EXHIBIT 4.93
THIS NOTE IS A SAVINGS ACCOUNT OR DEPOSIT AND IS NOT INSURED BY THE FEDERAL
DEPOSIT INSURANCE CORPORATION ("FDIC").
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (00 XXXXX XXXXXX, XXX XXXX, XXX XXXX) (THE "DEPOSITARY") TO
BANKUNITED, FSB 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 NOTE 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.
No. FLR-_____ REGISTERED
CUSIP NO.: _____
GLOBAL SENIOR NOTE
(Floating Rate)
ORIGINAL ISSUE DATE: MATURITY DATE:
INITIAL INTEREST RATE: _____% INDEX MATURITY:
INTEREST RATE MINIMUM INTEREST RATE:
IF LIBOR:
[ ] Libor Telerate MAXIMUM INTEREST RATE:
Page:
[ ] Libor Reuters INTEREST PAYMENT PERIOD:
Page:
Designated LIBOR Currency: INTEREST RATE RESET PERIOD:
IF CMT: CALCULATION AGENT (if other than the
[ ] Telerate Page 7055 Trustee):
[ ] Telerate Page 7052
[ ] Weekly Average
[ ] Monthly Average
Designated CMT Maturity Index:
SPREAD (PLUS OR MINUS) ORIGINAL ISSUE DISCOUNT
AND/OR SPREAD MULTIPLIER: [ ] Yes
[ ] No
Total Amount of OID:
INTEREST PAYMENT DATES: Yield to Maturity:
Initial Accrual Period:
INITIAL INTEREST RESET DATE:
INTEREST RESET DATES:
2
BankUnited, FSB (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 shown above, and to pay interest
thereon, at a rate per annum equal to the Initial Interest Rate shown above
until the first Interest Reset Date shown above following the Original Issue
Date shown above and thereafter at a rate determined in accordance with the
provisions on the reverse hereof under the heading or headings "Determination of
CMT Rate," "Determination of Commercial Paper Rate," "Determination of Eleventh
District Cost of Funds Rate," "Determination of Federal Funds Rate,"
"Determination of LIBOR," "Determination of Prime Rate," or "Determination of
Treasury Rate," depending upon the Interest Rate Basis shown on the face hereof,
until the principal hereof is paid or duly made available for payment.
The Bank will pay interest monthly, quarterly, semi-annually or annually
as shown above under "Interest Payment Period," on each Interest Payment Date
shown above, commencing with the first Interest Payment Date shown above next
succeeding the Original Issue Date shown above, and on the Maturity Date shown
above; provided, however, that if the Original Issue Date is between a Regular
Record Date (as hereinafter defined) and an Interest Payment Date, interest
payments will commence on the Interest Payment Date following the next
succeeding Regular Record Date, and provided further, that if an Interest
Payment Date would fall on a day that is not a Business Day (as defined on the
reverse hereof), such Interest Payment Date shall be the following day that is a
Business Day, except that in the case the Interest Rate Basis is LIBOR, as
indicated above, if such next Business Day falls in the next calendar month,
such Interest Payment Date shall be the next preceding day that is a Business
Day. Except as provided above and in the Indenture, interest payments will be
made on the Interest Payment Dates shown above. The "Regular Record Date" shall
be the date 15 calendar days prior to such Interest Payment Date, whether or not
such date shall be a Business Day. Interest on this Note will accrue from the
most recent Interest Payment Date to which interest has been paid or duly
provided for. The interest payment on the Maturity Date will include interest
accrued to and excluding such Maturity Date, or, if no interest has been paid on
this Note, from the Original Issue Date, until the principal hereof has been
paid or made available for payment. The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, subject to certain
exceptions provided in the Indenture, be paid only to the Person in whose name
this Note (or one or more Predecessor Notes) is registered at the close of
business on the Regular Record Date for such Interest Payment Date; provided,
however, that interest payable on the Maturity Date shown above or upon
redemption will be payable to the Person to whom the principal hereof shall be
payable. Any such interest which is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date shall forthwith cease to be payable
to the registered Holder hereof on such Regular Record Date, and shall be paid
to the Person in whose name this Note (or one or more Predecessor Notes) is
registered at the close of business on a Special Record Date for the payment of
such overdue interest to be fixed by the Trustee, notice of which shall be given
to the Holder hereof not less than ten days prior to such Special Record Date,
or may be paid at any time in any other lawful manner, all as more fully
provided in the Indenture.
Payments of principal and interest on this Note shall be made in such coin
or currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts. Payments of interest on this
Note (other than on the Maturity Date or upon earlier redemption or repayment)
will be made by wire transfer to such account as has been
3
appropriately designated to the Paying Agent (as defined herein) by the person
entitled to such payments.
The principal amount hereof and interest due at maturity or redemption
will be paid upon maturity or redemption in immediately available funds against
presentation of this Note at the Corporate Trust Office of the Trustee, as
paying agent (the "Paying Agent") in New York, New York (as of the date of this
Note, such office being located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000), or at such other office or agency of the Paying Agent as the Bank shall
designate by written notice to the registered Holder of this Note. The Trustee
is also the authenticating agent (the "Authenticating Agent") and the note
registrar (the "Note Registrar") for the Notes (as defined on the reverse
hereof).
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.
Unless the certificate of authentication hereon has been executed by the
Trustee, by manual signature, this Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
4
IN WITNESS WHEREOF, the Bank has caused this Note to be duly executed.
BANKUNITED, FSB
By:
------------------------------------
Authorized Signatory
By:
------------------------------------
Authorized Signatory
[SEAL]
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK
as Trustee
By:
--------------------------
Authorized Signatory
Dated:
5
[Reverse]
This Note is one of a duly authorized issue of Senior Notes (herein called
the "Notes") of the Bank issued and to be issued under an Indenture, dated as of
November 4, 1998 (herein called the "Indenture"), between the Bank and The Bank
of New York, as trustee (herein called the "Trustee," which term includes any
successor trustee under the Indenture), to which the Federal Home Loan Bank of
Atlanta (herein called the "FHLB of Atlanta") has joined as a consenting party,
to which Indenture and all Indentures supplemental thereto reference is xxxxxx
made for a statement of the respective rights, duties and obligations thereunder
of the Bank, the Trustee and the Holders of the Notes, and the terms upon which
the Notes are, and are to be, authenticated and delivered. The Notes may bear
different dates, mature at different times, bear interest at different fixed or
floating rates, and differ in such other respects as provided herein or as may
be provided pursuant to the terms of the Indenture.
Payment of the principal of and interest on this Note is supported by an
irrevocable standby letter of credit (herein called the "Letter of Credit")
issued to the Trustee by the FHLB of Atlanta pursuant to a certain Letter of
Credit Reimbursement Agreement (herein called the "Reimbursement Agreement")
between the Bank and the FHLB of Atlanta.
Copies of the Indenture, the Letter of Credit, the Reimbursement Agreement
and other related credit documents are on file with the Trustee at its Corporate
Trust Office and are available for inspection at such office. Reference is made
to those documents for the terms upon which the Letter of Credit has been
issued, the liability of the FHLB of Atlanta under the Letter of Credit with
respect to payment of this Note and the procedures governing demands for payment
under the Letter of Credit by the Trustee.
Commencing with the first Interest Reset Date shown on the face hereof
following the Original Issue Date shown on the face hereof, the rate at which
interest on this Note is payable (herein, called the "Interest Rate") shall be
adjusted weekly, monthly, quarterly, semi-annually or annually as shown on the
face hereof under "Interest Rate Reset Period." Each such adjusted rate shall be
applicable on and after the Interest Reset Date to which it relates to but not
including the next succeeding Interest Reset Date or until maturity or
redemption, as the case may be.
If any Interest Reset Date would 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 in the case of a LIBOR Note, if such Business Day is
in the next succeeding calendar month, such Interest Reset Date shall be the
next preceding Business Day. "Business Day" means any day which is not a
Saturday or a Sunday and that in The City of New York and Atlanta, Georgia is
not a day on which banking institutions are authorized or required by law,
regulation or executive order to close and, with respect to which LIBOR is an
applicable interest rate formula, is also a London Business Day. "London
Business Day" means any day on which dealings in deposits in US Dollars are
transacted in the London interbank market.
The interest rate applicable to each Interest Rate Reset Period commencing
on an Interest Reset Date will be the rate determined on the "Interest
Determination Date." The Interest
6
Determination Date with respect to the CMT Rate, 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 publishes the Index (as herein defined); and the Interest
Determination Date with respect to LIBOR will be the second London Business Day
immediately preceding each Interest Reset Date. With respect to the Treasury
Rate, the Interest Determination Date 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 the 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 will be such preceding Friday; and provided further
that if an auction falls on any Interest Reset Date, then the related Interest
Reset Date will instead be the first Business Day following such auction.
The "Calculation Date", if applicable, pertaining to any Interest
Determination Date shall 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 or (ii) the Business Day immediately preceding the
applicable Interest Payment Date, Maturity Date or date of earlier redemption,
as the case may be.
All percentages resulting from any calculation on this Note will be
rounded to the nearest one hundred-thousandth of a percent, with five
one-millionths of a percent rounded upward, e.g. 9.876545% (or .09876545) being
rounded to 9.87655% (or .0987655), and all dollar amounts used in or resulting
from such calculation on this Note will be rounded to the nearest cent (with
one-half cent being rounded upward).
Subject to applicable provisions of law and except as specified herein, on
each Interest Reset Date, the Interest Rate on this Note shall be the rate
determined in accordance with the provisions of the applicable heading or
headings below.
DETERMINATION OF CMT RATE. If an Interest Rate Basis for this Note is the
CMT Rate, as indicated on the face hereof, the CMT Rate shall be determined as
of the applicable Interest Determination Date ("the CMT Rate Interest
Determination Date"), as the rate displayed on the Designated CMT Telerate Page
under the caption "...Treasury Constant Maturities...Federal Reserve Board
Release H.15...Mondays Approximately 3:45 P.M.," under the column for the
Designated CMT Maturity Index for (i) if the Designated CMT Telerate Page is
7055, the rate on such CMT Rate Interest Determination Date and (ii) if the
Designated CMT Telerate Page is 7052, the weekly or monthly average, as
specified on the face hereof, for the week or the month, as applicable, ended
immediately preceding the week or the month, as applicable, in which the related
CMT Rate Interest Determination Date falls. If such rate is no longer displayed
on the relevant page or is not so displayed by 3:00 P.M., New York City time, on
the related Calculation Date, then the CMT Rate for such CMT Rate Interest
7
Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index as published in H.15(519). If such rate is no
longer published or is not so published by 3:00 P.M., New York City time, on the
related Calculation Date, then the CMT Rate on such CMT Rate Interest
Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index (or other United States Treasury rate for the
Designated CMT Maturity Index) for the CMT Rate Interest Determination Date with
respect to such Interest Reset Date as may then be published by either the Board
of Governors of the Federal Reserve System or the United States Department of
the Treasury that the Calculation Agent determines to be comparable to the rate
formerly displayed on the Designated CMT Telerate Page and published in
H.15(519). If such information is not so provided by 3:00 P.M., New York City
time, on the related Calculation Date, then the CMT Rate on the CMT Rate
Interest Determination Date will be calculated by the Calculation Agent and will
be a yield to maturity, based on the arithmetic mean of the secondary market
offered rates as of approximately 3:30 P.M., New York City time, on such CMT
Rate Interest Determination Date reported, according to their written records,
by three leading primary United States government securities dealers in The City
of New York (which may include Credit Suisse First Boston Corporation,
PaineWebber Incorporated and Prudential Securities Incorporated (the "Agents")
or their affiliates) (each, a "Reference Dealer") selected by the Calculation
Agent (from five such Reference Dealers selected by the Calculation Agent and
eliminating the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality, one of the
lowest)), for the most recently issued direct noncallable fixed rate obligations
of the United States ("Treasury Notes") with an original maturity of
approximately the Designated CMT Maturity Index and a remaining term to maturity
of not less than such Designated CMT Maturity Index minus one year. If the
Calculation Agent is unable to obtain three such Treasury Note quotations, the
CMT Rate on such CMT Rate Interest Determination Date will be calculated by the
Calculation Agent and will be a yield to maturity based on the arithmetic mean
of the secondary market offered rates as of approximately 3:30 P.M., New York
City time, on such CMT Rate Interest Determination Date of three Reference
Dealers in The City of New York (from five such Reference Dealers selected by
the Calculation Agent and eliminating the highest quotation (or, in the event of
equality, one of the highest) and the lowest quotation (or, in the event of
equality, one of the lowest)), for Treasury Notes with an original maturity of
the number of years that is the next highest to the Designated CMT Maturity
Index and a remaining term to maturity closest to the Designated CMT Maturity
Index and in an amount of at least $100 million. If three or four (and not five)
of such Reference Dealers are quoting as described above, then the CMT Rate will
be based on the arithmetic mean of the offered rates obtained and neither the
highest nor the lowest of such quotes will be eliminated; provided, however,
that if fewer than three Reference Dealers so selected by the Calculation Agent
are quoting as mentioned herein, the CMT Rate determined as of such CMT Rate
Interest Determination Date will be the CMT Rate in effect on such CMT Rate
Interest Determination Date. If two Treasury Notes with an original maturity as
described in the second preceding sentence have remaining terms to maturity
equally close to the Designated CMT Maturity Index, the Calculation Agent will
obtain quotations for the Treasury Note with the shorter remaining term to
maturity.
"Designated CMT Telerate Page" means the display on Bridge Telerate, Inc.
(or any successor service) on the page specified on the face hereof (or any
other page as may replace such page on such service) for the purpose of
displaying Treasury Constant Maturities as reported in H.15(519) or, if no such
page is specified on the face hereof, page 7052.
"Designated CMT Maturity Index" means the original period to maturity of
the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30 years)
specified on the face hereof with
8
respect to which the CMT Rate will be calculated or, if no such maturity is
specified on the face hereof, 2 years.
"H.15(519)" means the weekly statistical release designated as such, or
any successor publication, published by the Board of Governors of the Federal
Reserve System.
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 hereinafter defined) on such date of the rate for
commercial paper having the Index Maturity specified on the face hereof as
published in H.15(519) under the caption "Commercial Paper-Nonfinancial" or, if
not so published by 3:00 P.M., New York City time, on the related Calculation
Date, the rate on such Commercial Paper Rate Interest Determination Date for
commercial paper having the Index Maturity specified on the face hereof as
published in H.15 Daily Update, or such other recognized electronic source used
for the purpose of displaying such rate, under the caption "Commercial
Paper-Nonfinancial." If such rate is not yet published in H.15(519), H.15 Daily
Update or another recognized electronic source by 3:00 P.M., New York City time,
on the related Calculation Date, then the Commercial Paper Rate on such
Commercial Paper Rate Interest Determination Date will be calculated by the
Calculation Agent and will 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 (which may include the Agents or their
affiliates) selected by the Calculation Agent for commercial paper having the
Index Maturity specified on the face hereof placed for industrial issuers whose
bond rating is "Aa", or the equivalent, from a nationally recognized statistical
rating organization; provided, however, that if the dealers so selected 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 will be the Commercial Paper Rate in effect on such Commercial Paper Rate
Interest Determination Date.
"Money Market Yield" means 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 applicable Interest Reset Period.
"H.15 Daily Update" means the daily update of H.15(519), available through
the world-wide-web site of the Board of Governors of the Federal Reserve System
at XXXX://XXX.XXX.XXX.XXX.XX/XXXXXXXX/X00/XXXXXX, or any successor site or
publication.
DETERMINATION OF ELEVENTH DISTRICT COST OF FUNDS RATE. If an Interest Rate
Basis for this Note is the Eleventh District Cost of Funds, as indicated on the
face hereof, the Eleventh District Cost of Funds shall be determined as of the
applicable Interest Determination Date (an
9
"Eleventh District Cost of Funds 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 the display on Bridge Telerate, Inc. (or any successor service) on
page 7058 ("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 such Eleventh District Cost of Funds
Rate Interest Determination Date, then the Eleventh District Cost of Funds Rate
on 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 such Eleventh District Cost of Funds Rate Interest
Determination Date. If the FHLB of San Francisco fails to announce the Index on
or prior to such Eleventh District Cost of Funds Rate Interest Determination
Date for the calendar month immediately preceding such Eleventh District Cost of
Funds Rate Interest Determination Date, the Eleventh District Cost of Funds Rate
determined as of such Eleventh District Cost of Funds Rate Interest
Determination Date will be the Eleventh District Cost of Funds Rate in effect on
such Eleventh District Cost of Funds Rate Interest Determination Date.
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 United States dollar federal funds as published in H.15(519) under the
heading "Federal Funds (Effective)," as such rate is displayed on Bridge
Telerate, Inc. (or any successor service) on page 120 ("Telerate Page 120"), or,
if such rate does not appear on Telerate Page 120 or is 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 for United States dollar federal
funds as published in H.15 Daily Update, or such other recognized electronic
source used for the purpose of displaying such rate, under the caption "Federal
Funds (Effective)." If such rate does not appear on Telerate Page 120 or is not
yet published in H.15(519), H.15 Daily Update or another recognized electronic
source by 3:00 P.M., New York City time, on the related Calculation Date, then
the Federal Funds Rate on such Federal Funds Rate Interest Determination Date
will be calculated by the Calculation Agent and will 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:
10
(i) LIBOR will be either: (a) if "LIBOR Reuters" is specified is specified
on the face hereof, the arithmetic mean of the offered rates (unless the
Designated LIBOR Page by its terms provides only for a single rate, in
which case such single rate shall be used) for deposits in the Designated
LIBOR Currency having the Index Maturity specified on the face hereof,
commencing on the applicable Interest Reset Date, that appear (or, if only
a single rate is required as aforesaid, appears) on the Designated LIBOR
Page as of 11:00 A.M., London time, on such LIBOR Interest Determination
Date, or (b) if "LIBOR Telerate" is specified on the face hereof or if
neither "LIBOR Reuters" nor "LIBOR Telerate" is specified on the face
hereof as the method for calculating LIBOR, the rate for deposits in the
Designated LIBOR Currency having the Index Maturity specified on the face
hereof, commencing on such Interest Reset Date, that appears on the
Designated LIBOR Page as of 11:00 A.M., London time, on such LIBOR
Interest Determination Date. If fewer than two such offered rates so
appear, or if no such rate so appears, as applicable, LIBOR on such LIBOR
Interest Determination Date will be determined in accordance with the
provisions described in clause (ii) below.
(ii) With respect to a LIBOR Interest Determination Date on which fewer
than two offered rates appear, or no rate appears, as the case may be, on
the Designated LIBOR Page as specified in clause (i) above, the
Calculation Agent will request the principal London offices of each of
four major reference banks (which may include affiliates of the Agents) in
the London interbank market, as selected by the Calculation Agent, to
provide the Calculation Agent with its offered quotation for deposits in
the Designated LIBOR Currency for the period of the Index Maturity
specified on the face hereof, commencing on the applicable Interest Reset
Date, to prime banks in the London interbank market at approximately 11:00
A.M., London time, on such LIBOR Interest Determination Date and in a
principal amount that is representative for a single transaction in the
Designated LIBOR Currency in such market at such time. If at least two
such quotations are so provided, then LIBOR on such LIBOR Interest
Determination Date will be the arithmetic mean of such quotations. If
fewer than two such quotations are so provided, then LIBOR on such LIBOR
Interest Determination Date will be the arithmetic mean of the rates
quoted at approximately 11:00 A.M., in the applicable Principal Financial
Center, on such LIBOR Interest Determination Date by three major banks
(which may include affiliates of the Agents) in such Principal Financial
Center selected by the Calculation Agent for loans in the Designated LIBOR
Currency to leading European banks, having the Index Maturity specified on
the face hereof commencing on the second London Business Day following
that LIBOR Interest Determination Date and in a principal amount that is
representative for a single transaction in the Designated LIBOR Currency
in such market at such time; provided, however, that if the banks so
selected by the Calculation Agent are not quoting as mentioned in this
sentence, LIBOR determined as of such LIBOR Interest Determination Date
will be LIBOR in effect on such LIBOR Interest Determination Date.
"Designated LIBOR Currency" means the currency or composite currency
specified on the face hereof as to which LIBOR shall be calculated or, if no
such currency or composite currency is specified on the face hereof, United
States dollars.
11
"Designated LIBOR Page" means (a) if "LIBOR Reuters" is specified on the
face hereof, the display on the Reuter Monitor Money Rates Service (or any
successor service) on the page specified on the face hereof (or any other page
as may replace such page on such service) for the purpose of displaying the
London interbank rates of major banks for the Designated LIBOR Currency, or (b)
if "LIBOR Telerate" is specified on the face hereof or neither "LIBOR Reuters"
nor "LIBOR Telerate" is specified on the face hereof as the method for
calculating LIBOR, the display on Bridge Telerate, Inc. (or any successor
service) on the page specified on the face hereof (or any other page as may
replace such page on such service) for the purpose of displaying the London
interbank rates of major banks for the Designated LIBOR Currency.
"Principal Financial Center" means the capital city of the country to
which the Designated LIBOR Currency relates (or, in the case of ECU,
Luxembourg), except, in each case, that with respect to United States dollars,
Australian dollars, Canadian dollars, Deutsche marks, Dutch guilders and Swiss
francs, the "Principal Financial Center" shall be The City of New York, Sydney,
Toronto, Frankfurt, Amsterdam and Zurich, respectively.
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 caption "Bank Prime Loan" or, if not published
by 3:00 P.M., New York City time, on the related Calculation Date, the rate on
such Prime Rate Interest Determination Date as published in H.15 Daily Update,
or such other recognized electronic source used for the purpose of displaying
such rate, under the caption "Bank Prime Loan." If such rate is not yet
published in H.15(519), H.15 Daily Update or another recognized electronic
source by 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 USPRIME1 Page (as
hereinafter defined) 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 USPRIME1 Page for such Prime Rate Interest
Determination Date, then the Prime Rate shall be the arithmetic mean of the
prime rates or base lending 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 (which
may include affiliates of the Agents) in The City of New York selected by the
Calculation Agent. If fewer than four such quotations are so provided, then the
Prime Rate shall 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
such quotations and by a reasonable number of substitute banks or trust
companies (which may include affiliates of the Agents) 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 $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 so selected by the Calculation Agent are not quoting as
mentioned in this sentence, the Prime Rate determined as of such Prime Rate
Interest Determination Date will be the Prime Rate in effect on such Prime Rate
Interest Determination Date.
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"Reuters Screen USPRIME1 Page" means the display on the Reuter Monitor
Money Rates Service (or any successor service) on the "USPRIME1" page (or such
other page as may replace the USPRIME1 page on such 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 indicated on the face hereof, the Treasury Rate shall be
determined as of the applicable Interest Determination Date (a "Treasury Rate
Interest Determination Date"), as the rate from the auction held on such
Treasury Rate Interest Determination Date (the "Auction") of direct obligations
of the United States ("Treasury Bills") having the Index Maturity specified on
the face hereof under the caption "AVGE INVEST YIELD" on the display on Bridge
Telerate, Inc. (or any successor service) on page 56 ("Telerate Page 56") or
page 57 ("Telerate Page 57") or, if not so published by 3:00 P.M., New York City
time, on the related Calculation Date, the auction average rate of such Treasury
Bills (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 so published by 3:00 P.M., New York City time, on the related
Calculation Date, or if no such Auction is held, then the Treasury Rate will be
the 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) on such Treasury Rate
Interest Determination Date of Treasury Bills having the Index Maturity
specified on the face hereof as published in H.15(519) under the caption "U.S.
Government Securities/Treasury Bills/Secondary Market" or, if not yet published
by 3:00 P.M., New York City time, on the related Calculation Date, the rate on
such Treasury Rate Interest Determination Date of such Treasury Bills as
published in H.15 Daily Update, or such other recognized electronic source used
for the purpose of displaying such rate, under the caption "U.S. Government
Securities/Treasury Bills/Secondary Market." If such rate is not yet published
in H.15(519), H.15 Daily Update or another recognized electronic source, then
the Treasury Rate will be calculated by the Calculation Agent and will 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 (which may include the
Agents or their affiliates) 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 the dealers so selected by the
Calculation Agent are not quoting as mentioned in this sentence, the Treasury
Rate determined as of such Treasury Rate Interest Determination Date will be the
Treasury Rate in effect on such Treasury Rate Interest Determination Date.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate specified on the face hereof 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 Trustee will be the
Calculation Agent.
13
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.
Interest payments hereon made on any Interest Payment Date or at maturity
or upon redemption will include interest accrued to but not including such
Interest Payment Date or date of maturity or redemption, as the case may be.
Accrued interest hereon from the Original Issue Date or from the last date to
which interest hereon has been paid, as the case may be, 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 from the Original Issue Date or from the last date to
which interest shall have been paid, as the case may be, to the date for which
accrued interest is being calculated. The interest factor for each such day
shall be computed by dividing the Interest Rate applicable to such day by 360 if
the Interest Rate Basis is the Commercial Paper Rate, the Eleventh District Cost
of Funds Rate, the Federal Funds Rate, LIBOR or the Prime Rate Notes, as
indicated on the face hereof or by the actual number of days in the year if the
Interest Rate Basis is the CMT Rate or the Treasury Rate as indicated on the
face hereof.
This Note is subject to mandatory redemption in whole, but not in part, at
any time, at a Redemption Price equal to the principal amount hereof plus
accrued interest to the Redemption Date (i) in the event that a demand under the
Letter of Credit has been made for a payment of principal of or interest on this
Note or any Note issued pursuant to the Indenture and the Trustee fails to
receive notice from the FHLB of Atlanta within five Business Days thereafter
(I.E., within five Business Days after submission to the FHLB of Atlanta by the
Trustee of a drawing certificate under the Letter of Credit) that the Credit
Amount of the Letter of Credit has been reinstated or (ii) upon the occurrence
of certain Events of Default, or upon the declaration of acceleration of the
principal of all the Notes following the occurrence of certain other Events of
Default, all in accordance with the provisions of the Indenture. In the event
this Note shall be called for redemption, notice thereof shall be given by the
Trustee by mailing a copy of the redemption notice to the Holder hereof at the
address shown in the Note Register. If notice of redemption shall have been duly
given, and funds for the payment of interest to the Redemption Date shall be on
deposit with the Trustee on such Redemption Date, this Note shall cease to bear
interest on the Redemption Date.
Except as provided in the preceding paragraph, this Note is not redeemable
prior to the Maturity Date shown on the face hereof or otherwise subject to
prepayment; provided, however, that if an Event of Default, as defined in the
Indenture, shall occur, the principal of all 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 rights and obligations of the Bank and
the rights of the Holders of the Notes at any time by the Bank and the Trustee
with the consent of the Holders of not less than a majority in aggregate
principal amount of the Notes at the time Outstanding affected thereby. The
Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Notes at the time Outstanding,
on behalf of the Holders of all Notes, to waive compliance by the Bank with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent of waiver by the
14
Holder of this Note shall be conclusive and binding upon such 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 Bank, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the time, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note may be registered on the Note Register of
the Bank, upon surrender of this Note for registration of transfer at the office
or agency of the Note Registrar in the Borough of Manhattan, The City of New
York, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Bank and the Note Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Notes of authorized denominations and for the same aggregate principal
amount, having the identical Original Issue Date, Maturity Date and provisions
with respect to payment of interest, will be issued to the designated transferee
or transferees.
Prior to due presentment of this Note for registration of transfer, the
Bank and the Trustee, and any agent of the Bank and 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 Bank or the
Trustee, nor any such agent, shall be affected by notice to the contrary.
The Notes are issuable only in fully registered form in minimum
denominations of $250,000 and integral multiples of $1,000 in excess thereof.
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 90 days,
(y) there shall have occurred and be continuing an Event of Default with respect
to this Note, or (z) the Bank in its sole discretion determines that this Note
will be so exchangeable. 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 Trustee.
No service charge shall be made for any such registration of transfer or
exchange, but the Bank may require a payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
15
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 and enforced in accordance
with the laws of the State of New York, without regard to conflicts of laws
principles.
16
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.
17
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 Trustee, with full power of
substitution in the premises.
Dated:____________________ ______________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of the
within Note in every particular,
without alteration or enlargement
or any change whatsoever.
_______________________________
Signature Guarantee
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