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EXHIBIT 10.23
THIS NOTE IS AN OBLIGATION SOLELY OF BANCO POPULAR DE PUERTO RICO (THE "BANK")
AND WILL NOT BE AN OBLIGATION OF, OR OTHERWISE GUARANTEED BY ANY OTHER BANK OR
POPULAR, INC. THIS NOTE DOES NOT EVIDENCE DEPOSITS OF THE BANK AND IS NOT
INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENT
AGENCY. THE OBLIGATIONS EVIDENCED BY THIS NOTE RANK PARI PASSU WITH ALL OTHER
SENIOR UNSECURED INDEBTEDNESS OF THE BANK, EXCEPT DEPOSIT LIABILITIES (AS
PROVIDED IN SECTION 11(D)(11) OF THE FEDERAL DEPOSIT INSURANCE ACT) AND OTHER
OBLIGATIONS THAT ARE SUBJECT TO ANY PRIORITIES OR PREFERENCES. IN A LIQUIDATION
OR OTHER RESOLUTION OF THE BANK, THIS NOTE WOULD BE TREATED DIFFERENTLY FROM,
AND HOLDERS OF THIS NOTE COULD RECEIVE, IF ANYTHING, SIGNIFICANTLY LESS THAN
HOLDERS OF, DEPOSIT LIABILITIES OF THE BANK.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (THE "DEPOSITARY") TO THE
BANK OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
NOTE ISSUED UPON REGISTRATION OF TRANSFER OF, OR IN EXCHANGE FOR, OR IN LIEU OF,
THIS NOTE IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY
TO A NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
THIS NOTE IS ISSUABLE ONLY IN FULLY REGISTERED FORM IN MINIMUM DENOMINATIONS OF
$100,000 AND INTEGRAL MULTIPLES OF $1,000 IN EXCESS THEREOF. EACH OWNER OF A
BENEFICIAL INTEREST IN THIS NOTE MUST BE AN INSTITUTIONAL INVESTOR WHO IS AN
"ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND IS REQUIRED TO HOLD A BENEFICIAL INTEREST IN $100,000
PRINCIPAL AMOUNT OR ANY INTEGRAL MULTIPLE OF $1,000 IN EXCESS THEREOF OF THIS
NOTE AT ALL TIMES.
No. FXR-__________
CUSIP NO.: ___________ REGISTERED
BANCO POPULAR DE PUERTO RICO
GLOBAL BANK NOTE
(Fixed Rate)
ORIGINAL ISSUE DATE: PRINCIPAL AMOUNT:
2
INTEREST RATE: ______________% MATURITY DATE:
INTEREST PAYMENT DATE(S): REGULAR RECORD DATES (FOR NOTES
[ ] At Maturity only WITH MATURITIES OF GREATER THAN
[ ] May 15 and November 15 ONE YEAR)
[ ] Other: (if other than May 1 or November
1, prior to each Interest Payment
Date):
INITIAL REDEMPTION INITIAL REDEMPTION
DATE: PERCENTAGE:
ANNUAL REDEMPTION HOLDER'S OPTIONAL
PERCENTAGE REDUCTION: REPAYMENT DATE(S):
DAY COUNT CONVENTION
[ ] 30/360 FOR THE PERIOD FROM TO .
[ ] ACTUAL/360 FOR THE PERIOD FROM TO .
[ ] ACTUAL/ACTUAL FOR THE PERIOD FROM TO .
ADDENDUM ATTACHED: ORIGINAL ISSUE DISCOUNT:
[ ] YES [ ] YES
[ ] NO [ ] NO
Total Amount of OID:
DEFAULT RATE: _________% Yield to Maturity:
Initial Accrual Period:
OTHER PROVISIONS:
The bank, for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of _________________________ United States
Dollars on the Maturity Date specified above (except to the extent redeemed or
repaid prior to the Maturity Date) and to pay interest thereon from and
including the Original Issue Date specified above or from and including the most
recent interest payment date to which interest on this Note (or any predecessor
Note) has been paid or duly provided for, semi-annually on May 15 and November
15 of each year (unless otherwise specified on the face hereof) (each, an
"Interest Payment Date") and at maturity or upon earlier redemption or
repayment, if applicable, commencing on the first Interest Payment Date next
succeeding the Original Issue Date (or, if the Original Issue Date is between a
Regular Record Date (as defined below) and the Interest Payment Date immediately
following such Regular Record Date, on the second Interest Payment Date
following the Original Issue Date), at the Interest Rate per annum specified
above, until the principal hereof is paid or made available for payment, and (to
the extent that the payment of such interest shall be legally enforceable) at
the Default Rate per annum specified above on any overdue principal and premium,
if any, and on any overdue installment of interest. If no Default Rate is
specified above, the Default Rate shall be the Interest Rate on this Note
specified above. The interest so payable, and punctually paid or duly provided
for, on
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any Interest Payment Date will be paid to the person in whose name this Note (or
any predecessor Note) is registered at the close of business on the Regular
Record Date, which shall be the May 1 and November 1 (whether or not a Business
Day (as defined below)), as the case may be, prior to such Interest Payment Date
(unless otherwise specified on the face hereof) (each, a "Regular Record Date");
provided, however, that interest payable at maturity or upon earlier redemption
or repayment, if applicable, will be payable to the person to whom principal
shall be payable. Any such interest not so punctually paid or duly provided for
shall forthwith cease to be payable to the holder as of the close of business on
such Regular Record Date, and may either be paid to the person in whose name
this Note (or any predecessor Note) is registered at the close of business on a
special record date for the payment of such defaulted interest (the "Special
Record Date") to be fixed by the Bank, notice of which shall be given to the
holders of Notes not less than 10 calendar days prior to such Special Record
Date, or be paid at any time in any other lawful manner.
Payment of principal of, premium, if any, and interest on this Note
will be made in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts. The
Bank will at all times appoint and maintain an issuing and paying agent (the
"Issuing and Paying Agent", which term shall include any successor Issuing and
Paying Agent), authorized by the Bank to pay principal of, premium, if any, and
interest on this Note on behalf of the Bank pursuant to an issuing and paying
agency agreement (the "Issuing and Paying Agency Agreement") and having an
office or agency (the "Issuing and Paying Agent Office") in The City of New York
or the city in which the Bank is headquartered (the "Place of Payment"), where
this Note may be presented or surrendered for payment and where notices,
designations or requests in respect of payments with respect to this Note may be
served. The Bank has initially appointed The Chase Manhattan Bank as the Issuing
and Paying Agent, with the Issuing and Paying Agent Office currently located at
450 West 33rd Street, New York, New York 10001, Attention: Agency
Administration. The Bank may remove the Issuing and Paying Agent pursuant to the
terms of the Issuing and Paying Agency Agreement and may appoint a successor
Issuing and Paying Agent.
Payment of principal of, premium, if any, and interest on this Note due
at maturity or upon earlier redemption or repayment, if applicable, will be made
in immediately available funds upon presentation and surrender of this Note to
the Issuing and Paying Agent at the Issuing and Paying Agent Office; provided
that this Note is presented to the Issuing and Paying Agent in time for the
Issuing and Paying Agent to make such payment in accordance with its normal
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procedures. Payments of interest on this Note (other than at maturity or upon
earlier redemption or repayment) will be made by wire transfer to such account
as has been appropriately designated to the Issuing and Paying Agent by the
person entitled to such payments.
Reference herein to "this Note", "hereof", "herein" and comparable
terms shall include an Addendum hereto if an Addendum is specified above.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
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IN WITNESS WHEREOF, the Bank has cause this Note to be duly executed.
By:
----------------------------------------
Authorized Signatory
By:
----------------------------------------
Authorized Signatory
Dated:
ISSUING AND PAYING AGENT'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the Issuing and Paying Agency Agreement.
THE CHASE MANHATTAN BANK
as Issuing and Paying Agent
By:
----------------------------------------
Authorized Signatory
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[Reverse]
This Note is one of a duly authorized issue of Bank Notes due from 7
days to 15 years from date of issue of the Bank (the "Notes").
Payments of interest hereon will include interest accrued to but
excluding the relevant Interest Payment Date or Maturity Date or date of earlier
redemption or repayment, as the case may be. Unless otherwise specified on the
face hereof, interest on Notes with maturities of more than one year will be
computed on the basis of a 360-day year of twelve 30-day months. Unless
otherwise specified on the face hereof, interest on Notes with maturities of one
year or less will be computed on the basis of the actual number of days in the
year divided by 360 and will be payable only at maturity to the person to whom
principal shall be payable.
Any provision contained herein with respect to the calculation of the
rate of interest applicable to this Note, its Interest Payment Dates or any
other matter relating hereto may be modified as specified in an Addendum
relating hereto if so specified on the face hereof.
If any Interest Payment Date, Maturity Date or date of earlier
redemption or repayment of this Note falls on a day which is not a Business Day,
the related payment of principal of, premium, if any, or interest on this Note
shall be made on the next succeeding Business Day with the same force and effect
as if made on the date such payment was due, and no interest shall accrue on the
amount so payable for the period from and after such Interest Payment Date,
Maturity Date or date of earlier redemption or repayment, as the case may be.
"Business Day" means, unless otherwise specified on the face hereof, a day that
meets all the following applicable requirements: (A) is a Monday, Tuesday,
Wednesday, Thursday or Friday that is not a bank holiday in Puerto Rico or a day
on which banking institutions in New York City or in the city in which the Bank
is headquartered generally are authorized or obligated by law, regulation or
executive order to close; and (B) if the Note has a specified currency other
than U.S. dollars, is also a day on which banking institutions are not
authorized or obligated by law, regulation or executive order to close in the
principal financial center of the country issuing the specified currency.
This Note will not be subject to any sinking fund. If so provided on
the face of this Note, this Note may be redeemed by the Bank either in whole or
in part on (unless otherwise specified on the face hereof) and after the Initial
Redemption Date, if any, specified on the face hereof. If no Initial Redemption
Date is specified on the face hereof, this Note may not be redeemed prior to the
Maturity Date.
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On and after the Initial Redemption Date, if any, this Note may be redeemed in
increments of $1,000 (provided that any remaining principal amount hereof shall
be at least $100,000) at the option of the Bank at the applicable Redemption
Price (as defined below), together with unpaid interest accrued hereon at the
applicable rate borne by this Note to the date of redemption (each such date, a
"Redemption Date"), on written notice given not more than 60 nor less than 30
calendar days prior to the Redemption Date to the registered holder hereof
(unless otherwise specified on the face hereof). Whenever less than all the
Notes at any time outstanding are to be redeemed, the terms of the Notes to be
so redeemed shall be selected by the Bank. If less than all the Notes with
identical terms at any time outstanding are to be redeemed, the Notes to be so
redeemed shall be selected by the Issuing and Paying Agent by lot or in any
usual manner approved by it. In the event of redemption of this Note in part
only, a new Note for the unredeemed portion hereof shall be issued in the name
of the holder hereof upon the surrender hereof.
The "Redemption Price" shall initially be the Initial Redemption
Percentage specified on the face hereof of the principal amount of this Note to
be redeemed and shall decline at each anniversary of the Initial Redemption Date
specified on the face hereof by the Annual Redemption Percentage Reduction, if
any, specified on the face hereof, of the principal amount to be redeemed until
the Redemption Price is 100% of such principal amount.
The Note may be subject to repayment at the option of the holder hereof
in accordance with the terms hereof on any Holder's Optional Repayment Date(s),
if any, specified on the face hereof. If no Holder's Optional Repayment Date is
specified on the face hereof, this Note will not be repayable at the option of
the holder hereof prior to maturity. On any Holder's Optional Repayment Date,
this Note will be repayable in whole or in part in increments of $1,000
(provided that any remaining principal amount hereof will be at least $100,000)
at the option of the holder hereof at a repayment price equal to 100% of the
principal amount to the repaid, together with accrued and unpaid interest hereon
payable to the date of repayment. For this Note to be repaid in whole or in part
at the option of the holder hereof on a Holder's Optional Repayment Date, this
Note must be delivered, with the form entitled "Option to Elect Repayment"
attached hereto duly completed, to the Issuing and Paying Agent at its offices
located at 450 West 33rd Street, New York, New York 10001, Attention: Agency
Administration, or at such other address which the Bank shall from time to time
notify the holders of the Notes, not more than 60 nor less than 30 calendar days
prior to such Holder's Optional Repayment Date. In the event of repayment of
this Note in part only, a new Note for the unrepaid portion hereof shall be
issued in the name of the
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holder hereof upon the surrender hereof. Exercise of such repayment option by
the holder hereof shall be irrevocable.
If this Note is an Original Issue Discount Note and if an Event of
Default with respect to this Note shall have occurred and be continuing, the
Default Amount (as defined hereafter) of this Note may be declared due and
payable in the manner and with the effect provided herein. The "Default Amount"
shall be equal to the adjusted issue price as of the first day of the accrual
period as determined under Final Treasury Regulation Section 1.1275-1(b) (or
successor regulation) under the United States Internal Revenue Code of 1986, as
amended, in which the date of acceleration occurs increased by the daily portion
of the original issue discount for each day in such accrual period ending on the
date of acceleration, as determined under Final Treasury Regulation Section
1.1272-1(b) (or successor regulation) under the United States Internal Revenue
Code of 1986, as amended. Upon payment of (i) the principal, or premium, if any,
so declared due and payable and (ii) interest on any overdue principal and
overdue interest or premium, if any (in each case to the extent that the payment
of such interest shall be legally enforceable), all of the Bank's obligations in
respect of the payment of principal of, premium, if any, and interest on this
Note shall terminate.
In case any Note shall at any time become mutilated, destroyed, lost or
stolen, and such Note or evidence of the loss, theft or destruction thereof
satisfactory to the Bank and the Issuing and Paying Agent and such other
documents or proof as may be required by the Bank and the Issuing and Paying
Agent shall be delivered to the Issuing and Paying Agent, the Bank shall issue a
new Note, of like tenor and principal amount, having a serial number not
contemporaneously outstanding, in exchange and substitution for the mutilated
Note or in lieu of the Note destroyed, lost or stolen but, in the case of any
destroyed, lost or stolen Note, only upon receipt of evidence satisfactory to
the Bank and the Issuing and Paying Agent that such Note was destroyed, stolen
or lost, and, if required, upon receipt of indemnity satisfactory to the Bank
and the Issuing and Paying Agent. Upon the issuance of any substituted Note, the
Bank and the Issuing and Paying Agent may require the payment of a sum
sufficient to cover all expenses and reasonable charges connected with the
preparation and delivery of a new Note. If any Note which has matured or has
been redeemed or repaid or is about to mature or to be redeemed or repaid shall
become mutilated, destroyed, lost or stolen, the Bank may, instead of issuing a
substitute Note, pay or authorize the payment of the same (without surrender
thereof except in the case of a mutilated Note) upon compliance by the holder
with the provisions of this paragraph.
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No recourse shall be had for the payment of principal of, premium, if
any, or interest on this Note for any claim based hereon, otherwise in respect
hereof, against any shareholder, employee, agent, officer or director, as such,
past, present or future, of the Bank or of any successor corporation, banking
association or other legal entity (collectively, "corporation"), either directly
or through the Bank or any corporation, whether by virtue of any constitution,
statute or rule of law or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of the
consideration for the issue hereof, expressly waived and released.
The occurrence of any of the following events shall constitute an
"Event of Default" with respect to this Note: (i) default in the payment of any
interest with respect to any of the Notes issued by the Bank when due, which
continues for 30 calendar days; (ii) default in the payment of any principal of,
or premium, if any, on any of the Notes issued by the Bank when due; (iii) the
entry by a court having jurisdiction in the premises of (a) a decree or order
for relief in respect of the Bank in an involuntary case or proceeding under any
applicable United States federal or state bankruptcy, insolvency, reorganization
or other similar law or (b) a decree or order appointing a conservator,
receiver, liquidator, assignee, trustee, sequestrator or any other similar
official of the Bank, or of substantially all of the property of the Bank, or
ordering the winding up or liquidation of the affairs of the Bank, and the
continuance of any such decree or order for relief or any such other decree or
order unstayed and in effect for a period of 60 consecutive days; or (iv) the
commencement by the Bank of a voluntary case or proceeding under any applicable
United States federal or state bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be adjudicated as bankrupt or
insolvent, or the consent by the Bank to the entry of a decree or order for
relief in an involuntary case or proceeding under any applicable United States
federal or state bankruptcy, insolvency, reorganization or other similar law or
to the commencement of any bankruptcy or insolvency case or proceeding, or the
filing by the Bank of a petition or answer or consent seeking reorganization or
relief under any applicable United States federal or state bankruptcy,
insolvency, reorganization or similar law, or the consent by the Bank to the
filing of such petition or to the appointment of or taking possession by the
custodian, conservator, receiver, liquidator, assignee, trustee, sequestrator or
similar official of the Bank or of substantially all of the property of the
Bank, or the making by the Bank of an assignment for the benefit of creditors,
or the taking of corporate action by the Bank in furtherance of any such action.
If an Event of Default shall occur and be continuing, the holder of this Note
may declare the principal
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amount of, accrued interest and premium, if any, on this Note due and payable
immediately by written notice to the Bank. Upon such declaration and notice,
such principal amount, accrued interest and premium, if any, shall become
immediately due and payable. Any Event of Default with respect to this Note may
be waived by the holder hereof.
The Issuing and Paying Agency Agreement provides that the Bank will
promptly notify, and provide copies of any such notice to, the Issuing and
Paying Agent, and the Issuing and Paying Agent will promptly mail by first-class
mail, postage prepaid, copies of such notice to the holders of the Notes, upon
the occurrence of an Event of Default or of the curing or waiver of an Event of
Default.
Nothing contained herein shall present any consolidation or merger of
the Bank with any other corporation or successive consolidations or mergers in
which the Bank or its successor or successors shall be a party or parties, or
shall prevent any sale, conveyance, transfer or lease of the property of the
Bank as an entirety or substantially as an entirety to any other corporation
authorized to acquire and operate the same; provided, however, (and the Bank
hereby covenants and agrees) that any such consolidation, merger, sale or
conveyance shall be upon the condition that: (i) immediately after such
consolidation, merger, sale or conveyance the corporation (whether the Bank or
such other corporation) formed by or surviving any such consolidation or merger,
or the corporation to which such sale or conveyance shall have been made, shall
not be in default in the performance or observance of any of the terms,
covenants and conditions of the Notes to be observed or performed by the Bank;
and (ii) the corporation (if other than the Bank) formed by or surviving any
such consolidation or merger, or the corporation to which such sale or
conveyance shall have been made, shall be organized under the laws of the United
States of America, any state thereof, the District of Columbia or the
Commonwealth of Puerto Rico and shall expressly assume the due and punctual
payment of the principal of, premium, if any, and interest on this Note. In case
of any such consolidation, merger, sale, conveyance, transfer or lease, and upon
the assumption by the successor corporation of the due and punctual performance
of all of the covenants in the Notes to be performed or observed by the Bank,
such successor corporation shall succeed to and be substituted for the Bank with
the same effect as if it had been named in this Note as the Bank and thereafter
the predecessor corporation shall be relieved of all obligations and covenants
in this Note and may be liquidated and dissolved.
Any action by the holder of this Note shall bind all future holders of
this Note, and of any Note issued in exchange or
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substitution herefor or in place hereof, in respect of anything done or
permitted by the Bank or by the Issuing and Paying Agent in pursuance of such
action.
The Issuing and Paying Agent shall maintain at its offices a register
(the register maintained in such office or any other office or agency of the
Issuing and Paying Agent in The City of New York herein referred to as the "Note
Register") in which, subject to such reasonable regulations as it may prescribe,
the Issuing and Paying Agent shall provide for the registration of the Notes and
of transfers of the Notes.
The transfer of this Note is registrable in the Note Register, upon
surrender of this Note for registration of transfer at the office or agency of
the Issuing and Paying Agent in the Place of Payment, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the Bank
and the Issuing and Paying Agent duly executed by, the holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Notes of like
tenor, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
No provision of this Note shall alter or impair the obligation of the
Bank, which is absolute and unconditional, to pay principal of, premium, if any,
and interest on this Note in U.S. dollars at the times, places and rate herein
prescribed in accordance with its terms.
No service charge shall be made to a holder of this Note for any
transfer or exchange of this Note, but the Bank may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection therewith.
Beneficial interests represented by this Note are exchangeable for
definitive Notes in registered form, of like tenor and of an equal aggregate
principal amount, only if (x) The Depository Trust Company, as Depositary (the
"Depositary") notifies the Bank that it is unwilling or unable to continue as
Depositary for this Note or if at any time the Depositary ceases to be a
clearing agency registered under the Securities Exchange Act of 1934, as
amended, and a successor depositary is not appointed by the Bank within 60
calendar days, or (y) the Bank in its sole discretion determines not to have
such beneficial interests represented by this Note. Any Note representing such
beneficial interests that is exchangeable pursuant to the preceding sentence
shall be exchangeable in whole for definitive Notes in registered form, of like
tenor and of an equal aggregate principal amount, in minimum denominations of
$100,000 and integral multiples of $1,000 in excess thereof. Such definitive
Notes shall be registered
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in the name or names of such person or persons as the Depositary shall
instruct the Issuing and Paying Agent.
Prior to due presentment of this Note for registration of transfer, the
Bank, the Issuing and Paying Agent or any agent of the Bank or the Issuing and
Paying Agent may treat the holder in whose name this Note is registered as the
owner hereof for all purposes, whether or not this Note be overdue, and neither
the Bank, the Issuing and Paying Agent nor any such agent shall be affected by
notice to the contrary except as required by applicable law.
All notices to the Bank under this Note shall be in writing and
addressed to the Bank at 209 Munoz Rivera Avenue, Suite 913, Hato Rey, Puerto
Rico 00918, Attention: Richard Barrios, or to such other address of the Bank as
the Bank may notify the holders of the Notes.
This Note shall be governed by, and construed in accordance with, the
laws of the State of New York, without regard to conflicts of laws principles
and all applicable federal laws and regulations.
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of the within Note, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right
of survivorship and not as
tenants in common
UNIF GIFT MIN ACT - ___________ Custodian ___________
(Cust) (Minor)
under Uniform Gift to Minors Act
---------------------------------
(State)
Additional abbreviations may also be used though not in the
above list.
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ______________________________________________________________
_______________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY NUMBER OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
[_____________________]
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address,
including postal zip code, of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints___________________________________________________________________
_______________________________________________________________________________
to transfer said Note on the books of the Issuing and Paying Agent, with full
power of substitution in the premises.
Dated:
---------------- -------------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of the within Note in every
particular, without alteration or
enlargement or any change whatsoever.
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Signature Guarantee
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OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the Bank
to repay this Note (or portion hereof specified below) pursuant to its terms at
a price equal to 100% of the principal amount hereof to be repaid, together with
accrued and unpaid interest hereon, payable to the date of repayment, to the
undersigned, at _______________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the undersigned must give notice to the
Issuing and Paying~Agent at its offices located at 450 West 33rd Street, New
York, New York 10001, Attention: Agency Administration, or at such other place
or places of which the Bank shall from time to time notify the holders of the
Notes, not more than 60 nor less than 30 calendar days prior to the date of
repayment, with this "Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of $1,000) which the
holder elects to have repaid and specify the denomination or denominations
(which shall be $100,000 or an integral multiple of $1,000 in excess thereof) of
the Notes to be issued to the holder for the portion of this Note not being
repaid (in the absence of any such specification, one such Note will be issued
for the portion not being repaid):
$------------------------ -------------------------------------------
NOTICE: The signature on this "Option to
Dated: Elect Repayment" form must correspond
------------------- with the name as written upon the face of
the within Note in every particular, without
alteration or enlargement or any change
whatsoever.
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Signature Guarantee
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EXHIBIT____
THIS NOTE IS AN OBLIGATION SOLELY OF BANCO POPULAR DE PUERTO RICO (THE "BANK")
AND WILL NOT BE AN OBLIGATION OF, OR OTHERWISE GUARANTEED BY ANY OTHER BANK OR
POPULAR, INC. THIS NOTE DOES NOT EVIDENCE DEPOSITS OF THE BANK AND IS NOT
INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENT
AGENCY. THE OBLIGATIONS EVIDENCED BY THIS NOTE RANK PARI PASSU WITH ALL OTHER
SENIOR UNSECURED INDEBTEDNESS OF THE BANK, EXCEPT DEPOSIT LIABILITIES (AS
PROVIDED IN SECTION 11(D)(11) OF THE FEDERAL DEPOSIT INSURANCE ACT) AND OTHER
OBLIGATIONS THAT ARE SUBJECT TO ANY PRIORITIES OR PREFERENCES. IN A LIQUIDATION
OR OTHER RESOLUTION OF THE BANK, THIS NOTE WOULD BE TREATED DIFFERENTLY FROM,
AND HOLDERS OF THIS NOTE COULD RECEIVE, IF ANYTHING, SIGNIFICANTLY LESS THAN
HOLDERS OF, DEPOSIT LIABILITIES OF THE BANK.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (THE "DEPOSITARY") TO THE
BANK OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
NOTE ISSUED UPON REGISTRATION OF TRANSFER OF, OR IN EXCHANGE FOR, OR IN LIEU OF,
THIS NOTE IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY
TO A NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
THIS NOTE IS ISSUABLE ONLY IN FULLY REGISTERED FORM IN MINIMUM DENOMINATIONS OF
$100,000 AND INTEGRAL MULTIPLES OF $1,000 IN EXCESS THEREOF. EACH OWNER OF A
BENEFICIAL INTEREST IN THIS NOTE MUST BE AN INSTITUTIONAL INVESTOR WHO IS AN
"ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND IS REQUIRED TO HOLD A BENEFICIAL INTEREST IN $100,000
PRINCIPAL AMOUNT OR ANY INTEGRAL MULTIPLE OF $1,000 IN EXCESS THEREOF OF THIS
NOTE AT ALL TIMES.
No. FXR-__________
CUSIP NO.: ___________ REGISTERED
BANCO POPULAR DE PUERTO RICO
GLOBAL BANK NOTE
(Fixed Rate)
ORIGINAL ISSUE DATE: PRINCIPAL AMOUNT:
17
INTEREST RATE: ______________% MATURITY DATE:
INTEREST PAYMENT DATE(S): REGULAR RECORD DATES (FOR NOTES
[ ] At Maturity only WITH MATURITIES OF GREATER THAN
[ ] May 15 and November 15 ONE YEAR)
[ ] Other: (if other than May 1 or November 1,
prior to each Interest Payment Date):
INITIAL REDEMPTION INITIAL REDEMPTION
DATE: PERCENTAGE:
ANNUAL REDEMPTION HOLDER'S OPTIONAL
PERCENTAGE REDUCTION: REPAYMENT DATE(S):
DAY COUNT CONVENTION
[ ] 30/360 FOR THE PERIOD FROM TO .
[ ] ACTUAL/360 FOR THE PERIOD FROM TO .
[ ] ACTUAL/ACTUAL FOR THE PERIOD FROM TO .
ADDENDUM ATTACHED: ORIGINAL ISSUE DISCOUNT:
[ ] YES [ ] YES
[ ] NO [ ] NO
Total Amount of OID:
DEFAULT RATE: _________% Yield to Maturity:
Initial Accrual Period:
OTHER PROVISIONS:
The bank, for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of _________________________ United States
Dollars on the Maturity Date specified above (except to the extent redeemed or
repaid prior to the Maturity Date) and to pay interest thereon from and
including the Original Issue Date specified above or from and including the most
recent interest payment date to which interest on this Note (or any predecessor
Note) has been paid or duly provided for, semi-annually on May 15 and November
15 of each year (unless otherwise specified on the face hereof) (each, an
"Interest Payment Date") and at maturity or upon earlier redemption or
repayment, if applicable, commencing on the first Interest Payment Date next
succeeding the Original Issue Date (or, if the Original Issue Date is between a
Regular Record Date (as defined below) and the Interest Payment Date immediately
following such Regular Record Date, on the second Interest Payment Date
following the Original Issue Date), at the Interest Rate per annum specified
above, until the principal hereof is paid or made available for payment, and (to
the extent that the payment of such interest shall be legally enforceable) at
the Default Rate per annum specified above on any overdue principal and premium,
if any, and on any overdue installment of interest. If no Default Rate is
specified above, the Default Rate shall be the Interest Rate on this Note
specified above. The interest so payable, and punctually paid or duly provided
for, on
-2-
18
any Interest Payment Date will be paid to the person in whose name this
Note (or any predecessor Note) is registered at the close of business on the
Regular Record Date, which shall be the May 1 and November 1 (whether or not a
Business Day (as defined below)), as the case may be, prior to such Interest
Payment Date (unless otherwise specified on the face hereof) (each, a "Regular
Record Date"); provided, however, that interest payable at maturity or upon
earlier redemption or repayment, if applicable, will be payable to the person to
whom principal shall be payable. Any such interest not so punctually paid or
duly provided for shall forthwith cease to be payable to the holder as of the
close of business on such Regular Record Date, and may either be paid to the
person in whose name this Note (or any predecessor Note) is registered at the
close of business on a special record date for the payment of such defaulted
interest (the "Special Record Date") to be fixed by the Bank, notice of which
shall be given to the holders of Notes not less than 10 calendar days prior to
such Special Record Date, or be paid at any time in any other lawful manner.
Payment of principal of, premium, if any, and interest on this Note
will be made in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts. The
Bank will at all times appoint and maintain an issuing and paying agent (the
"Issuing and Paying Agent", which term shall include any successor Issuing and
Paying Agent), authorized by the Bank to pay principal of, premium, if any, and
interest on this Note on behalf of the Bank pursuant to an issuing and paying
agency agreement (the "Issuing and Paying Agency Agreement") and having an
office or agency (the "Issuing and Paying Agent Office") in The City of New York
or the city in which the Bank is headquartered (the "Place of Payment"), where
this Note may be presented or surrendered for payment and where notices,
designations or requests in respect of payments with respect to this Note may be
served. The Bank has initially appointed The Chase Manhattan Bank as the Issuing
and Paying Agent, with the Issuing and Paying Agent Office currently located at
450 West 33rd Street, New York, New York 10001, Attention: Agency
Administration. The Bank may remove the Issuing and Paying Agent pursuant to the
terms of the Issuing and Paying Agency Agreement and may appoint a successor
Issuing and Paying Agent.
Payment of principal of, premium, if any, and interest on this Note due
at maturity or upon earlier redemption or repayment, if applicable, will be made
in immediately available funds upon presentation and surrender of this Note to
the Issuing and Paying Agent at the Issuing and Paying Agent Office; provided
that this Note is presented to the Issuing and Paying Agent in time for the
Issuing and Paying Agent to make such payment in accordance with its normal
-3-
19
procedures. Payments of interest on this Note (other than at maturity or upon
earlier redemption or repayment) will be made by wire transfer to such account
as has been appropriately designated to the Issuing and Paying Agent by the
person entitled to such payments.
Reference herein to "this Note", "hereof", "herein" and comparable
terms shall include an Addendum hereto if an Addendum is specified above.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
-4-
20
IN WITNESS WHEREOF, the Bank has cause this Note to be duly executed.
By:
--------------------------------------------
Authorized Signatory
By:
--------------------------------------------
Authorized Signatory
Dated:
ISSUING AND PAYING AGENT'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the Issuing and Paying Agency Agreement.
THE CHASE MANHATTAN BANK
as Issuing and Paying Agent
By:
--------------------------------------------
Authorized Signatory
-5-
21
[Reverse]
This Note is one of a duly authorized issue of Bank Notes due from 7
days to 15 years from date of issue of the Bank (the "Notes").
Payments of interest hereon will include interest accrued to but
excluding the relevant Interest Payment Date or Maturity Date or date of earlier
redemption or repayment, as the case may be. Unless otherwise specified on the
face hereof, interest on Notes with maturities of more than one year will be
computed on the basis of a 360-day year of twelve 30-day months. Unless
otherwise specified on the face hereof, interest on Notes with maturities of one
year or less will be computed on the basis of the actual number of days in the
year divided by 360 and will be payable only at maturity to the person to whom
principal shall be payable.
Any provision contained herein with respect to the calculation of the
rate of interest applicable to this Note, its Interest Payment Dates or any
other matter relating hereto may be modified as specified in an Addendum
relating hereto if so specified on the face hereof.
If any Interest Payment Date, Maturity Date or date of earlier
redemption or repayment of this Note falls on a day which is not a Business Day,
the related payment of principal of, premium, if any, or interest on this Note
shall be made on the next succeeding Business Day with the same force and effect
as if made on the date such payment was due, and no interest shall accrue on the
amount so payable for the period from and after such Interest Payment Date,
Maturity Date or date of earlier redemption or repayment, as the case may be.
"Business Day" means, unless otherwise specified on the face hereof, a day that
meets all the following applicable requirements: (A) is a Monday, Tuesday,
Wednesday, Thursday or Friday that is not a bank holiday in Puerto Rico or a day
on which banking institutions in New York City or in the city in which the Bank
is headquartered generally are authorized or obligated by law, regulation or
executive order to close; and (B) if the Note has a specified currency other
than U.S. dollars, is also a day on which banking institutions are not
authorized or obligated by law, regulation or executive order to close in the
principal financial center of the country issuing the specified currency.
This Note will not be subject to any sinking fund. If so provided on
the face of this Note, this Note may be redeemed by the Bank either in whole or
in part on (unless otherwise specified on the face hereof) and after the Initial
Redemption Date, if any, specified on the face hereof. If no Initial Redemption
Date is specified on the face hereof, this Note may not be redeemed prior to the
Maturity Date.
-6-
22
On and after the Initial Redemption Date, if any, this Note may be redeemed in
increments of $1,000 (provided that any remaining principal amount hereof shall
be at least $100,000) at the option of the Bank at the applicable Redemption
Price (as defined below), together with unpaid interest accrued hereon at the
applicable rate borne by this Note to the date of redemption (each such date, a
"Redemption Date"), on written notice given not more than 60 nor less than 30
calendar days prior to the Redemption Date to the registered holder hereof
(unless otherwise specified on the face hereof). Whenever less than all the
Notes at any time outstanding are to be redeemed, the terms of the Notes to be
so redeemed shall be selected by the Bank. If less than all the Notes with
identical terms at any time outstanding are to be redeemed, the Notes to be so
redeemed shall be selected by the Issuing and Paying Agent by lot or in any
usual manner approved by it. In the event of redemption of this Note in part
only, a new Note for the unredeemed portion hereof shall be issued in the name
of the holder hereof upon the surrender hereof.
The "Redemption Price" shall initially be the Initial Redemption
Percentage specified on the face hereof of the principal amount of this Note to
be redeemed and shall decline at each anniversary of the Initial Redemption Date
specified on the face hereof by the Annual Redemption Percentage Reduction, if
any, specified on the face hereof, of the principal amount to be redeemed until
the Redemption Price is 100% of such principal amount.
The Note may be subject to repayment at the option of the holder hereof
in accordance with the terms hereof on any Holder's Optional Repayment Date(s),
if any, specified on the face hereof. If no Holder's Optional Repayment Date is
specified on the face hereof, this Note will not be repayable at the option of
the holder hereof prior to maturity. On any Holder's Optional Repayment Date,
this Note will be repayable in whole or in part in increments of $1,000
(provided that any remaining principal amount hereof will be at least $100,000)
at the option of the holder hereof at a repayment price equal to 100% of the
principal amount to the repaid, together with accrued and unpaid interest hereon
payable to the date of repayment. For this Note to be repaid in whole or in part
at the option of the holder hereof on a Holder's Optional Repayment Date, this
Note must be delivered, with the form entitled "Option to Elect Repayment"
attached hereto duly completed, to the Issuing and Paying Agent at its offices
located at 450 West 33rd Street, New York, New York 10001, Attention: Agency
Administration, or at such other address which the Bank shall from time to time
notify the holders of the Notes, not more than 60 nor less than 30 calendar days
prior to such Holder's Optional Repayment Date. In the event of repayment of
this Note in part only, a new Note for the unrepaid portion hereof shall be
issued in the name of the
-7-
23
holder hereof upon the surrender hereof. Exercise of such repayment option by
the holder hereof shall be irrevocable.
If this Note is an Original Issue Discount Note and if an Event of
Default with respect to this Note shall have occurred and be continuing, the
Default Amount (as defined hereafter) of this Note may be declared due and
payable in the manner and with the effect provided herein. The "Default Amount"
shall be equal to the adjusted issue price as of the first day of the accrual
period as determined under Final Treasury Regulation Section 1.1275-1(b) (or
successor regulation) under the United States Internal Revenue Code of 1986, as
amended, in which the date of acceleration occurs increased by the daily portion
of the original issue discount for each day in such accrual period ending on the
date of acceleration, as determined under Final Treasury Regulation Section
1.1272-1(b) (or successor regulation) under the United States Internal Revenue
Code of 1986, as amended. Upon payment of (i) the principal, or premium, if any,
so declared due and payable and (ii) interest on any overdue principal and
overdue interest or premium, if any (in each case to the extent that the payment
of such interest shall be legally enforceable), all of the Bank's obligations in
respect of the payment of principal of, premium, if any, and interest on this
Note shall terminate.
In case any Note shall at any time become mutilated, destroyed, lost or
stolen, and such Note or evidence of the loss, theft or destruction thereof
satisfactory to the Bank and the Issuing and Paying Agent and such other
documents or proof as may be required by the Bank and the Issuing and Paying
Agent shall be delivered to the Issuing and Paying Agent, the Bank shall issue a
new Note, of like tenor and principal amount, having a serial number not
contemporaneously outstanding, in exchange and substitution for the mutilated
Note or in lieu of the Note destroyed, lost or stolen but, in the case of any
destroyed, lost or stolen Note, only upon receipt of evidence satisfactory to
the Bank and the Issuing and Paying Agent that such Note was destroyed, stolen
or lost, and, if required, upon receipt of indemnity satisfactory to the Bank
and the Issuing and Paying Agent. Upon the issuance of any substituted Note, the
Bank and the Issuing and Paying Agent may require the payment of a sum
sufficient to cover all expenses and reasonable charges connected with the
preparation and delivery of a new Note. If any Note which has matured or has
been redeemed or repaid or is about to mature or to be redeemed or repaid shall
become mutilated, destroyed, lost or stolen, the Bank may, instead of issuing a
substitute Note, pay or authorize the payment of the same (without surrender
thereof except in the case of a mutilated Note) upon compliance by the holder
with the provisions of this paragraph.
-8-
24
No recourse shall be had for the payment of principal of, premium, if
any, or interest on this Note for any claim based hereon, otherwise in respect
hereof, against any shareholder, employee, agent, officer or director, as such,
past, present or future, of the Bank or of any successor corporation, banking
association or other legal entity (collectively, "corporation"), either directly
or through the Bank or any corporation, whether by virtue of any constitution,
statute or rule of law or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of the
consideration for the issue hereof, expressly waived and released.
The occurrence of any of the following events shall constitute an
"Event of Default" with respect to this Note: (i) default in the payment of any
interest with respect to any of the Notes issued by the Bank when due, which
continues for 30 calendar days; (ii) default in the payment of any principal of,
or premium, if any, on any of the Notes issued by the Bank when due; (iii) the
entry by a court having jurisdiction in the premises of (a) a decree or order
for relief in respect of the Bank in an involuntary case or proceeding under any
applicable United States federal or state bankruptcy, insolvency, reorganization
or other similar law or (b) a decree or order appointing a conservator,
receiver, liquidator, assignee, trustee, sequestrator or any other similar
official of the Bank, or of substantially all of the property of the Bank, or
ordering the winding up or liquidation of the affairs of the Bank, and the
continuance of any such decree or order for relief or any such other decree or
order unstayed and in effect for a period of 60 consecutive days; or (iv) the
commencement by the Bank of a voluntary case or proceeding under any applicable
United States federal or state bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be adjudicated as bankrupt or
insolvent, or the consent by the Bank to the entry of a decree or order for
relief in an involuntary case or proceeding under any applicable United States
federal or state bankruptcy, insolvency, reorganization or other similar law or
to the commencement of any bankruptcy or insolvency case or proceeding, or the
filing by the Bank of a petition or answer or consent seeking reorganization or
relief under any applicable United States federal or state bankruptcy,
insolvency, reorganization or similar law, or the consent by the Bank to the
filing of such petition or to the appointment of or taking possession by the
custodian, conservator, receiver, liquidator, assignee, trustee, sequestrator or
similar official of the Bank or of substantially all of the property of the
Bank, or the making by the Bank of an assignment for the benefit of creditors,
or the taking of corporate action by the Bank in furtherance of any such action.
If an Event of Default shall occur and be continuing, the holder of this Note
may declare the principal
-9-
25
amount of, accrued interest and premium, if any, on this Note due and payable
immediately by written notice to the Bank. Upon such declaration and notice,
such principal amount, accrued interest and premium, if any, shall become
immediately due and payable. Any Event of Default with respect to this Note may
be waived by the holder hereof.
The Issuing and Paying Agency Agreement provides that the Bank will
promptly notify, and provide copies of any such notice to, the Issuing and
Paying Agent, and the Issuing and Paying Agent will promptly mail by first-class
mail, postage prepaid, copies of such notice to the holders of the Notes, upon
the occurrence of an Event of Default or of the curing or waiver of an Event of
Default.
Nothing contained herein shall present any consolidation or merger of
the Bank with any other corporation or successive consolidations or mergers in
which the Bank or its successor or successors shall be a party or parties, or
shall prevent any sale, conveyance, transfer or lease of the property of the
Bank as an entirety or substantially as an entirety to any other corporation
authorized to acquire and operate the same; provided, however, (and the Bank
hereby covenants and agrees) that any such consolidation, merger, sale or
conveyance shall be upon the condition that: (i) immediately after such
consolidation, merger, sale or conveyance the corporation (whether the Bank or
such other corporation) formed by or surviving any such consolidation or merger,
or the corporation to which such sale or conveyance shall have been made, shall
not be in default in the performance or observance of any of the terms,
covenants and conditions of the Notes to be observed or performed by the Bank;
and (ii) the corporation (if other than the Bank) formed by or surviving any
such consolidation or merger, or the corporation to which such sale or
conveyance shall have been made, shall be organized under the laws of the United
States of America, any state thereof, the District of Columbia or the
Commonwealth of Puerto Rico and shall expressly assume the due and punctual
payment of the principal of, premium, if any, and interest on this Note. In case
of any such consolidation, merger, sale, conveyance, transfer or lease, and upon
the assumption by the successor corporation of the due and punctual performance
of all of the covenants in the Notes to be performed or observed by the Bank,
such successor corporation shall succeed to and be substituted for the Bank with
the same effect as if it had been named in this Note as the Bank and thereafter
the predecessor corporation shall be relieved of all obligations and covenants
in this Note and may be liquidated and dissolved.
Any action by the holder of this Note shall bind all future holders of
this Note, and of any Note issued in exchange or
-10-
26
substitution herefor or in place hereof, in respect of anything done or
permitted by the Bank or by the Issuing and Paying Agent in pursuance of such
action.
The Issuing and Paying Agent shall maintain at its offices a register
(the register maintained in such office or any other office or agency of the
Issuing and Paying Agent in The City of New York herein referred to as the "Note
Register") in which, subject to such reasonable regulations as it may prescribe,
the Issuing and Paying Agent shall provide for the registration of the Notes and
of transfers of the Notes.
The transfer of this Note is registrable in the Note Register, upon
surrender of this Note for registration of transfer at the office or agency of
the Issuing and Paying Agent in the Place of Payment, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the Bank
and the Issuing and Paying Agent duly executed by, the holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Notes of like
tenor, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
No provision of this Note shall alter or impair the obligation of the
Bank, which is absolute and unconditional, to pay principal of, premium, if any,
and interest on this Note in U.S. dollars at the times, places and rate herein
prescribed in accordance with its terms.
No service charge shall be made to a holder of this Note for any
transfer or exchange of this Note, but the Bank may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection therewith.
Beneficial interests represented by this Note are exchangeable for
definitive Notes in registered form, of like tenor and of an equal aggregate
principal amount, only if (x) The Depository Trust Company, as Depositary (the
"Depositary") notifies the Bank that it is unwilling or unable to continue as
Depositary for this Note or if at any time the Depositary ceases to be a
clearing agency registered under the Securities Exchange Act of 1934, as
amended, and a successor depositary is not appointed by the Bank within 60
calendar days, or (y) the Bank in its sole discretion determines not to have
such beneficial interests represented by this Note. Any Note representing such
beneficial interests that is exchangeable pursuant to the preceding sentence
shall be exchangeable in whole for definitive Notes in registered form, of like
tenor and of an equal aggregate principal amount, in minimum denominations of
$100,000 and integral multiples of $1,000 in excess thereof. Such definitive
Notes shall be registered
-11-
27
in the name or names of such person or persons as the Depositary shall instruct
the Issuing and Paying Agent.
Prior to due presentment of this Note for registration of transfer, the
Bank, the Issuing and Paying Agent or any agent of the Bank or the Issuing and
Paying Agent may treat the holder in whose name this Note is registered as the
owner hereof for all purposes, whether or not this Note be overdue, and neither
the Bank, the Issuing and Paying Agent nor any such agent shall be affected by
notice to the contrary except as required by applicable law.
All notices to the Bank under this Note shall be in writing and
addressed to the Bank at 209 Munoz Rivera Avenue, Suite 913, Hato Rey, Puerto
Rico 00918, Attention: Richard Barrios, or to such other address of the Bank as
the Bank may notify the holders of the Notes.
This Note shall be governed by, and construed in accordance with, the
laws of the State of New York, without regard to conflicts of laws principles
and all applicable federal laws and regulations.
-12-
28
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of the within Note, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right
of survivorship and not as
tenants in common
UNIF GIFT MIN ACT - ___________ Custodian ___________
(Cust) (Minor)
under Uniform Gift to Minors Act
-----------------------------------------
(State)
Additional abbreviations may also be used though not in the
above list.
-13-
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY NUMBER OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
[_________________________]
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address,
including postal zip code, of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints __________________________________________________________________
________________________________________________________________________________
to transfer said Note on the books of the Issuing and Paying Agent, with full
power of substitution in the premises.
Dated:
------------------- -----------------------------------------------------
NOTICE: The signature to this assignment must
correspond with the name as written upon the face of
the within Note in every particular, without
alteration or enlargement or any change whatsoever.
- ------------------------
Signature Guarantee
-14-
30
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the Bank
to repay this Note (or portion hereof specified below) pursuant to its terms at
a price equal to l00% of the principal amount hereof to be repaid, together with
accrued and unpaid interest hereon, payable to the date of repayment, to the
undersigned, at _______________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the undersigned must give notice to the
Issuing and Paying~Agent at its offices located at 450 West 33rd Street, New
York, New York 10001, Attention: Agency Administration, or at such other place
or places of which the Bank shall from time to time notify the holders of the
Notes, not more than 60 nor less than 30 calendar days prior to the date of
repayment, with this "Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of $1,000) which the
holder elects to have repaid and specify the denomination or denominations
(which shall be $100,000 or an integral multiple of $1,000 in excess thereof) of
the Notes to be issued to the holder for the portion of this Note not being
repaid (in the absence of any such specification, one such Note will be issued
for the portion not being repaid):
$------------------------ --------------------------------------------
NOTICE: The signature on this "Option to
Dated: Elect Repayment" form must correspond with
------------------- the name as written upon the face of the
within Note in every particular, without
alteration or enlargement or any change
whatsoever.
- ------------------------
Signature Guarantee
-15-
31
EXHIBIT ____________
THIS NOTE IS AN OBLIGATION SOLELY OF BANCO POPULAR DE PUERTO RICO (THE "BANK")
AND WILL NOT BE AN OBLIGATION OF, OR OTHERWISE GUARANTEED BY, ANY OTHER BANK OR
POPULAR, INC. THIS NOTE DOES NOT EVIDENCE DEPOSITS OF THE BANK AND IS NOT
INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENT
AGENCY. THE OBLIGATIONS EVIDENCED BY THIS NOTE RANK PARI PASSU WITH ALL OTHER
SENIOR UNSECURED INDEBTEDNESS OF THE BANK, EXCEPT DEPOSIT LIABILITIES (AS
PROVIDED IN SECTION 11(D)(11) OF THE FEDERAL DEPOSIT INSURANCE ACT) AND OTHER
OBLIGATIONS THAT ARE SUBJECT TO ANY PRIORITIES OR PREFERENCES. IN A LIQUIDATION
OR OTHER RESOLUTION OF THE BANK, THIS NOTE WOULD BE TREATED DIFFERENTLY FROM,
AND HOLDERS OF THIS NOTE COULD RECEIVE, IF ANYTHING, SIGNIFICANTLY LESS THAN
HOLDERS OF, DEPOSIT LIABILITIES OF THE BANK.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (THE "DEPOSITARY") TO THE
BANK OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
NOTE ISSUED UPON REGISTRATION OF TRANSFER OF, OR IN EXCHANGE FOR, OR IN LIEU OF,
THIS NOTE IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY
TO A NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
THIS NOTE IS ISSUABLE ONLY IN FULLY REGISTERED FORM IN MINIMUM DENOMINATIONS OF
$100,000 AND INTEGRAL MULTIPLES OF $1,000 IN EXCESS THEREOF. EACH OWNER OF A
BENEFICIAL INTEREST IN THIS NOTE MUST BE AN INSTITUTIONAL INVESTOR WHO IS AN
"ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND IS REQUIRED TO HOLD A BENEFICIAL INTEREST IN $100,000
PRINCIPAL AMOUNT OR ANY INTEGRAL MULTIPLE OF $1,000 IN EXCESS THEREOF OF THIS
NOTE AT ALL TIMES.
No. FLR-__________ REGISTERED
CUSIP NO.: __________
BANCO POPULAR DE PUERTO RICO
GLOBAL BANK NOTE
(Floating Rate)
32
ORIGINAL ISSUE DATE: PRINCIPAL AMOUNT:
INITIAL INTEREST RATE: MATURITY DATE:
INTEREST RATE BASIS OR BASES: INDEX MATURITY:
IF LIBOR: REGULAR RECORD
[ ] Libor Telerate DATES (if other than the 15th day
[ ] Libor Reuters prior to each Interest Payment
Date):
INDEX CURRENCY:
MINIMUM INTEREST RATE:
SPREAD (PLUS OR MINUS)
AND/OR SPREAD MULTIPLIER: INTEREST PAYMENT PERIOD:
MAXIMUM INTEREST RATE: INTEREST RESET PERIOD:
INTEREST PAYMENT DATES: CALCULATION AGENT:
INITIAL INTEREST RESET DATES: ANNUAL REDEMPTION
PERCENTAGE REDUCTION:
INTEREST RESET DATES:
HOLDER'S OPTIONAL
REPAYMENT DATE(S):
INITIAL REDEMPTION DATE:
DAY COUNT CONVENTION
[ ] 30/360 for the period
INITIAL REDEMPTION PERCENTAGE: from to
[ ] Actual/360 for the period
from to
INTEREST CALCULATION:
[ ] Regular Floating Rate Note [ ] Actual/Actual for the period
[ ] Floating Rate/Fixed Rate from to
Fixed Rate Commencement Date:
Fixed Interest Rate: ORIGINAL ISSUE DISCOUNT
[ ] Inverse Floating Rate Note [ ] Yes
Fixed Interest Rate: [ ] No
ADDENDUM ATTACHED: Total Amount of OID:
[ ] Yes Yield to Maturity:
[ ] No Initial Accrual Period:
OTHER PROVISIONS: DEFAULT RATE: ________
2
33
The Bank, for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of ______________________________________
United States Dollars on the Maturity Date specified above (except to the extent
redeemed or repaid prior to the Maturity Date) and to pay interest thereon from
and including the Original Issue Date specified above or from and including the
most recent interest payment date to which interest on this Note (or any
predecessor Note) has been paid or duly provided for, on the Interest Payment
Dates specified above (each, an "Interest Payment Date") and at maturity or upon
earlier redemption or repayment, if applicable, commencing on the first Interest
Payment Date next succeeding the Original Issue Date (or, if the Original Issue
Date is between a Regular Record Date (as defined below) and the Interest
Payment Date immediately following such Regular Record Date, on the second
Interest Payment Date following the Original Issue Date), at a rate per annum
equal to the Initial Interest Rate specified above until the Initial Interest
Reset Date specified above and thereafter at a rate per annum determined in
accordance with the provisions hereof and any Addendum relating hereto depending
upon the Interest Rate Basis or Bases, if any, and such other terms specified
above, until the principal hereof is paid or made available for payment, and (to
the extent that the payment of such interest shall be legally enforceable) at
the Default Rate per annum specified above on any overdue principal and premium,
if any, and on any overdue installment of interest. If no Default Rate is
specified above, the Default Rate shall be the Interest Rate on this Note
specified above. The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will be paid to the person in whose name this
Note (or any predecessor Note) is registered at the close of business on the
Regular Record Date, which shall be the l5th calendar day (whether or not a
Business Day (as defined below)) prior to such Interest Payment Date (unless
otherwise specified on the face hereof) (each, a "Regular Record Date");
provided, however, that interest payable at maturity or upon earlier redemption
or repayment, if applicable, will be payable to the person to whom principal
shall be payable. Any such interest not so punctually paid or duly provided for
shall forthwith cease to be payable to the holder as of the close of business on
such Regular Record Date and may either be paid to the person in whose name this
Note (or any predecessor Note) is registered at the close of business on a
special record date for the payment of such defaulted interest (the "Special
Record Date") to be fixed by the Bank, notice of which shall be given to the
holders of Notes not less than 10 calendar days prior to such Special Record
Date, or be paid at any time in any other lawful manner.
3
34
Payment of principal of, premium, if any, and interest on this Note
will be made in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts. The
Bank will at all times appoint and maintain an issuing and paying agent (the
"Issuing and Paying Agent", which term shall include any successor Issuing and
Paying Agent), authorized by the Bank to pay principal of, premium, if any, and
interest on this Note on behalf of the Bank pursuant to an issuing and paying
agency agreement (the "Issuing and Paying Agency Agreement") and having an
office or agency (the "Issuing and Paying Agent Office") in The City of New York
or the city in which the Bank is headquartered (the "Place of Payment"), where
this Note may be presented or surrendered for payment and where notices,
designations or requests in respect of payments with respect to this Note may be
served. The Bank has initially appointed The Chase Manhattan Bank as the Issuing
and Paying Agent, with the Issuing and Paying Agent Office currently located at
450 West 33rd Street, New York, New York 10001, Attention: Agency
Administration. The Bank may remove the Issuing and Paying Agent pursuant to the
terms of the Issuing and Paying Agency Agreement and may appoint a successor
Issuing and Paying Agent.
Payment of principal of, premium, if any, and interest on this Note due
at maturity or upon earlier redemption or repayment, if applicable, will be made
in immediately available funds upon presentation and surrender of this Note to
the Issuing and Paying Agent at the Issuing and Paying Agent Office; provided
that this Note is presented to the Issuing and Paying Agent in time for the
Issuing and Paying Agent to make such payment in accordance with its normal
procedures. Payments of interest on this Note (other than at maturity or upon
earlier redemption or repayment) will be made by wire transfer to such account
as has been appropriately designated to the Issuing and Paying Agent by the
person entitled to such payments.
Reference herein to "this Note", "hereof", "herein" and comparable
terms shall include an Addendum hereto if an Addendum is specified above.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
4
35
IN WITNESS WHEREOF, the Bank has caused this Note to be duly executed.
By:
-------------------------------------------
Authorized Signatory
By:
-------------------------------------------
Authorized Signatory
Dated:
ISSUING AND PAYING AGENT'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the Issuing and Paying Agency Agreement.
THE CHASE MANHATTAN BANK
as Issuing and Paying Agent
By:
-----------------------------------
Authorized Signatory
5
36
[Reverse]
This Note is one of a duly authorized issue of Bank Notes due from 7
days to 15 years from date of issue of the Bank (the "Notes").
If any Interest Payment Date (other than an Interest Payment Date at
the Maturity Date or date of earlier redemption or repayment of this Note) would
otherwise fall on a day that is not a Business Day, such Interest Payment Date
shall be postponed to the next succeeding day that is a Business Day, except
that if an Interest Rate Basis is LIBOR, as indicated on the face hereof, and
such next Business Day falls in the next succeeding calendar month, such
Interest Payment Date shall be the immediately preceding day that is a Business
Day. Except as provided above, interest payments will be made on the Interest
Payment Dates shown on the face hereof. If the Maturity Date or date of earlier
redemption or repayment of this Note falls on a day which is not a Business Day,
the related payment of principal of, premium, if any, or interest on this Note
will be made on the next succeeding Business Day with the same force and effect
as if made on the date such payment was due, and no interest shall accrue on the
amount so payable for the period from and after such Maturity Date or date of
earlier redemption or repayment, as the case may be.
This Note will not be subject to any sinking fund. If so provided on
the face of this Note, this Note may be redeemed by the Bank either in whole or
in part on (unless otherwise specified on the face hereof) and after the Initial
Redemption Date, if any, specified on the face hereof. If no Initial Redemption
Date is specified on the face hereof, this Note may not be redeemed prior to the
Maturity Date. On and after the Initial Redemption Date, if any, this Note may
be redeemed in increments of $1,000 (provided that any remaining principal
amount hereof shall be at least $100,000) at the option of the Bank at the
applicable Redemption Price (as defined below), together with unpaid interest
accrued hereon at the applicable rate borne by this Note to the date of
redemption (each such date, a "Redemption Date"), on written notice given not
more than 60 nor less than 30 calendar days prior to the Redemption Date to the
registered holder hereof (unless otherwise specified on the face hereof).
Whenever less than all the Notes at any time outstanding are to be redeemed, the
terms of the Notes to be so redeemed shall be selected by the Bank. If less than
all the Notes with identical terms at any time outstanding are to be redeemed,
the Notes to be so redeemed shall be selected by the Issuing and Paying Agent by
lot or in any usual manner approved by
6
37
it. In the event of redemption of this Note in part only, a new Note for the
unredeemed portion hereof shall be issued in the name of the holder hereof upon
the surrender hereof.
The "Redemption Price" shall initially be the Initial Redemption
Percentage specified on the face hereof of the principal amount of this Note to
be redeemed and shall decline at each anniversary of the Initial Redemption Date
specified on the face hereof by the Annual Redemption Percentage Reduction, if
any, specified on the face hereof, of the principal amount to be redeemed until
the Redemption Price is l00% of such principal amount.
This Note may be subject to repayment at the option of the holder
hereof in accordance with the terms hereof on any Holder's Optional Repayment
Date(s), if any, specified on the face hereof. If no Holder's Optional Repayment
Date is specified on the face hereof, this Note will not be repayable at the
option of the holder hereof prior to maturity. On any Holder's Optional
Repayment Date, this Note will be repayable in whole or in part in increments of
$1,000 (provided that any remaining principal amount hereof will be at least
$100,000) at the option of the holder hereof at a repayment price equal to 100%
of the principal amount to be repaid, together with accrued and unpaid interest
hereon payable to the date of repayment. For this Note to be repaid in whole or
in part at the option of the holder hereof on a Holder's Optional Repayment
Date, this Note must be delivered, with the form entitled "Option to Elect
Repayment" attached hereto duly completed, to the Issuing and Paying Agent at
its offices located at 450 West 33rd Street, New York, New York 10001,
Attention: Agency Administration, or at such other address which the Bank shall
from time to time notify the holders of the Notes, not more than 60 nor less
than 30 calendar days prior such Holder's Optional Repayment Date. In the event
of repayment of this Note in part only, a new Note for the unrepaid portion
hereof shall be issued in the name of the holder hereof upon the surrender
hereof. Exercise of such repayment option by the holder hereof shall be
irrevocable.
The interest rate borne by this Note shall be determined as follows:
1. If this Note is designated as a Regular Floating Rate
Note on the face hereof or if no designation is made for Interest
Calculation on the face hereof, then, except as described below or in
an Addendum hereto, this Note shall bear interest at the rate
determined by reference to the applicable Interest Rate Basis or Bases
shown on the face hereof (i) plus
7
38
or minus the applicable Spread, if any, and/or (ii) multiplied by the
applicable Spread Multiplier, if any, specified and applied in the
manner described, on the face hereof. Commencing on the Initial
Interest Reset Date, the rate at which interest on this Note is payable
shall be reset as of each Interest Reset Date specified on the face
hereof; provided, however, that the interest rate in effect for the
period from the Original Issue Date to the Initial Interest Reset Date
will be the Initial Interest Rate.
2. If this Note is designated as a Floating Rate/Fixed
Rate Note on the face hereof, then, except as described below or in an
Addendum hereto, this Note shall bear interest at the rate determined
by reference to the applicable Interest Rate Basis or Bases shown on
the face hereof (i) plus or minus the applicable Spread, if any, and/or
(ii) multiplied by the applicable Spread Multiplier, if any, specified
and applied in the manner described on the face hereof. Commencing on
the Initial Interest Reset Date, the rate at which interest on this
Note is payable shall be reset as of each Interest Reset Date specified
on the face hereof; provided, however, that (i) the interest rate in
effect for the period from the Original Issue Date to the Initial
Interest Reset Date shall be the Initial Interest Rate; and (ii) the
interest rate in effect commencing on, and including, the Fixed Rate
Commencement Date to the Maturity Date or date of earlier redemption or
repayment shall be the Fixed Interest Rate, if such a rate is specified
on the face hereof, or if no such Fixed Interest Rate is so specified,
the interest rate in effect hereon on the Business Day immediately
preceding the Fixed Rate Commencement Date.
3. If this Note is designated as an Inverse Floating
Rate Note on the face hereof, then, except as described below or in an
Addendum hereto, this Note shall bear interest equal to the Fixed
Interest Rate on the face hereof minus the rate determined by reference
to the applicable Interest Rate Basis or Bases shown on the face hereof
(i) plus or minus the applicable Spread, if any, and/or (ii) multiplied
by the applicable Spread Multiplier, if any, specified and applied in
the manner described on the face hereof; provided, however, that,
unless otherwise specified on the face hereof, the interest rate hereon
will not be less than zero percent. Commencing on the Initial Interest
Reset Date, the rate at which interest on this Note is payable shall be
reset as of each Interest Reset Date specified on the face hereof;
provided, however, that the interest rate in effect for the
8
39
period from the Original Issue Date to the Initial Interest Reset Date shall be
the Initial Interest Rate.
Notwithstanding the foregoing, if this Note is designated on the face
hereof as having an Addendum attached, this Note shall bear interest in
accordance with the terms described in such Addendum.
4. FLOATING INTEREST RATES
(a) INTEREST RATE RESET. The interest rate on this Note
will be reset from time to time, as provided in this Section 4, and each date
upon which such rate is reset as so provided is hereinafter called an "Interest
Reset Date". Unless otherwise specified on the face hereof, the Interest Reset
Dates with respect to this Note will be as follows:
(i) if the Interest Reset Period is daily, each Business
Day;
(ii) if the Interest Reset Period is weekly and the
Interest Rate Basis is not the Treasury Rate, the Wednesday of each
week;
(iii) if the Interest Reset Period is weekly and the
Interest Rate Basis is the Treasury Rate, except as otherwise provided
in the definition of "Treasury Interest Determination Date" in Section
4(j) below, the Tuesday of each week;
(iv) if the Interest Reset Period is monthly, the third
Wednesday of each month;
(v) if the Interest Reset Period is quarterly, the third
Wednesday of each March, June, September and December;
(vi) if the Interest Reset Period is semi-annual, the
third Wednesday of each of two months in each year specified under
"Interest Reset Period" on the face hereof; and
(vii) if the Interest Reset Period is annual, the third
Wednesday of the month in each year specified under "Interest Reset
Period" on the face hereof;
provided, however, that (x) the Interest Rate Basis in effect from the Original
Issue Date to but excluding the first Interest Reset Date will be the Initial
Interest Rate and (y) if the Interest Reset Period is daily or weekly, the
Interest Rate Basis in effect for each day following the second Business Day
immediately prior to
9
40
an Interest Payment Date to but excluding such Interest Payment Date, and for
each day following the second Business Day immediately prior to the day of
Maturity of the principal hereof to but excluding such day of Maturity, will be
the Interest Rate Basis in effect on such applicable second Business Day; and
provided, further, that, if any Interest Reset Date would otherwise be a day
that is not a Business Day, such Interest Reset Date shall be the next
succeeding day that is a Business Day, except that, unless otherwise specified
on the face hereof, if the Interest Rate Basis is LIBOR and such next succeeding
Business Day falls in the next succeeding calendar month, such Interest Reset
Date shall be the immediately preceding Business Day.
Subject to applicable provisions of law and except as
otherwise specified herein, on each Interest Reset Date the interest rate on
this Note shall be the rate determined in accordance with such of the following
Sections 4(b) through 4(f) as provide for determination of the Interest Rate
Basis for this Note. The Calculation Agent shall determine the interest rate of
this Note in accordance with the applicable Section below.
Unless the Interest Rate Basis is LIBOR, the Calculation Agent
will determine the interest rate of this Note that takes effect on any Interest
Reset Date on a day no later than the Calculation Date (as defined in Section
4(j) below) corresponding to such Interest Reset Date. However, the Calculation
Agent need not wait until the Calculation Date to determine such interest rate
if the rate information it needs to make such determination in the manner
specified in the applicable provisions of Sections 4(b) through 4(f) hereof is
available from the relevant sources specified in such applicable provisions.
Upon request of the Holder to the Calculation Agent, the
Calculation Agent will provide the interest rate then in effect on this Note
and, if determined, the interest rate that will become effective on the next
Interest Reset Date.
(b) DETERMINATION OF COMMERCIAL PAPER RATE. If the
Interest Rate Basis is the Commercial Paper Rate, the Interest Rate Basis that
takes effect on any Interest Reset Date shall equal the Money Market Yield (as
defined in Section 4(j) below) of the rate, for the second Business Day
immediately preceding such Interest Reset Date (the "Commercial Paper Interest
Determination Date"), for commercial paper having the Index Maturity, as
published in H.15(519) (as defined in Section 4(j) below) under the heading
"Commercial Paper -- Non-financial". If the Commercial Paper Rate
10
41
cannot be determined as described above, the following procedures will apply in
determining the Commercial Paper Rate:
(i) If the rate described above does not appear in
H.15(519) at 3:00 P.M., New York City time, on the Calculation Date (as
defined in Section 4(j) below) corresponding to such Commercial Paper
Interest Determination Date (unless the calculation is made earlier and
the rate is available from that source at that time), then the
Commercial Paper Rate will be the rate, for such Commercial Paper
Interest Determination Date, for commercial paper having the Index
Maturity, as published in H.15 Daily Update (as defined in Section 4(j)
below) or any other recognized electronic source used for displaying
that rate, under the heading "Commercial Paper -- Non-financial".
(ii) If the rate described in clause (i) above does not
appear in H.15(519), H.15 Daily Update or another recognized electronic
source at 3:00 P.M., New York City time, on such Calculation Date
(unless the calculation is made earlier and the rate is available from
one of those sources at that time), the Commercial Paper Rate will be
the Money Market Yield of the arithmetic mean of the following offered
rates for U.S. dollar commercial paper that has the Index Maturity and
is placed for an industrial issuer whose bond rating is "Aa", or the
equivalent, from a nationally recognized rating agency: the rates
offered as of 11:00 A.M., New York City time, on such Commercial Paper
Interest Determination Date by three leading U.S. dollar commercial
paper dealers in New York City selected by the Calculation Agent.
(iii) If fewer than three dealers selected by the
Calculation Agent are quoting as described in clause (ii) above, the
Commercial Paper Rate shall be the Commercial Paper Rate in effect on
such Commercial Paper Interest Determination Date (or, in the case of
the first Interest Reset Date, the Initial Interest Rate).
The Interest Rate Basis determined in accordance with this
Section 4(b) will be adjusted by the addition or subtraction of the Spread, if
any, or by multiplying such Interest Rate Basis by the Spread Multiplier, if
any.
(c) DETERMINATION OF PRIME RATE. If the Interest Rate
Basis is the prime rate, the Interest Rate Basis that takes effect on any
Interest Reset Date shall equal the rate, for the second
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42
Business Day immediately preceding such Interest Reset Date (the "Prime Interest
Determination Date"), published in H.15(519) under the heading "Bank Prime
Loan". If the prime rate cannot be determined as described above, the following
procedures will apply in determining the prime rate:
(i) If the rate described above does not
appear in H.15(519) at 3:00 P.M., New York City time, on the
Calculation Date corresponding to such Prime Interest
Determination Date (unless the calculation is made earlier
and the rate is available from one of those sources at that
time), then the prime rate will be the rate, for such Prime
Interest Determination Date, as published in H.15 Daily
Update or another recognized electronic source used for the
purpose of displaying that rate, under the heading "Bank
Prime Loan".
(ii) If the rate described in clause (i) above
does not appear in H.15(519), H.15 Daily Update or another
recognized electronic source at 3:00 P.M., New York City
time, on such Calculation Date (unless the calculation is
made earlier and the rate is available from one of those
sources at that time), then the prime rate will be the
arithmetic mean of the following rates as they appear on the
Reuters Screen US PRIME 1 Page (as defined in Section 4(j)
below): the rate of interest publicly announced by each bank
appearing on that page as that bank's prime rate or base
lending rate, as of 11:00 A.M., New York City time, on such
Prime Interest Determination Date.
(iii) If fewer than four of the rates referred to
in clause (ii) above appear on the Reuters Screen US PRIME 1
Page, the prime rate will be the arithmetic mean of the prime
rates or base lending rates, as of the close of business on
such Prime Interest Determination Date, of three major banks
in New York City selected by the Calculation Agent. For this
purpose, the Calculation Agent will use rates quoted on the
basis of the actual number of days in the year divided by a
360-day year.
(iv) If fewer than three banks selected by the
Calculation Agent are quoting as described in clause (iii)
above, the prime rate shall be the prime rate in effect on
such Prime Interest Determination Date (or, in
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43
the case of the first Interest Reset Date, the Initial
Interest Rate).
The Interest Rate Basis determined in accordance with this
Section 4(c) will be adjusted by the addition or subtraction of the Spread, if
any, or by multiplying such Interest Rate Basis by the Spread Multiplier, if
any.
(d) DETERMINATION OF LIBOR. If the Interest Rate Basis is
LIBOR, the Interest Rate Basis that takes effect on any Interest Reset Date
shall be LIBOR on the corresponding LIBOR Interest Determination Date (as
defined in Section 4(j) below) and shall be determined in accordance with the
following provisions:
LIBOR will be either of the following rates, whichever appears
on the face hereof:
(x) the offered rate appearing on the Telerate LIBOR Page
(as defined in Section 4(j) below); or
(y) the arithmetic mean of the offered rates appearing on
the Reuters Screen LIBOR Page (as defined in Section 4(j) below) unless
that page by its terms cites only one rate, in which case that rate;
in either case, as of 11:00 A.M., London time, on such LIBOR Interest
Determination Date for deposits of the Index Currency having the Index Maturity
beginning on such Interest Reset Date. If no reference page is specified on the
face hereof, Telerate LIBOR Page will apply to this Note:
(i) If Telerate LIBOR Page is specified on the
face hereof and the rate referenced in clause (x) above does
not appear on that page, or if Reuters Screen LIBOR Page is
specified on the face hereof and fewer than two of the rates
referenced in clause (y) above appear on that page or no rate
appears on any page on which only one rate normally appears,
then LIBOR will be determined on the basis of the rates, at
approximately 11:00 A.M., London time, on such LIBOR Interest
Determination Date, at which deposits of the following kind
are offered to prime banks in the London interbank market by
four major banks in that market selected by the Calculation
Agent: deposits of the Index Currency having the Index
Maturity beginning on such Interest Reset Date and in a
Representative Amount (as defined in Section 4(j) below). The
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44
Calculation Agent will request the principal London office of
each such bank to provide a quotation of its rate. If at
least two quotations are provided, LIBOR for such LIBOR
Interest Determination Date will be the arithmetic mean of
the quotations.
(ii) If fewer than two quotations are provided
as described in clause (i) above, LIBOR for such LIBOR
Interest Determination Date will be the arithmetic mean of
the rates for loans of the following kind to leading European
banks quoted, at approximately 11:00 A.M. in the principal
financial center for the country issuing the Index Currency,
on such LIBOR Interest Determination Date, by three major
banks in that financial center selected by the Calculation
Agent: loans of the Index Currency having the Index Maturity
beginning on such Interest Reset Date and in a Representative
Amount.
(iii) If fewer than three banks selected by the
Calculation Agent are quoting as described in clause (ii)
above, LIBOR will be the LIBOR in effect on such LIBOR
Interest Determination Date (or, in the case of the first
Interest Reset Date, the Initial Interest Rate).
The Interest Rate Basis determined in accordance with this
Section 4(d) will be adjusted by the addition or subtraction of the Spread, if
any, or by multiplying such Interest Rate Basis by the Spread Multiplier, if
any. If the Interest Rate Basis is LIBOR and no currency is specified on the
face hereof as the Index Currency, the Index Currency shall be U.S. dollars.
(e) DETERMINATION OF TREASURY RATE. If the Interest Rate
Basis is the Treasury Rate, the Interest Rate Basis that takes effect on any
Interest Reset Date shall equal the rate for the auction on the corresponding
Treasury Interest Determination Date (as defined in Section 4(j) below) of
direct obligations of the United States ("Treasury Bills") having the Index
Maturity, as that rate appears on Telerate Page 56 or 57 under the heading
"Investment Rate". If the Treasury Rate cannot be determined as described above,
the following procedures will apply in determining the Treasury Rate:
(i) If the rate described above does not appear on either
Telerate Page 56 or 57 at 3:00 P.M., New York City time, on the
Calculation Date corresponding to such Treasury Interest Determination
Date (unless the calculation is made
14
45
earlier and the rate is available from that source at that time), the
Treasury Rate will be the Bond Equivalent Yield (as defined in Section
4(j) below) of the rate, for such Treasury Interest Determination Date
and for Treasury Bills having the Index Maturity, as published in H.15
Daily Update, or another recognized electronic source used for
displaying that rate, under the heading "U.S. Government
Securities/Treasury Bills/Auction High".
(ii) If the rate described in clause (i) above does not
appear in H.15 Daily Update or another recognized electronic source at
3:00 P.M., New York City time, on such Calculation Date (unless the
calculation is made earlier and the rate is available from one of those
sources at that time), the Treasury Rate will be the Bond Equivalent
Yield of the auction rate, for such Treasury Interest Determination
Date and for Treasury Bills having the Index Maturity, as announced by
the U.S. Department of the Treasury.
(iii) If the auction rate described in clause (ii) above is
not so announced by 3:00 P.M., New York City time, on such Calculation
Date, or if no such auction is held for the relevant week, then the
Treasury Rate will be the Bond Equivalent Yield of the rate, for such
Treasury Interest Determination Date and for Treasury Bills having a
remaining maturity closest to the Index Maturity, as published in
H.15(519) under the heading "U.S. Government Securities/Treasury
Bills/Secondary Market".
(iv) If the rate described in clause (iii) above does not
appear in H.15(519) at 3:00 P.M., New York City time, on such
Calculation Date (unless the calculation is made earlier and the rate
is available from one of those sources at that time), then the Treasury
Rate will be the rate, for such Treasury Interest Determination Date
and for Treasury Bills having a remaining maturity closest to the Index
Maturity, as published in H.15 Daily Update, or another recognized
electronic source used for displaying that rate, under the heading
"U.S. Government Securities/ Treasury Bills /Secondary Market".
(v) If the rate described in clause (iv) above does not
appear in H.15 Daily Update or another recognized electronic source at
3:00 P.M., New York City time, on such Calculation Date (unless the
calculation is made earlier and the rate is available from one of those
sources at that time), the
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46
Treasury Rate will be the Bond Equivalent Yield of the arithmetic mean
of the following secondary market bid rates for the issue of Treasury
Bills with a remaining maturity closest to the Index Maturity: the
rates bid as of approximately 3:30 P.M., New York City time, on such
Treasury Interest Determination Date, by three primary U.S. government
securities dealers in New York City selected by the Calculation Agent.
(vi) If fewer than three dealers selected by the
Calculation Agent are quoting as described in clause (v) above, the
Treasury Rate shall be the Treasury Rate in effect on such Treasury
Interest Determination Date (or, in the case of the first Interest
Reset Date, the Initial Interest Rate).
The Interest Rate Basis determined in accordance with this
Section 4(e) will be adjusted by the addition or subtraction of the Spread, if
any, or by multiplying such Interest Rate Basis by the Spread Multiplier, if
any, specified on the face hereof.
(f) DETERMINATION OF FEDERAL FUNDS RATE. If the Interest
Rate Basis is the Federal Funds Rate, the Interest Rate Basis that takes effect
on any Interest Reset Date shall equal the rate, on the second Business Day
immediately preceding such Interest Reset Date (the "Federal Funds Interest
Determination Date"), for Federal Funds as published in H.15(519) under the
heading "Federal Funds (Effective)", as that rate is displayed on Telerate Page
120. If the Federal Funds Rate cannot be determined as described above, the
following procedures will apply in determining the Federal Funds Rate:
(i) If the rate described above is not displayed on
Telerate Page 120 at 3:00 P.M., New York City time, on the Calculation
Date corresponding to such Federal Funds Interest Determination Date
(unless the calculation is made earlier and the rate is available from
that source at that time), then the Federal Funds Rate will be the rate
described above as published in H.15 Daily Update, or another
recognized electronic source used for displaying that rate, under the
heading "Federal Funds (Effective)".
(ii) If the rate described in clause (i) above is not
displayed on Telerate Page 120 and does not appear in H.15 (519), H.15
Daily Update or another recognized electronic source at 3:00 P.M., New
York City time, on such Calculation Date (unless the calculation is
made earlier and the rate is
16
47
available from one of those sources at that time), the federal funds
Rate will be the arithmetic mean of the rates for the last transaction
in overnight, U.S. dollar federal funds arranged, before 9:00 A.M., New
York City time, on such Federal Funds Interest Determination Date, by
three leading brokers of U.S. dollar federal funds transactions in New
York City selected by the Calculation Agent.
(iii) If fewer than three brokers selected by the
Calculation Agent are quoting as described in clause (ii) above, the
Federal Funds Rate will be the Federal Funds Rate in effect on such
Federal Funds Interest Determination Date (or, in the case of the first
Interest Reset Date, the Initial Interest Rate).
The interest rate determined in accordance with this Section
4(f) will be adjusted by the addition or subtraction of the Spread, if any, or
by multiplying such Interest Rate Basis by the Spread Multiplier, if any.
(g) MINIMUM AND MAXIMUM LIMITS. Notwithstanding the
foregoing, the rate at which interest accrues on this Note (i) shall not at any
time be higher than the Maximum Rate, if any, or less than the Minimum Rate, if
any, specified on the face hereof, in each case on an accrual basis, and (ii)
shall not at any time be higher than the maximum rate permitted by New York law,
as the same may be modified by United States law of general application.
(h) CALCULATION OF INTEREST. Payments of interest hereon
with respect to any Interest Payment Date or at the Maturity of the principal
hereof will include interest accrued to but excluding such Interest Payment Date
or the date of such Maturity, as the case may be. Accrued interest from the date
of issue or from the last date to which interest has been paid or duly provided
for shall be calculated by the Calculation Agent by multiplying the Principal
Amount by an accrued interest factor. Such accrued interest factor shall be
computed by adding the interest factors calculated for each day from and
including the Original Issue Date or from and including the last date to which
interest has been paid or duly provided for, to but excluding the date for which
accrued interest is being calculated. The interest factor for each such day
shall be expressed as a decimal and computed by dividing the interest rate (also
expressed as a decimal) in effect on such day by 360, if the Interest Rate Basis
is the Commercial Paper Rate, prime rate, LIBOR, or Federal Funds Rate, or by
the actual number
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48
of days in the year, if the Interest Rate Basis is the Treasury Rate.
All percentages resulting from any calculation with respect to
this Note will be rounded upward or downward, as appropriate, to the next higher
or lower one hundred-thousandth of a percentage point (e.g., 9.876541% (or
.09876541) being rounded down to 9.87654% (or .0987654) and 9.876545% (or
.09876545) being rounded up to 9.87655% (or .0987655)). All amounts used in or
resulting from any calculation with respect to this Note will be rounded upward
or downward, as appropriate, to the nearest cent, in the case of U.S. dollars,
or to the nearest corresponding hundredth of a unit, in the case of a currency
other than U.S. dollars, with one-half cent or one-half of a corresponding
hundredth of a unit or more being rounded upward.
(i) CALCULATION AGENT. The Company has initially
appointed the institution named on the face of this Note as Calculation Agent,
to act as such agent with respect to this Note, but the Company may, in its sole
discretion, appoint any other institution (including any Affiliate of the
Company) to serve as such agent from time to time. The Company will give the
Trustee prompt written notice of any change in any such appointment. Insofar as
this Note provides for any such agent to obtain rates, quotes or other data from
a bank, dealer or other institution for use in making any determination
hereunder, such agent may do so from any institution or institutions of the kind
contemplated hereby notwithstanding that any one or more of such institutions
are any such agent, Affiliates of any such agent or Affiliates of the Company.
All determinations made by the Calculation Agent may be made
by such agent in its sole discretion and, absent manifest error, shall be
conclusive for all purposes and binding on the Holder of this Note and the
Company. The Calculation Agent shall have no liability therefor.
(j) DEFINITIONS OF CALCULATION TERMS. As used in this
Note, the following terms have the meanings set forth below:
"Bond Equivalent Yield" means a yield expressed as a
percentage and calculated in accordance with the following formula:
Bond Equivalent Yield = D x N x 100,
360 - (D x M)
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49
where
- "D" equals the annual rate for Treasury Bills quoted on a bank
discount basis and expressed as a decimal;
- "N" equals 365 or 366, as the case may be; and
- "M" equals the actual number of days in the period from and
including the relevant Interest Reset Date to but excluding
the next succeeding Interest Reset Date.
"Business Day" means, for this Note, a day that meets the
requirements set forth in each of clauses (i) through (iv) below, in each case
to the extent such requirements apply to this Note as specified below:
(i) is a Monday, Tuesday, Wednesday, Thursday or Friday that is
not a day on which banking institutions in The City of New
York generally are authorized or obligated by law, regulation
or executive order to close;
(ii) if the Interest Rate Basis is LIBOR, is also a London Business
Day; and
(iii) if the Specified Currency for payment of principal of or
interest on this Note is other than U.S. dollars, is also a
day on which banking institutions in the principal financial
center of the country issuing such Specified Currency
generally are not authorized or obligated by law, regulation
or executive order to close.
The "Calculation Date" corresponding to any Commercial Paper
Interest Determination Date, Prime Interest Determination Date, LIBOR Interest
Determination Date, Treasury Interest Determination Date or Federal Funds
Interest Determination Date, as the case may be, means the earlier of:
(i) the tenth day after such interest determination date
or, if any such day is not a Business Day, the next succeeding Business
Day; and
(ii) the Business Day immediately preceding the Interest
Payment Date or the date of Maturity of the principal hereof, whichever
is the day on which the next payment of interest will be due.
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50
The Calculation Date corresponding to any Interest Reset Date means the
Calculation Date corresponding to the relevant interest determination date
immediately preceding such Interest Reset Date.
"H.15(519)" means the weekly statistical release entitled
"Statistical Release H.15 (519)", or any successor publication, published by the
Board of Governors of the Federal Reserve System.
"H.15 Daily Update" means the daily update of H.15 (519)
available through the worldwide web site of the Board of Governors of the
Federal Reserve System, at http://www. bog.frb.fed.us/releases/h15/update, or
any successor site or publication.
The "LIBOR Interest Determination Date" corresponding to any
Interest Reset Date means the second London Business Day preceding such Interest
Reset Date, unless the Index Currency is pounds sterling, in which case the
LIBOR Interest Determination Date will be the Interest Reset Date.
"London Business Day" means any day on which dealings in the
Index Currency are transacted in the London interbank market.
"Money Market Yield" means a yield expressed as a percentage
and calculated in accordance with the following formula:
Money Market Yield = D x 360 x 100,
360 - (D x M)
where
- "D" equals the per annum rate for commercial paper quoted on a
bank discount basis and expressed as a decimal; and
- "M" equals the actual number of days in the period from and
including the relevant Interest Reset Date to but excluding
the next succeeding Interest Reset Date.
"Representative Amount" means an amount that, in the
Calculation Agent's judgment, is representative of a single transaction in the
relevant market at the relevant time.
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51
"Reuters Screen LIBOR Page" means the display on the Reuters
Monitor Money Rates Service, or any successor service, on the page designated as
"LIBO" or any replacement page or pages on which London interbank rates of major
banks for the Index Currency are displayed.
"Reuters Screen US PRIME 1 Page" means the display on the "US
PRIME 1" page on the Reuters Monitor Money Rates Service, or any successor
service, or any replacement page or pages on that service, for the purpose of
displaying prime rates or base lending rates of major U.S. banks.
"Telerate LIBOR Page" means Telerate Page 3750 or any
replacement page or pages on which London interbank rates of major banks for the
Index Currency are displayed.
"Telerate Page" means the display on Bridge Telerate, Inc., or
any successor service, on the page or pages specified on the face hereof, or any
replacement page or pages on that service.
The "Treasury Interest Determination Date" corresponding to
any Interest Reset Date means the day of the week in which such Interest Reset
Date falls on which Treasury bills would normally be auctioned. If, as the
result of a legal holiday, an auction is so held on the Friday in the week
immediately preceding the week in which such Interest Reset Day falls, such
Friday will be the corresponding Treasury Interest Determination Date. If an
auction date shall fall on a day that would otherwise be an Interest Reset Date,
then such Interest Reset Date shall instead be the first Business Day
immediately following such auction date.
"Treasury Notes" means direct, noncallable, fixed rate
obligations of the U.S. government.
References in this Note to U.S. dollars shall mean, as of any
time, the coin or currency that is then legal tender for the payment of public
and private debts in the United States of America.
References in this Note to the euro shall mean, as of any
time, the coin or currency (if any) that is then legal tender for the payment of
public and private debts in all EMU Countries.
References in this Note to a particular currency other than
U.S. dollars and euros shall mean, as of any time, the coin or
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52
currency that is then legal tender for the payment of public and private debts
in the country issuing such currency on the Original Issue Date.
References in this Note to a particular heading or headings on
any of Designated CMT Telerate Page, H.15(519), H.15 Daily Update, Reuters
Screen LIBOR Page, Reuters Screen US Prime 1 Page, Telerate LIBOR Page or
Telerate Page include any successor or replacement heading or headings as
determined by the Calculation Agent.
5. ADDITIONAL PROVISIONS
At the request of the Holder hereof, the Calculation Agent shall
provide to the Holder hereof the interest rate hereon then in effect and, if
determined, the interest rate which shall become effective as of the next
Interest Reset Date.
If this Note is an Original Issue Discount Note and if an Event of
Default with respect to this Note shall have occurred and be continuing, the
Default Amount (as defined hereafter) of this Note may be declared due and
payable in the manner and with the effect provided herein. The "Default Amount"
shall be equal to the adjusted issue price as of the first day of the accrual
period as determined under Final Treasury Regulation Section 1.1275-1(b) (or
successor regulation) under the United States Internal Revenue Code of 1986, as
amended, in which the date of acceleration occurs increased by the daily portion
of the original issue discount for each day in such accrual period ending on the
date of acceleration, as determined under Final Treasury Regulation Section
1.1272-1(b) (or successor regulation) under the United States Internal Revenue
Code of 1986, as amended. Upon payment of (i) the principal, or premium, if any,
so declared due and payable and (ii) interest on any overdue principal and
overdue interest or premium, if any (in each case to the extent that the payment
of such interest shall be legally enforceable), all of the Bank's obligations in
respect of the payment of principal of, premium, if any, and interest on this
Note shall terminate.
In case any Note shall at any time become mutilated, destroyed, lost or
stolen, and such Note or evidence of the loss, theft or destruction thereof
satisfactory to the Bank and the Issuing and Paying Agent and such other
documents or proof as may be required by the Bank and the Issuing and Paying
Agent shall be delivered to the Issuing and Paying Agent, the Bank shall issue a
new Note, of like tenor and principal amount, having a serial
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53
number not contemporaneously outstanding, in exchange and substitution for the
mutilated Note or in lieu of the Note destroyed, lost or stolen but, in the case
of any destroyed, lost or stolen Note, only upon receipt of evidence
satisfactory to the Bank and the Issuing and Paying Agent that such Note was
destroyed, stolen or lost, and, if required, upon receipt of indemnity
satisfactory to the Bank and the Issuing and Paying Agent. Upon the issuance of
any substituted Note, the Bank and the Issuing and Paying Agent may require the
payment of a sum sufficient to cover all expenses and reasonable charges
connected with the preparation and delivery of a new Note. If any Note which has
matured or has been redeemed or repaid or is about to mature or to be redeemed
or repaid shall become mutilated, destroyed, lost or stolen, the Bank may,
instead of issuing a substitute Note, pay or authorize the payment of the same
(without surrender thereof except in the case of a mutilated Note) upon
compliance by the holder with the provisions of this paragraph.
No recourse shall be had for the payment of principal of, premium, if
any, or interest on this Note for any claim based hereon, or otherwise in
respect hereof, against any shareholder, employee, agent, officer or director,
as such, past, present or future, of the Bank or of any successor corporation,
banking association or other legal entity (collectively, "corporation"), either
directly or through the Bank or any corporation, whether by virtue of any
constitution, statute or rule of law or by the enforcement of any assessment or
penalty or otherwise, all such liability being, by the acceptance hereof and as
part of the consideration for the issue hereof, expressly waived and released.
The occurrence of any of the following events shall constitute an
"Event of Default" with respect to this Note: (i) default in the payment of any
interest with respect to any of the Notes issued by the Bank when due, which
continues for 30 calendar days; (ii) default in the payment of any principal of,
or premium, if any, on any of the Notes issued by the Bank when due; (iii) the
entry by a court having jurisdiction in the premises of (a) a decree or order
for relief in respect of the Bank in an involuntary case or proceeding under any
applicable United States federal or state bankruptcy, insolvency, reorganization
or other similar law or (b) a decree or order appointing a conservator,
receiver, liquidator, assignee, trustee, sequestrator or any other similar
official of the Bank, or of substantially all of the property of the Bank, or
ordering the winding up or liquidation of the affairs of the Bank, and the
continuance of any such decree or order for relief or any such other decree or
order unstayed and in effect for a period of
23
54
60 consecutive days; or (iv) the commencement by the Bank of a voluntary case or
proceeding under any applicable United States federal or state bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated as bankrupt or insolvent, or the consent by the
Bank to the entry of a decree or order for relief in an involuntary case or
proceeding under any applicable United States federal or state bankruptcy,
insolvency, reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding, or the filing by the Bank of a
petition or answer or consent seeking reorganization or relief under any
applicable United States federal or state bankruptcy, insolvency, reorganization
or similar law, or the consent by the Bank to the filing of such petition or to
the appointment of or taking possession by a custodian, conservator, receiver,
liquidator, assignee, trustee, sequestrator or similar official of the Bank or
of substantially all of the property of the Bank, or the making by the Bank of
an assignment for the benefit of creditors, or the taking of corporate action by
the Bank in furtherance of any such action. If an Event of Default shall occur
and be continuing, the holder of this Note may declare the principal amount of,
accrued interest and premium, if any, on this Note due and payable immediately
by written notice to the Bank. Upon such declaration and notice, such principal
amount, accrued interest and premium, if any, shall become immediately due and
payable. Any Event of Default with respect to this Note may be waived by the
holder hereof.
The Issuing and Paying Agency Agreement provides that the Bank will
promptly notify, and provide copies of any such notice to, the Issuing and
paying Agent, and the Issuing and Paying Agent will promptly mail by first-class
mail, postage prepaid, copies of such notice to the holders of the Notes, upon
the occurrence of an Event of Default or of the curing or waiver of an Event of
Default.
Nothing contained herein shall prevent any consolidation or merger of
the Bank with any other corporation or successive consolidations or mergers in
which the Bank or its successor or successors shall be a party or parties, or
shall prevent any sale, conveyance, transfer or lease of the property of the
Bank as an entirety or substantially as an entirety to any other corporation
authorized to acquire and operate the same; provided, however, (and the Bank
hereby covenants and agrees) that any such consolidation, merger, sale or
conveyance shall be upon the condition that: (i) immediately after such
consolidation, merger, sale or conveyance the corporation (whether the Bank or
such other corporation) formed by or surviving any such consolidation or merger,
or the
24
55
corporation to which such sale or conveyance shall have been made, shall not be
in default in the performance or observance of any of the terms, covenants and
conditions of the Notes to be observed or performed by the Bank; and (ii) the
corporation (if other than the Bank) formed by or surviving any such
consolidation or merger, or the corporation to which such sale or conveyance
shall have been made, shall be organized under the laws of the United States of
America, any state thereof, the District of Columbia or the Commonwealth of
Puerto Rico and shall expressly assume the due and punctual payment of the
principal of, premium, if any, and interest on this Note. In case of any such
consolidation, merger, sale, conveyance, transfer or lease, and upon the
assumption by the successor corporation of the due and punctual performance of
all of the covenants in the Notes to be performed or observed by the Bank, such
successor corporation shall succeed to and be substituted for the Bank with the
same effect as if it had been named in this Note as the Bank and thereafter the
predecessor corporation shall be relieved of all obligations and covenants in
this Note and may be liquidated and dissolved.
Any action by the holder of this Note shall bind all future holders of
this Note, and of any Note issued in exchange or substitution herefor or in
place hereof, in respect of anything done or permitted by the Bank or by the
Issuing and Paying Agent in pursuance of such action.
The Issuing and Paying Agent shall maintain at its offices a register
(the register maintained in such office or any other office or agency of the
Issuing and Paying Agent in The City of New York herein referred to as the "Note
Register") in which, subject to such reasonable regulations as it may prescribe,
the Issuing and Paying Agent shall provide for the registration of the Notes and
of transfers of the Notes.
The transfer of this Note is registrable in the Note Register, upon
surrender of this Note for registration of transfer at the office or agency of
the Issuing and Paying Agent in the Place of Payment, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the Bank
and the Issuing and Paying Agent duly executed by, the holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Notes of like
tenor, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
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56
No provision of this Note shall alter or impair the obligation of the
Bank, which is absolute and unconditional, to pay principal of, premium, if any,
and interest on this Note in U.S. dollars at the times, places and rate herein
prescribed in accordance with its terms.
No service charge shall be made to a holder of this Note for any
transfer or exchange of this Note, but the Bank may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection therewith.
Beneficial interests represented by this Note are exchangeable for
definitive Notes in registered form, of like tenor and of an equal aggregate
principal amount, only if (x) The Depository Trust Company, as Depositary (the
"Depositary") notifies the Bank that it is unwilling or unable to continue as
Depositary for this Note or if at any time the Depositary ceases to be a
clearing agency registered under the Securities Exchange Act of 1934, as
amended, and a successor depositary is not appointed by the Bank within 60
calendar days, or (y) the Bank in its sole discretion determines not to have
such beneficial interests represented by this Note. Any Note representing such
beneficial interests that is exchangeable pursuant to the preceding sentence
shall be exchangeable in whole for definitive Notes in registered form, of like
tenor and of an equal aggregate principal amount, in minimum denominations of
$100,000 and integral multiples of $1,000 in excess thereof. Such definitive
Notes shall be registered in the name or names of such person or persons as the
Depositary shall instruct the Issuing and Paying Agent.
Prior to due presentment of this Note for registration of transfer, the
Bank, the Issuing and Paying Agent or any agent of the Bank or the Issuing and
Paying Agent may treat the holder in whose name this Note is registered as the
owner hereof for all purposes, whether or not this Note be overdue, and neither
the Bank, the Issuing and Paying Agent nor any such agent shall be affected by
notice to the contrary except as required by applicable law.
All notices to the Bank under this Note shall be in writing and
addressed to the Bank at 209 Munoz Rivera Avenue, 5th Floor, Hato Rey, Puerto
Rico 00918, Attention: Richard Barrios, or to such other address of the Bank as
the Bank may notify the holders of the Notes.
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57
This Note shall be governed by, and construed in accordance with, the
laws of the State of New York, without regard to conflicts of laws principles
and all applicable federal laws and regulations.
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58
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of the within Note, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of
survivorship and not as tenants
in common
UNIF GIFT MIN ACT - __________ Custodian _________
(Cust) (Minor)
under Uniform Gifts to Minors Act
---------------------------------------
(State)
Additional abbreviations may also be used
though not in the above list.
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59
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto _______________________________________________________________
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY NUMBER OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
--------------------------
/ /
---------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Please print or typewrite name and address,
including postal zip code, of assignee)
the within Note and all rights thereunder and hereby irrevocably constitutes and
appoints ______________________________________________________________________
________________________________________________________________________________
to transfer said Note on the books of the Issuing and Paying Agent, with full
power of substitution in the premises.
Dated:
--------------------- ------------------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of the within Note in every
particular, without alteration or
enlargement or any change whatsoever.
- ---------------------------
Signature Guarantee
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OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the Bank
to repay this Note (or portion hereof specified below) pursuant to its terms at
a price equal to 100% of the principal amount hereof to be repaid, together with
accrued and unpaid interest hereon, payable to the date of repayment, to the
undersigned, at ________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the undersigned must give to the Issuing
and Paying Agent at its offices located at 450 West 33rd Street, New York, New
York 10001, Attention: Agency Administration, or at such other place or places
of which the Bank shall from time to time notify the holders of the Notes, not
more than 60 nor less than 30 calendar days prior to the date of repayment, with
this "Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of $1,000) which the
holder elects to have repaid and specify the denomination or denominations
(which shall be $100,000 or an integral multiple of $1,000 in excess thereof) of
the Notes to be issued to the holder for the portion of this Note not being
repaid (in the absence of any such specification, one such Note will be issued
for the portion not being repaid):
$
------------------------ ------------------------------------------------
Dated: NOTICE: The signature on this "Option to
------------------- Elect Repayment" form must correspond with
the name as written upon the face of the
within Note in every particular, without
alteration or enlargement or any change
whatsoever.
- ------------------------------
Signature Guarantee
30