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EXHIBIT 4.10
THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY, UNLESS AND UNTIL THIS NOTE IS EXCHANGED IN WHOLE OR IN PART FOR
NOTES IN DEFINITIVE FORM.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY SECURITY
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 DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE &
CO. OR SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
THIS NOTE IS A DIRECT, UNCONDITIONAL AND UNSECURED OBLIGATION OF DORAL
FINANCIAL CORPORATION, IS NOT A SAVINGS ACCOUNT, DEPOSIT OR OTHER OBLIGATION OF
ANY BANK OR NONBANK SUBSIDIARY OF DORAL FINANCIAL CORPORATION, THE FEDERAL
DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.
CUSIP XX. 00000XXX0 XXXXXXXXX XXXXXX: $100,000,000
No. 1
DORAL FINANCIAL CORPORATION
7.65% Senior Notes due 2016
DORAL FINANCIAL CORPORATION, a corporation duly organized and existing
under the laws of the Commonwealth of Puerto Rico (herein called the "Company",
which term includes any successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of U.S. One Hundred Million Dollars on
March 26, 2016, and to pay interest thereon from March 30, 2001 or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, monthly on the 26th day of each month, commencing April 26, 2001, at the
rate of 7.65% per annum, until the principal hereof is paid or made available
for payment. The interest so payable, and punctually paid or duly provided for,
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any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Note (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the 15th day of the month of the related Interest
Payment Date (whether or not a Business Day). Any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the Person in whose
name this Note (or one or more Predecessor Securities) is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders of
Securities of this series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Debt Securities of this
series may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in said Indenture.
Payment of interest on this Note due on any Interest Payment Date
(other than interest on this Note due to the Holder hereof at Maturity) shall be
paid by check mailed to the Person entitled thereto at his last address as it
appears on the Security Register or, if a U.S. Depositary with respect to this
Note is specified above or if $10,000,000 aggregate principal amount of Debt
Securities of this series are registered in the name of the Holder hereof, in
immediately available funds by wire transfer to such account as may have been
designated by the Person entitled thereto as set forth herein in time for the
Paying Agent under the Indenture to make such payments in accordance with its
normal procedures. Payment of the principal of (and premium, if any) and
interest on this Note due to the Holder hereof at Maturity shall be paid in
immediately available funds upon presentation of this Note for surrender at the
office or agency of the Paying Agent in the Borough of Manhattan, The City of
New York, provided that this Note is presented for surrender in time for the
Paying Agent to make such payment in such funds in accordance with its normal
procedures.
Any such designation for wire transfer purposes shall be made by filing
the appropriate information with the Trustee at its Corporate Trust Office in
the Borough of Manhattan, The City of New York and, unless revoked by written
notice to the Trustee received on or prior to the Regular Record Date
immediately preceding the applicable Interest Payment Date or the fifteenth
calendar day preceding Maturity, shall remain in effect with respect to any
further payments with respect to this Note payable to such Holder.
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Any payment of principal, premium or interest on this Note due on any
day which is not a Business Day in The City of New York need not be made on such
day, but may be made on the next succeeding Business Day in The City of New York
with the same force and effect as if made on the due date and no interest shall
accrue on the amount due on such date for the period from such date until the
next succeeding Business Day. "Business Day" shall mean, as used herein with
respect to any particular location, any day, other than Saturday and Sunday, and
which is a day on which commercial banks settle payments and are open for
general business in the City of New York.
This Note is one of a duly authorized issue of Debt Securities of the
Company (herein called the "Securities")issued and to be issued in one or more
series under a senior indenture, dated as of May 14, 1999, as supplemented by a
First Supplemental Indenture, dated as of March 30, 2001 (herein called the
"Indenture"), between the Company and Bankers Trust Company, as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee and the Holders of
the Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Note is one of the series designated 7.65%
Senior Notes due 2016 (herein called the "Notes"), limited in aggregate
principal amount to U.S. $100,000,000. This Note is issued subject to the
provisions of the Indenture with respect thereto.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of not less than a majority in principal amount of the
Securities at the time Outstanding of each series to be affected. The Indenture
also contains provisions permitting the Holders of specified percentages in
principal amount of the Securities of each series at the time outstanding, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Note shall be conclusive and binding upon such
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Holder and upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Note at the times, place and rate, and in the coin or currency, herein
prescribed.
The Notes are subject to redemption prior to maturity, at the option of
the Company, in whole or in part (as directed by the Company) on any date
selected by the Company, after March 25, 2011, at a redemption price equal to
the principal amount thereof plus accrued and unpaid interest up to the
redemption date (the "Redemption Price"), plus a premium of 2% of such principal
amount if redeemed prior to March 26, 2012, 1% if redeemed on or after March 26,
2012 and prior to March 26, 2013 and without premium if redeemed on March 26,
2013 or thereafter.
The Notes are subject to mandatory redemption in whole upon the
occurrence of an Event of Taxability (as defined in the immediately succeeding
paragraph), at a redemption price equal to the principal amount thereof plus
accrued and unpaid interest up to the redemption date, without premium.
The Company covenants that for each taxable year, up to and including
the taxable year when all interest on and principal of this Note is paid in
full, not later than the 120th day following the close of each such taxable
year, beginning with the first taxable year ending after the original issuance
of this Note, it will (1) deliver to the Trustee and the Company's independent
accountants a certificate (the "Source of Income Certificate") addressed to the
Trustee and the Company's independent accountants: (i) stating, for the three
immediately preceding taxable years of the Company (or for such part of such
period as may be applicable), the percentage of the Company's gross income that
was derived from sources within the Commonwealth of Puerto Rico (the
"Commonwealth") under the general sourcing rules of the United States Internal
Revenue Code as in effect on the date of the original issuance of this Note (the
"Code"); (ii) stating the percentage of the Company's gross income that was
attributable to the active conduct of (A) its trade or business in the
Commonwealth and (B) any trade or business outside the Commonwealth, in each
case as determined under Section 861(c)(1)(B) of the Code; (iii) making an
assertion as to whether or not the Company has met the following requirements
(the "Source of Income Requirements"): that (x) during the three
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taxable years (or for such part of such period as may be applicable) immediately
preceding the taxable year during which interest is paid on this Note, more than
20% of the Company's total gross income was attributable to its trade or
business in the Commonwealth, as determined under Section 861(c)(1)(B) of the
Code, as in effect on the date of the original issuance of this Note, and was
derived from sources within the Commonwealth under the general source of income
rules of the Code, as in effect on the date of original issuance of this Note;
and (y) no part of the interest paid on this Note was treated, under the Code,
as paid by a trade or business of the Company conducted outside the
Commonwealth, such determination to be made in accordance with Section
884(f)(1)(A) of the Code and Treas. Regs. Section 1.884-4(b)(1)(i)(A) or (B)
issued thereunder, as in effect on the date of original issuance of this Note;
and (iv) making an assertion as to whether the Company has taken any other
action which shall cause interest on the Notes to become subject to federal
income taxation for individuals who are bona fide residents of Puerto Rico for
the entire taxable year or to corporations organized under the laws of Puerto
Rico ("Puerto Rico Residents"); and, accordingly, whether or not an Event of
Taxability has occurred; and (2) cause the Company's independent accountants to
deliver to the Trustee a report (the "Independent Accountant's Report") stating
(i) that they have examined (such examination being made in accordance with
standards established by the American Institute of Certified Public Accountants)
management's assertion included in the Source of Income Certificate as to the
Company's compliance with the Source of Income Requirements and (ii) whether in
their opinion the Company's assertion as to compliance with such Source of
Income Requirements is correct. If the Source of Income certificate or the
Independent Accountant's Report indicates that the Company has failed to comply
with the Source of Income Requirements, or that the Company has taken any other
action which shall cause interest on this Note to become subject to federal
income taxation for Puerto Rico Residents, an Event of Taxability shall have
occurred and the Trustee shall cause a copy of such report to be mailed to each
Holder of Notes together with a notice to each Holder of Notes that an Event of
Taxability has occurred, within ten (10) Business Days of the receipt of such
report.
The Company is not required to make any additional payments on this
Note if any Holder is required to pay United States income taxes as a result of
an Event of Taxability.
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The particular Notes or portions of Notes to be redeemed shall be
selected in accordance with the customary procedures of the U.S. Depositary if
less than all of the outstanding Notes are to be redeemed or if this Note has
been exchanged for one or more Notes in definitive form in such manner as the
Company may deem equitable. If a Note is delivered for partial redemption, the
Trustee shall deliver to or upon the order of the Holder, without charge
therefor, for the unredeemed portion of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion thereof.
At least forty-five (45) days but not more than sixty (60) days before
the redemption date of any Notes, either in whole or in part, the Trustee shall
cause a notice of any such redemption, signed by the Trustee, to be mailed,
first-class, postage prepaid, to all Holders whose Notes are to be redeemed, but
failure to mail any such notice to any Holder or any defect in any notice so
mailed shall not affect the validity of the proceedings for the redemption of
any Notes, nor the validity of the proceedings for the redemption of the Notes
of any other Holders.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registerable in the Security
Register, upon surrender of this Note for registration of transfer at the office
or agency of the Company in any place where the principal of and any premium and
interest on this Note are payable, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Notes and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Notes are
exchangeable for a like aggregate principal amount of Notes and of like tenor of
a different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or
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the Trustee may treat the Person in whose name this Note is registered as the
owner hereof for all purposes, whether or not this Note be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to below by manual signature, this Note shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
This Note shall be governed by and construed in accordance with the
laws of the State of New York.
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IN WITNESS WHEREOF, DORAL FINANCIAL CORPORATION has caused this
instrument to be signed by its duly authorized officer, and has caused its
corporate seal or a facsimile thereof to be affixed herein or imprinted hereon.
Dated: March 30, 2001
DORAL FINANCIAL CORPORATION
By:___________________________
Name: Xxxxx X. Xxxxx
Title:Executive Vice President
and Treasurer
Attest:
By:___________________________
Name: Xxxxxxxx Xxxxxx Munich
Title:Assistant Secretary
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated therein
issued under the within-mentioned indenture.
Bankers Trust Company,
as Trustee
Dated:_________________________ By:___________________________
Name:
Title:
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this instrument, shall be construed as though they
were written out in full according to applicable laws or regulations:
TEN COM -- as tenants in common UNIF GIFT MIN ACT -- ________ Custodian _________
TEN ENT -- as tenants by the entireties (Cust) (Minor)
JT TEN -- as joint tenants with right Under Uniform Gifts to Minors Act
of survivorship and not as
tenants in common ------------------------------------------
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
Please Insert Social Security or
Other Identifying Number of Assignee
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PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
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the within Note of DORAL FINANCIAL CORPORATION and does hereby irrevocably
constitute and appoint__________________________________________________________________________ attorney to transfer the said Note
on the books of the Company, with full power of substitution in the premises.
Dated:
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NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within instrument in every
particular, without alteration or enlargement or any change whatsoever.
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