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EXHIBIT 10.18
BANCO POPULAR DE PUERTO RICO
ISSUING AND PAYING AGENCY AGREEMENT
THIS AGREEMENT, dated as of September 24, 1996, between Banco
Popular de Puerto Rico, a banking association chartered under the laws of the
Commonwealth of Puerto Rico (the "Bank") and The Chase Manhattan Bank, as
issuing and paying agent (the "Issuing and Paying Agent," which term shall also
refer to any duly appointed successor thereto).
WITNESSETH:
Section 1. Appointment of Issuing and Paying Agent. The Bank
proposes to issue from time to time its Bank Notes (each, a "Bank Note" and
collectively, the "Bank Notes") in such amounts as may be duly authorized by the
Bank pursuant to the Distribution Agreement dated September 24, 1996 (the
"Distribution Agreement"), among the Bank and the agents named therein (the
"Agents").
Each Bank Note will be issued in book-entry form and will be
represented by a global certificate (each, a "Global Bank Note" and
collectively, the "Global Bank Notes") registered in the name of The Depository
Trust Company, as depository ("DTC", which term includes any successor thereof),
or a nominee thereof (which successor shall be a clearing agency registered
under the Securities Exchange Act of 1934, as amended, if so required by
applicable law) (each beneficial interest in a Global Bank Note, a "Book-Entry
Bank Note" and collectively, the "Book-Entry Bank Notes").
The Bank hereby appoints the Issuing and Paying Agent to act, on the
terms and conditions specified herein, as issuing and paying agent for the
Global Bank Notes and as registrar, transfer agent and authenticating agent for
the Global Bank Notes and to perform such other responsibilities as are
described herein and in the Administrative Procedures attached as Exhibit G to
the Distribution Agreement as such Administrative Procedures may be amended from
time to time by agreement of the Bank and the Agents with notice of such
amendments to the Issuing and Paying Agent, and the Issuing and Paying Agent
hereby accepts such appointments. The aggregate principal amount of the Global
Bank Notes which may be issued pursuant to this Agreement outstanding at any one
time is unlimited.
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The Issuing and Paying Agent shall exercise due care in the performance
of its obligations hereunder and shall perform such obligations in a manner
consistent with industry standards.
Section 2. Global Bank Note Forms; Terms; Execution.
(i) The Global Bank Notes shall be substantially (i) in
the form set forth in Exhibit A-1 hereto if such Global Bank Note bears
interest at a fixed rate of interest (each such Global Bank Note, a "Fixed Rate
Global Bank Note" and collectively, the "Fixed Rate Global Bank Notes"), (ii) in
the form of Exhibit A-2 hereto if such Global Bank Note bears interest at a
floating rate of interest determined by reference to an interest rate basis
specified therein (each such Global Bank Note, a "Floating Rate Global Bank
Note" and collectively, the "Floating Rate Global Bank Notes"), or (iii) in such
other form as the Bank may from time to time designate.
(ii) Each issued Bank Note shall have a maturity of 7
days to 15 years from its original date of issuance. The Bank Notes shall be
issued in minimum denominations of $250,000 and in integral multiples of $1,000
in excess thereof.
The interest rate borne by any particular Global Bank Note may
vary from the interest rates borne by any other Global Bank Notes. Any such
variation shall not affect the interest rate borne by any other Global Bank
Notes previously issued hereunder.
(iii) The Bank will from time to time deliver or cause to
be delivered to the Issuing and Paying Agent a supply of blank Global Bank Notes
in such quantities as the Bank shall determine, bearing consecutive control
numbers. Each Global Bank Note will have been executed by the manual or
facsimile signature of an Authorized Representative (as defined in Section 3
hereof) of the Bank. The Issuing and Paying Agent will acknowledge receipt of
the Global Bank Notes delivered to it and will hold such blank Global Bank Notes
in safekeeping in accordance with its customary practice and shall complete,
authenticate and deliver such Global Bank Notes in accordance with the
provisions hereof.
Section 3. Authorized Representatives. From time to time, the
Bank will furnish the Issuing and Paying Agent with a certificate executed by an
officer of the Bank certifying the incumbency and specimen signatures of those
officers of the Bank authorized to execute Global Bank Notes on behalf of the
Bank by manual or facsimile signature and to give instructions and notices on
behalf of the Bank hereunder (the "Authorized Representatives"). Until the
Issuing and Paying Agent receives a subsequent
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certificate, the Issuing and Paying Agent shall be entitled to rely on the last
such certificate delivered to it for the purposes of determining the identities
of Authorized Representatives of the Bank. Any Global Bank Note bearing the
manual or facsimile signatures of persons who are Authorized Representatives of
the Bank on the date such signatures are affixed shall bind the Bank after the
completion, authentication and delivery thereof by the Issuing and Paying Agent,
notwithstanding that such persons shall have ceased to hold office on the date
such Global Bank Note is so completed, authenticated and delivered by the
Issuing and Paying Agent.
Section 4. Issuance Instructions; Completion, Authentication
and Delivery of Global Bank Notes.
(i) All instructions regarding the completion,
authentication and delivery of Global Bank Notes shall be given by an Authorized
Representative of the Bank by telephone (confirmed in writing), by facsimile
transmission or by other acceptable written means by such Authorized
Representative.
(ii) Upon receipt of the instructions described above, the
Issuing and Paying Agent shall cause to be withdrawn the necessary and
applicable Global Bank Notes from safekeeping and, in accordance with such
instructions, shall:
(a) complete each Global Bank Note;
(b) record each Global Bank Note in the Bank Note
Register (as defined in Section 10 hereof);
(c) cause each Global Bank Note to be manually
authenticated by any one of the signatories of the
Issuing and Paying Agent duly authorized and
designated by it for such purpose; and
(d) hold each Global Bank Note in safekeeping on behalf
of the registered holder thereof;
provided that instructions regarding the completion and authentication of a
Global Bank Note, whether delivered by facsimile transmission or by other
written means, are received by the Issuing and Paying Agent by 11:00 A.M., New
York City time, on the Business Day immediately preceding the date of settlement
relating to such Global Bank Note (or 9:00 A.M., New York City time, on the date
of settlement relating to such Bank Note if the trade date and the date of
settlement relating to such Bank Note are the same day). As
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used in this Agreement, the term "Business Day" shall mean any day that is not a
Saturday or Sunday and that is not a day which is a bank holiday in Puerto Rico
or a day on which banking institutions in The City of New York or the city in
which the Bank is headquartered are authorized or required by law, regulation or
executive order to close, and with respect to LIBOR Notes (as defined in the
applicable Floating Rate Global Bank Note) only, any day that is also a London
Business Day. As used in this Agreement, "London Business Day" means any day on
which dealings in deposits in U.S. dollars are transacted in the London
interbank market.
Section 5. Reliance on Instructions; Request for Instructions.
The Issuing and Paying Agent shall incur no liability to the Bank in acting
hereunder upon instructions contemplated hereby which the Issuing and Paying
Agent reasonably believed in good faith to have been given by an Authorized
Representative of the Bank. In the event a discrepancy exists between the
instructions as originally received by the Issuing and Paying Agent and any
subsequent written confirmation thereof, such original instructions will be
deemed controlling; provided that the Issuing and Paying Agent gives notice to
the Bank of such discrepancy promptly upon the receipt of such written
confirmation.
Any application by the Issuing and Paying Agent for written
instructions from the Bank may, at the option of the Issuing and Paying Agent,
set forth in writing any action proposed to be taken or omitted by the Issuing
and Paying Agent under this Agreement and the date on and/or after which such
action shall be taken or such omission shall be effective. The Issuing and
Paying Agent shall not be required, however, to follow any such proposal in the
absence of further written instructions from the Bank. The Issuing and Paying
Agent shall not be liable for any action taken by, or omission of, the Issuing
and Paying Agent in accordance with a proposal included in such application on
or after the date specified in such application (which date shall not be less
than three Business Days after the date any officer of the Bank actually
receives such application, unless any such officer shall have consented in
writing to any earlier date) unless prior to taking any such action (or the
effective date in the case of an omission), the Issuing and Paying Agent shall
have received written instructions in response to such application specifying
the action to be taken or omitted.
Section 6. The Bank's Representations and Warranties. Each
instruction given to the Issuing and Paying Agent in accordance with Section 4
hereof shall constitute a representation and warranty to the Issuing and Paying
Agent by the Bank that the issuance and delivery of the Global Bank Notes have
been duly and
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validly authorized by the Bank and that the Global Bank Notes, when completed
and authenticated pursuant hereto, will constitute the valid and legally binding
obligations of the Bank subject to applicable bankruptcy, liquidation,
insolvency, reorganization, moratorium and similar laws of general applicability
relating to, or affecting, creditors' rights and to general equity principles.
The Bank further warrants that it is free to enter into this Agreement and to
perform the terms hereof.
Section 7. Payments of Interest; Interest Payment Dates;
Record Dates. Interest payments on Global Bank Notes with maturities of more
than one year will be made: (i) in the case of the Fixed Rate Global Bank Notes,
semi--annually on June 15 and December 15 of each year (unless otherwise
specified in any applicable Fixed Rate Global Bank Notes) and (ii) in the case
of Floating Rate Global Bank Notes, on such dates as are specified therein
(collectively, the "Interest Payment Dates") and, in each case, at maturity or
upon earlier redemption or repayment if so indicated in the applicable Global
Bank Note. All such interest payments (other than interest due at maturity or
upon earlier redemption or repayment) will be made to the Holders (as defined in
Section 10 hereof) in whose names Fixed Rate Global Bank Notes are registered at
the close of business on the June 1 or December 1 (unless otherwise specified in
any applicable Fixed Rate Global Bank Notes) (whether or not a Business Day)
next preceding such Interest Payment Dates and in whose names Floating Rate
Global Bank Notes are registered at the close of business on the fifteenth
calendar day (whether or not a Business Day) prior to each such Interest Payment
Date (each such June 1, December 1 and fifteenth calendar day, a "Record Date").
Notwithstanding the foregoing, if the Original Issue Date of any Global Bank
Note with a maturity of more than one year occurs between a Record Date and the
next succeeding Interest Payment Date, the first payment of interest on any such
Global Bank Note will be made on the second Interest Payment Date succeeding the
Original Issue Date (as defined in the Global Bank Notes). Interest payments
will be calculated and made in the manner provided in the applicable Global Bank
Note.
If the Bank does not deposit adequate funds pursuant to Section 9
hereof with respect to the interest due on a Global Bank Note with a maturity of
more than one year on an Interest Payment Date, such interest will cease to be
due to the Holder of such Global Bank Note as of the close of business on the
Record Date relating to such Interest Payment Date and will be paid to the
Holder of such Global Bank Note as of the close of business on a special record
date to be fixed by the Issuing and Paying Agent when funds for the payment of
such interest have been deposited
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pursuant to Section 9 hereof. Notice of such special record date shall be given
by the Issuing and Paying Agent, at the Bank's expense, to the registered Holder
of such Global Bank Note not less than 10 calendar days prior to such special
record date.
Interest payments on Fixed Rate Global Bank Notes with maturities of
one year or less will be made only upon maturity upon presentation and surrender
of the applicable Fixed Rate Global Bank Note (unless otherwise specified in the
applicable Fixed Rate Global Bank Note). Interest payments on Fixed Rate Global
Bank Notes with maturities of one year or more will be calculated in the manner
provided in the applicable Fixed Rate Global Bank Note. Interest payments on
Floating Rate Global Bank Notes with maturities of one year or more will be made
on the Interest Payment Dates specified in such Floating Rate Global Bank Note
and, in each case, at maturity or upon earlier redemption or repayment. Interest
payments on Floating Rate Global Bank Notes with maturities of one year or less
will be calculated in the manner provided in the applicable Floating Rate Global
Bank Note.
Section 8. Payment of Principal. The Issuing and Paying Agent
will pay the Holder of each Global Bank Note the principal amount of each such
Global Bank Note, together with accrued interest and premium, if any, at
maturity or upon earlier redemption or repayment.
Section 9. Deposit of Funds. The total amount of any principal
of, premium, if any, and interest due on Global Bank Notes on any Interest
Payment Date or any maturity date or date of redemption or repayment shall be
paid by the Bank to the Issuing and Paying Agent as of 10:00 A.M., New York City
time, in funds available for use by the Issuing and Paying Agent on such date.
The Bank will make such payment on such Global Bank Notes via Fedwire to an
account specified by the Issuing and Paying Agent. Upon receipt of funds from
the Bank, on such date or as soon as possible thereafter, the Issuing and Paying
Agent will pay by separate wire transfer (using message entry instructions in a
form previously specified by DTC) to an account previously specified by DTC, in
funds available for immediate use by DTC, each payment of principal of, premium,
if any, and interest due on a Global Bank Note on such date.
The Issuing and Paying Agent shall hold such amounts paid to it by the
Bank in trust for the Holders but shall, pending payment by it to the account
specified above, not be under any liability for interest on monies, at any time
received by it pursuant to any of the terms of this Agreement or of the Global
Bank Notes, nor
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shall the Issuing and Paying Agent be required to invest such monies.
Section 10. Bank Note Register; Registration. Transfer,
Exchange; Persons Deemed Owners.
(i) The Issuing and Paying Agent shall maintain at its
offices the Bank Note Register. The Issuing and Paying Agent is hereby appointed
as Registrar for the purpose of registering each Global Bank Note and transfers
of each Global Bank Note as herein provided. The term "Bank Note Register" shall
mean the definitive record in which shall be recorded the names, addresses and
taxpayer identifying numbers of the holders of the Global Bank Notes (the
"Holders"), the serial and CUSIP numbers of each such Global Bank Note and the
Original Issue Date thereof and details with respect to the transfer and
exchange of each Global Bank Note.
(ii) Upon surrender for registration of transfer of any
Global Bank Note at the offices of the Issuing and Paying Agent, the Bank shall
execute, and the Issuing and Paying Agent shall complete, authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Global Bank Notes, of any authorized denominations and having identical
terms and provisions and for an equal aggregate principal amount.
(iii) At the option of the Holder of a Global Bank Note,
such Global Bank Note may be exchanged for other Global Bank Notes of any
authorized denominations of an equal aggregate principal amount and having
identical terms and provisions, upon surrender of the Global Bank Notes to be
exchanged at the designated offices of the Issuing and Paying Agent. Whenever
any Global Bank Notes are so surrendered for exchange, the Bank shall execute,
and the Issuing and Paying Agent shall complete, authenticate and deliver, the
Global Bank Notes which the Holder of the Global Bank Note making the exchange
is entitled to receive. Except as provided below, owners of beneficial interests
in a Global Bank Note representing Book-Entry Bank Notes will not be entitled
to have such Book-Entry Bank Notes registered in their names, will not receive
or be entitled to receive physical delivery of Bank Notes in certificated form
and will not be considered the owners or holders thereof under this Agreement.
However, if DTC notifies the Bank that it is unwilling or unable to continue as
depositary or if at any time DTC 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 days, or the Bank in its sole discretion
determines not to have Book-Entry Bank Notes represented by one or more Global
Bank Notes, then Global Bank Notes
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representing Book-Entry Bank Notes may be exchanged in whole for definitive
Bank Notes in registered form, of like tenor and of an equal aggregate principal
amount, in minimum denominations of $250,000 and integral multiples of $1,000 in
excess thereof, upon surrender of the Global Bank Notes to be exchanged at the
offices of the Issuing and Paying Agent.
(iv) Notwithstanding the foregoing, the Issuing and Paying
Agent shall not register the transfer of or exchange (i) any Global Bank Note
that has been called for redemption in whole or in part, except the unredeemed
portion of Global Bank Notes being redeemed in part, (ii) any Global Bank Note
during the period beginning at the opening of business 15 days before the
mailing of a notice of such redemption and ending at the close of business on
the day of such mailing, or (iii) any Global Bank Note in violation of the
legend contained on the face of such Global Bank Note.
(v) All Global Bank Notes issued upon any registration of
transfer or exchange of Global Bank Notes shall be the valid obligations of the
Bank, evidencing the same debt, and entitled to the same benefits as the Global
Bank Notes surrendered upon such registration of transfer or exchange.
(vi) Every Global Bank Note presented or surrendered for
registration of transfer or for exchange shall be duly endorsed, or be
accompanied by a written instrument of transfer with such evidence of due
authorization and guaranty of signature as may reasonably be required by the
Issuing and Paying Agent, in form satisfactory to the Issuing and Paying Agent,
duly executed by the Holder thereof or his attorney duly authorized in writing.
(vii) No service charge shall be made to a Holder of Global
Bank Notes for any transfer or exchange of Global Bank Notes, but the Bank may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection therewith.
(viii) The Bank and the Issuing and Paying Agent, and any
agent of the Bank or the Issuing and Paying Agent may treat the Holder in whose
name a Global Bank Note is registered as the owner of such Global Bank Note for
all purposes, whether or not such Global Bank 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.
Section 11. Mutilated, Destroyed. Lost, or Stolen Global Bank
Notes. In case any Global Bank Note shall at any time become mutilated,
destroyed, lost or stolen, and such Global Bank Note or
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evidence of the loss, theft or destruction thereof satisfactory to the Bank and
the Issuing and Paying Agent (together with indemnity hereinafter referred to
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 execute a new Global Bank Note, of like tenor and principal amount, having
a serial number not contemporaneously outstanding, in exchange and substitution
for the mutilated Global Bank Note or in lieu of the Global Bank Note destroyed,
lost or stolen but, in the case of any destroyed, lost or stolen Global Bank
Note, only upon receipt of evidence satisfactory to Issuing and Paying Agent and
the Bank that such Global Bank Note was destroyed, stolen or lost, and, if
required, upon receipt of indemnity satisfactory to each of them. The Issuing
and Paying Agent shall authenticate any such substituted Global Bank Note and
deliver the same upon the written request or authorization of any Authorized
Representative of the Bank. Upon the issuance of any substituted Global Bank
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, authentication and delivery of a new Global Bank Note. If any
Global Bank 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 Global Bank Note, pay or
authorize the payment of the same (without surrender thereof except in the case
of a mutilated Global Bank Note) upon compliance by the Holder with the
provisions of this Section.
Section 12. Cancellation. All Global Bank Notes surrendered
for payment, registration of transfer or exchange shall, if surrendered to any
person other than the Issuing and Paying Agent, be delivered to the Issuing and
Paying Agent and shall be promptly cancelled by it. The Bank may at any time
deliver to the Issuing and Paying Agent for cancellation any Global Bank Notes
previously authenticated and delivered hereunder which the Bank may have
acquired in any manner whatsoever, and all Global Bank Notes so delivered shall
be promptly cancelled by the Issuing and Paying Agent. No Global Bank Note shall
be authenticated in lieu of or in exchange for any Global Bank Note canceled as
provided in this Section, except as expressly permitted by this Agreement. All
canceled Global Bank Notes held by the Issuing and Paying Agent shall be
returned to the Bank.
Section 13. Redemption of Global Bank Notes.
(i) If any Global Bank Notes are to be redeemed prior to
maturity, the Bank shall notify the Issuing and Paying Agent not
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more than 60 nor less than 45 calendar days prior to the date fixed by the Bank
for such redemption (the "Redemption Date") of the Bank's election to redeem
such Global Bank Notes in whole or in part in increments of $1,000 (provided
that any remaining principal amount of such Global Bank Notes shall be at least
$250,000).
(ii) Whenever less than all the Global Bank Notes at any
time outstanding are to be redeemed, the terms of the Global Bank Notes to be so
redeemed shall be selected by the Bank. If less than all the Global Bank Notes
with identical terms at any time outstanding are to be redeemed, the Global Bank
Notes to be so redeemed shall be selected by the Issuing and Paying Agent by lot
or in any usual manner approved by it. The Issuing and Paying Agent shall
promptly notify the Bank in writing of the Global Bank Notes selected for
redemption and, in the case of Global Bank Notes selected for partial
redemption, the principal amount thereof to be redeemed.
(iii) Unless otherwise specified in the applicable Global
Bank Note, notice of redemption shall be given by the Issuing and Paying Agent,
at the Bank's expense, by first-class mail, postage prepaid, mailed not more
than 60 nor less than 30 calendar days prior to the Redemption Date, to each
Holder of such Global Bank Note to be redeemed, at its address appearing in the
Bank Note Register. All notices of redemption shall identify the Global Bank
Notes to be redeemed (including CUSIP number) and shall state: (i) the
Redemption Date; (ii) the redemption price, which shall be determined in
accordance with the terms of the Global Bank Note (the "Redemption Price"),
(iii) if less than all of the Global Bank Notes at any time outstanding are to
be redeemed, the identification (and, in the case of partial redemption, the
principal amounts) of the particular Global Bank Notes to be redeemed; (iv) that
on the Redemption Date the Redemption Price plus accrued interest, if any, to
the Redemption Date will become due and payable with respect to each Global Bank
Note to be redeemed and that interest thereon will cease to accrue on and after
said date; and (v) the place or places where such Global Bank Notes are to be
surrendered for payment.
(iv) Notice of redemption having been given as described
above, the Global Bank Notes so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price, and from and after such date
such Global Bank Notes shall cease to bear interest. The Bank shall deposit
funds with the Issuing and Paying Agent prior to the Redemption Date which are
sufficient to redeem such Global Bank Notes which are scheduled to be so
redeemed. Upon surrender of any such Global Bank Notes for redemption in
accordance with such notice, the Issuing and Paying
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Agent shall pay such Global Bank Notes at the Redemption Price, together with
unpaid interest accrued on such Global Bank Notes at the applicable rate borne
by such Global Bank Notes to the Redemption Date.
(v) Any Global Bank Note which is to be redeemed only in
part shall be surrendered to the Issuing and Paying Agent, and the Issuing and
Paying Agent shall complete, authenticate and deliver to the Holder of such
Global Bank Note, without service charge, a new Global Bank Note or Global Bank
Notes, of any authorized denomination as requested by such Holder (which shall
be $250,000 or an integral multiple of $1,000 in excess thereof), in an
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Global Bank Note so surrendered.
(vi) The Bank, in issuing the Global Bank Notes, may use
"CUSIP" numbers (if then generally in use) and, if so, the Issuing and Paying
Agent shall use "CUSIP" numbers in notices of redemption as a convenience to
Holders; provided, however, that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Global Bank Notes or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Global Bank Notes, and any such redemption shall not be affected by any defect
in or omission of such numbers.
Section 14. Repayment of Global Bank Notes.
(i) In order for any Global Bank Note to be repaid in
whole or in part at the option of the Holder thereof, such Global Bank Note must
be delivered by the Holder thereof, with the form entitled "Option to Elect
Repayment" (set forth in such Global Bank Note) duly completed, to the Issuing
and Paying Agent at its offices located at the address set forth in Section 20
hereof, or such other place or places of which the Bank shall from time to time
notify the Holders of the Global Bank Notes, not more than 60 nor less than 30
calendar days prior to any date fixed for such repayment of such Global Bank
Notes (the "Optional Repayment Date").
(ii) Upon surrender of any Global Bank Note for repayment
in accordance with the provisions set forth above, the Global Bank Note to be
repaid shall, on the Optional Repayment Date, become due and payable, and the
Issuing and Paying Agent shall pay such Global Bank Note on the Optional
Repayment Date at a
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price equal to 100% of the principal amount thereof, together with accrued
interest to the Optional Repayment Date.
(iii) If less than the entire principal amount of any
Global Bank Note is to be repaid, the Holder thereof shall specify the portion
thereof (which shall be in increments of $1,000) which such Holder elects to
have repaid and shall surrender such Global Bank Note to the Issuing and Paying
Agent, and the Issuing and Paying Agent shall complete, authenticate and deliver
to the Holder of such Global Bank Note, without service charge, a new Global
Bank Note or Global Bank Notes in an aggregate principal amount equal to and in
exchange for the unrepaid portion of the principal of the Global Bank Note so
surrendered and in such denominations as shall be specified by such Holder
(which shall be $250,000 or an integral multiple of $1,000 in excess thereof).
Section 15. Acceleration of Maturity. If an Event of Default
(as defined in the applicable Global Bank Note) with respect to a Bank Note
shall occur, then the Holder of the applicable Bank Note may declare the
principal amount of, and accrued interest and premium, if any, on such Bank Note
due and payable 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. The Bank shall promptly notify, and provide copies
of any such notice to, the Issuing and Paying Agent, and the Issuing and Paying
Agent shall promptly mail by first-class mail, postage prepaid, copies of such
notice to the Holders of the Bank Notes upon the occurrence of an Event of
Default or of the curing or waiver of an Event of Default. Any Event of Default
with respect to a Bank Note may be waived by the Holder thereof.
Section 16. Application of Funds; Return of Unclaimed Funds.
Any monies paid by the Bank and held by the Issuing and Paying Agent in trust
for payment of principal of, premium, if any, or interest on, any Global Bank
Notes that remain unclaimed for two years following the date on which such
principal, premium or interest shall have become due and payable shall be
returned to the Bank by the Issuing and Paying Agent and the Issuing and Paying
Agent shall inform the Bank as to the specific Global Bank Notes to which such
monies related, and any Holder shall thereafter look, as an unsecured general
creditor, only to the Bank for the payment thereof and all liability of the
Issuing and Paying Agent with respect to such trust monies shall thereupon
cease. Any funds deposited by the Bank with the Issuing and Paying Agent for the
payment of principal of, premium, if any, or interest on, any Bank Note shall be
held in trust on behalf of the Bank by the Issuing
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and Paying Agent for the payment of principal of, premium, if any, or interest
on, any Bank Note until paid or returned to the Bank.
Section 17. Cancellation of Unissued Notes. Upon the written
request of the Bank, the Issuing and Paying Agent promptly shall cancel and
return to the Bank all unissued Bank Notes in its possession.
Section 18. Liability. Neither the Issuing and Paying Agent
nor its directors, officers, employees or agents shall be liable to the Bank for
any act or omission hereunder except in the case of gross negligence or willful
misconduct. The duties and obligations of the Issuing and Paying Agent, its
directors, officers and employees shall be determined by the express provisions
of this Agreement and no implied covenants shall be read into this Agreement
against any of them. Notwithstanding any other provision elsewhere contained in
this Agreement, the Issuing and Paying Agent is acting solely as agent of the
Bank and does not assume any obligation or relationship of trust or agency for
or with any Holders. Neither the Issuing and Paying Agent nor any of its
directors, officers or employees shall be required to ascertain whether any
issuance or sale of Bank Notes (or any amendment or termination of this
Agreement) has been duly authorized (provided that the Issuing and Paying Agent
in good faith has determined that the facsimile or manual signature of the
Authorized Representative or any person who has been designated by the
Authorized Representative in writing to the Issuing and Paying Agent reasonably
resembles the specimen signatures filed with the Issuing and Paying Agent) or is
in compliance with any other agreement to which the Bank is a party (whether or
not the Issuing and Paying Agent is also a party to such other agreement), and
the Issuing and Paying Agent and each of its officers and employees shall be
entitled to rely upon any instructions reasonably believed (in accordance with
Section 3 hereof) by the Issuing and Paying Agent and its officers and employees
to be given on behalf of the Bank by an Authorized Representative or by any
person who has been designated by an Authorized Representative in writing to the
Issuing and Paying Agent as a person authorized to give such instructions
hereunder, whether or not in fact given by the Authorized Representative or such
designated person.
The Issuing and Paying Agent may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Issuing and Paying Agent shall not be responsible
for any misconduct or gross negligence on the part of any agent or attorney
appointed with due care by it hereunder. The Issuing and Paying Agent may
consult with counsel of
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its selection and the advice of such counsel or any opinion of counsel shall be
full and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon. The
Issuing and Paying Agent shall not be liable for any action taken, suffered, or
omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Agreement.
Section 19. Indemnification. Risk of Funds. The Bank shall
indemnify and hold harmless the Issuing and Paying Agent, its directors,
officers, employees and agents from and against all actions, claims, losses,
damages, liabilities, losses and expenses (including reasonable legal fees and
expenses) relating to or arising out of their actions or inactions taken or
omitted to be taken by the Issuing and Paying Agent in good faith in connection
with its performance under this Agreement including, but not limited to, any
actions taken or omitted upon instructions by the Bank (in accordance with
Section 3) or the issuance, delivery, payment or non-payment of any Bank Note
or interest thereon, or other receipt or other funds for the payment of the Bank
Notes or interest or premium thereon; provided, however, that the Issuing and
Paying Agent shall be liable for any liabilities, losses, claims, damages, costs
and expenses (including reasonable legal fees and expenses) caused by the gross
negligence, bad faith or willful misconduct of its directors, officers,
employees or agents. This indemnity shall survive the termination of this
Agreement.
No provision of this Agreement shall require the Issuing and Paying
Agent to expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
Section 20. Compensation of the Issuing and Paying Agent. The
Bank agrees to pay the compensation of the Issuing and Paying Agent, at such
rates as shall be mutually agreed upon in writing between the Bank and the
Issuing and Paying Agent from time to time. The Bank shall reimburse upon demand
the Issuing and Paying Agent for all reasonable out-of-pocket expenses
(including reasonable legal fees and expenses), disbursements and advances
incurred or made by the Issuing and Paying Agent with respect to the Bank in
accordance with any provisions of this Agreement, except any such expense,
disbursement or advance proven to be attributable to the breach of this
Agreement or the gross
-14-
15
negligence, bad faith or willful misconduct of the Issuing and Paying Agent,
upon receipt of such invoices as the Bank may reasonably require. The provisions
of this Section 20 shall survive the termination of this Agreement.
Section 21. Notices.
(i) All communications by or on behalf of the Bank
relating to the issuance, transfer, exchange or payment of Bank Notes or
interest thereon shall be directed to the offices of the Issuing and Paying
Agent located at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Telecopy: (212)
946-7682, Attention: Agency Administration, or to such other offices as the
Issuing and Paying Agent shall specify in writing to the Bank. The Bank will
send all Global Bank Notes to be completed and delivered by the Issuing and
Paying Agent to such offices or such other offices as the Issuing and Paying
Agent shall specify in writing to the Bank.
(ii) All other notices and communications hereunder shall
be in writing and shall be addressed as follows:
(a) if to the Bank:
Banco Popular de Puerto Rico
000 Xxxxx Xxxxxx Xxxxxx
Xxxx Xxx, Xxxxxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Telecopy: (000) 000-0000
(b) if to the Issuing and Paying Agent:
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Agency Administration
Telecopy: (000) 000-0000
Section 22. Resignation or Removal of Issuing and Paying Agent
and Appointment of Successor Issuing and Paying Agent; Merger, Conversion and
Consolidation. The Bank agrees, for the benefit of the Holders from time to time
of the Bank Notes, that there shall at all times be an Issuing and Paying Agent
hereunder which shall be a bank or trust company organized and doing business
under the laws of the United States or any state thereof or the Commonwealth of
Puerto Rico authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least $10,000,000 and subject to
supervision and examination by
-15-
16
federal, state or Commonwealth authority, until all the Global Bank Notes
authenticated and delivered hereunder (A) shall have been delivered to the
Issuing and Paying Agent for cancellation or (B) shall have become due and
payable and funds sufficient to pay the principal of, premium, if any, and
interest on, the Global Bank Notes shall have been made available for payment
and either paid or returned to the Bank, whichever event occurs earlier. The
foregoing capital and surplus requirements shall not be applicable if the Bank
or an affiliate of the Bank is appointed as successor Issuing and Paying Agent.
The Issuing and Paying Agent may resign at any time as such
agent upon written notice to the Bank of such intention on its part, specifying
the date on which its desired resignation shall become effective; provided,
however, that such date shall be not less than 90 calendar days after the giving
of such notice by the Issuing and Paying Agent to the Bank. The Issuing and
Paying Agent may be removed at any time as such agent by the filing with it of
an instrument in writing signed by a duly authorized officer of the Bank and
specifying such removal and the date, which shall be at least 30 calendar days
following receipt of such written notice, upon which it is intended to become
effective. Any such resignation or removal shall take effect on the date of the
appointment by the Bank of a successor issuing and paying agent and the
acceptance of such appointment by such successor issuing and paying agent that
qualifies as such under the first paragraph of this Section. In the event of the
resignation or removal of the Issuing and Paying Agent, if a successor issuing
and paying agent has not been appointed by the Bank within 90 calendar days
after the giving of notice of resignation or within 30 calendar days after
receipt of notice of removal, the Issuing and Paying Agent may, at the expense
of the Bank, petition any court of competent jurisdiction for appointment of a
successor Issuing and Paying Agent. Upon any such resignation or removal, the
Issuing and Paying Agent shall transfer to the successor Issuing and Paying
Agent (or, if none shall have been appointed, to the Bank) all monies held by
the Issuing and Paying Agent on behalf of the Bank in respect of any Global Bank
Notes, any unissued Global Bank Notes and all books and records or copies
thereof related to Global Bank Notes maintained by the Issuing and Paying Agent,
including a copy of the Bank Note Register. Any resignation or removal hereunder
shall not affect the Issuing and Paying Agent's rights to the payment of fees
earned or charges incurred through the effective date of such resignation or
removal.
Any corporation or bank into which the Issuing and Paying Agent
hereunder may be merged or converted, or any corporation or
-16-
17
bank with which the Issuing and Paying Agent may be consolidated, or any
corporation or bank resulting from any merger, conversion or consolidation to
which the Issuing and Paying Agent shall be a party, or any corporation or bank
to which the Issuing and Paying Agent shall sell or otherwise transfer all or
substantially all of the assets and business of the Issuing and Paying Agent,
provided that it shall be qualified under the first paragraph of this Section,
shall be the successor Issuing and Paying Agent under this Agreement without the
execution or filing of any paper or any further act on the part of any of the
parties hereto.
Section 23. Benefit of Agreement. This Agreement is solely for
the benefit of the parties hereto, Holders of Bank Notes, and their successors
and assigns, and nothing herein, express or implied, shall give to any other
persons any benefits or any legal or equitable right, remedy or claim under or
by virtue of this Agreement. No party hereto may assign any of its rights or
obligations hereunder except with the prior written consent of all the parties
hereto.
Section 24. Bank Notes Held by the Issuing and Paying Agent.
The Issuing and Paying Agent, in its individual or other capacity, may become
the owner or pledgee of the Bank Notes with the same rights it would have if it
were not acting as an issuing and paying agent hereunder.
Section 25. Amendment. This Agreement shall not be amended by
any party hereto except in writing executed by the duly authorized officers of
all parties.
Section 26. Governing Law. This Agreement shall be governed
by, construed and enforced in accordance with, the laws of the State of New York
applicable to agreements made and to be performed in such State, without regard
to conflicts of laws principles.
Section 27. Counterparts. This Agreement may be executed by
the parties hereto in any number of counterparts, and by each of the parties
hereto in separate counterparts, and each such counterpart, when so executed and
delivered, shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
-17-
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed on their behalf by their officers thereunto duly
authorized, all as of the day and year first above written.
BANCO POPULAR DE PUERTO RICO
By:
-------------------------------
Name: Xxxx X. Xxxxx
Title: Senior Vice President
By:
-------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President
THE CHASE MANHATTAN BANK
as Issuing and Paying Agent
By:
-------------------------------
Name:
Title:
-18-
19
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed on their behalf by their officers thereunto duly
authorized, all as of the day and year first above written.
BANCO POPULAR DE PUERTO RICO
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK
as Issuing and Paying Agent
By:
-------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
-19-
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Exhibit A-1
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 BANPONCE CORPORATION. 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 XXXXX XXXXXX, XXX XXXX, XXX XXXX) (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
$250,000 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 $250,000
PRINCIPAL AMOUNT OR ANY INTEGRAL MULTIPLE OF $1,000 IN EXCESS THEREOF OF THIS
NOTE AT ALL TIMES.
A-1-1
21
No. FXR-_______
CUSIP NO.: REGISTERED
BANCO POPULAR DE PUERTO RICO
GLOBAL BANK NOTE
(Fixed Rate)
ORIGINAL ISSUE DATE: PRINCIPAL AMOUNT:
INTEREST RATE: ____% MATURITY DATE:
INTEREST PAYMENT DATE(S): REGULAR RECORD DATES (FOR NOTES
[ ] At Maturity only WITH MATURITIES OF GREATER THAN ONE
[ ] May 15 and November 15 YEAR) (if other than May 1 or
[ ] Other: November 1, prior to each Interest
Payment Date):
INITIAL REDEMPTION DATE: INITIAL REDEMPTION PERCENTAGE:
ANNUAL REDEMPTION PERCENTAGE HOLDER'S OPTIONAL
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
A-1-2
22
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 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
000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Agency
Administration. The Bank may remove the Issuing and Paying Agent pursuant to the
terms
A-1-3
23
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.
A-1-4
24
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
A-1-5
25
[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, any day
that is not a Saturday or Sunday and that in The City of New York or in the city
in which the Bank is headquartered is not a bank holiday or a day on which
banking institutions are required by law, regulation or executive order to
close.
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
A-1-6
26
$250,000) 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.
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
$250,000) 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 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
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
A-1-7
27
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.
A-1-8
28
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 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
A-1-9
29
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 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.
A-1-10
30
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.
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
A-1-11
31
exchangeable in whole for definitive Notes in registered form, of like tenor and
of an equal aggregate principal amount, in minimum denominations of $250,000 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 000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000, Xxxx Xxx, Xxxxxx
Xxxx 00000, Attention: Xxxxxxx Xxxxxxx, 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.
A-1-12
32
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.
A-1-13
33
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
A-1-14
34
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 000 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, 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 $250,000 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
Dated:_____________________________ "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
A-1-15
35
Exhibit A-2
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
BANPONCE CORPORATION. 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 XXXXX XXXXXX, XXX XXXX, XXX XXXX) (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
$250,000 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 $250,000
PRINCIPAL AMOUNT OR ANY INTEGRAL MULTIPLE OF $1,000 IN EXCESS THEREOF OF THIS
NOTE AT ALL TIMES.
A-2-1
36
No. FLR-_________ REGISTERED
CUSIP NO.: _________
BANCO POPULAR DE PUERTO RICO
GLOBAL BANK NOTE
(Floating Rate)
ORIGINAL ISSUE DATE: PRINCIPAL AMOUNT:
INITIAL INTEREST RATE: ____% MATURITY DATE:
INTEREST RATE BASIS OR BASES INDEX MATURITY:
IF LIBOR: REGULAR RECORD DATES (if other than
[ ] Libor Telerate the 15th day prior to each Interest
[ ] Libor Reuters Payment Date):
INDEX CURRENCY:
MINIMUM INTEREST RATE:
SPREAD (PLUS OR MINUS) AND/OR SPREAD INTEREST PAYMENT PERIOD:
MULTIPLIER:
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 PERCENTAGE: DAY COUNT CONVENTION
[ ] 30/360 for the period
from to
[ ] Actual/360 for the period
from to
INTEREST CALCULATION:
[ ] Regular Floating Rate Note [ ] Actual/Actual for the period
[ ] Floating Rate/Fixed Rate Fixed from to
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: ____%
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
A-2-2
37
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 15th
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.
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
X-0-0
00
Xxxxxxxxx Xxxx as the Issuing and Paying Agent, with the Issuing and Paying
Agent Office currently located at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, 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.
A-2-4
39
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
A-2-5
40
[Reverse]
This Note is one of a duly authorized issue of Bank Notes due from 30
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 $250,000) 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,
A-2-6
41
specified on the face hereof, of the principal amount to be redeemed until the
Redemption Price is 100% 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
$250,000) 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 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
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 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 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
A-2-7
42
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 indicated 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 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.
Except as provided above, the interest rate in effect on each day shall
be (a) if such day is an Interest Reset Date, the interest rate determined as of
the Interest Determination Date (as defined below) immediately preceding such
Interest Reset Date or (b) if such day is not an Interest Reset Date, the
interest rate determined as of the Interest Determination Date immediately
preceding the next preceding Interest Reset Date. Each Interest Rate Basis shall
be the rate determined in accordance with the applicable provision below. If any
Interest Reset Date (which term includes the term Initial Interest Reset Date
unless the context otherwise requires) would otherwise be a day that is not a
Business Day, such Interest Reset Date shall be postponed to the next succeeding
day that is a Business Day, except that if an Interest Rate Basis specified on
the face hereof is LIBOR and such next Business Day falls in the next succeeding
calendar month, such Interest Reset Date shall be the immediately preceding
Business Day.
A-2-8
43
Unless otherwise specified on the face hereof, interest payable on this
Note on any Interest Payment Date shall be the amount of interest accrued from
and including the next preceding Interest Payment Date in respect of which
interest has been paid (or from and including the Original Issue Date specified
on the face hereof, if no interest has been paid), to but excluding the related
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, accrued interest hereon
shall be an amount calculated by multiplying the face amount hereof by an
accrued interest factor. Such accrued interest factor shall be computed by
adding the interest factor calculated for each day in the period for which
accrued interest is being calculated. Unless otherwise specified on the face
hereof, the interest factor for each such day shall be computed and paid on the
basis of a 360--day year of twelve 30--day months if the Day Count Convention
specified on the face hereof is "30/360" for the period specified thereunder, or
by dividing the interest rate applicable to such day by 360 if the Day Count
Convention specified on the face hereof is "Actual/360" for the period specified
thereunder or by the actual number of days in the year if the Day Count
Convention specified on the face hereof is "Actual/Actual" for the period
specified thereunder. If interest on this Note is to be calculated with
reference to two or more Interest Rate Bases as specified on the face hereof,
the interest factor will be calculated in each period in the same manner as if
only one of the applicable Interest Rate Bases applied.
Unless otherwise specified on the face hereof, the "Interest
Determination Date" with respect to the Commercial Paper Rate, the Federal Funds
Rate and the Prime Rate will be the second Business Day preceding each Interest
Reset Date; the "Interest Determination Date" with respect to the Eleventh
District Cost of Funds Rate will be the last working day of the month
immediately preceding each Interest Reset Date on which the Federal Home Loan
Bank of San Francisco (the "FHLB of San Francisco") publishes the Index (as
defined below); the "Interest Determination Date" with respect to LIBOR shall be
the second London Business Day (as defined below) preceding each Interest Reset
Date; the "Interest Determination Date" with respect to the Treasury Rate will
be the day in the week in which the related Interest Reset Date falls on which
day Treasury Bills (as defined below) are normally auctioned (Treasury Bills are
normally sold at auction on Monday of each week, unless that day is a legal
holiday, in which case the auction is normally held on the following Tuesday,
except that such auction may be held on the preceding Friday); provided,
however, that if an auction is held on the Friday of the week preceding the
related Interest Reset Date, the related Interest Determination Date shall be
such preceding Friday; and provided, further, that if an auction shall fall on
any Interest Reset Date, then the Interest Reset Date shall instead be the first
Business Day following such auction. If the interest rate of this Note is
determined with reference to two or more Interest Rate Bases as specified on the
face hereof, the Interest Determination Date pertaining to this Note will be the
latest Business Day which is at least two Business Days prior to such Interest
Reset Date on which each Interest Rate Basis is
A-2-9
44
determinable. Each Interest Rate Basis shall be determined on such date, and the
applicable interest rate shall take effect on the Interest Reset Date.
Unless otherwise specified on the face hereof, the "Calculation Date"
pertaining to any Interest Determination Date will be the earlier of (i) the
tenth calendar day after such Interest Determination Date or, if such day is not
a Business Day, the next succeeding Business Day and (ii) the Business Day
immediately preceding the applicable Interest Payment Date or Maturity Date or
date of earlier redemption or repayment, as the case may be. All calculations on
this Note shall be made by the Calculation Agent specified on the face hereof or
such successor thereto as is duly appointed by the Bank.
All percentages resulting from any calculation on this Note will be
rounded, if necessary, to the nearest one hundred-thousandth of a percentage
point, with five one--millionths of a percentage point rounded upward (e.g.,
9.876545% (or 0.09876545) would be rounded to 9.87655% (or 0.0987655) and
9.876544% (or 0.09876544) would be rounded to 9.87654% (or 0.0987654)), and all
dollar amounts used in or resulting from such calculation will be rounded to the
nearest cent (with one-half cent being rounded upward).
As used herein, "Business Day" means, unless otherwise specified on the
face hereof, any day that is not a Saturday or Sunday and that in The City of
New York or in the city in which the Bank is headquartered is not a bank holiday
or a day on which banking institutions are required by law, regulation or
executive order to close and, if an Interest Rate Basis shown on the face hereof
is LIBOR, is also a London Business Day.
As used herein, unless otherwise specified on the face hereof, "London
Business Day" means any day on which dealings in deposits in U.S. dollars are
transacted in the London interbank market.
Determination of Commercial Paper Rate. If an Interest Rate Basis for
this Note is the Commercial Paper Rate, as indicated on the face hereof, the
Commercial Paper Rate shall be determined as of the applicable Interest
Determination Date (a "Commercial Paper Rate Interest Determination Date"), as
the Money Market Yield (as defined below) on such date of the rate for
commercial paper having the Index Maturity specified on the face hereof as
published by the Board of Governors of the Federal Reserve System in the weekly
statistical, release entitled "Statistical Release H.15(519), Selected Interest
Rates," or any successor publication of the Board of Governors of the Federal
Reserve System ("H.15(519)") under the heading "Commercial Paper". In the event
that such rate is not published by 3:00 P.M., New York City time, on the related
Calculation Date, then the Commercial Paper Rate shall be the Money Market Yield
on such Commercial Paper Rate Interest Determination Date of the rate for
commercial paper having the Index Maturity shown on the face hereof as published
in the daily statistical release entitled "Composite 3:30 P.M. Quotations for
U.S. Government Securities" or any successor publication published by
A-2-10
45
the Federal Reserve Bank of New York ("Composite Quotations") under the heading
"Commercial Paper" (with an Index Maturity of one month or three months being
deemed to be equivalent to an Index Maturity of 30 days or 90 days,
respectively). If by 3:00 P.M., New York City time, on the related Calculation
Date such rate is not yet published in either H.15(519) or Composite Quotations,
then the Commercial Paper Rate on such Commercial Paper Rate Interest
Determination Date shall be calculated by the Calculation Agent and shall be the
Money Market Yield of the arithmetic mean of the offered rates at approximately
11:00 A.M., New York City time, on such Commercial Paper Rate Interest
Determination Date of three leading dealers of commercial paper in The City of
New York selected by the Calculation Agent for commercial paper having the Index
Maturity specified on the face hereof placed for an industrial issuer whose bond
rating is "AA," or the equivalent, from a nationally recognized securities
rating agency; provided, however, that if any of the dealers selected as
aforesaid by the Calculation Agent are not quoting as mentioned in this
sentence, the Commercial Paper Rate determined as of such Commercial Paper Rate
Interest Determination Date shall be the rate in effect on such Commercial Paper
Rate Interest Determination Date.
"Money Market Yield" shall be a yield (expressed as a percentage)
calculated in accordance with the following formula:
Money Market Yield = D x 360 x 100
------------
360--(D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted on
a bank discount basis and expressed as a decimal and "M" refers to the actual
number of days in the interest period for which interest is being calculated.
Determination of Eleventh District Cost of Funds Rate. If an Interest
Rate Basis for this Note is the Eleventh District Cost of Funds Rate, as
indicated on the face hereof, the Eleventh District Cost of Funds Rate shall be
determined as of the applicable Interest Determination Date (an "Eleventh
District Cost of Funds Rate Interest Determination Date"), as the rate equal to
the monthly weighted average cost of funds for the calendar month immediately
preceding the month in which such Eleventh District Cost of Funds Rate Interest
Determination Date falls, as set forth under the caption "11th District" on
Telerate Page 7058 as of 11:00 A.M., San Francisco time, on such Eleventh
District Cost of Funds Rate Interest Determination Date. If such rate does not
appear on Telerate Page 7058 on any related Eleventh District Cost of Funds Rate
Interest Determination Date, the Eleventh District Cost of Funds Rate for such
Eleventh District Cost of Funds Rate Interest Determination Date shall be the
monthly weighted average cost of funds paid by member institutions of the
Eleventh Federal Home Loan Bank District that was most recently announced (the
"Index") by the FHLB of San Francisco as such cost of funds for the calendar
month immediately preceding the date of such announcement. If the FHLB of San
Francisco fails to announce such rate for the calendar month immediately
preceding such Eleventh District Cost of Funds Rate Interest Determination Date,
then the Eleventh District Cost of
A-2-11
46
Funds Rate determined as of such Eleventh District Cost of Funds Rate Interest
Determination Date shall be the Eleventh District Cost of Funds Rate in effect
on such Eleventh District Cost of Funds Rate Interest Determination Date.
"Telerate Page 7058" means the display designated as page "7058" on the
Dow Xxxxx Telerate Service (or such other page as may replace the 7058 page on
that service for the purpose of displaying the monthly weighted average cost of
funds paid by member institutions of the Eleventh Federal Home Loan Bank
District).
Determination of Federal Funds Rate. If an Interest Rate Basis for this
Note is the Federal Funds Rate, as indicated on the face hereof, the Federal
Funds Rate shall be determined as of the applicable Interest Determination Date
(a "Federal Funds Rate Interest Determination Date"), as the rate on such date
for federal funds as published in H.15(519) under the heading "Federal Funds
(Effective)" or, if not so published by 3:00 P.M., New York City time, on the
related Calculation Date, the rate on such Federal Funds Rate Interest
Determination Date, as published in Composite Quotations under the heading
"Federal Funds/Effective Rate." If by 3:00 P.M., New York City time, on the
related Calculation Date such rate is not published in either H.15(519) or
Composite Quotations, then the Federal Funds Rate on such Federal Funds Rate
Interest Determination Date shall be calculated by the Calculation Agent and
shall be the arithmetic mean of the rates for the last transaction in overnight
United States dollar federal funds arranged prior to 9:00 A.M., New York City
time, on such Federal Funds Rate Interest Determination Date by three leading
brokers of federal funds transactions in The City of New York selected by the
Calculation Agent; provided, however, that if any of the brokers selected as
aforesaid by the Calculation Agent are not quoting as mentioned in this
sentence, the Federal Funds Rate determined as of such Federal Funds Rate
Interest Determination Date shall be the Federal Funds Rate in effect on such
Federal Funds Rate Interest Determination Date.
Determination of LIBOR. If an Interest Rate Basis for this Note is
LIBOR, as indicated on the face hereof, LIBOR shall be determined by the
Calculation Agent as of the applicable Interest Determination Date (a "LIBOR
Interest Determination Date") in accordance with the following provisions:
(a) With respect to any LIBOR Interest Determination
Date, LIBOR will be, as specified on the face hereof, either: (i) the
rate for deposits in U.S. dollars having the Index Maturity designated
on the face hereof, commencing on the second London Business Day
immediately following that LIBOR Interest Determination Date, that
appears on the Telerate Page 3750 as of 11:00 A.M., London time, on
that LIBOR Interest Determination Date ("LIBOR Telerate") or (ii) the
arithmetic mean of the offered rates for deposits in U.S. dollars
having the Index Maturity designated on the face hereof, commencing on
the second London Business Day immediately following that LIBOR
Interest Determination Date, that appear on the Reuters Screen LIBO
Page as of 11:00 A.M., London time, on that LIBOR
X-0-00
00
Xxxxxxxx Xxxxxxxxxxxxx Date, if at least two such offered rates appear
on the Reuters Screen LIBO Page ("LIBOR Reuters"). "Telerate Page 3750"
means the display designated as page "3750" on the Telerate Service (or
such other page as may replace the 3750 page on that service or such
other service or services as may be nominated by the British Bankers'
Association for the purpose of displaying London interbank offered
rates for U.S. dollar deposits). "Reuters Screen LIBO Page" means the
display designated as page "LIBO" on the Reuters Monitor Money Rates
Service (or such other page as may replace the LIBO page on that
service for the purpose of displaying London interbank offered rates of
major banks). If neither LIBOR Telerate nor LIBOR Reuters is specified
on the face hereof, LIBOR will be determined as if LIBOR Telerate had
been specified. If no rate appears on the Telerate Page 3750, or if
fewer than two offered rates appear on the Reuters Screen LIBO Page, as
applicable, LIBOR in respect of that LIBOR Interest Determination Date
will be determined as if the parties had specified the rate described
in (b) below.
(b) With respect to a LIBOR Interest Determination Date
on which no rate appears on Telerate Page 3750, as specified in (a)(i)
above, or on which fewer than two offered rates appear on the Reuters
Screen LIBO Page, as specified in (a)(ii) above, as applicable, LIBOR
will be determined on the basis of the rates at which deposits in U.S.
dollars having the Index Maturity designated on the face hereof, are
offered at approximately 11:00 A.M., London time, on that LIBOR
Interest Determination Date by four major banks in the London interbank
market selected by the Calculation Agent ("Reference Banks") to prime
banks in the London interbank market commencing on the second London
Business Day immediately following that LIBOR Interest Determination
Date and in a principal amount equal to an amount of not less than
$1,000,000 that is representative for a single transaction in such
market at such time. The Calculation Agent will request the principal
London office of each of the Reference Banks to provide a quotation of
its rate. If at least two such quotations are provided, LIBOR in
respect of that LIBOR Interest Determination Date will be the
arithmetic mean of such quotations. If fewer than two quotations are
provided, LIBOR in respect of that LIBOR Interest Determination Date
will be the arithmetic mean of the rates quoted at approximately 11:00
A.M., New York City time, on that LIBOR Interest Determination Date by
three major banks in The City of New York selected by the Calculation
Agent for loans in U.S. dollars to leading European banks having the
Index Maturity designated on the face hereof, commencing on the second
London Business Day immediately following that LIBOR Interest
Determination Date and in a principal amount equal to an amount of not
less than $1,000,000 that is representative for a single transaction in
such market at such time; provided, however, that if the banks selected
as aforesaid by the Calculation Agent are not quoting as mentioned in
this sentence, LIBOR with respect to such LIBOR Interest
A-2-13
48
Determination Date will be the rate of LIBOR in effect on such date.
Determination of Prime Rate. If an Interest Rate Basis for this Note is
the Prime Rate, as indicated on the face hereof, the Prime Rate shall be
determined as of the applicable Interest Determination Date (a "Prime Rate
Interest Determination Date") as the rate on such date as such rate is published
in H.15(519) under the heading "Bank Prime Loan". If such rate is not published
prior to 3:00 P.M., New York City time, on the related Calculation Date, then
the Prime Rate shall be the arithmetic mean of the rates of interest publicly
announced by each bank that appears on the Reuters Screen USPRIMEl Page (as
defined below) as such bank's prime rate or base lending rate as in effect for
such Prime Rate Interest Determination Date. If fewer than four such rates
appear on the Reuters Screen USPRIMEl Page for such Prime Rate Interest
Determination Date, the Prime Rate shall be the arithmetic mean of the prime
rates quoted on the basis of the actual number of days in the year divided by a
360--day year as of the close of business on such Prime Rate Interest
Determination Date by four major money center banks in The City of New York
selected by the Calculation Agent. If fewer than four major money center banks
provide such quotations, the Prime Rate will be determined by the Calculation
Agent and will be the arithmetic mean of four prime rates, quoted on the basis
of the actual number of days in the year divided by a 360-day year, as of the
close of business on such Prime Rate Interest Determination Date as furnished in
The City of New York by the major money center banks, if any, that have provided
quotations and as many substitute banks or trust companies as is necessary in
order to obtain four such prime rate quotations, provided such substitute banks
or trust companies are organized and doing business under the laws of the United
States, or any state thereof, each having total equity capital of at least
U.S.$500 million and being subject to supervision or examination by federal or
state authority, selected by the Calculation Agent to provide such rate or
rates; provided, however, that if the banks or trust companies selected as
aforesaid are not quoting as mentioned in this sentence, the Prime Rate
determined as of such Prime Rate Interest Determination Date shall be the Prime
Rate in effect on such Prime Rate Interest Determination Date.
"Reuters Screen USPRIMEl Page" means the display designated as page
"USPRIMEl" on the Reuters Monitor Money Rates Service (or such other page as may
replace the USPRIMEl page on that service for the purpose of displaying prime
rates or base lending rates of major United States banks).
Determination of Treasury Rate. If an Interest Rate Basis for this Note
is the Treasury Rate, as specified on the face hereof, the Treasury Rate shall
be determined as of the applicable Interest Determination Date (a "Treasurer
Rate Interest Determination Date") as the rate applicable to the most recent
auction of direct obligations of the United States ("Treasury Bills") having the
Index Maturity specified on the face hereof, as such rate is published in
H.15(519) under the heading "Treasury Bills -- auction average (investment)" or,
if not published by 3:00 P.M., New York
A-2-14
49
City time, on the related Calculation Date, the auction average rate (expressed
as a bond equivalent on the basis of a year of 365 or 366 days, as applicable,
and applied on a daily basis) as otherwise announced by the United States
Department of the Treasury. In the event that the results of the auction of
Treasury Bills having the Index Maturity specified on the face hereof are not
reported as provided by 3:00 P.M., New York City time, on such Calculation Date,
or if no such auction is held in a particular week, then the Treasury Rate shall
be calculated by the Calculation Agent and shall be a yield to maturity
(expressed as a bond equivalent on the basis of a year of 365 or 366 days, as
applicable, and applied on a daily basis) of the arithmetic mean of the
secondary market bid rates, as of approximately 3:30 P.M., New York City time,
on such Treasury Rate Interest Determination Date, of three leading primary
United States government securities dealers selected by the Calculation Agent,
for the issue of Treasury Bills with a remaining maturity closest to the Index
Maturity specified on the face hereof; provided, however, that if any of the
dealers selected as aforesaid by the Calculation Agent are not quoting as
mentioned in this sentence, the Treasury Rate determined as of such Treasury
Rate Interest Determination Date shall be the Treasury Rate in effect on such
Treasury Rate Interest Determination Date.
Any provision contained herein, including the determination of an
Interest Rate Basis, the specification of an Interest Rate Basis, calculation of
the interest rate 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.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, specified on the face hereof. In addition to any Maximum
Interest Rate applicable hereto pursuant to the above provisions, the interest
rate on this Note will in no event be higher than the maximum rate permitted by
New York law, as the same may be modified by United States law of general
application. The Calculation Agent shall calculate the interest rate hereon in
accordance with the foregoing on or before each Calculation Date. Unless
otherwise specified on the face hereof, The Chase Manhattan Bank will be the
Calculation Agent.
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
A-2-15
50
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.
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
A-2-16
51
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 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
A-2-17
52
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 hereof 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.
A-2-18
53
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
$250,000 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 000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000, Xxxx Xxx, Xxxxxx
Xxxx 00000, Attention: Xxxxxxx Xxxxxxx, 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.
A-2-19
54
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.
A-2-20
55
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
A-2-21
56
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 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, 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 $250,000 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
Dated: ___________________________ "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
A-2-22
