the laws of the Commonwealth.
SECTION 1408. PAYMENTS DUE ON SATURDAYS, SUNDAYS AND HOLIDAYS. In any
case where the date of maturity of interest on or principal of the Bonds or the
date fixed for redemption of any Bonds shall be any day other than a Business
Day, then payment of interest or
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principal need not be made on such date but may be made on the next succeeding
Business Day with the same force and effect as if made on the date of maturity
or the date fixed for redemption and no interest on such payment shall accrue
for the period after such date.
SECTION 1409. HEADINGS NOT PART OF AGREEMENT. Any headings preceding
the text of the several articles hereof, and any table of contents or marginal
notes appended to copies hereof, shall be solely for convenience of reference
and shall not constitute a part of this Agreement, and they shall not affect its
meaning, construction or effect.
ACCEPTANCE
The appearing parties accept this Deed as drafted and confirm that the same has
been drawn in accordance with their instructions.
I, the Notary, hereby certify that the appearing parties read this
Deed, and that I advised the appearing parties of their right to have witnesses
present at its execution, which right they waived, and that I advised them of
the legal effect of this Deed; and they acknowledged that they understood the
contents of this Deed and such legal effect, and thereupon they signed this Deed
before me, affixing their initials to each and every page thereof.
I, the Notary, DO HEREBY ATTEST.
(signed) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
(signed) ▇▇▇▇▇ ▇▇▇▇
(signed, sealed, marked and flourished) ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
119
126
EXHIBIT A
[FORM OF SERIAL AND TERM BONDS]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO
THE AUTHORITY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE
& CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL IN AS MUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
No. [RA--for Serial Bonds] $
[RB--for Term Bonds]
UNITED STATES OF AMERICA
COMMONWEALTH OF PUERTO RICO
PUERTO RICO INDUSTRIAL, TOURIST, EDUCATIONAL, MEDICAL
AND ENVIRONMENTAL CONTROL FACILITIES FINANCING AUTHORITY
INDUSTRIAL REVENUE BOND
1999 SERIES A
(DORAL FINANCIAL CENTER PROJECT)
INTEREST RATE MATURITY DATE CUSIP NO.
------------------------------------------------------------------------------
Date of Issuance: November 3, 1999
Principal Amount: DOLLARS ($ )
Registered Owner: Cede & Co.
Puerto Rico Industrial, Tourist, Educational, Medical and
Environmental Control Facilities Financing Authority (the "Authority"), a body
corporate and politic constituting a public corporation and governmental
instrumentality of the Commonwealth of Puerto Rico (the "Commonwealth"), for
value received, hereby promises to pay, solely from the special fund provided
therefor as hereinafter set forth, to the Registered Owner mentioned above, or
registered assigns or legal representatives, on the Maturity Date set forth
above (or earlier as hereinafter referred to), upon the presentation and
surrender hereof at the corporate trust office of the Trustee (hereinafter
mentioned), in the Municipality of San ▇▇▇▇, Puerto Rico, the Principal Amount
set forth above in any coin or currency of the United States of America which on
the date of payment thereof is legal tender for the payment of public and
private debts, and to pay, solely from said special fund, to the person (the
"Holder") in whose name this Bond (or one or more Predecessor Bonds, as defined
in the Trust Agreement hereinafter mentioned)
127
is registered at the close of business on the fifteenth (15th) day (whether or
not a Business Day) of the month immediately preceding an Interest Payment Date
(hereinafter defined), by check mailed to the Registered Owner at his address as
it appears on the registration books kept by the Trustee, interest on such
Principal Amount from the Interest Payment Date next preceding the date of
authentication to which interest shall have been paid, unless such date of
authentication is an Interest Payment Date to which interest shall have been
paid, in which case it shall bear interest from such date or unless
authenticated prior to December 1, 1999, in which case this Bond shall bear
interest from the Date of Issuance referred to above, monthly on the first
(1st) day of each month (each such date, an "Interest Payment Date"),
commencing December 1, 1999, in like coin or currency, at the Interest Rate set
forth above until payment of said Principal Amount. Interest is computed on the
basis of a 360-day year of twelve 30-day months. As used herein, "Business Day"
means any day of the year other than a Saturday, Sunday or other day in which
commercial banks in the Commonwealth are generally closed for business to the
public.
This Bond and the interest thereon shall not be deemed to constitute
an indebtedness of either the Commonwealth or any of its political
subdivisions, other than the Authority, and neither the Commonwealth nor any
such political subdivisions, other than the Authority, shall be liable thereon,
but this Bond shall be payable as to principal, redemption premium, if any, and
interest solely from the special fund provided therefor as hereinafter set
forth.
This [Serial or Term] Bond is one of a duly authorized issue of
industrial revenue bonds of the Authority in the aggregate principal amount of
$44,765,000 , designated as "Puerto Rico Industrial, Tourist, Educational,
Medical and Environmental Control Facilities Financing Authority Industrial
Revenue Bonds, 1999 Series A (Doral Financial Center Project)" (the "Bonds"),
consisting of $5,345,000 aggregate principal amount of Serial Bonds (the
"Serial Bonds") and $39,420,000 aggregate principal amount of Term Bonds (the
"Term Bonds" and collectively with the Serial Bonds, the "Bonds"). The Bonds
are being issued for the purpose of providing funds, together with other
available funds, to (i) pay a portion of the Costs of the Project (as defined
in the Loan Agreement hereinafter referred to), (ii) pay certain expenses
incurred in connection with the authorization and issuance of the Bonds and
(iii) pay interest due on the Bonds during the first twenty-three Interest
Payment Dates.
The Bonds are parity obligations, except for differences in interest
rates and, in certain instances, order of redemption, and are issued under and
pursuant to a trust agreement, dated the Date of Issuance (said trust agreement
together with all supplements and amendments thereto as therein permitted being
hereinafter referred to as the "Trust Agreement"), between the Authority and
Citibank, N.A., as trustee (said bank and any bank, banking association or
trust company becoming successor trustee under the Trust Agreement being herein
called the "Trustee"), a copy of which Trust Agreement is on file at the
corporate trust office of the Trustee. Reference is hereby made to the Trust
Agreement for the provisions, among others, with respect to the custody and
application of the proceeds of the Bonds, the collection and disposition of
payments under the Loan Agreement (hereinafter mentioned) and other revenues, a
description of the funds charged with and pledged to the payment of the
principal of, premium, if any, and interest on the Bonds, the nature and extent
of the security for the Bonds, the terms and conditions
128
under which the Bonds are or may be issued, the rights, duties and obligations
of the Authority and of the Trustee and the rights of the Holders of the Bonds
and by the acceptance of this Bond, the Holder hereof assents to all of the
provisions of the Trust Agreement and the Loan Agreement. All capitalized terms
not defined herein shall have the meanings assigned to such terms in the Trust
Agreement.
This Bond is issued, and the Trust Agreement and the Loan Agreement
were made and entered into, under and pursuant to the Puerto Rican Federal
Relations Act and the Constitution and laws of the Commonwealth, including Act
No. 121 of the Legislature of Puerto Rico, approved June 27, 1977, as amended
(the "Act"), and under and pursuant to resolutions duly adopted by the
Authority.
The Authority has entered into a loan and guaranty agreement, dated
the Date of Issuance (said loan and guaranty agreement together with all
supplements and amendments thereto as permitted by the Trust Agreement being
hereinafter referred to as the "Loan Agreement"), with Doral Properties, Inc.
(the "Borrower"), a Puerto Rico corporation, and Doral Financial Corporation
(the "Guarantor"), a Puerto Rico corporation, under which the Authority has
agreed to lend to the Borrower the proceeds of the Bonds, and, in consideration
of the loan, the Borrower has agreed, among other things, to make payments to
the Trustee in such amounts and at such times as are required to provide for
timely payment of the principal of, redemption premium, if any, and interest on
the Bonds and certain fees and expenses of the Authority and the Trustee. The
Loan Agreement further obligates the Borrower to perform, observe and comply,
or cause performance, observance and compliance, with certain covenants,
conditions and agreements set forth in the Loan Agreement, including certain
obligations respecting the use and operation of the Project for the purposes
stated therein. The Loan Agreement provides that any payments in respect of the
Bonds shall be made directly to the Trustee for the account of the Authority,
and that the Borrower's obligation to make such payments shall be absolute and
unconditional, without right of set-off for any reason. Under the Loan
Agreement, the Guarantor has unconditionally guaranteed the Borrower's
obligations thereunder, including the Borrower's payment obligations.
Pursuant to the Trust Agreement, the Authority has, for the benefit of
the owners of the Bonds, assigned and conveyed to the Trustee in trust the
Authority's rights, title and interest in the Loan Agreement (subject to the
reservation of certain rights of the Authority, including its rights to payment
of certain expenses and to indemnity) and the payments thereunder and other
revenues derived therefrom. The Trust Agreement further provides that any
payments under the Loan Agreement are to be deposited with the Trustee to the
credit of a special fund designated "Industrial Revenue Bonds, 1999 Series A
(Doral Financial Center Project) Bond Fund," which special fund is equally and
ratably pledged to and charged with the payment of the principal of and
interest all Bonds.
The Bonds are additionally secured by the assignment by the Authority
to the Trustee of its rights under a pledge of a mortgage note secured by a
first mortgage on all of the real property where the Project will be located.
The Bonds maturing on and after December 1, 2009 are subject to
redemption prior to maturity, at the option of the Borrower, in whole or in part
(as
129
directed by the Borrower) on any date selected by the Borrower, on or after
December 1, 2009, at a redemption price equal to the principal amount thereof
plus accrued and unpaid interest up to the redemption date (the "Redemption
Price"), plus a premium of 2% of such principal amount if redeemed on or prior
to November 30, 2010, 1% if redeemed on or after December 1, 2010 and on or
prior to November 30, 2011 and without premium if redeemed on December 1, 2011
and thereafter.
The Bonds are subject to mandatory redemption in part, prior to
maturity, to the extent of any Bond proceeds remaining in the Construction
Fund, at a redemption price equal to the principal amount thereof as of the
redemption date, plus accrued and unpaid interest up to the redemption date,
without premium, which redemption date shall be the next Interest Payment Date
occurring not less than forty-five days (45) days after the earlier of (i) the
third anniversary of the Date of Issuance or such later date as may be
approved by the Authority, (ii) the date of completion of the construction of
the Project as that date is certified pursuant to the Loan Agreement, and
(iii) the receipt by the Trustee of a certificate signed by a Borrower
Representative and approved by an Authority Representative to the effect that
the Project will not be completed.
The Bonds are subject to mandatory redemption in whole or in part to
the extent required under the pledge agreement mentioned above upon the
occurrence of an eminent domain, damage to or the destruction of the Project, at
a redemption price equal to the principal amount thereof plus accrued and unpaid
interest up to the redemption date, without premium, which redemption date shall
be the next Interest Payment Date occurring not less than forty-five (45) days
after receipt by the Trustee of the notice delivered pursuant to Section 8.02(e)
of the Loan Agreement and sufficient moneys to effect such redemption.
The Bonds are subject to mandatory redemption in whole upon the
occurrence of an Event of Taxability, at a redemption price equal to the
principal amount thereof plus accrued and unpaid interest up to the redemption
date, without premium, which redemption date shall be the next Interest Payment
Date occurring not less than forty-five (45) days after receipt by the Trustee
of the notice delivered pursuant to Section 8.02(d) of the Loan Agreement.
The Bonds are subject to mandatory redemption in whole upon the
cessation of operations of the Project as an Industrial Facility within the
meaning of the Act, at a redemption price equal to the principal amount thereof
plus accrued and unpaid interest up to the redemption date, without premium,
which redemption date shall be the next Interest Payment Date occurring not
less than forty-five (45) days after receipt by the Trustee of the notice
delivered pursuant to Section 8.02(d) of the Loan Agreement.
The Term Bonds maturing on December 1, 2014, are subject to mandatory
redemption, in part, to the extent of the Amortization Requirements therefor
set forth in the Trust Agreement, beginning on June 1, 2010, and each
December 1 and June 1 thereafter at a redemption price equal to 100% of the
principal amount thereof plus accrued and unpaid interest up to the redemption
date, without premium.
The Term Bonds maturing on June 1, 2026, are subject to mandatory
redemption, in part, to the extent of the Amortization Requirements therefor
set forth in the Trust Agreement, beginning on June 1, 2015, and each
December 1 and June 1 thereafter at a redemption price equal to 100% of the
principal amount thereof plus accrued and unpaid interest up to the redemption
date, without premium.
The Term Bonds maturing on December 1, 2029, are subject to mandatory
redemption, in part, to the extent of the Amortization Requirements therefor
set forth in the Trust Agreement, beginning on December 1, 2026, and each
June 1 and December 1 thereafter at a redemption price equal to 100% of the
principal amount thereof plus accrued and unpaid interest up to the redemption
date, without premium.
130
The Bonds are subject to extraordinary optional redemption in whole or
in part, at the option of the Borrower, upon the damage, destruction or taking
of the Project or a change in law or judicial action curtailing the use of the
Project or imposing unreasonable burdens thereon or voiding or making
impossible of performance the Loan Agreement or the Trust Agreement, in the
circumstances and as otherwise provided in the Loan Agreement, at a redemption
price equal to the principal amount thereof plus accrued and unpaid interest up
to the redemption date, without premium, which redemption date shall be the
next Interest Payment Date occurring not less than forty-five (45) days after
receipt by the Trustee of the notice delivered pursuant to Section 8.03 of the
Loan Agreement.
Except with respect to the mandatory redemption of the Term Bonds as
described above, if less than all of the outstanding Bonds are to be redeemed,
the Bonds shall be redeemed in inverse order of maturity, unless otherwise
requested by the Borrower. If less than all of the particular Bonds of any one
maturity shall be called for redemption, the particular Bonds or portions of
Bonds of any maturity to be redeemed shall be selected by the Trustee in such
manner as the Trustee shall deem fair and appropriate; provided, however, that
the portion of any Bond to be redeemed shall be in the principal amount equal
to FIVE THOUSAND DOLLARS ($5,000) or some multiple thereof, and that, in
selecting Bonds for redemption, the Trustee shall treat each Bond as
representing that number of Bonds which is obtained by dividing the principal
amount of such Bond by FIVE THOUSAND DOLLARS ($5,000). If a Bond is delivered
for partial redemption, the Trustee shall deliver to or upon the order of the
Holder, without charge therefor, for the unredeemed portion of such Bond, a new
Bond or Bonds in principal amount equal to the unredeemed portion thereof.
At least thirty (30) days before the redemption date of any Bonds,
either in whole or in part, the Trustee shall cause a notice of any such
redemption, signed by the Trustee, to be mailed, first-class, postage prepaid,
to all Bondholders whose Bonds are to be redeemed, but failure to mail any such
notice to any Holder or any defect in any notice so mailed shall not affect the
validity of the proceedings for the redemption of any Bonds, nor the validity
of the proceedings for the redemption of the Bonds of any other Holders.
If any Bonds are not properly presented for payment at their
redemption date, or if any Bonds are not presented for payment when due
(whether at their respective scheduled maturity dates, upon acceleration, upon
call for redemption or otherwise), the Holders thereof shall look only to the
moneys set aside for such purpose by the Trustee. Any moneys unclaimed by such
Holders after a period of two (2) years may be paid to the Borrower, and
thereafter the Holders of such Bonds shall look only to the Borrower for
payment thereof.
The Holder of this Bond shall have no right to enforce the provisions
of the Trust Agreement or to institute any action to enforce the covenants
therein, or to take any action with respect to any Event of Default under the
Trust Agreement, or to institute, appear in or defend any suit or other
proceeding with respect thereto, except as provided in Section 809 of the Trust
Agreement. The Trustee is not required to enforce the Trust Agreement unless it
receives indemnity satisfactory to it.
Upon the occurrence of certain Events of Default, and on the
conditions, in the manner and with the effect set forth in Section 803 of the
Trust Agreement, the principal of all Bonds then outstanding under the Trust
Agreement may be declared to be immediately due and payable before the stated
131
maturities thereof, together with the interest accrued thereon. The Trustee may
withhold notice of certain Events of Default if it determines that to give such
notice would not be in the best interest of the Bondholders.
Modifications or alterations of the Trust Agreement or any trust
agreement supplemental thereto, or the Loan Agreement or any loan agreement
supplemental thereto, may be made only to the extent and in the circumstances
permitted by the Trust Agreement.
The Bonds are issuable as fully registered Bonds without coupons, in
denominations of not less than $5,000 principal amount and integral multiples
thereof.
The transfer of this Bond is registrable by the Registered Owner
hereof in person or by his attorney or legal representative at the corporate
trust office of the Trustee, but only in the manner and subject to the
limitations and conditions provided in the Trust Agreement and upon surrender
and cancellation of this Bond. Upon any such registration of transfer, the
Authority shall execute and the Trustee shall authenticate and deliver in
exchange for this Bond a new Bond or Bonds for an equal aggregate principal
amount, of authorized denominations, of the same maturity and interest rate,
registered in the name of the transferee. The Authority or the Trustee may
impose a reasonable fee or service charge for every exchange or registration of
transfer of Bonds sufficient to reimburse it for any tax or other governmental
charge required to be paid with respect to such exchange or registration of
transfer. Neither the Authority nor the Trustee shall be required to make any
such exchange or registration of transfer of Bonds during the fifteen (15) days
prior to the date of first giving of notice of redemption or exchange or after
such Bond has been selected for redemption.
The Bonds shall be deemed to have been paid if, among other things,
there shall have been deposited with the Trustee sufficient moneys or
Defeasance Obligations the principal of and the interest on which when due, and
without any reinvestment thereof, will provide sufficient moneys to pay when
due the principal of and interest on the Bonds. Thereafter, the Holder of the
Bonds must look only to such moneys or Defeasance Obligations for payment.
Subject to the provisions for registration stated herein and contained
in the Trust Agreement, nothing contained in this Bond or in the Trust
Agreement shall affect or impair the negotiability of this Bond. As declared by
the Act, this Bond shall at all times be, and shall be understood to be, a
negotiable instrument under the laws of the Commonwealth.
Pursuant to the Act, the Authority, as agent for the Commonwealth,
hereby includes said Commonwealth's pledge to and agreement with the Holder of
the Bonds and with those persons or entities who may enter into contracts with
the Authority pursuant to the Act that the Commonwealth shall not limit or
alter the rights vested in the Authority pursuant to the Act until the Bonds
and interest thereon are fully met and discharged and such contracts are fully
performed and fulfilled on the part of the Authority; provided, however, that
nothing contained in this pledge shall affect or alter such limitation if
adequate measures are provided by law for the protection of the Holder of the
Bonds or those who have entered into such contracts with the Authority.
132
This Bond is issued with the intent that the laws of the Commonwealth
shall govern its construction, except that the rights, limitations of rights,
immunities, duties and obligations of the Trustee shall be governed by and
construed in accordance with the laws of the jurisdiction under which it is
organized.
All acts, conditions and things required by the Puerto Rican Federal
Relations Act, the Constitution and laws of the Commonwealth and the rules and
regulations of the Authority to happen, exist and be performed precedent to and
in connection with the issuance of this Bond and the execution and delivery of
the Trust Agreement and the Loan Agreement have happened, exist and have been
performed as so required.
This Bond shall not be valid or become obligatory for any purpose or
be entitled to any benefit or security under the Trust Agreement until this
Bond shall have been authenticated by the execution by the Trustee of the
certificate of authentication endorsed hereon.
IN WITNESS WHEREOF, Puerto Rico Industrial, Tourist, Educational,
Medical and Environmental Control Facilities Financing Authority has caused
this Bond to bear the facsimile signatures of the Executive Director of the
Authority and the Secretary of the Authority, and a facsimile of its corporate
seal to be imprinted hereon, all as of the Date of Issuance.
PUERTO RICO INDUSTRIAL, TOURIST,
EDUCATIONAL, MEDICAL AND ENVIRONMENTAL
CONTROL FACILITIES FINANCING AUTHORITY
By:
-----------------------------------
[Assistant] Executive Director
By:
----------------------------------
Secretary
[SEAL]
CERTIFICATE OF AUTHENTICATION
This is one of the Bonds issued under the provisions of the
within-mentioned Trust Agreement.
CITIBANK, N.A., as Trustee
By:
-----------------------------------
Authorized Officer
Date of authentication:
---------------------
133
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto ____________________________ [please print or typewrite
name and address of transferee] the within Bond and all rights
thereunder, and hereby irrevocably constitutes and appoints
__________________ attorney to register the transfer of the within
Bond on the books kept for registration thereof, with full power of
substitution in the premises.
Date: Signature:
-------------------- ------------------------------
NOTICE: The signature to this
assignment must correspond with
the name as it appears upon the
face of the within Bond in every
particular, without alteration or
enlargement or any change whatever.
Signature Guaranteed by:*
-----------------------------------------
---------------------------
*Signatures must be guaranteed by a commercial bank or trust company having an
office or correspondent in San ▇▇▇▇, Puerto Rico, or by a member firm of the
New York Stock Exchange.
134
EXHIBIT B
1. $5,345,000 Serial Bonds:
Maturity Date Principal Amount Interest Rate
---------------- ---------------- -------------
June 1, 2003 $310,000 6.10%
December 1, 2003 320,000 6.10%
June 1, 2004 330,000 6.15%
December 1, 2004 340,000 6.15%
June 1, 2005 350,000 6.20%
December 1, 2005 360,000 6.20%
June 1, 2006 375,000 6.25%
December 1, 2006 385,000 6.25%
June 1, 2007 395,000 6.30%
December 1, 2007 410,000 6.30%
June 1, 2008 420,000 6.35%
December 1, 2008 435,000 6.35%
June 1, 2009 450,000 6.40%
December 1, 2009 465,000 6.40%
2. $39,420,000 Term Bonds:
Maturity Date Principal Amount Interest Rate
---------------- ---------------- -------------
December 1, 2014 $ 5,585,000 6.75%
June 1, 2026 22,835,000 6.90%
December 1, 2029 11,000,000 6.90%
3. Amortization Requirements for the Term Bonds:
(a) Term Bond Due 2014:
Amortization
Date Requirement
---------------- ------------
June 1, 2010 $480,000
December 1, 2010 495,000
June 1, 2011 510,000
December 1, 2011 530,000
June 1, 2012 545,000
December 1, 2012 565,000
June 1, 2013 585,000
December 1, 2013 605,000
June 1, 2014 625,000
December 1, 2014 645,000
(b) Term Bond Due 2026:
Amortization
Date Requirement
---------------- ------------
June 1, 2015 $ 665,000
December 1, 2015 690,000
June 1, 2016 715,000
December 1, 2016 740,000
June 1, 2017 765,000
December 1, 2017 790,000
June 1, 2018 815,000
December 1, 2018 845,000
June 1, 2019 875,000
December 1, 2019 905,000
June 1, 2020 935,000
December 1, 2020 970,000
June 1, 2021 1,000,000
December 1, 2021 1,035,000
June 1, 2022 1,070,000
December 1, 2022 1,110,000
June 1, 2023 1,145,000
December 1, 2023 1,185,000
June 1, 2024 1,230,000
December 1, 2024 1,270,000
June 1, 2025 1,315,000
December 1, 2025 1,360,000
June 1, 2026 1,405,000
(c) Term Bond Due 2029:
Amortization
Date Requirement
---------------- ------------
December 1, 2026 $1,415,000
June 1, 2027 1,465,000
December 1, 2027 1,515,000
June 1, 2028 1,570,000
December 1, 2028 1,625,000
June 1, 2029 1,680,000
December 1, 2029 1,730,000