<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
------------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): August 5, 1999
POPULAR, INC.
-------------
(Exact Name of Registrant as Specified in Charter)
Puerto Rico 0-13818 66-0416582
- ---------------------------- ------------ -------------------
(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number) Identification No.)
209 Munoz Rivera Avenue, Hato Rey, Puerto Rico 00918
- ---------------------------------------------- --------------
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (787) 765-9800
-------------
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ITEMS 1-4. Not Applicable.
ITEM 5. OTHER EVENTS.
The exhibits listed in Item 7 below are hereby incorporated herein
by reference.
ITEM 6. Not Applicable.
ITEM 7. EXHIBITS
(1)(b) Distribution Agreement, dated October 6, 1995, among
BanPonce Corporation, Merrill Lynch, Pierce, Fenner & Smith
Incorporated, CS First Boston Corporation and First
Chicago Capital Markets, Inc. (Incorporated by reference
from the Current Report on Form 8-K of BanPonce Corporation
(File No. 0-13818), dated October 6, 1995, as filed with the
SEC on October 6, 1995)
(1)(c) Amendment No. 1, dated May 23, 1997, to the Distribution
Agreement, dated October 6, 1995, among Popular, Inc.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Chase
Securities Inc., Credit Suisse First Boston Corporation and
First Chicago Capital Markets, Inc. (Incorporated by
reference from the Current Report on Form 8-K of Popular,
Inc. (File No. 0-13818), dated May 23, 1997, as filed with
the SEC on June 11, 1997)
(1)(d) Amendment No. 2, dated August 6, 1999, to the Distribution
Agreement, dated October 6, 1995, among Popular, Inc.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Credit
Suisse First Boston Corporation, Chase Securities Inc. and
Popular Securities, Inc.
(1)(e) Distribution Agreement, dated October 11, 1991, among
BanPonce Financial Corp., BanPonce Corporation, Merrill
Lynch, Pierce, Fenner & Smith Incorporated and The First
Boston Corporation (Incorporated by reference from the
Current Report on Form 8-K of Popular, Inc. (File No.
0-13818), dated May 23, 1997, as filed with the SEC on June
11, 1997)
(1)(f) Amendment No. 1, dated December 2, 1993, to the
Distribution Agreement, dated October 11, 1991, among
BanPonce Financial Corp., BanPonce Corporation, Merrill
Lynch, Pierce, Fenner & Smith Incorporated and CS First
Boston Corporation (Incorporated by reference from the
Current Report on Form 8-K of Popular, Inc. (File No.
0-13818), dated May 23, 1997, as filed with the SEC on
June 11, 1997)
(1)(g) Amendment No. 2, dated October 6, 1995, to the Distribution
Agreement, dated October 11, 1991, among BanPonce Financial
Corp., BanPonce Corporation, Merrill Lynch, Pierce, Fenner
& Smith Incorporated, CS First Boston Corporation and First
Chicago Capital Markets, Inc. (Incorporated by reference
from the Current Report on Form 8-K of BanPonce Corporation
(File No. 0-13818), dated October 6, 1995, as filed with the
SEC on October 6, 1995)
(1)(h) Amendment No. 3, dated May 23, 1997, to the Distribution
Agreement, dated October 11, 1991, among Popular North
America, Inc., Popular, Inc., Merrill Lynch, Pierce, Fenner
& Smith Incorporated, Chase Securities Inc., Credit Suisse
First Boston Corporation and First Chicago Capital Markets,
Inc. (Incorporated by reference from the Current Report on
Form 8-K of Popular, Inc. (File No. 0-13818), dated May 23,
1997, as filed with the SEC on June 11, 1997)
(1)(i) Amendment No. 4, dated August 6, 1999, to the Distribution
Agreement, dated October 6, 1991, among Popular North
America, Inc., Popular, Inc., Merrill Lynch, Pierce, Fenner
& Smith Incorporated, Credit Suisse First Boston
Corporation, Chase Securities Inc. and Popular Securities
Inc.
(4)(d) Senior Indenture of Popular, Inc., dated as of February 15,
1995, as supplemented by the First Supplemental Indenture
thereto, dated as of May 8, 1997, each between Popular, Inc.
and The First National Bank of Chicago, as trustee
(Incorporated by reference from Registration Statement
No. 333-26941).
(4)(e) Second Supplemental Indenture of Popular, Inc., dated as of
August 5, 1999, between Popular, Inc. and The First National
Bank of Chicago, as trustee.
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(4)(g) Senior Indenture of Popular North America, Inc., dated as of
October 1, 1991, as supplemented by the First Supplemental
Indenture thereto, dated as of February 28, 1995, and the
Second Supplemental Indenture thereto, dated as of May 8,
1997, each among Popular North America, Inc., Popular, Inc.,
as guarantor, and The First National Bank of Chicago, as
trustee (Incorporated by reference to Registration Statement
No. 333-26941)
(4)(h) Third Supplemental Indenture of Popular North America, Inc.,
dated as of August 5, 1999, among Popular North America,
Inc., Popular, Inc., as guarantor, and The First National
Bank of Chicago, as trustee.
(4)(o) Form of Fixed Rate Medium-Term Note, Series 4, of Popular,
Inc.
(4)(p) Form of Floating Rate Medium-Term Note, Series 4, of
Popular, Inc.
(4)(q) Form of Fixed Rate Medium-Term Note, Series E, of Popular
North America, Inc., endorsed with the guarantee of Popular,
Inc.
(4)(r) Form of Floating Rate Medium-Term Note, Series E, of Popular
North America, Inc., endorsed with the guarantee of Popular,
Inc.
(8)(a) Tax opinion of Sullivan & Cromwell in connection with
Popular, Inc. Medium-Term Notes, Series 4 and with Popular
North America, Inc. Medium-Term Notes, Series E.
(10)(a) Administrative Procedures governing Medium-Term Notes,
Series 4, of Popular, Inc.
(10)(b) Administrative Procedures governing Medium-Term Notes,
Series E, of Popular North America, Inc., fully guaranteed
by Popular, Inc.
(10)(c) Interest Calculation Agency Agreement, dated as of August
6, 1999, between Popular, Inc. and The First National Bank
of Chicago.
(10)(d) Interest Calculation Agency Agreement, dated as of August
6, 1999, between Popular North America, Inc. and The First
National Bank of Chicago.
(23)(c) Consent of Counsel (included in Exhibit (8)(a))
ITEM 8. Not Applicable.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
POPULAR, INC.
Date: August 17, 1999 By: /s/ Jorge A. Junquera
----------------------------------
Jorge A. Junquera
Senior Executive Vice President
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Exhibit 1(d)
AMENDMENT NO. 2 TO DISTRIBUTION AGREEMENT
August 6, 1999
WHEREAS, the parties hereto have previously entered into a Distribution
Agreement, dated October 6, 1995, as amended and supplemented on May 23, 1997
and on the date hereof (the "Distribution Agreement"), among Popular, Inc. (the
"Corporation") (formerly BanPonce Corporation) and Merrill Lynch, Pierce, Fenner
& Smith Incorporated, Credit Suisse First Boston Corporation and Chase
Securities Inc. (each, an "Agent" and collectively, the "Existing Agents") and
First Chicago Capital Markets, Inc. (which was originally a party to the
Distribution Agreement but is no longer an Agent) relating to the issue and sale
by the Company of its Medium-Term Notes of various series (the "Notes"); and
WHEREAS, Popular Securities, Inc. ("Popular Securities") has become an
Agent upon its execution of an amended signature page to the Distribution
Agreement, as provided by Section 1(a) thereof (Popular Securities and the
Existing Agents being hereafter referred to herein collectively as the
"Agents");
NOW, THEREFORE, the Company and each of the Agents hereby agree to amend
the Distribution Agreement as follows:
1. The following paragraphs are hereby added to Section 3 of the
Distribution Agreement:
(d) Restrictions on Distribution in Puerto Rico. The Agents agree that
Popular Securities shall have the sole right to solicit offers to purchase
the Notes as agent or to make any sales of the Notes as principal, as the
case may be, in Puerto Rico.
(e) Restrictions on Sales to Discretionary Accounts. Each Agent hereby
agrees to refrain from sales to discretionary accounts under its
supervision except in accordance with procedures to obtain the prior
specific written approval of the customer that have been approved by the
NASD in compliance with NASD Conduct Rule 2720(l).
<PAGE> 2
2. Except as otherwise expressly provided herein, the Distribution
Agreement is in all respects ratified and confirmed, and all the terms,
provisions and conditions thereof shall be and remain in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2 to
the Distribution Agreement to be executed on their behalf as of the date and
year first above written.
POPULAR, INC.
By: /s/ Jorge A. Junquera
--------------------------------------
Accepted:
MERRILL LYNCH, PIERCE,
FENNER & SMITH INCORPORATED
By: /s/ N. L. Kennan
-----------------------------------
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Julie Keogh
-----------------------------------
CHASE SECURITIES INC.
By: /s/ Louis P. DeCaro
-----------------------------------
POPULAR SECURITIES, INC.
By: /s/ Kenneth W. McGrath
----------------------------------
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Exhibit 1(i)
AMENDMENT NO. 4 TO DISTRIBUTION AGREEMENT
August 6, 1999
WHEREAS, the parties hereto have previously entered into a Distribution
Agreement, dated October 11, 1991, as amended by Amendment No. 1 thereto, dated
December 2, 1993, Amendment No. 2 thereto, dated October 6, 1995, and as
supplemented on June 16, 1993, August 1, 1994, May 23, 1997 and on the date
hereof (the "Distribution Agreement"), among Popular North America, Inc. (the
"Company") (formerly BanPonce Financial Corp.), Popular, Inc. (the "Guarantor")
(formerly BanPonce Corporation) and Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Credit Suisse First Boston Corporation and Chase Securities Inc.
(each, an "Agent" and collectively, the "Existing Agents") and First Chicago
Capital Markets, Inc. (which was originally a party to the Distribution
Agreement but is no longer an Agent) relating to the issue and sale by the
Company of its Medium-Term Notes of various series (the "Notes"); and
WHEREAS, Popular Securities, Inc. ("Popular Securities") has become an
Agent upon its execution of an amended signature page to the Distribution
Agreement, as provided by Section 1(a) thereof (Popular Securities and the
Existing Agents being hereafter referred to herein collectively as the
"Agents");
NOW, THEREFORE, the Company and each of the Agents hereby agree to amend
the Distribution Agreement as follows:
1. The following paragraphs are hereby added to Section 3 of the
Distribution Agreement:
(d) Restrictions on Distribution in Puerto Rico. The Agents agree that
Popular Securities shall have the sole right to solicit offers to purchase
the Notes as agent or to make any sales of the Notes as principal, as the
case may be, in Puerto Rico.
(e) Restrictions on Sales to Discretionary Accounts. Each Agent hereby
agrees to refrain from sales to discretionary accounts under its
supervision except in accordance with procedures to obtain the prior
specific written approval of the customer that have been approved by the
NASD in compliance with NASD Conduct Rule 2720(l).
2. Except as otherwise expressly provided herein, the Distribution
Agreement is in all respects ratified and confirmed, and all the terms,
provisions and conditions thereof shall be and remain in full force and effect.
<PAGE> 2
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 4 to
the Distribution Agreement to be executed on their behalf as of the date and
year first above written.
POPULAR NORTH AMERICA, INC.
By: /s/ Jorge A. Junquera
------------------------------
Accepted:
MERRILL LYNCH, PIERCE,
FENNER & SMITH INCORPORATED
By: /s/ N.L. Kennan
---------------------------------
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Julie Keogh
---------------------------------
CHASE SECURITIES INC.
By: /s/ Louis P. DeCaro
---------------------------------
POPULAR SECURITIES, INC.
By: /s/ Kenneth W. McGrath
---------------------------------
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Exhibit 4(e)
===============================================================================
POPULAR, INC.,
Issuer
TO
THE FIRST NATIONAL BANK OF CHICAGO,
Trustee
----------------
SECOND SUPPLEMENTAL INDENTURE
Dated as of August 5, 1999
to Indenture dated as of February 15, 1995
----------------
===============================================================================
<PAGE> 2
SECOND SUPPLEMENTAL INDENTURE, dated as of August 5, 1999 between Popular,
Inc. (formerly BanPonce Corporation), a Puerto Rico corporation (the "Company")
and THE FIRST NATIONAL BANK OF CHICAGO, a national banking association, as
Trustee (the "Trustee").
RECITALS
The Company and the Trustee, as Trustee, are parties to an Indenture, dated
as of February 15, 1995 (the "Original Indenture"), which provides for the
issuance from time to time of unsecured debt securities of the Company.
Section 901(5) of the Original Indenture provides that without the consent
of any Holders, the Company, when authorized by a Board Resolution, and the
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental to the Original Indenture, in form satisfactory to the
Trustee, to add to, change or eliminate any of the provisions of the Original
Indenture in respect of one or more series of Securities, provided that any such
addition, change or elimination (i) shall neither (A) apply to any Security of
any series created prior to the execution of such supplemental indenture and
entitled to the benefit of such provision nor (B) modify the rights of the
Holder of any such Security with respect to such provision or (ii) shall become
effective only when there is no such Security Outstanding.
The Company believes that Section 1011 of the Original Indenture should be
amended and restated in its entirety, with effect only as to Securities of any
series created after the execution of this Second Supplemental Indenture.
The Board of Directors of the Company has duly authorized the execution and
delivery by the Company of this Second Supplemental Indenture.
NOW, THEREFORE, THIS
SECOND SUPPLEMENTAL INDENTURE
WITNESSETH:
For and in consideration of the premises and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Company and the Trustee mutually agree as follows:
<PAGE> 3
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions.
Except as otherwise expressly provided or unless context otherwise
requires, all terms used in this Second Supplemental Indenture shall have the
meanings ascribed to them by the Original Indenture, as amended.
Section 102. Effect of Headings.
The Article and Section headings herein are for convenience only and shall
not affect the construction hereof.
Section 103. Successors and Assigns.
All covenants and agreements in this Second Supplemental Indenture by the
parties hereto shall bind their respective successors and assigns, whether so
expressed or not.
Section 104. Separability Clause.
In case any provision in this Second Supplemental Indenture shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 105. Benefits of Instrument.
Nothing in this Second Supplemental Indenture, express or implied, shall
give to any Person, other than the parties hereto and their successors hereunder
and the Holders, any benefit or any legal or equitable right, remedy or claim
under this Second Supplemental Indenture or the Original Indenture.
Section 106. Governing Law.
This Second Supplemental Indenture shall be governed by and construed in
accordance with the laws of the State of New York.
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<PAGE> 4
ARTICLE TWO
Amendment of the Original Indenture
Section 201. Amendment of Section 1011.
Section 1011 of the Original Indenture is hereby amended and restated in
its entirety as follows:
"The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 1006 to 1009,
inclusive, with respect to the Securities of any series if before the
time for such compliance the Holders of at least a majority in
principal amount of the Outstanding Securities of such series shall,
by Act of such Holders, either waive such compliance in such instance
or generally waive compliance with such term, provision or condition,
but no such waiver shall extend to or affect such term, provision or
condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect."
Section 202. Effectiveness of Section 201.
Section 201 of this Second Supplemental Indenture shall neither (i) apply
to any Security of any series created prior to the execution of this Second
Supplemental Indenture and entitled to the benefit of Section 1011 of the
Original Indenture nor (ii) modify the rights of the Holder of any such Security
with respect to Section 1011 of the Original Indenture.
Section 203. Reaffirmation of Original Indenture.
Each of the Company and the Trustee hereby confirms, reaffirms and agrees
to the Original Indenture in every particular, as amended by this Second
Supplemental Indenture.
Section 204. Trust Indenture Act.
If any provision of this Second Supplemental Indenture limits, qualifies or
conflicts with a provision of the Trust Indenture Act of 1939, as it may be
amended from time to time, that is required under such Act to be a part of and
govern this Second Supplemental Indenture, the latter
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<PAGE> 5
provision shall control. If any provision hereof modifies or excludes any
provision of such Act that may be so modified or excluded, the latter provision
shall be deemed to apply to this Second Supplemental Indenture as so modified or
excluded, as the case may be.
* * *
This Second Supplemental Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
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<PAGE> 6
IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
POPULAR, INC.
By: /s/ Roberto R. Herencia
-------------------------------
Name: Roberto R. Herencia
Title: Executive Vice President
By:
-------------------------------
Name: Larry B. Kesler
Title: Executive Vice President
Attest:
/s/ Ramon Lloveras San Miguel
- -------------------------------
Assistant Secretary
Affidavit No. ___
Subscribed to before me by Roberto R. Herencia of legal age, married and
resident of Glenview, Illinois, as Executive Vice President of
Popular, Inc. and ____________________, of legal age, married and resident of
_______________________ as _____________________ of Popular, Inc. and who are
personally known to me, in San Juan, Puerto Rico, this 16th day of August, 1999.
/s/ Lucy Aviles
[SEAL] --------------------------------
Notary Public
-5-
<PAGE> 7
IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
POPULAR, INC.
By:
-------------------------------
Name: Roberto R. Herencia
Title: Executive Vice President
By: /s/ Larry B. Kesler
-------------------------------
Name: Larry B. Kesler
Title: Executive Vice President
Attest:
/s/ Ramon Lloveras San Miguel
- --------------------------------
Ramon Lloveras San Miguel,
Assistant Secretary
Affidavit No. 1,187
Subscribed to before me by Larry B. Kesler, of legal age, married and
resident of Guaynabo, Puerto Rico as Executive Vice President of Popular, Inc.
and who is personally known to me, in San Juan, Puerto Rico, this 12th day of
August, 1999.
/S/ Estela Martinez
[SEAL] -----------------------------
Notary Public
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THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Michael D. Pinzon
-------------------------------
Name: Michael D. Pinzon
Title: Trust Officer
Attest:
/s/ Steve M. Husbands
- ---------------------
Steve M. Husbands
Assistant Vice President
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 5 day of August, 1999, before me personally came Michael Pinzon,
to me known, who, being by me duly sworn, did depose and say that he/she is a
Trust Officer of The First National Bank of Chicago, one of the corporations
described in and which executed the foregoing instrument; that he/she knows
the seal of said national banking association; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he/she signed his/her name
thereto by like authority.
[SEAL] /s/ Mark E. Davis
-------------------------------
Notary Public
Mark E. Davis
Notary Public, State of New York
Reg. No. 01DA6004466
Qualified in New York County
Commission Expires March 23, 2000
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<PAGE> 1
Exhibit 4(h)
================================================================================
POPULAR NORTH AMERICA, INC.,
Issuer
and
POPULAR, INC.,
Guarantor
TO
THE FIRST NATIONAL BANK OF CHICAGO,
Trustee
----------------
THIRD SUPPLEMENTAL INDENTURE
Dated as of August 5, 1999
to Indenture dated as of October 1, 1991
----------------
================================================================================
<PAGE> 2
THIRD SUPPLEMENTAL INDENTURE, dated as of August 5, 1999 among Popular
North America, Inc. (formerly BanPonce Financial Corp.), a Delaware corporation
(the "Company"), Popular, Inc. (formerly BanPonce Corporation), a Puerto Rico
corporation (the "Guarantor"), and THE FIRST NATIONAL BANK OF CHICAGO, a
national banking association, as Trustee (the "Trustee").
RECITALS
The Company, the Guarantor and the Trustee, as successor Trustee, are
parties to an Indenture, dated as of October 1, 1991 (the "Original Indenture"),
which provides for the issuance from time to time of unsecured debt securities
of the Company, unconditionally guaranteed as to the payment of principal,
premium (if any) and interest by the Guarantor, and are parties to a First
Supplemental Indenture thereto, dated as of February 28, 1995 and a Second
Supplemental Indenture thereto, dated as of May 8, 1997.
Section 901(5) of the Original Indenture provides that without the consent
of any Holders, the Company and the Guarantor, when authorized by Board
Resolutions, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental to the Original Indenture, in form
satisfactory to the Trustee, to add to, change or eliminate any of the
provisions of the Original Indenture in respect of one or more series of
Securities, provided that any such addition, change or elimination (i) shall
neither (A) apply to any Security of any series created prior to the execution
of such supplemental indenture and entitled to the benefit of such provision nor
(B) modify the rights of the Holder of any such Security with respect to such
provision or (ii) shall become effective only when there is no such Security
Outstanding.
The Company and the Guarantor believe that Section 1013 of the Original
Indenture should be amended and restated in its entirety, with effect only as to
Securities of any Series created after the execution of this Third Supplemental
Indenture.
The respective Boards of Directors of the Company and the Guarantor have
duly authorized the execution and delivery by the Company and the Guarantor,
respectively, of this Third Supplemental Indenture.
<PAGE> 3
NOW, THEREFORE, THIS
THIRD SUPPLEMENTAL INDENTURE
WITNESSETH:
For and in consideration of the premises and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Company, the Guarantor and the Trustee mutually agree as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions.
Except as otherwise expressly provided or unless context otherwise
requires, all terms used in this Third Supplemental Indenture shall have the
meanings ascribed to them by the Original Indenture.
Section 102. Effect of Headings.
The Article and Section headings herein are for convenience only and shall
not affect the construction hereof.
Section 103. Successors and Assigns.
All covenants and agreements in this Third Supplemental Indenture by the
parties hereto shall bind their respective successors and assigns, whether so
expressed or not.
Section 104. Separability Clause.
In case any provision in this Third Supplemental Indenture shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 105. Benefits of Instrument.
Nothing in this Third Supplemental Indenture, express or implied, shall
give to any Person, other than the parties hereto and their successors hereunder
and the Holders, any benefit or any legal or equitable right, remedy or claim
under this Third Supplemental Indenture or the Original Indenture.
-2-
<PAGE> 4
Section 106. Governing Law.
This Third Supplemental Indenture shall be governed by and construed in
accordance with the laws of the State of New York.
ARTICLE TWO
Amendment of the Original Indenture
Section 201. Amendment of Section 1013.
Section 1013 of the Original Indenture is hereby amended and restated in
its entirety as follows:
"The Company and the Guarantor may omit in any particular instance to
comply with any term, provision or condition set forth in Sections
1006, 1007 and 1009 to 1011, inclusive, with respect to the Securities
of any series if before the time for such compliance the Holders of at
least a majority in principal amount of the Outstanding Securities of
such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such
term, provision or condition, but no such waiver shall extend to or
affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the Guarantor and the duties of the
Trustee in respect of any such term, provision or condition shall
remain in full force and effect."
Section 202. Effectiveness of Section 201.
Section 201 of this Third Supplemental Indenture shall neither (i) apply to
any Security of a series created prior to the execution of this Third
Supplemental Indenture and entitled to the benefit of Section 1013 of the
Original Indenture nor (ii) modify the rights of the Holder of any such Security
with respect to Section 1013 of the Original Indenture.
Section 203. Reaffirmation of Original Indenture.
Each of the Company, the Guarantor and the Trustee hereby confirms,
reaffirms and agrees to the Original Indenture in every particular, as amended
by this Third Supplemental Indenture.
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<PAGE> 5
Section 204. Trust Indenture Act.
If any provision of this Third Supplemental Indenture limits, qualifies or
conflicts with a provision of the Trust Indenture Act of 1939, as it may be
amended from time to time, that is required under such Act to be a part of and
govern this Third Supplemental Indenture, the latter provision shall control. If
any provision hereof modifies or excludes any provision of such Act that may be
so modified or excluded, the latter provision shall be deemed to apply to this
Third Supplemental Indenture as so modified or excluded, as the case may be.
* * *
This Third Supplemental Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
-4-
<PAGE> 6
IN WITNESS WHEREOF, the parties hereto have caused this Third Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
POPULAR NORTH AMERICA, INC.
By: /s/ Roberto R. Herencia
--------------------------------
Name: Roberto R. Herencia
Title: Executive Vice President
By:
--------------------------------
Name: Larry B. Kesler
Title: Executive Vice President
Attest:
/s/ Ramon Lloveras San Miguel
- ------------------------------
Assistant Secretary
Affidavit No. ___
Subscribed to before me by Roberto R. Herencia of legal age, married and
resident of Glenview, Illinois, as Executive Vice President of Popular North
America, Inc. and ____________, of legal age, married and resident of
___________, Puerto Rico as __________________ of Popular North America, Inc.
and who are personally known to me, in San Juan, Puerto Rico, this 16th day of
August, 1999.
/s/ Lucy Aviles
[SEAL] ------------------------------
Notary Public
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<PAGE> 7
IN WITNESS WHEREOF, the parties hereto have caused this Third Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
POPULAR NORTH AMERICA, INC.
By:
--------------------------------
Name: Roberto R. Herencia
Title: Executive Vice President
By: /s/ Larry B. Kesler
--------------------------------
Name: Larry B. Kesler
Title: Executive Vice President
Attest:
/s/ Ramon Lloveras San Miguel
- ------------------------------
Assistant Secretary
Affidavit No. 1190
Subscribed to before me by Larry b. Kesler, of legal age, married and
resident of Guaynabo, Puerto Rico as Executive Vice President of Popular North
America, Inc. and who is personally known to me, in San Juan, Puerto Rico, this
12th day of August, 1999.
/s/ Estela Martinez
[SEAL] ------------------------------
Notary Public
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<PAGE> 8
POPULAR, INC.
By: /s/ Roberto R. Herencia
---------------------------------
Name: Roberto R. Herencia
Title: Executive Vice President
By:
---------------------------------
Name: Larry B. Kesler
Title: Executive Vice President
Attest:
/s/ Ramon Lloveras San Miguel
- -----------------------------------
Assistant Secretary
Affidavit No. ___
Subscribed to before me by Roberto R. Herencia of legal age, married and
resident of Glenview, Illinois, as Executive Vice President of
Popular, Inc. and _____________, of legal age, married and resident of ______,
____________ as _____________________ of Popular, Inc. and who are personally
known to me, in San Juan, Puerto Rico, this 16th day of August, 1999.
/s/ Lucy Aviles
[SEAL] -------------------------------
Notary Public
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<PAGE> 9
POPULAR, INC.
By:
---------------------------------
Name: Roberto R. Herencia
Title: Executive Vice President
By: /s/ Larry B. Kesler
---------------------------------
Name: Larry B. Kesler
Title: Executive Vice President
Attest:
/s/ Ramon Lloveras San Miguel
- -----------------------------------
Assistant Secretary
Affidavit No. 1191
Subscribed to before me by Larry B. Kesler, of legal age, married and
resident of Guaynabo, Puerto Rico as Executive Vice President of Popular, Inc.
and who is personally known to me, in San Juan, Puerto Rico, this 12th day of
August, 1999.
/s/ Estela Martinez
[SEAL] -------------------------------
Notary Public
-6-
<PAGE> 10
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Michael D. Pinzon
---------------------------
Name: Michael D. Pinzon
Title: Trust Officer
Attest:
/s/ Steve M. Husbands
- ------------------------------
Steve M. Husbands
Assistant Vice President
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 5 day of August, 1999, before me personally came
Michael Pinzon, to me known, who, being by me duly sworn, did depose and
say that he/she is a Trust Officer of The First National Bank of Chicago, one of
the corporations described in and which executed the foregoing instrument; that
he/she knows the seal of said national banking association; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation, and that he/she signed
his/her name thereto by like authority.
[SEAL] /s/ Mark E. Davis
----------------------------
Notary Public
Mark E. Davis
Notary Public, State of New York
Reg. No. 01DA6004466
Qualified in New York County
Commission Expires March 23, 2000
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<PAGE> 1
Exhibit 4(o)
[Form of Fixed Rate Medium-Term Note]
(FACE OF SECURITY)
[IF A GLOBAL SECURITY, INSERT -- THIS SECURITY 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 SECURITY MAY NOT BE EXCHANGED IN
WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN
WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH
DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE.]
[IF DTC IS THE DEPOSITARY, INSERT -- UNLESS THIS CERTIFICATE IS PRESENTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO POPULAR, INC. OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
[INSERT ANY LEGEND REQUIRED BY THE INTERNAL REVENUE CODE AND THE
REGULATIONS THEREUNDER.]
<PAGE> 2
CUSIP NO. _______
REGISTERED NO. FXR ______
POPULAR, INC.
MEDIUM-TERM NOTES, SERIES 4
(Fixed Rate)
The following terms apply to this Security, as and to the extent shown
below:
PRINCIPAL AMOUNT: REGULAR RECORD DATE:
STATED MATURITY DATE: ORIGINAL ISSUE DISCOUNT SECURITY:
SPECIFIED CURRENCY: U.S. dollars
for all payments unless otherwise - Total Amount of OID:
specified below: - Yield to Maturity:
- Initial Accrual Period OID:
- payments of principal and any - OID Default Amount:
premium: - Default Rate:
- payments of interest: REDEMPTION COMMENCEMENT DATE:
- Exchange Rate Agent: REPAYMENT DATE(S):
INTEREST RATE: _____% per annum REDEMPTION OR REPAYMENT PRICE(S):
INTEREST PAYMENT DATE(S): OTHER TERMS:
ORIGINAL ISSUE DATE*:
Terms left blank or marked "N/A", "No", "None" or in a similar manner do
not apply to this Security except as otherwise may be specified.
Whenever used in this Security, the terms specified above that apply to
this Security have the meanings specified above, unless the context requires
otherwise. Other terms used in this Security that are not defined herein but
that are defined in the Indenture referred to in Section 1 on the reverse of
this Security are used herein as defined therein.
______________
* This date shall be the issue date of this Security, unless there is a
Predecessor Security, in which case this date shall be the issue date of
the first Predecessor Security.
(Face of Security continued on next page)
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<PAGE> 3
Popular, Inc., a corporation duly organized and existing under the laws of
the Commonwealth of Puerto Rico (hereinafter called the "Company", which term
includes any successor Person under the Indenture), for value received, hereby
promises to pay to _____________, or registered assigns, as principal the
Principal Amount on the Stated Maturity Date and to pay interest thereon, from
the Original Issue Date or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, on the Interest Payment Date(s) in
each year, commencing on the first such date that is at least 15 calendar days
after the Original Issue Date, and at the Maturity of the principal hereof, at
the rate per annum equal to the Interest Rate specified on the face hereof,
until the principal hereof is paid or made available for payment.
Notwithstanding the foregoing, interest on any principal that is overdue shall
be payable on demand.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the 15th calendar day (whether or not a
Business Day, as such term is defined in Section 3 on the reverse hereof) next
preceding such Interest Payment Date, unless otherwise provided on the face
hereof (a "Regular Record Date"). Any interest so payable, but not punctually
paid or duly provided for, on any Interest Payment Date will forthwith cease to
be payable to the Holder on such Regular Record Date and such Defaulted Interest
either may be paid to the Person in whose name this Security (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 the Holder of this Security not less
than 10 days prior to such Special Record Date, or may be paid in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which this Security may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in the Indenture.
If this Security is issued with an original issue discount, (i) if an Event
of Default with respect to the Security of this series shall have occurred and
be continuing, the amount of principal of this Security which may be declared
due and payable in the manner, with the effect and subject to the conditions
provided in the Indenture, shall be determined in the manner set forth under
"OID Default Amount" on the face hereof, and (ii) in the case of a default of
payment in principal upon acceleration,
(Face of Security continued on next page)
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<PAGE> 4
redemption, repayment at the option of the Holder or at the Stated Maturity Date
hereof, in lieu of any interest otherwise payable, the overdue principal of this
Security shall bear interest at a rate of interest per annum equal to the
Default Rate stated on the face hereof (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
acceleration, redemption, repayment at the option of the Holder or Stated
Maturity Date, as the case may be, to the date payment has been made or duly
provided for or such default has been waived in accordance with the terms of the
Indenture.
CURRENCY OF PAYMENT
Payment of principal of (and premium, if any) and interest on this Security
will be made in the Specified Currency for such payment, except as provided in
this and the next three paragraphs. The Specified Currency for any payment shall
be the currency specified as such on the face of this Security unless, at the
time of such payment, such currency is not legal tender for the payment of
public and private debts in the country issuing such currency on the Original
Issue Date, in which case the Specified Currency for such payment shall be such
coin or currency as at the time of such payment is legal tender for the payment
of public and private debts in such country.
Except as provided in the next paragraph, any payment to be made on this
Security in a Specified Currency other than U.S. dollars will be made in U.S.
dollars if the Person entitled to receive such payment transmits a written
request for such payment to be made in U.S. dollars to the Trustee at its
Corporate Trust Office, Attention: Securities Processing Division, on or before
the fifth Business Day before the payment is to be made. Such written request
may be mailed, hand delivered, telecopied or delivered in any other manner
approved by the Trustee. Any such request made with respect to any payment on
this Security payable to a particular Holder will remain in effect for all later
payments on this Security payable to such Holder, unless such request is revoked
on or before the fifth Business Day before a payment is to be made, in which
case such revocation shall be effective for such and all later payments. In the
case of any payment of interest payable on an Interest Payment Date, such
written request must be made by the Person who is the registered Holder of this
Security on the relevant Regular Record Date.
The U.S. dollar amount of any payment made pursuant to the immediately
preceding paragraph will be
(Face of Security continued on next page)
-4-
<PAGE> 5
determined by the Exchange Rate Agent based upon the highest bid quotation
received by the Exchange Rate Agent as of 11:00 A.M., New York City time, on the
second Business Day preceding the applicable payment date, from three (or, if
three are not available, then two) recognized foreign exchange dealers selected
by the Exchange Rate Agent in The City of New York, in each case for the
purchase by the quoting dealer, for U.S. dollars and for settlement on such
payment date of an amount of the Specified Currency for such payment equal to
the aggregate amount of such Specified Currency payable on such payment date to
all Holders of Securities of this or any other series who elect to receive U.S.
dollar payments on such payment date, and at which the applicable dealer commits
to execute a contract. If the Exchange Rate Agent determines that two such bid
quotations are not available on such second Business Day, such payment will be
made in the Specified Currency for such payment. All currency exchange costs
associated with any payment in U.S. dollars on this Security will be borne by
the Holder entitled to receive such payment, by deduction from such payment.
Notwithstanding the foregoing, if any amount payable on this Security is
payable on any day (including at Maturity) in a Specified Currency other than
U.S. dollars, and if such Specified Currency is not available to the Company on
the two Business Days before such day, due to the imposition of exchange
controls, disruption in a currency market or any other circumstances beyond the
control of the Company, the Company will be entitled to satisfy its obligation
to pay such amount in such Specified Currency by making such payment in U.S.
dollars. The amount of such payment in U.S. dollars shall be determined by the
Exchange Rate Agent on the basis of the noon buying rate for cable transfers in
The City of New York for such Specified Currency (the "Exchange Rate") as of the
latest day before the day on which such payment is to be made. Any payment made
under such circumstances in U.S. dollars where the required payment is in other
than U.S. dollars will not constitute an Event of Default under the Indenture or
this Security.
MANNER OF PAYMENT - U.S. DOLLARS
Except as provided in the next paragraph, payment of any amount payable on
this Security in U.S. dollars will be made at the office or agency of the
Company maintained for that purpose in The City of New York (or at any other
office or agency maintained by the Company for that purpose), against surrender
of this Security in the case of any payment due at the Maturity of the principal
hereof
(Face of Security continued on next page)
-5-
<PAGE> 6
(other than any payment of interest that first becomes due on an Interest
Payment Date); provided, however, that, at the option of the Company and subject
to the next paragraph, payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register.
Payment of any amount payable on this Security in U.S. dollars will be made
by wire transfer of immediately available funds to an account maintained by the
payee with a bank located in the Borough of Manhattan, The City of New York, if
(i) the principal of this Security is at least $10,000,000 and (ii) the Holder
entitled to receive such payment transmits a written request for such payment to
be made in such manner to the Paying Agent at its Corporate Trust Office,
Attention: Securities Processing Division, on or before the Regular Record Date
preceding the day on which such payment is to be made; provided that, in the
case of any such payment due at the Maturity of the principal hereof (other than
any payment of interest that first becomes due on an Interest Payment Date),
this Security must be surrendered at the office or agency of the Company
maintained for that purpose in The City of New York (or at any other office or
agency maintained by the Company for that purpose) in time for the Paying Agent
to make such payment in such funds in accordance with its normal procedures. Any
such request made with respect to any payment on this Security payable to a
particular Holder will remain in effect for all later payments on this Security
payable to such Holder, unless such request is revoked on or before the Regular
Record Date preceding the day on which such payment is to be made, in which case
such revocation shall be effective for such payment and all later payments;
provided that in the case of any payment due at Maturity of the principal of
this Security to be effective any request for revocation must be made no later
than the 15th day prior to the Maturity of the principal of this Security. In
the case of any payment of interest payable on an Interest Payment Date, such
written request must be made by the Person who is the registered Holder of this
Security on the relevant Regular Record Date. The Company will pay any
administrative costs imposed by banks in connection with making payments by wire
transfer with respect to this Security, but any tax, assessment or other
governmental charge imposed upon any payment will be borne by the Holder of this
Security and may be deducted from the payment by the Company or the Paying
Agent.
MANNER OF PAYMENT - OTHER SPECIFIED CURRENCIES
(Face of Security continued on next page)
-6-
<PAGE> 7
Payment of any amount payable on this Security in a Specified Currency
other than U.S. dollars will be made by wire transfer of immediately available
funds to such account as is maintained in such Specified Currency at a bank or
other financial institution acceptable to the Company and the Trustee and as
shall have been designated at least five Business Days prior to the applicable
payment date by the Person entitled to receive such payment; provided that, in
the case of any such payment due at the Maturity of the principal hereof (other
than any payment of interest that first becomes due on an Interest Payment
Date), this Security must be surrendered at the office or agency of the Company
maintained for that purpose in The City of New York (or at any other office or
agency maintained by the Company for that purpose) in time for the Paying Agent
to make such payment in such funds in accordance with its normal procedures.
Such account designation shall be made by transmitting the appropriate
information to the Trustee at its Corporate Trust Office in the Borough of
Manhattan, The City of New York, by mail, hand delivery, telecopier or in any
other manner approved by the Trustee. Unless revoked, any such account
designation made with respect to this Security by the Holder hereof will remain
in effect with respect to any further payments with respect to this Security
payable to such Holder. If a payment in a Specified Currency other than U.S.
dollars with respect to this Security cannot be made by wire transfer because
the required account designation has not been received by the Trustee on or
before the requisite date or for any other reason, the Company will cause a
notice to be given to the Holder of this Security at its registered address
requesting an account designation pursuant to which such wire transfer can be
made and such payment will be made within five Business Days after the Trustee's
receipt of such a designation meeting the requirements specified above, with the
same force and effect as if made on the due date. The Company will pay any
administrative costs imposed by banks in connection with making payments by wire
transfer with respect to this Security, but any tax, assessment or other
governmental charge imposed upon any payment will be borne by the Holder of this
Security and may be deducted from the payment by the Company or the Paying
Agent.
MANNER OF PAYMENT - GLOBAL SECURITIES
Notwithstanding any provision of this Security or the Indenture, if this
Security is a Global Security, the Company may make any and all payments of
principal, premium and interest on this Security pursuant to the Applicable
Procedures of the Depositary for this Security as permitted in the Indenture.
(Face of Security continued on next page)
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<PAGE> 8
PAYMENTS DUE ON A BUSINESS DAY
Unless otherwise specified on the face of this Security, the following
sentence shall apply to this Security. Notwithstanding any provision of this
Security or the Indenture, if any amount of principal, premium or interest would
otherwise be due on this Security on a day (the "Specified Day") that is not a
Business Day, such amount may be paid or made available for payment on the next
succeeding Business Day with the same force and effect as if such amount were
paid on the Specified Day. The provisions of this paragraph shall apply to the
Security in lieu of the provisions of Section 113 of the Indenture.
______________________________
Reference is hereby made to the further provisions of this Security 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 Security shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
(Face of Security continued on next page)
-8-
<PAGE> 9
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated:
POPULAR, INC.
By____________________________
Name:
Title:
By____________________________
Name:
Title:
Attest: ______________________
This Security is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By_________________________________
Authorized Officer
-9-
<PAGE> 10
(Reverse of Security)
1. SECURITIES AND INDENTURE
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities") issued and to be issued in one or more
series under an Indenture, dated as of February 15, 1995 as supplemented by the
First Supplemental Indenture, dated as of May 8, 1997 and the Second
Supplemental Indenture dated as of August 5, 1999 (together herein called the
"Indenture", which term shall have the meaning assigned to it in such
instrument), between the Company and The First National Bank of Chicago, as
Trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture), and reference is hereby made to the Indenture 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.
2. SERIES AND DENOMINATIONS
This Security is one of the series designated on the face hereof, limited
to an aggregate initial offering price not to exceed $1,500,000,000 (or the
equivalent thereof in any other currency or currencies or currency units) less
the aggregate initial offering price of "Securities" (as defined in the
Prospectus dated August 4, 1999 relating to debt securities and preferred stock
of the Company, Popular International Bank, Inc. and Popular North America,
Inc.) authenticated and delivered upon initial issuance, other than the
Securities of this series, which amount may be increased at the option of the
Company if in the future it determines that it may wish to sell additional
Securities of this series. References herein to "this series" mean the series of
securities designated on the face hereof.
The Securities of this series are issuable only in registered form without
coupons in "Authorized Denominations", which term shall have the following
meaning. For each Security of this series having a principal amount payable in
U.S. dollars, the Authorized Denominations shall be $100,000 and any integral
multiples of $1,000 in excess thereof. For each Security of this series having a
principal amount payable in a Specified Currency other than U.S. dollars, the
Authorized Denominations shall be the amount of such Specified Currency
equivalent, at the Exchange Rate on
(Reverse of Security continued on next page)
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<PAGE> 11
the first Business Day next preceding the date on which the Company accepts the
offer to purchase such Security, to $100,000 and any integral multiples of
$1,000 in excess thereof.
3. EXCHANGE RATE AGENT AND RELATED TERMS
If the principal of or interest on this Security is payable in a Specified
Currency other than U.S. dollars, the Company has initially appointed the
institution named on the face of this Security as Exchange Rate Agent to act as
such agent with respect to this Security, but the Company may, in its sole
discretion, appoint any other institution (including any Affiliate of the
Company) to serve as any such agent from time to time. The Company will give the
Trustee prompt written notice of any change in any such appointment. Insofar as
this Security provides for any such agent to obtain rates, quotes or other data
from a bank, dealer or other institution for use in making any determination
hereunder, such agent may do so from any institution or institutions of the kind
contemplated hereby notwithstanding that any one or more of such institutions
are such agent, Affiliates of such agent, any of the agents named on the cover
of the Company's Prospectus Supplement dated August 6, 1999 relating to the
Company's Medium-Term Notes, Series 4 or any Affiliate of any such agent or
Affiliates of the Company.
All determinations made by the Exchange Rate Agent may be made by such
agent in its sole discretion and, absent manifest error, shall be conclusive for
all purposes and binding on the Holder of this Security and the Company. The
Exchange Rate Agent shall not have any liability therefor.
Unless otherwise specified on the face hereof, for all purposes of this
Security, the term "Business Day" means each Monday, Tuesday, Wednesday,
Thursday or Friday that (i) is not a day on which banking institutions in New
York City generally are authorized or obligated by law, regulation or executive
order to close and (ii) if the Specified Currency for any payment on this
Security is other than U.S. dollars, is not a day on which banking institutions
in the principal financial center of the country issuing such Specified Currency
generally are authorized or obligated by law, regulation or executive order to
close. With respect to any particular location, the close of business on any day
on which business is not being conducted shall be deemed to mean 5:00 P.M., New
York City time, on that day.
(Reverse of Security continued on next page)
-11-
<PAGE> 12
References in this Security to U.S. dollars shall mean, as of any time, the
coin or currency that is then legal tender for the payment of public and private
debts in the United States of America.
References in this Security to a particular currency other than U.S.
dollars shall mean, as of any time, the coin or currency that is then legal
tender for the payment of public and private debts in the country issuing such
currency on the Original Issue Date.
4. REDEMPTION AT THE COMPANY'S OPTION
Unless a Redemption Commencement Date is specified on the face hereof,
except as provided below, this Security shall not be redeemable at the option of
the Company before the Stated Maturity Date. If a Redemption Commencement Date
is so specified, and unless otherwise specified on the face hereof, this
Security is subject to redemption upon not less than 30 days' nor more than 60
days' notice at any time and from time to time on or after the Redemption
Commencement Date, in each case as a whole or in part, at the election of the
Company and at the applicable Redemption Price specified on the face hereof
(expressed as a percentage of the principal amount of this Security to be
redeemed), together with accrued interest to the Redemption Date, but interest
installments due on or prior to such Redemption Date will be payable to the
Holder of this Security, or one or more Predecessor Securities, of record at the
close of business on the relevant record date, all as provided in the Indenture;
provided, however, that the first two paragraphs of Section 1103 of the
Indenture shall not apply to this Security, and if less than all of the
Securities of this series are to be redeemed, the Company may select, from
Securities of this series that are subject to redemption pursuant to the terms
thereof, the Security or Securities, or portion or portions thereof, to be
redeemed.
In the event that the Company shall be obligated to pay any Additional
Amounts due to a change in law, regulation or interpretation, the Company may,
at its option, redeem this Security as a whole at a redemption price of 100% of
the principal amount thereof (or, if this Security is an original issue discount
note, 100% of the OID Default Amount) together with accrued interest to the date
fixed for redemption.
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<PAGE> 13
5. REPAYMENT AT THE HOLDER'S OPTION
Except as otherwise may be provided on the face hereof, if one or more
Repayment Dates are specified on the face hereof, this Security will be
repayable in whole or in part in an amount equal to any Authorized Denomination
(provided that the remaining principal amount of any Security surrendered for
partial repayment shall at least equal an Authorized Denomination), on any such
Repayment Date, in each case at the option of the Holder and at the applicable
Repayment Price specified on the face hereof (expressed as a percentage of the
principal amount to be repaid), together with accrued interest to the applicable
Repayment Date (but interest installments due on or prior to such Repayment Date
will be payable to the Holder of this Security, or one or more Predecessor
Securities, of record at the close of business on the relevant Record Date as
provided in the Indenture). If this Security provides for more than one
Repayment Date and the Holder exercises its option to elect repayment, the
Holder shall be deemed to have elected repayment on the earliest Repayment Date
after all conditions to such exercise have been satisfied, and references herein
to the "applicable Repayment Date" shall mean such earliest Repayment Date.
In order for the exercise of such option to be effective and this Security
to be repaid, the Company must receive at the applicable address of the Paying
Agent set forth below (or at such other place or places of which the Company
shall from time to time notify the Holder of this Security), on any Business Day
not later than the 30th, and not earlier than the 60th, calendar day prior to
the applicable Repayment Date (or, if either such calendar day is not a Business
Day, the next succeeding Business Day), either (i) this Security, with the form
below entitled "Option to Elect Repayment" duly com pleted and signed, or (ii) a
telegram, telex, facsimile transmission or letter from a member of a national
securities exchange or the National Association of Securities Dealers, Inc., a
commercial bank or a trust company in the United States of America setting forth
(a) the name, address and telephone number of the Holder of this Security, (b)
the principal amount of this Security and the amount of this Security to be
repaid, (c) a statement that the option to elect repayment is being exercised
thereby and (d) a guarantee stating that the Company will receive this Security,
with the form below entitled "Option to Elect Repayment" duly completed and
signed, not later than five Business Days after the date of such telegram,
telex, facsimile trans-
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<PAGE> 14
mission or letter (provided that this Security and form duly completed and
signed are received by the Company by such fifth Business Day). Any such
election shall be irrevocable. The address to which such deliveries are to be
made is The First National Bank of Chicago, Attention: Securities Processing
Division, 14 Wall Street, Eighth Floor, New York, New York 10005 (or at such
other places as the Company or the Paying Agent shall notify the Holder of this
Security). All questions as to the validity, eligibility (including time of
receipt) and acceptance of any Security for repayment will be determined by the
Company, whose determination will be final and binding. Notwithstanding the
foregoing, (x) if this Security is a Global Security, the option of the Holder
to elect repayment may be exercised in accordance with the Applicable Procedures
of the Depositary for this Security at least 30 calendar days prior to the
applicable Repayment Date and (y) whether or not this Security is a Global
Security, the option of the Holder to elect repayment may be exercised in any
such manner as the Company may approve.
6. TRANSFER AND EXCHANGE
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security 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 Security 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 or her attorney
duly authorized in writing, and thereupon one or more new Securities of this
series and of like tenor, of Authorized Denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series 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.
(Reverse of Security continued on next page)
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<PAGE> 15
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company nor
the Trustee nor any such agent shall be affected by notice to the contrary.
If this Security is a Global Security, this Security shall be subject to
the provisions of the Indenture relating to Global Securities, including the
limitations in Section 305 thereof on transfers and exchanges of Global
Securities.
7. [RESERVED].
8. REMEDIES.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee indemnity reasonably satisfactory to
it, and the Trustee shall not have received from the Holders of a majority in
principal amount of Securities of this series at the time Outstanding a
direction inconsistent with such request, and shall have failed to institute any
such proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder of
this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or
(Reverse of Security continued on next page)
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<PAGE> 16
impair the obligation of the Company, which is absolute and unconditional, to
pay the principal of (and premium, if any) and interest on this Security at the
times, place and rate, and in the coin or currency, herein prescribed.
9. MODIFICATION AND WAIVER.
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 a majority in principal amount of the Securities at
the time Outstanding of all series to be affected (considered together as one
class for this purpose). The Indenture also contains provisions (i) permitting
the Holders of a majority in principal amount of the Securities at the time
Outstanding of all series to be affected under the Indenture (considered
together as one class for this purpose), on behalf of the Holders of all
Securities of such series, to waive compliance by the Company with certain
provisions of the Indenture and (ii) permitting the Holders of a majority in
principal amount of the Securities at the time Outstanding of any series to be
affected under the Indenture (with each such series considered separately for
this purpose), on behalf of the Holders of all Securities of such series, to
waive certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security 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 Security.
10. GOVERNING LAW.
THIS SECURITY AND THE INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(Reverse of Security continued on next page)
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<PAGE> 17
REGISTERED NO. FXR __________
CUSIP NO. __________
ORIGINAL ISSUE DATE: __________
POPULAR, INC.
MEDIUM-TERM NOTE, SERIES 4
OPTION TO ELECT REPAYMENT
TO BE COMPLETED ONLY IF THIS SECURITY IS REPAYABLE
AT THE OPTION OF THE HOLDER AND THE HOLDER
ELECTS TO EXERCISE SUCH RIGHT
The undersigned hereby irrevocably requests and instructs the Company to
repay the Security referred to in this notice (or the portion thereof specified
below) at the applicable Repayment Price, together with interest to the
Repayment Date, all as provided for in such Security, to the undersigned, whose
name, address and telephone number are as follows:
________________________________________________________________________________
(please print name of the undersigned)
________________________________________________________________________________
(please print address of the undersigned)
________________________________________________________________________________
(please print telephone number of the undersigned)
If such Security provides for more than one Repayment Date, the undersigned
requests repayment on the earliest Repayment Date after the requirements for
exercising this option have been satisfied, and references in this notice to the
Repayment Date mean such earliest Repayment Date. Terms used in this notice that
are defined in such Security are used herein as defined therein.
For such Security to be repaid the Company must receive at the applicable
address of the Trustee set forth below or at such other place or places of which
the Company or the Trustee shall from time to time notify the Holder of such
Security, any Business Day not later than the 30th or earlier than the 60th
calendar day prior to the Repayment Date (or, if either such calendar day is not
a Business Day, the next succeeding Business Day), (i) such Security, with this
"Option to Elect Repayment" form duly completed and signed, or (ii) a telegram,
telex, facsimile transmission or
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<PAGE> 18
letter from a member of a national securities exchange or the National
Association of Securities Dealers, Inc., a commercial bank or a trust company in
the United States of America setting forth (a) the name, address and telephone
number of the Holder of such Security, (b) the principal amount of such Security
and the amount of such Security to be repaid, (c) a statement that the option to
elect repayment is being exercised thereby and (d) a guarantee stating that such
Security to be repaid with the form entitled "Option to Elect Repayment" on the
addendum to the Security duly completed and signed will be received by the
Company not later than five Business Days after the date of such telegram,
telex, facsimile transmission or letter (provided that such Security and form
duly completed and signed are received by the Company by such fifth Business
Day). The address to which such deliveries are to be made is:
The First National Bank of Chicago
Attention: Securities Processing Division
14 Wall Street - Eighth Floor
New York, New York 10005
or at such other place as the Company or the Paying Agent shall notify the
holder of such Security.
If less than the entire principal amount of such Security is to be repaid,
specify the portion thereof (which shall equal any Authorized Denomination) that
the Holder elects to have repaid:
_________________________
and specify the denomination or denominations (which shall equal any Authorized
Denomination) of the Security or Securities to be issued to the Holder in
respect of the portion of such Security not being repaid (in the absence of any
specification, one Security will be issued in respect of the portion not being
repaid):
_________________________
Date: _______________ ______________________________
Notice: The signature to this
Option to Elect Repayment must
correspond with the name of the
Holder as written on the face of
such Security in every particular
without
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<PAGE> 19
alteration or enlargement or any
other change whatsoever.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this Security, 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 the right of
survivorship and not as tenants
in common
UNIF GIFT MIN ACT - __________ Custodian _________
(Cust) (Minor)
under Uniform Gifts to Minors Act
___________________________
(State)
Additional abbreviations may also be used
though not in the above list.
___________________________
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<PAGE> 20
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
_____________________
/_____________________/
________________________________________________________________________
________________________________________________________________________
(Please Print or Typewrite Name and Address
Including Postal Zip Code of Assignee)
________________________________________________________________________
the attached Security and all rights thereunder, and hereby irrevocably
constitutes and appoints_________________________________________________
_________________________________________________________________________
to transfer said Security on the books of the Company, with full power of
substitution in the premises.
Dated:______________
Signature Guaranteed
_________________________ _______________________________
NOTICE: Signature must be NOTICE: The signature to
guaranteed. this assignment must correspond
with the name of the Holder as
written upon the face of the
attached Security in every
particular, without alteration or
enlargement or any change whatever.
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<PAGE> 1
Exhibit 4(p)
[Form of Floating Rate Medium-Term Note]
(FACE OF SECURITY)
[IF A GLOBAL SECURITY, INSERT - THIS SECURITY 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 SECURITY MAY NOT BE EXCHANGED IN
WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN
WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH
DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE.]
[IF DTC IS THE DEPOSITARY, INSERT -- UNLESS THIS CERTIFICATE IS PRESENTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO POPULAR, INC., OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
[INSERT ANY LEGEND REQUIRED BY THE INTERNAL REVENUE CODE AND THE
REGULATIONS THEREUNDER.]
<PAGE> 2
REGISTERED NO. FLR___ CUSIP NO. _______
POPULAR, INC.
MEDIUM-TERM NOTES, SERIES 4
(Floating Rate)
The following terms apply to this Security, as and to the extent shown
below:
PRINCIPAL AMOUNT: REPAYMENT DATE(S):
STATED MATURITY DATE: REDEMPTION OR REPAYMENT
PRICE(S):
SPECIFIED CURRENCY: U.S. BASE RATE:
dollars for all payments - Commercial Paper Rate:
unless otherwise specified
below: - Prime Rate:
- payments of principal and - LIBOR:
any premium: - Telerate LIBOR Page:
- payments of interest: - Reuters Screen LIBOR Page:
- Exchange Rate Agent: - Index Currency:
*ORIGINAL ISSUE DATE: - Treasury Rate:
- CMT Rate:
REGULAR RECORD DATE: - Telerate Page 7051:
- Telerate Page 7052
ORIGINAL ISSUE DISCOUNT (weekly/monthly):
- CMT Index Maturity:
SECURITY:
- Total Amount of OID: - CD Rate:
- Yield to Maturity: - Federal Funds Rate:
- Initial Accrual Period OID: - 11th District Rate:
- OID Default Amount:
- Default Rate:
REDEMPTION COMMENCEMENT
DATE:
______________
* This date shall be the issue date of this Security, unless there is a
Predecessor Security, in which case this date shall be the issue date of
the first Predecessor Security.
(Face of Security continued on next page)
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<PAGE> 3
INDEX MATURITY: the third Wednesday of the following:
SPREAD: - each of the 12 calendar months
in each year
SPREAD MULTIPLIER: - each March, June, September and
December in each year
INITIAL BASE RATE: - each of the following two
calendar months in each year:
MAXIMUM RATE: - the following calendar month in
each year:
MINIMUM RATE: subject to the second paragraph under
"Payments Due on a Business Day" below
INTEREST RESET PERIOD: INTEREST CALCULATION DATE(S):
as provided in Section 3(n) on the
- if semi-annual, reset reverse of this Security (unless
will occur in each of otherwise specified)
the following two months
in each year: CALCULATION AGENT:
- if annual, reset will OTHER TERMS:
occur in the following
month in each year:
- otherwise, reset will
occur daily, weekly,
monthly or quarterly in
each year as follows:
INTEREST RESET DATE(S): as
provided in Section 3(a) on the
reverse of this Security (unless
otherwise specified)
INTEREST DETERMINATION DATE(S): as
provided in Sections 3(b) through
3(j), as applicable, on the reverse
of this Security (unless otherwise
specified)
INTEREST PAYMENT DATE(S): unless
otherwise specified,
(Face of Security continued on next page)
-3-
<PAGE> 4
Terms left blank or marked "N/A", "No", "None" or in a similar manner do
not apply to this Security except as otherwise may be specified.
Whenever used in this Security, the terms specified above that apply to
this Security have the meanings specified above, unless the context requires
otherwise. Other terms used in this Security that are not defined herein but
that are defined in the Indenture referred to in Section 1 on the reverse of
this Security are used herein as defined therein.
(Face of Security continued on next page)
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<PAGE> 5
Popular, Inc., a corporation duly organized and existing under the laws of
the Commonwealth of Puerto Rico (hereinafter called the "Company", which term
includes any successor Person under the Indenture), for value received, hereby
promises to pay to _____________, or registered assigns, as principal the
Principal Amount on the Stated Maturity Date and to pay interest thereon, from
the Original Issue Date or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, on the Interest Payment Date(s) in
each year, commencing on the first such date that is at least 15 calendar days
after the Original Issue Date, and at the Maturity of the principal hereof, at a
rate per annum determined in accordance with the applicable provisions of
Section 3 on the reverse hereof, until the principal hereof is paid or made
available for payment. Notwithstanding the foregoing, interest on any principal
that is overdue shall be payable on demand.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the 15th calendar day (whether or not a
Business Day, as such term is defined in Section 3(n) on the reverse hereof)
next preceding such Interest Payment Date, unless otherwise provided on the face
hereof (a "Regular Record Date"). Any interest so payable, but not punctually
paid or duly provided for, on any Interest Payment Date will forthwith cease to
be payable to the Holder on such Regular Record Date and such Defaulted Interest
either may be paid to the Person in whose name this Security (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 the Holder of this Security not less
than 10 days prior to such Special Record Date, or may be paid in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which this Security may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in the Indenture.
If this Security is issued with an original issue discount, (i) if an Event
of Default with respect to the Security of this series shall have occurred and
be continuing, the amount of principal of this Security which may be declared
due and payable in the manner, with the effect and subject to the conditions
provided in the Indenture, shall be determined in the manner set forth under
(Face of Security continued on next page)
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<PAGE> 6
"OID Default Amount" on the face hereof, and (ii) in the case of a default of
payment in principal upon acceleration, redemption, repayment at the option of
the Holder or at the Stated Maturity Date hereof, in lieu of any interest
otherwise payable, the overdue principal of this Security shall bear interest at
a rate of interest per annum equal to the Default Rate stated on the face hereof
(to the extent that the payment of such interest shall be legally enforceable),
which shall accrue from the date of such acceleration, redemption, repayment at
the option of the Holder or Stated Maturity Date, as the case may be, to the
date payment has been made or duly provided for or such default has been waived
in accordance with the terms of the Indenture.
CURRENCY OF PAYMENT
Payment of principal of (and premium, if any) and interest on this Security
will be made in the Specified Currency for such payment, except as provided in
this and the next three paragraphs. The Specified Currency for any payment shall
be the currency specified as such on the face of this Security unless, at the
time of such payment, such currency is not legal tender for the payment of
public and private debts in the country issuing such currency on the Original
Issue Date, in which case the Specified Currency for such payment shall be such
coin or currency as at the time of such payment is legal tender for the payment
of public and private debts in such country.
Except as provided in the next paragraph, any payment to be made on this
Security in a Specified Currency other than U.S. dollars will be made in U.S.
dollars if the Person entitled to receive such payment transmits a written
request for such payment to be made in U.S. dollars to the Trustee at its
Corporate Trust Office, Attention: Securities Processing Division, on or before
the fifth Business Day before the payment is to be made. Such written request
may be mailed, hand delivered, telecopied or delivered in any other manner
approved by the Trustee. Any such request made with respect to any payment on
this Security payable to a particular Holder will remain in effect for all later
payments on this Security payable to such Holder, unless such request is revoked
on or before the fifth Business Day before a payment is to be made, in which
case such revocation shall be effective for such and all later payments. In the
case of any payment of interest payable on an Interest Payment Date, such
written request
(Face of Security continued on next page)
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<PAGE> 7
must be made by the Person who is the registered Holder of this Security on the
relevant Regular Record Date.
The U.S. dollar amount of any payment made pursuant to the preceding
paragraph will be determined by the Exchange Rate Agent based upon the highest
bid quotation received by the Exchange Rate Agent as of 11:00 A.M., New York
City time, on the second Business Day preceding the applicable payment date,
from three (or, if three are not available, then two) recognized foreign
exchange dealers selected by the Exchange Rate Agent in The City of New York, in
each case for the purchase by the quoting dealer, for U.S. dollars and for
settlement on such payment date of an amount of the Specified Currency for such
payment equal to the aggregate amount of such Specified Currency payable on such
payment date to all Holders of Securities of this or any other series who elect
to receive U.S. dollar payments on such payment date, and at which the
applicable dealer commits to execute a contract. If the Exchange Rate Agent
determines that two such bid quotations are not available on such second
Business Day, such payment will be made in the Specified Currency for such
payment. All currency exchange costs associated with any payment in U.S. dollars
on this Security will be borne by the Holder entitled to receive such payment,
by deduction from such payment.
Notwithstanding the foregoing, if any amount payable on this Security is
payable on any day (including at Maturity) in a Specified Currency other than
U.S. dollars, and if such Specified Currency is not available to the Company on
the two Business Days before such day, due to the imposition of exchange
controls, disruption in a currency market or any other circumstances beyond the
control of the Company, the Company will be entitled to satisfy its obligation
to pay such amount in such Specified Currency by making such payment in U.S.
dollars. The amount of such payment in U.S. dollars shall be determined by the
Exchange Rate Agent on the basis of the noon buying rate for cable transfers in
The City of New York for such Specified Currency (the "Exchange Rate") as of the
latest day before the day on which such payment is to be made. Any payment made
under such circumstances in U.S. dollars where the required payment is in other
than U.S. dollars will not constitute an Event of Default under the Indenture or
this Security.
MANNER OF PAYMENT - U.S. DOLLARS
(Face of Security continued on next page)
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<PAGE> 8
Except as provided in the next paragraph, payment of any amount payable on
this Security in U.S. dollars will be made at the office or agency of the
Company maintained for that purpose in The City of New York (or at any other
office or agency maintained by the Company for that purpose), against surrender
of this Security in the case of any payment due at the Maturity of the principal
hereof (other than any payment of interest that first becomes due on an Interest
Payment Date); provided, however, that, at the option of the Company and subject
to the next paragraph, payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register.
Payment of any amount payable on this Security in U.S. dollars will be made
by wire transfer of immediately available funds to an account maintained by the
payee with a bank located in the Borough of Manhattan, The City of New York, if
(i) the principal of this Security is at least $10,000,000 and (ii) the Holder
entitled to receive such payment transmits a written request for such payment to
be made in such manner to the Paying Agent at its Corporate Trust Office,
Attention: Securities Processing Division, on or before the Regular Record Date
preceding the day on which such payment is to be made; provided that, in the
case of any such payment due at the Maturity of the principal hereof (other than
any payment of interest that first becomes due on an Interest Payment Date),
this Security must be surrendered at the office or agency of the Company
maintained for that purpose in The City of New York (or at any other office or
agency maintained by the Company for that purpose) in time for the Paying Agent
to make such payment in such funds in accordance with its normal procedures. Any
such request made with respect to any payment on this Security payable to a
particular Holder will remain in effect for all later payments on this Security
payable to such Holder, unless such request is revoked on or before the Regular
Record Date preceding the day on which such payment is to be made, in which case
such revocation shall be effective for such and all later payments; provided
that in the case of any payment due at Maturity of the principal of this
Security to be effective any request for revocation must be made no later than
the 15th day prior to the Maturity of the principal of this Security. In the
case of any payment of interest payable on an Interest Payment Date, such
written request must be made by the Person who is the registered Holder of this
Security on the relevant Regular Record Date. The Company will pay any
administrative costs imposed by banks in connection with making payments by wire
(Face of Security continued on next page)
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<PAGE> 9
transfer with respect to this Security, but any tax, assessment or other
governmental charge imposed upon any payment will be borne by the Holder of this
Security and may be deducted from the payment by the Company or the Paying
Agent.
MANNER OF PAYMENT - OTHER SPECIFIED CURRENCIES
Payment of any amount payable on this Security in a Specified Currency
other than U.S. dollars will be made by wire transfer of immediately available
funds to such account as is maintained in such Specified Currency at a bank or
other financial institution acceptable to the Company and the Trustee and as
shall have been designated at least five Business Days prior to the applicable
payment date by the Person entitled to receive such payment; provided that, in
the case of any such payment due at the Maturity of the principal hereof (other
than any payment of interest that first becomes due on an Interest Payment
Date), this Security must be surrendered at the office or agency of the Company
maintained for that purpose in The City of New York (or at any other office or
agency maintained by the Company for that purpose) in time for the Paying Agent
to make such payment in such funds in accordance with its normal procedures.
Such account designation shall be made by transmitting the appropriate
information to the Trustee at its Corporate Trust Office in the Borough of
Manhattan, The City of New York, by mail, hand delivery, telecopier or in any
other manner approved by the Trustee. Unless revoked, any such account
designation made with respect to this Security by the Holder hereof will remain
in effect with respect to any further payments with respect to this Security
payable to such Holder. If a payment in a Specified Currency other than U.S.
dollars with respect to this Security cannot be made by wire transfer because
the required account designation has not been received by the Trustee on or
before the requisite date or for any other reason, the Company will cause a
notice to be given to the Holder of this Security at its registered address
requesting an account designation pursuant to which such wire transfer can be
made and such payment will be made within five Business Days after the Trustee's
receipt of such a designation meeting the requirements specified above, with the
same force and effect as if made on the due date. The Company will pay any
administrative costs imposed by banks in connection with making payments by wire
transfer with respect to this Security, but any tax, assessment or other
governmental charge imposed upon any payment will be borne
(Face of Security continued on next page)
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<PAGE> 10
by the Holder of this Security and may be deducted from the payment by the
Company or the Paying Agent.
MANNER OF PAYMENT - GLOBAL SECURITIES
Notwithstanding any provision of this security or the Indenture, if this
Security is a Global Security, the Company may make any and all payments of
principal, premium and interest on this Security pursuant to the Applicable
Procedures of the Depositary for this Security as permitted in the Indenture.
PAYMENTS DUE ON A BUSINESS DAY
Unless otherwise specified on the face of this Security, the following
sentence shall apply to this Security. Notwithstanding any provision of this
Security or the Indenture other than the following paragraph, if any amount of
principal, premium or interest would otherwise be due on this Security on a day
(the "Specified Day") that is not a Business Day, such amount may be paid or
made available for payment on the next succeeding Business Day (unless the Base
Rate is LIBOR and such next succeeding Business Day falls in the next calendar
month, in which case such amount may be paid or made available for payment on
the next preceding Business Day) with the same force and effect as if such
amount were paid on the Specified Day. The provisions of this paragraph shall
apply to this Security in lieu of the provisions of Section 113 of the
Indenture.
Unless otherwise specified on the face of this Security, the following
sentence shall apply to each Interest Payment Date other than one that falls on
the date of Maturity of the principal hereof. If any such Interest Payment Date
would otherwise be a day that is not a Business Day, such Interest Payment Date
shall be deferred to the next succeeding Business Day, provided that, if the
Base Rate is LIBOR and the next succeeding Business Day would fall in the next
calendar month, then such Interest Payment Date will be advanced to the next
preceding Business Day.
___________________________
Reference is hereby made to the further provisions of this Security 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
(Face of Security continued on next page)
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<PAGE> 11
Security shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
(Face of Security continued on next page)
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<PAGE> 12
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated:
POPULAR, INC.
By____________________________
Name:
Title:
By____________________________
Name:
Title:
Attest:________________________
This Security is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF
CHICAGO, as Trustee
By_________________________________
Authorized Officer
<PAGE> 13
(Reverse of Security)
1. SECURITIES AND INDENTURE
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities") issued and to be issued in one or more
series under an Indenture, dated as of February 15, 1995, as supplemented by the
First Supplemental Indenture, dated as of May 8, 1997 and the Second
Supplemental Indenture, dated as of August 5, 1999 (together herein called the
"Indenture", which term shall have the meaning assigned to it in such
instrument), between the Company and The First National Bank of Chicago, as
Trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture), and reference is hereby made to the Indenture 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.
2. SERIES AND DENOMINATIONS
This Security is one of the series designated on the face hereof, limited
to an aggregate initial offering price not to exceed $1,500,000,000 (or the
equivalent thereof in any other currency or currencies or currency units) less
the aggregate initial offering price of "Securities" (as defined in the
Prospectus dated August 4, 1999 relating to debt securities and preferred stock
of the Company, Popular International Bank, Inc. and Popular North America,
Inc.) authenticated and delivered upon initial issuance, other than the
Securities of this series, which amount may be increased at the option of the
Company if in the future it determines that it may wish to sell additional
Securities of this series. References herein to "this series" mean the series of
securities designated on the face hereof.
The Securities of this series are issuable only in registered form without
coupons in "Authorized Denominations", which term shall have the following
meaning. For each Security of this series having a principal amount payable in
U.S. dollars, the Authorized Denominations shall be $100,000 and any integral
multiple of $1,000 in excess thereof. For each Security of this series having a
principal amount payable in a Specified Currency other than U.S. dollars, the
Authorized Denominations shall be the amount of such Specified Currency
equivalent, at the Exchange Rate on the first Business Day next preceding the
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date on which the Company accepts the offer to purchase such Security, to
$100,000 and any integral multiple of $1,000 in excess thereof.
3. INTEREST RATE
(a) INTEREST RATE RESET. The interest rate on this Security will be reset
from time to time, as provided in this Section 3, and each date upon which such
rate is reset as so provided is hereinafter called an "Interest Reset Date".
Unless otherwise specified on the face hereof, the Interest Reset Dates with
respect to this Security will be as follows:
(i) if the Interest Reset Period is daily, each Business Day;
(ii) if the Interest Reset Period is weekly and the Base Rate is not
the Treasury Rate, the Wednesday of each week;
(iii) if the Interest Reset Period is weekly and the Base Rate is the
Treasury Rate, except as otherwise provided in the definition of "Treasury
Interest Determination Date" in Section 3(n) below, the Tuesday of each
week;
(iv) if the Interest Reset Period is monthly, the third Wednesday of
each month;
(v) if the Interest Reset Period is quarterly, the third Wednesday of
each March, June, September and December;
(vi) if the Interest Reset Period is semi-annual, the third Wednesday
of each of two months in each year specified under "Interest Reset Period"
on the face hereof; and
(vii) if the Interest Reset Period is annual, the third Wednesday of
the month in each year specified under "Interest Reset Period" on the face
hereof;
provided, however, that (x) the Base Rate in effect from the Original Issue Date
to but excluding the first Interest Reset Date will be the Initial Base Rate and
(y) if the Interest Reset Period is daily or weekly, the Base Rate in effect for
each day following the second Business Day immediately prior to an Interest
Payment Date to but excluding such Interest Payment Date, and for each day
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following the second Business Day immediately prior to the day of Maturity of
the principal hereof to but excluding such day of Maturity, will be the Base
Rate in effect on such applicable second Business Day; and provided, further,
that, if any Interest Reset Date would otherwise be a day that is not a Business
Day, such Interest Reset Date shall be the next succeeding day that is a
Business Day, except that, unless otherwise specified on the face hereof, if the
Base Rate is LIBOR and such next succeeding Business Day falls in the next
succeeding calendar month, such Interest Reset Date shall be the immediately
preceding Business Day.
Subject to applicable provisions of law and except as otherwise specified
herein, on each Interest Reset Date the interest rate on this Security shall be
the rate determined in accordance with such of the following Sections 3(b)
through 3(j) as provided for determination of the Base Rate for this Security.
The Calculation Agent shall determine the interest rate of this Security in
accordance with the applicable Section below.
Unless the Base Rate is LIBOR, the Calculation Agent will determine the
interest rate of this Security that takes effect on any Interest Reset Date on a
day no later than the Calculation Date (as defined in Section 3(n) below)
corresponding to such Interest Reset Date. However, the Calculation Agent need
not wait until the Calculation Date to determine such interest rate if the rate
information it needs to make such determination in the manner specified in the
applicable provisions of Sections 3(b) through 3(j) hereof is available from the
relevant sources specified in such applicable provisions.
Upon request of the Holder to the Calculation Agent, the Calculation Agent
will provide the interest rate then in effect on this Security and, if
determined, the interest rate that will become effective on the next Interest
Reset Date.
(b) DETERMINATION OF COMMERCIAL PAPER RATE. If the Base Rate is the
Commercial Paper Rate, the Base Rate that takes effect on any Interest Reset
Date shall equal the Money Market Yield (as defined in Section 3(n) below) of
the rate, for the second Business Day immediately preceding such Interest Reset
Date (the "Commercial Paper Interest Determination Date"), for commercial paper
having the Index Maturity, as published in H.15(519) (as defined in
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Section 3(n) below) under the heading "Commercial Paper -- Nonfinancial". If the
Commercial Paper Rate cannot be determined as described above, the following
procedures will apply in determining the Commercial Paper Rate:
(i) If the rate described above is not published in H.15(519) by 3:00
P.M., New York City time, on the Calculation Date (as defined in Section
3(n) below) corresponding to such Commercial Paper Interest Determination
Date, then the Commercial Paper Rate will be the rate, for such Commercial
Paper Interest Determination Date, for commercial paper having the Index
Maturity, as published in H.15 Daily Update (as defined in Section 3(n)
below) or any other recognized electronic source used for displaying that
rate, under the heading "Commercial Paper -- Nonfinancial".
(ii) If the rate described in clause (i) above does not appear in
H.15(519), H.15 Daily Update or another recognized electronic source by
3:00 P.M., New York City time, on such Calculation Date (unless the
calculation is made earlier and the rate is available from one of those
sources at that time), the Commercial Paper Rate will be the Money Market
Yield of the arithmetic mean of the following offered rates for U.S. dollar
commercial paper that has the Index Maturity and is placed for an
industrial issuer whose bond rating is "AA", or the equivalent, from a
nationally recognized rating agency: the rates offered as of 11:00 A.M.,
New York City time, on such Commercial Paper Interest Determination Date by
three leading U.S. dollar commercial paper dealers in New York City
selected by the Calculation Agent.
(iii) If fewer than three dealers selected by the Calculation Agent
are quoting as described in clause (ii) above, the Commercial Paper Rate
shall be the Commercial Paper Rate in effect on such Commercial Paper
Interest Determination Date (or, in the case of the first Interest Reset
Date, the Initial Base Rate).
The Base Rate determined in accordance with this Section 3(b) will be
adjusted by the addition or subtraction of the Spread, if any, or by multiplying
such Base Rate by the Spread Multiplier, if any.
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(c) DETERMINATION OF PRIME RATE. If the Base Rate is the Prime Rate, the
Base Rate that takes effect on any Interest Reset Date shall equal the rate, for
the second Business Day immediately preceding such Interest Reset Date (the
"Prime Interest Determination Date"), published in H.15(519) under the heading
"Bank Prime Loan". If the Prime Rate cannot be determined as described above,
the following procedures will apply in determining the Prime Rate:
(i) If the rate described above is not published in H.15(519) by 3:00
P.M., New York City time, on the Calculation Date corresponding to such
Prime Interest Determination Date, then the Prime Rate will be the rate,
for such Prime Interest Determination Date, as published in H.15 Daily
Update or another recognized electronic source used for the purpose of
displaying that rate, under the heading "Bank Prime Loan".
(ii) If the rate described in clause (i) above is not published in
H.15(519), H.15 Daily Update or another recognized electronic source by
3:00 P.M., New York City time, on such Calculation Date (unless the
calculation is made earlier and the rate is available from one of those
sources at that time), then the Prime Rate will be the arithmetic mean of
the following rates as they appear on the Reuters Screen US PRIME 1 Page
(as defined in Section 3(n) below): the rate of interest publicly announced
by each bank appearing on that page as that bank's prime rate or base
lending rate, as of 11:00 A.M., New York City time, on such Prime Interest
Determination Date.
(iii) If fewer than four of the rates referred to in clause (ii) above
appear on the Reuters Screen US PRIME 1 Page, the Prime Rate will be the
arithmetic mean of the prime rates or base lending rates, as of the close
of business on such Prime Interest Determination Date, of three major banks
in New York City selected by the Calculation Agent. For this purpose, the
Calculation Agent will use rates quoted on the basis of the actual number
of days in the year divided by a 360-day year.
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(iv) If fewer than three banks selected by the Calculation Agent are
quoting as described in clause (iii) above, the Prime Rate shall be the
Prime Rate in effect on such Prime Interest Determination Date (or, in the
case of the first Interest Reset Date, the Initial Base Rate).
The Base Rate determined in accordance with this Section 3(c) will be
adjusted by the addition or subtraction of the Spread, if any, or by multiplying
such Base Rate by the Spread Multiplier, if any.
(d) DETERMINATION OF LIBOR. If the Base Rate is LIBOR, the Base Rate that
takes effect on any Interest Reset Date shall be LIBOR on the corresponding
LIBOR Interest Determination Date (as defined in Section 3(n) below) and shall
be determined in accordance with the following provisions:
LIBOR will be either of the following rates, whichever appears on the face
hereof:
(x) the offered rate appearing on the Telerate LIBOR Page (as defined
in Section 3(n) below); or
(y) the arithmetic mean of the offered rates appearing on the Reuters
Screen LIBOR Page (as defined in Section 3(n) below) unless that page by
its terms cites only one rate, in which case that rate;
in either case, as of 11:00 A.M., London time, on such LIBOR Interest
Determination Date for deposits of the Index Currency having the Index Maturity
beginning on such Interest Reset Date. If no reference page is specified on the
face hereof, Telerate LIBOR Page will apply to this Security:
(i) If Telerate LIBOR Page is specified on the face hereof and the
rate referenced in clause (x) above does not appear on that page, or if
Reuters Screen LIBOR Page is specified on the face hereof and fewer than
two of the rates referenced in clause (y) above appear on that page or no
rate appears on any page on which only one rate normally appears, then
LIBOR will be determined on the basis of the rates, at approximately 11:00
A.M., London time, on such
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LIBOR Interest Determination Date, at which deposits of the following kind
are offered to prime banks in the London interbank market by four major
banks in that market selected by the Calculation Agent: deposits of the
Index Currency having the Index Maturity beginning on such Interest Reset
Date and in a Representative Amount (as defined in Section 3(n) below). The
Calculation Agent will request the principal London office of each such
bank to provide a quotation of its rate. If at least two quotations are
provided, LIBOR for such LIBOR Interest Determination Date will be the
arithmetic mean of the quotations.
(ii) If fewer than two quotations are provided as described in clause
(i) above, LIBOR for such LIBOR Interest Determination Date will be the
arithmetic mean of the rates for loans of the following kind to leading
European banks quoted, at approximately 11:00 A.M. in the principal
financial center for the country issuing the Index Currency, on such LIBOR
Interest Determination Date, by three major banks in that financial center
selected by the Calculation Agent: loans of the Index Currency having the
Index Maturity beginning on such Interest Reset Date and in a
Representative Amount.
(iii) If fewer than three banks selected by the Calculation Agent are
quoting as described in clause (ii) above, LIBOR will be the LIBOR in
effect on such LIBOR Interest Determination Date (or, in the case of the
first Interest Reset Date, the Initial Base Rate).
The Base Rate determined in accordance with this Section 3(d) will be
adjusted by the addition or subtraction of the Spread, if any, or by multiplying
such Base Rate by the Spread Multiplier, if any. If the Base Rate is LIBOR and
no currency is specified on the face hereof as the Index Currency, the Index
Currency shall be U.S. dollars.
(e) [RESERVED]
(f) DETERMINATION OF TREASURY RATE. If the Base Rate is the Treasury Rate,
the Base Rate that takes effect
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on any Interest Reset Date shall equal the rate for the auction on the
corresponding Treasury Interest Determination Date (as defined in Section 3(n)
below) of direct obligations of the United States ("Treasury Bills") having the
Index Maturity, as that rate appears on Telerate Page 56 or 57 under the heading
"Investment Rate". If the Treasury Rate cannot be determined as described above,
the following procedures will apply in determining the Treasury Rate:
(i) If the rate described above does not appear on either Telerate
Page 56 or 57 at 3:00 P.M., New York City time, on the Calculation Date
corresponding to such Treasury Interest Determination Date (unless the
calculation is made earlier and the rate is available from that source at
that time), the Treasury Rate will be the Bond Equivalent Yield (as defined
in Section 3(n) below) of the rate, for such Treasury Interest
Determination Date and for Treasury Bills having the Index Maturity, as
published in H.15 Daily Update, or another recognized electronic source
used for displaying that rate, under the heading "U.S. Government
Securities/Treasury Bills/Auction High".
(ii) If the rate described in clause (i) above does not appear in H.15
Daily Update or another recognized electronic source by 3:00 P.M., New York
City time, on such Calculation Date (unless the calculation is made earlier
and the rate is available from one of those sources at that time), the
Treasury Rate will be the Bond Equivalent Yield of the auction rate, for
such Treasury Interest Determination Date and for Treasury Bills having the
Index Maturity, as announced by the U.S. Department of the Treasury.
(iii) If the auction rate described in clause (ii) above is not so
announced by 3:00 P.M., New York City time, on such Calculation Date, or if
no such auction is held for the relevant week, then the Treasury Rate will
be the Bond Equivalent Yield of the rate, for such Treasury Interest
Determination Date and for Treasury Bills having the Index Maturity, as
published in H.15(519) under the heading "U.S. Government
Securities/Treasury Bills/Secondary Market".
(iv) If the rate described in clause (iii) above does not appear in
H.15(519) by 3:00 P.M., New York City time, on such Calculation Date, then
the Treasury
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Rate will be the rate, for such Treasury Interest Determination Date and
for Treasury Bills having the Index Maturity, as published in H.15 Daily
Update, or another recognized electronic source used for displaying that
rate, under the heading "U.S. Government Securities/ Treasury Bills
/Secondary Market".
(v) If the rate described in clause (iv) above does not appear in H.15
Daily Update or another recognized electronic source by 3:00 P.M., New York
City time, on such Calculation Date (unless the calculation is made earlier
and the rate is available from one of those sources at that time), the
Treasury Rate will be the Bond Equivalent Yield of the arithmetic mean of
the following secondary market bid rates for the issue of Treasury Bills
with a remaining maturity closest to the Index Maturity: the rates bid as
of approximately 3:30 P.M., New York City time, on such Treasury Interest
Determination Date, by three primary U.S. government securities dealers in
New York City selected by the Calculation Agent.
(vi) If fewer than three dealers selected by the Calculation Agent are
quoting as described in clause (v) above, the Treasury Rate shall be the
Treasury Rate in effect on such Treasury Interest Determination Date (or,
in the case of the first Interest Reset Date, the Initial Base Rate).
The Base Rate determined in accordance with this Section 3(f) will be
adjusted by the addition or subtraction of the Spread, if any, or by multiplying
such Base Rate by the Spread Multiplier, if any, specified on the face hereof.
(g) DETERMINATION OF CMT RATE. If the Base Rate is the CMT Rate, the Base
Rate that takes effect on any Interest Reset Date shall equal the CMT Rate on
the second Business Day immediately preceding such Interest Reset Date (the "CMT
Interest Determination Date"). "CMT Rate" means the following rate displayed on
the Designated CMT Telerate Page (as defined in Section 3(n) below) under the
heading " . . . Treasury Constant Maturities . . . Federal Reserve Board Release
H.15 . . . Mondays Approximately 3:45 P.M.", under the column for the Designated
CMT Index Maturity (as defined in Section 3(n) below):
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(x) if the Designated CMT Telerate Page is Telerate Page 7051, the
rate for such CMT Interest Determination Date; or
(y) if the Designated CMT Telerate Page is Telerate Page 7052, the
weekly or monthly average, as specified on the face hereof, for the week
that ends immediately before the week in which such CMT Interest
Determination Date falls, or for the month that ends immediately before the
month in which such CMT Interest Determination Date falls, as applicable.
If the CMT Rate cannot be determined as described above, the following
procedures will apply in determining the CMT Rate:
(i) If the applicable rate described above is not displayed on the
relevant Designated CMT Telerate Page at 3:00 P.M., New York City time, on
the Calculation Date corresponding to such CMT Interest Determination Date
(unless the calculation is made earlier and the rate is available from that
source at that time), then the CMT Rate will be the applicable Treasury
constant maturity rate described above -- i.e., for the Designated CMT
Index Maturity and for either such CMT Interest Determination Date or the
weekly or monthly average, as applicable -- as published in H.15(519).
(ii) If the applicable rate described in clause (i) above is not
published in H.15(519) by 3:00 P.M., New York City time, on such
Calculation Date, then the CMT Rate will be the Treasury constant maturity
rate, or other U.S. Treasury rate, for the Designated CMT Index Maturity
and with reference to such CMT Interest Determination Date, that:
(a) is published by the Board of Governors of the Federal Reserve
System, or the U.S. Department of the Treasury, and
(b) is determined by the Calculation Agent to be comparable to
the applicable rate formerly displayed on the Designated CMT Telerate
Page and published in H.15(519).
(iii) If the rate described in clause (ii) above is not published by
3:00 P.M., New York City time, on such Calculation Date, then the CMT Rate
will be the
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yield to maturity of the arithmetic mean of the following secondary market
offered rates for the most recently issued Treasury Notes (as defined in
Section 3(n) below) having an original maturity of approximately the
Designated CMT Index Maturity, having a remaining term to maturity of not
less than the Designated CMT Index Maturity minus one year and in a
Representative Amount: the offered rates, as of approximately 3:30 P.M.,
New York City time, on such CMT Interest Determination Date, of three
primary U.S. government securities dealers in New York City selected by the
Calculation Agent. In selecting such offered rates, the Calculation Agent
will request quotations from five such primary dealers and will disregard
the highest quotation -- or, if there is equality, one of the highest --
and the lowest quotation -- or, if there is equality, one of the lowest.
(iv) If the Calculation Agent is unable to obtain three quotations of
the kind described in clause (iii) above, the CMT Rate will be the yield to
maturity of the arithmetic mean of the following secondary market offered
rates for Treasury Notes having an original maturity longer than the
Designated CMT Index Maturity, having a remaining term to maturity closest
to the Designated CMT Index Maturity and in a Representative Amount: the
offered rates, as of approximately 3:30 P.M., New York City time, on such
CMT Interest Determination Date, of three primary U.S. government
securities dealers in New York City selected by the Calculation Agent. In
selecting such offered rates, the Calculation Agent will request quotations
from five such primary dealers and will disregard the highest quotation --
or, if there is equality, one of the highest -- and the lowest quotation --
or, if there is equality, one of the lowest. If two Treasury Notes with an
original maturity longer than the Designated CMT Index Maturity have
remaining terms to maturity that are equally close to the Designated CMT
Index Maturity, the Calculation Agent will obtain quotations for the
Treasury Note with the shorter remaining term to maturity.
(v) If fewer than five but more than two such primary dealers are
quoting as described in clause (iv) above, then the CMT Rate for such CMT
Interest Determination Date will be based on the arithmetic mean
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of the offered rates so obtained, and neither the highest nor the lowest of
such quotations will be disregarded.
(vi) If two or fewer primary dealers selected by the Calculation Agent
are quoting as described in clause (v) above, the CMT Rate shall be the CMT
Rate in effect on such CMT Interest Determination Date (or, in the case of
the first Interest Reset Date, the Initial Base Rate).
The Base Rate determined in accordance with this Section 3(g) will be
adjusted by the addition or subtraction of the Spread, if any, or by multiplying
such Base Rate by the Spread Multiplier, if any.
(h) DETERMINATION OF CD RATE. If the Base Rate is the CD Rate, the Base
Rate that takes effect on any Interest Reset Date shall equal the rate, on the
second Business Day immediately preceding such Interest Reset Date (the "CD
Interest Determination Date"), for negotiable U.S. dollar certificates of
deposit having the Index Maturity as published in H.15(519) under the heading
"CDs (Secondary Market)". If the CD Rate cannot be determined as described
above, the following procedures will apply in determining the CD Rate:
(i) If the rate described above is not published in H.15(519) by 3:00
P.M., New York City time, on the Calculation Date corresponding to such CD
Interest Determination Date, then the CD Rate shall be the rate described
above as published in H.15 Daily Update, or another recognized electronic
source used for displaying that rate, under the heading "CDs (Secondary
Market)".
(ii) If the rate described in clause (i) above is not published in
H.15(519), H.15 Daily Update or another recognized electronic source by
3:00 P.M., New York City time, on such Calculation Date (unless the
calculation is made earlier and the rate is available from one of those
sources at that time), the CD Rate shall be the arithmetic mean of the
following secondary market offered rates for negotiable U.S. dollar
certificates of deposit of major U.S. money center banks having a remaining
maturity closest to the Index Maturity and in a Representative Amount: the
rates
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offered as of 10:00 A.M., New York City time, on such CD Interest
Determination Date, by three leading nonbank dealers in negotiable U.S.
dollar certificates of deposit in New York City, as selected by the
Calculation Agent.
(iii) If fewer than three dealers selected by the Calculation Agent
are quoting as described in clause (ii) above, the CD Rate will be the CD
Rate in effect on such CD Interest Determination Date (or, in the case of
the first Base Reset Date, the Initial Base Rate).
The Base Rate determined in accordance with this Section 3(h) will be
adjusted by the addition or subtraction of the Spread, if any, or by multiplying
such Base Rate by the Spread Multiplier, if any.
(i) DETERMINATION OF FEDERAL FUNDS RATE. If the Base Rate is the Federal
Funds Rate, the Base Rate that takes effect on any Interest Reset Date shall
equal the rate, on the second Business Day immediately preceding such Interest
Reset Date (the "Federal Funds Interest Determination Date"), for U.S. dollar
Federal Funds as published in H.15(519) under the heading "Federal Funds
(Effective)", as that rate is displayed on Telerate Page 120. If the Federal
Funds Rate cannot be determined as described above, the following procedures
will apply in determining the Federal Funds Rate:
(i) If the rate described above is not displayed on Telerate Page 120
at 3:00 P.M., New York City time, on the Calculation Date corresponding to
such Federal Funds Interest Determination Date (unless the calculation is
made earlier and the rate is available from that source at that time), then
the Federal Funds Rate will be the rate described above, on such Federal
Funds Interest Determination Date, as published in H.15 Daily Update, or
another recognized electronic source used for displaying that rate, under
the heading "Federal Funds (Effective)".
(ii) If the rate described in clause (i) above is not displayed on
Telerate Page 120 and is not published in H.15 (519), H.15 Daily Update or
another recognized electronic source by 3:00 P.M., New York City time, on
such Calculation Date (unless the calculation is made earlier and the rate
is available from one of those
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sources at that time), the Federal Funds Rate will be the arithmetic mean
of the rates for the last transaction in overnight, U.S. dollar federal
funds arranged, before 9:00 A.M., New York City time, on such Federal Funds
Interest Determination Date, by three leading brokers of U.S. dollar
federal funds transactions in New York City selected by the Calculation
Agent.
(iii) If fewer than three brokers selected by the Calculation Agent
are quoting as described in clause (ii) above, the Federal Funds Rate will
be the Federal Funds Rate in effect on such Federal Funds Interest
Determination Date (or, in the case of the first Interest Reset Date, the
Initial Base Rate).
The interest rate determined in accordance with this Section 3(i) will be
adjusted by the addition or subtraction of the Spread, if any, or by multiplying
such Base Rate by the Spread Multiplier, if any.
(j) DETERMINATION OF 11TH DISTRICT RATE. If the Base Rate is the 11th
District Rate, the Base Rate that takes effect on any Interest Reset Date shall
equal the 11th District Rate on the 11th District Interest Determination Date
(as defined in Section 3(n) below) corresponding to such Interest Reset Date.
The 11th District Rate on any 11th District Interest Determination Date shall be
the rate equal to the monthly weighted average cost of funds for the calendar
month immediately before such date, as displayed on Telerate Page 7058 under the
heading "11th District" as of 11:00 A.M., San Francisco time, on such date. If
the 11th District Rate cannot be determined as described above, the following
procedures will apply in determining the 11th District Rate:
(i) If the rate described above does not appear on Telerate Page 7058
on such 11th District Interest Determination Date, then the 11th District
Rate on such date will be the monthly weighted average cost of funds paid
by institutions that are members of the Eleventh Federal Home Loan Bank
District for the calendar month immediately preceding such date, as most
recently announced by the Federal Home Loan Bank of San Francisco as such
monthly weighted average cost of funds.
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(ii) If the Federal Home Loan Bank of San Francisco fails to announce
the cost of funds described in clause (i) above on or before such 11th
District Interest Determination Date, the 11th District Rate that takes
effect on such Interest Reset Date will be the 11th District Rate in effect
on such 11th District Interest Determination Date (or, in the case of the
first Interest Reset Date, the Initial Base Rate).
The interest rate determined in accordance with this Section 3(j) will be
adjusted by the addition or subtraction of the Spread, if any, or by multiplying
such Base Rate by the Spread Multiplier, if any.
(k) MINIMUM AND MAXIMUM LIMITS. Notwithstanding the foregoing, the rate at
which interest accrues on this Security (i) shall not at any time be higher than
the Maximum Rate, if any, or less than the Minimum Rate, if any, specified on
the face hereof, in each case on an accrual basis, and (ii) shall not at any
time be higher than the maximum rate permitted by New York law, as the same may
be modified by United States law of general application.
(l) CALCULATION OF INTEREST. Payments of interest hereon with respect to
any Interest Payment Date or at the Maturity of the principal hereof will
include interest accrued to but excluding such Interest Payment Date or the date
of such Maturity, as the case may be. Accrued interest from the date of issue or
from the last date to which interest has been paid or duly provided for shall be
calculated by the Calculation Agent by multiplying the Principal Amount by an
accrued interest factor. Such accrued interest factor shall be computed by
adding the interest factors calculated for each day from and including the
Original Issue Date or from and including the last date to which interest has
been paid or duly provided for, to but excluding the date for which accrued
interest is being calculated. The interest factor for each such day shall be
expressed as a decimal and computed by dividing the interest rate (also
expressed as a decimal) in effect on such day by 360, if the Base Rate is the
Commercial Paper Rate, Prime Rate, LIBOR, CD Rate, Federal Funds Rate or 11th
District Rate, or by the actual number of days in the year, if the Base Rate is
the Treasury Rate or CMT Rate.
All percentages resulting from any calculation with respect to this
Security will be rounded upward or
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downward, as appropriate, to the next higher or lower one hundred-thousandth of
a percentage point (e.g., 9.876541% (or .09876541) being rounded down to
9.87654% (or .0987654) and 9.876545% (or .09876545) being rounded up to 9.87655%
(or .0987655) ). All amounts used in or resulting from any calculation with
respect to this Security will be rounded upward or downward, as appropriate, to
the nearest cent, in the case of U.S. dollars, or to the nearest corresponding
hundredth of a unit, in the case of a currency other than U.S. dollars, with
one-half cent or one-half of a corresponding hundredth of a unit or more being
rounded upward.
(m) CALCULATION AGENT AND EXCHANGE RATE AGENT. The Company has initially
appointed the institutions named on the face of this Security as Calculation
Agent and Exchange Rate Agent, respectively, to act as such agents with respect
to this Security, but the Company may, in its sole discretion, appoint any other
institution (including any Affiliate of the Company) to serve as any such agent
from time to time. The Company will give the Trustee prompt written notice of
any change in any such appointment. Insofar as this Security provides for any
such agent to obtain rates, quotes or other data from a bank, dealer or other
institution for use in making any determination hereunder, such agent may do so
from any institution or institutions of the kind contemplated hereby
notwithstanding that any one or more of such institutions are any such agent,
Affiliates of any such agent, any of the agents named on the cover of the
Company's Prospectus Supplement dated August 6, 1999 relating to the Company's
Medium-Term Notes, Series 4 or any Affiliate of any such agent or Affiliates of
the Company.
All determinations made by the Calculation Agent or the Exchange Rate Agent
may be made by such agent in its sole discretion and, absent manifest error,
shall be conclusive for all purposes and binding on the Holder of this Security
and the Company. Neither the Calculation Agent nor the Exchange Rate Agent shall
have any liability therefor.
(n) DEFINITIONS OF CALCULATION TERMS. As used in this Security, the
following terms have the meanings set forth below:
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<PAGE> 29
"Bond Equivalent Yield" means a yield expressed as a percentage and
calculated in accordance with the following formula:
Bond Equivalent Yield = D x N
------------- x 100,
360 - (D x M)
where
- "D" equals the annual rate for Treasury Bills quoted on a bank
discount basis and expressed as a decimal;
- "N" equals 365 or 366, as the case may be; and
- "M" equals the actual number of days in the period from and
including the relevant Interest Reset Date to but excluding the
next succeeding Interest Reset Date.
"Business Day" means, for this Security, a day that meets the requirements
set forth in each of clauses (i) through (iii) below, in each case to the extent
such requirements apply to this Security as specified below:
(i) is a Monday, Tuesday, Wednesday, Thursday or Friday that is not a
day on which banking institutions in New York City generally are
authorized or obligated by law, regulation or executive order to
close;
(ii) if the Base Rate is LIBOR, is also a London Business Day; and
(iii) if the Specified Currency for payment of principal of or
interest on this Security is other than U.S. dollars, is also a
day on which banking institutions are not authorized or obligated
by law, regulation or executive order to close in the principal
financial center of the country issuing such Specified Currency.
Solely when used in the third paragraph under the heading "Currency of Payment"
on the face of this Security, the meaning of the term "Business Day" shall be
determined as if the Base Rate for this Security is not LIBOR. With respect to
any particular location, the close of business on any day
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<PAGE> 30
on which business is not being conducted at that location shall be deemed to
mean 5:00 P.M., New York City time, on that day.
The "Calculation Date" corresponding to any Commercial Paper Interest
Determination Date, Prime Interest Determination Date, LIBOR Interest
Determination Date, Treasury Interest Determination Date, CMT Interest
Determination Date, CD Interest Determination Date, Federal Funds Interest
Determination Date or 11th District Interest Determination Date, as the case may
be, means the earlier of:
(i) the tenth day after such interest determination date or, if any
such day is not a Business Day, the next succeeding Business Day; and
(ii) the Business Day immediately preceding the Interest Payment Date
or the date of Maturity of the principal hereof, whichever is the day on
which the next payment of interest will be due.
The Calculation Date corresponding to any Interest Reset Date means the
Calculation Date corresponding to the relevant interest determination date
immediately preceding such Interest Reset Date.
"Designated CMT Index Maturity" means, if the Base Rate is the CMT Rate,
the Index Maturity for this Security and will be the original period to maturity
of a U.S. Treasury security -- either 1, 2, 3, 5, 7, 10, 20 or 30 years --
specified on the face hereof, provided that, if no such original maturity period
is so specified, the Designated CMT Index Maturity will be 2 years.
"Designated CMT Telerate Page" means, if the Base Rate is the CMT Rate, the
Telerate Page specified on the face hereof that displays Treasury constant
maturities as reported in H.15(519), provided that, if no Telerate Page is so
specified, then the applicable page will be Telerate Page 7052 and provided,
further, that if Telerate Page 7052 applies but it is not specified on the face
hereof whether the weekly or monthly average applies, the weekly average will
apply.
The "11th District Interest Determination Date" corresponding to a
particular Interest Reset Date will be
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<PAGE> 31
the last working day in San Francisco, in the first calendar month preceding
such Interest Reset Date, on which the Federal Home Loan Bank of San Francisco
publishes the monthly average cost of funds paid by member institutions of the
Eleventh Federal Home Loan Bank District for the second calendar month preceding
such Interest Reset Date.
"H.15(519)" means the weekly statistical release entitled "Statistical
Release H.15 (519)", or any successor publication, published by the Board of
Governors of the Federal Reserve System.
"H.15 Daily Update" means the daily update of H.15 (519) available through
the worldwide-web site of the Board of Governors of the Federal Reserve System,
at http://www.bog.frb.fed.us/releases/h15/update, or any successor site or
publication.
The "LIBOR Interest Determination Date" corresponding to any Interest Reset
Date means the second London Business Day preceding such Interest Reset Date,
unless the Index Currency is pounds sterling, in which case the LIBOR Interest
Determination Date will be the Interest Reset Date.
"London Business Day" means any day on which dealings in the Index Currency
are transacted in the London interbank market.
"Money Market Yield" means a yield expressed as a percentage and calculated
in accordance with the following formula:
Money Market Yield = D x 360
--------------- x 100,
360 - (D x M)
where
- "D" equals the per annum rate for commercial paper quoted on a bank
discount basis and expressed as a decimal; and
- "M" equals the actual number of days in the period from and including
the relevant Interest Reset Date to but excluding the next succeeding
Interest Reset Date.
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<PAGE> 32
"Representative Amount" means an amount that, in the Calculation Agent's
judgment, is representative of a single transaction in the relevant market at
the relevant time.
"Reuters Screen LIBOR Page" means the display on the Reuters Monitor Money
Rates Service, or any successor service, on the page designated as "LIBO" or any
replacement page or pages on which London interbank rates of major banks for the
Index Currency are displayed.
"Reuters Screen US PRIME 1 Page" means the display on the "US PRIME 1" page
on the Reuters Monitor Money Rates Service, or any successor service, or any
replacement page or pages on that service, for the purpose of displaying prime
rates or base lending rates of major U.S. banks.
"Telerate LIBOR Page" means Telerate Page 3750 or any replacement page or
pages on which London interbank rates of major banks for the Index Currency are
displayed.
"Telerate Page" means the display on Bridge Telerate, Inc., or any
successor service, on the page or pages specified on the face hereof, or any
replacement page or pages on that service.
The "Treasury Interest Determination Date" corresponding to any Interest
Reset Date means the day of the week in which such Interest Reset Date falls on
which Treasury bills would normally be auctioned. If, as the result of a legal
holiday, an auction is so held on the Friday in the week immediately preceding
the week in which such Interest Reset Day falls, such Friday will be the
corresponding Treasury Interest Determination Date. If an auction date shall
fall on a day that would otherwise be an Interest Reset Date, then such Interest
Reset Date shall instead be the first Business Day immediately following such
auction date.
"Treasury Notes" means direct, noncallable, fixed rate obligations of the
U.S. government.
References in this Security to U.S. dollars shall mean, as of any time, the
coin or currency that is then legal tender for the payment of public and private
debts in the United States of America.
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<PAGE> 33
References in this Security to a particular currency other than U.S.
dollars shall mean, as of any time, the coin or currency that is then legal
tender for the payment of public and private debts in the country issuing such
currency on the Original Issue Date.
References in this Security to a particular heading or headings on any of
Designated CMT Telerate Page, H.15(519), H.15 Daily Update, Reuters Screen LIBOR
Page, Reuters Screen US Prime 1 Page, Telerate LIBOR Page or Telerate Page
include any successor or replacement heading or headings as determined by the
Calculation Agent.
4. REDEMPTION AT THE COMPANY'S OPTION
Unless a Redemption Commencement Date is specified on the face hereof,
except as provided below, this Security shall not be redeemable at the option of
the Company before the Stated Maturity Date. If a Redemption Commencement Date
is so specified, and unless otherwise specified on the face hereof, this
Security is subject to redemption upon not less than 30 days' nor more than 60
days' notice at any time and from time to time on or after the Redemption
Commencement Date, in each case as a whole or in part, at the election of the
Company and at the applicable Redemption Price specified on the face hereof
(expressed as a percentage of the principal amount of this Security to be
redeemed), together with accrued interest to the Redemption Date, but interest
installments due on or prior to such Redemption Date will be payable to the
Holder of this Security, or one or more Predecessor Securities, of record at the
close of business on the relevant record date, all as provided in the Indenture;
provided, however, that the first two paragraphs of Section 1103 of the
Indenture shall not apply to this Security, and if less than all of the
Securities of this series are to be redeemed, the Company may select, from
Securities of this series that are subject to redemption pursuant to the terms
thereof, the Security or Securities, or portion or portions thereof, to be
redeemed.
In the event that the Company shall be obligated to pay any Additional
Amounts due to a change in law, regulation or interpretation, the Company may,
at its option, redeem this Security as a whole at a redemption price of 100% of
the principal amount thereof (or, if this Security is an original issue discount
note, 100% of the OID
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<PAGE> 34
Default Amount) together with accrued interest to the date fixed for redemption.
5. REPAYMENT AT THE HOLDER'S OPTION
Except as otherwise may be provided on the face hereof, if one or more
Repayment Dates are specified on the face hereof, this Security will be
repayable in whole or in part in increments of $1,000 (provided that the
remaining principal amount of any Security surrendered for partial repayment
shall at least equal an Authorized Denomination), on any such Repayment Date, in
each case at the option of the Holder and at the applicable Repayment Price
specified on the face hereof (expressed as a percentage of the principal amount
to be repaid), together with accrued interest to the applicable Repayment Date
(but interest installments due on or prior to such Repayment Date will be
payable to the Holder of this Security, or one or more Predecessor Securities,
of record at the close of business on the relevant Record Date as provided in
the Indenture). If this security provides for more than one Repayment Date, and
the Holder exercises its option to elect repayment, the Holder shall be deemed
to have elected repayment on the earliest repayment date after all conditions to
such exercise have been satisfied, and references herein to the applicable
Repayment Date shall mean such earliest Repayment Date.
In order for the exercise of such option to be effective and this Security
to be repaid, the Company must receive at the applicable address of the Paying
Agent set forth below (or at such other place or places of which the Company
shall from time to time notify the Holder of this Security), on any Business Day
not later than the 30th, and not earlier than the 60th, calendar day prior to
the applicable Repayment Date (or, if either such calendar day is not a Business
Day, the next succeeding Business Day), either (i) this Security, with the form
below entitled "Option to Elect Repayment" duly completed and signed, or (ii) a
telegram, telex, facsimile transmission or letter from a member of a national
securities exchange or the National Association of Securities Dealers, Inc., a
commercial bank or a trust company in the United States of America setting forth
(a) the name, address and telephone number of the Holder of this Security, (b)
the principal amount of this Security and the amount of this Security to be
repaid, (c) a statement that the option to elect
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<PAGE> 35
repayment is being exercised thereby and (d) a guarantee stating that the
Company will receive this Security, with the form below entitled "Option to
Elect Repayment" duly completed and signed, not later than five Business Days
after the date of such telegram, telex, facsimile transmission or letter
(provided that this Security and form duly completed and signed are received by
the Company by such fifth Business Day). Any such election shall be irrevocable.
The address to which such deliveries are to be made is The First National Bank
of Chicago, Attention: Securities Processing Division, 14 Wall Street, Eighth
Floor, New York, New York 10005 (or at such other places as the Company or the
Paying Agent shall notify the Holder of this Security). All questions as to the
validity, eligibility (including time of receipt) and acceptance of any Security
for repayment will be determined by the Company, whose determination will be
final and binding. Notwithstanding the foregoing, (x) if this Security is a
Global Security, the option of the Holder to elect repayment may be exercised in
accordance with the Applicable Procedures of the Depositary for this Security at
least 15 calendar days prior to the applicable Repayment Date and (y) whether or
not this Security is a Global Security, the option of the Holder to elect
repayment may be exercised in any such manner as the Company may approve.
6. TRANSFER AND EXCHANGE
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security 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 Security 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 or her attorney
duly authorized in writing, and thereupon one or more new Securities of this
series and of like tenor, of Authorized Denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor of a
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<PAGE> 36
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 Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company nor
the Trustee nor any such agent shall be affected by notice to the contrary.
If this Security is a Global Security, this Security shall be subject to
the provisions of the Indenture relating to Global Securities, including the
limitations in Section 305 thereof on transfers and exchanges of Global
Securities.
7. [RESERVED.]
8. REMEDIES.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee indemnity reasonably satisfactory to
it, and the Trustee shall not have received from the Holders of a majority in
principal amount of Securities of this series at the time Outstanding
(Reverse of Security continued on next page)
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<PAGE> 37
a direction inconsistent with such request, and shall have failed to institute
any such proceeding, for 60 days after receipt of such notice, request and offer
of indemnity. The foregoing shall not apply to any suit instituted by the Holder
of this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
9. MODIFICATION AND WAIVER.
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 a majority in principal amount of the Securities at
the time Outstanding of all series to be affected (considered together as one
class for this purpose). The Indenture also contains provisions (i) permitting
the Holders of a majority in principal amount of the Securities at the time
Outstanding of all series to be affected under the Indenture (considered
together as one class for this purpose), on behalf of the Holders of all
Securities of such series, to waive compliance by the Company with certain
provisions of the Indenture and (ii) permitting the Holders of a majority in
principal amount of the Securities at the time Outstanding of any series to be
affected under the Indenture (with each such series considered separately for
this purpose), on behalf of the Holders of all Securities of such series, to
waive certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security 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 Security.
10. GOVERNING LAW.
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<PAGE> 38
THIS SECURITY AND THE INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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<PAGE> 39
CUSIP NO. __________
ORIGINAL ISSUE DATE: __________
POPULAR, INC.
MEDIUM-TERM NOTE, SERIES 4
OPTION TO ELECT REPAYMENT
TO BE COMPLETED ONLY IF THIS SECURITY IS REPAYABLE
AT THE OPTION OF THE HOLDER AND THE HOLDER
ELECTS TO EXERCISE SUCH RIGHT
The undersigned hereby irrevocably requests and instructs the Company to
repay the Security referred to in this notice (or the portion thereof specified
below) at the applicable Repayment Price, together with interest to the
Repayment Date, all as provided for in such Security, to the undersigned, whose
name, address and telephone number are as follows:
________________________________________________________________________________
(please print name of the undersigned)
________________________________________________________________________________
(please print address of the undersigned)
________________________________________________________________________________
(please print telephone number of the undersigned)
If such Security provides for more than one Repayment Date, the undersigned
requests repayment on the earliest Repayment Date after the requirements for
exercising this option have been satisfied, and references in this notice to the
Repayment Date mean such earliest Repayment Date. Terms used in this notice that
are defined in such Security are used herein as defined therein.
For such Security to be repaid the Company must receive at the applicable
address of the Paying Agent set forth below or at such other place or places of
which the Company shall from time to time notify the Holder of such Security,
any Business Day not later than the 30th or earlier than the 60th calendar day
prior to the Repayment Date (or, if either such calendar day is not a Business
Day, the next succeeding Business Day), (i) such Security, with
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<PAGE> 40
this "Option to Elect Repayment" form duly completed and signed, or (ii) a
telegram, telex, facsimile transmission or letter from a member of a national
securities exchange or the National Association of Securities Dealers, Inc., a
commercial bank or a trust company in the United States of America setting forth
(a) the name, address and telephone number of the Holder of such Security, (b)
the principal amount of such Security and the amount of such Security to be
repaid, (c) a statement that the option to elect repayment is being exercised
thereby and (d) a guarantee stating that such Security to be repaid with the
form entitled "Option to Elect Repayment" on the addendum to the Security duly
completed and signed will be received by the Company not later than five
Business Days after the date of such telegram, telex, facsimile transmission or
letter (provided that such Security and form duly completed and signed are
received by the Company by such fifth Business Day). The address to which such
deliveries are to be made is:
The First National Bank of Chicago
Attention: Securities Processing Division
14 Wall Street - Eighth Floor
New York, New York 10005
or at such other place as the Company or the Paying Agent shall notify the
holder of such Security.
If less than the entire principal amount of such Security is to be repaid,
specify the portion thereof (which shall equal any Authorized Denomination) that
the Holder elects to have repaid:
__________________________
and specify the denomination or denominations (which shall equal any Authorized
Denomination) of the Security or Securities to be issued to the Holder in
respect of the portion of such Security not being repaid (in the absence of any
specification, one Security will be issued in respect of the portion not being
repaid):
__________________________
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<PAGE> 41
Date: _______________ ______________________________
Notice: The signature to this
Option to Elect Repayment must
correspond with the name of the
Holder as written on the face of
such Security in every particular
without alteration or enlargement
or any other change whatsoever.
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<PAGE> 42
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this Security, 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 the right of
survivorship and not as tenants
in common
UNIF GIFT MIN ACT - __________ Custodian _________
(Cust) (Minor)
under Uniform Gifts to Minors Act
____________________________
(State)
Additional abbreviations may also be used
though not in the above list.
____________________________
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<PAGE> 43
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
________________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
____________________
/___________________/
________________________________________________________________________________
________________________________________________________________________________
(Please Print or Typewrite Name and Address
Including Postal Zip Code of Assignee)
________________________________________________________________________________
the attached Security and all rights thereunder, and hereby irrevocably
constitutes and appoints________________________________________________________
________________________________________________________________________________
to transfer said Security on the books of the Company, with full power of
substitution in the premises.
Dated:______________
Signature Guaranteed
_________________________ ________________________________
NOTICE: Signature must be NOTICE: The signature to
guaranteed. this assignment must correspond
with the name of the Holder as
written upon the face of the
attached Security in every
particular, without alteration or
enlargement or any change whatever.
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<PAGE> 1
Exhibit 4(q)
[Form of Fixed Rate Medium-Term Note]
(FACE OF SECURITY)
[IF A GLOBAL SECURITY, INSERT -- THIS SECURITY 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 SECURITY MAY NOT BE EXCHANGED IN
WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN
WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH
DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE.]
[IF DTC IS THE DEPOSITARY, INSERT -- UNLESS THIS CERTIFICATE IS PRESENTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO POPULAR NORTH AMERICA, INC. OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
[INSERT ANY LEGEND REQUIRED BY THE INTERNAL REVENUE CODE AND THE
REGULATIONS THEREUNDER.]
<PAGE> 2
CUSIP NO. _______
REGISTERED NO. FXR ______
POPULAR NORTH AMERICA, INC.
MEDIUM-TERM NOTES, SERIES E
(Fixed Rate)
Payment of Principal, Premium, if any,
and Interest Guaranteed by
POPULAR, INC.
The following terms apply to this Security, as and to the extent shown
below:
PRINCIPAL AMOUNT: REGULAR RECORD DATE:
STATED MATURITY DATE: ORIGINAL ISSUE DISCOUNT SECURITY:
SPECIFIED CURRENCY: U.S. - Total Amount of OID:
dollars for all payments - Yield to Maturity:
unless otherwise specified - Initial Accrual Period OID:
below: - OID Default Amount:
- Default Rate:
- payments of principal and any
premium:
REDEMPTION COMMENCEMENT DATE:
- payments of interest:
REPAYMENT DATE(S):
- Exchange Rate Agent:
REDEMPTION OR REPAYMENT PRICE(S):
INTEREST RATE: _____% per annum
OTHER TERMS:
INTEREST PAYMENT DATE(S):
ORIGINAL ISSUE DATE*:
Terms left blank or marked "N/A", "No", "None" or in a similar manner do
not apply to this Security except as otherwise may be specified.
Whenever used in this Security, the terms specified above that apply to
this Security have the meanings specified above, unless the context requires
otherwise. Other terms used in this Security that are not defined herein but
that are
__________________
* This date shall be the issue date of this Security, unless there is a
Predecessor Security, in which case this date shall be the issue date of
the first Predecessor Security.
(Face of Security continued on next page)
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<PAGE> 3
defined in the Indenture referred to in Section 1 on the reverse of this
Security are used herein as defined therein.
Popular North America, Inc., a corporation duly organized and existing
under the laws of the State of Delaware (hereinafter called the "Company", which
term includes any successor Person under the Indenture), for value received,
hereby promises to pay to _____________, or registered assigns, as principal the
Principal Amount on the Stated Maturity Date and to pay interest thereon, from
the Original Issue Date or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, on the Interest Payment Date(s) in
each year, commencing on the first such date that is at least 15 calendar days
after the Original Issue Date, and at the Maturity of the principal hereof, at
the rate per annum equal to the Interest Rate specified on the face hereof,
until the principal hereof is paid or made available for payment.
Notwithstanding the foregoing, interest on any principal that is overdue shall
be payable on demand.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the 15th calendar day (whether or not a
Business Day, as such term is defined in Section 3 on the reverse hereof) next
preceding such Interest Payment Date, unless otherwise provided on the face
hereof (a "Regular Record Date"). Any interest so payable, but not punctually
paid or duly provided for, on any Interest Payment Date will forthwith cease to
be payable to the Holder on such Regular Record Date and such Defaulted Interest
either may be paid to the Person in whose name this Security (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 the Holder of this Security not less
than 10 days prior to such Special Record Date, or may be paid in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which this Security may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in the Indenture.
If this Security is issued with an original issue discount, (i) if an Event
of Default with respect to the Security of this series shall have occurred and
be continuing, the amount of principal of this Security which may be declared
due and payable in the manner, with the effect and subject to the conditions
provided in the
(Face of Security continued on next page)
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<PAGE> 4
Indenture, shall be determined in the manner set forth under "OID Default
Amount" on the face hereof, and (ii) in the case of a default of payment in
principal upon acceleration, redemption, repayment at the option of the Holder
or at the Stated Maturity Date hereof, in lieu of any interest otherwise
payable, the overdue principal of this Security shall bear interest at a rate of
interest per annum equal to the Default Rate stated on the face hereof (to the
extent that the payment of such interest shall be legally enforceable), which
shall accrue from the date of such acceleration, redemption, repayment at the
option of the Holder or Stated Maturity Date, as the case may be, to the date
payment has been made or duly provided for or such default has been waived in
accordance with the terms of the Indenture.
CURRENCY OF PAYMENT
Payment of principal of (and premium, if any) and interest on this Security
will be made in the Specified Currency for such payment, except as provided in
this and the next three paragraphs. The Specified Currency for any payment shall
be the currency specified as such on the face of this Security unless, at the
time of such payment, such currency is not legal tender for the payment of
public and private debts in the country issuing such currency on the Original
Issue Date, in which case the Specified Currency for such payment shall be such
coin or currency as at the time of such payment is legal tender for the payment
of public and private debts in such country.
Except as provided in the next paragraph, any payment to be made on this
Security in a Specified Currency other than U.S. dollars will be made in U.S.
dollars if the Person entitled to receive such payment transmits a written
request for such payment to be made in U.S. dollars to the Trustee at its
Corporate Trust Office, Attention: Securities Processing Division, on or before
the fifth Business Day before the payment is to be made. Such written request
may be mailed, hand delivered, telecopied or delivered in any other manner
approved by the Trustee. Any such request made with respect to any payment on
this Security payable to a particular Holder will remain in effect for all later
payments on this Security payable to such Holder, unless such request is revoked
on or before the fifth Business Day before a payment is to be made, in which
case such revocation shall be effective for such and all later payments. In the
case of any payment of interest payable on an Interest Payment Date, such
written request must be made by the Person who is the registered Holder of this
Security on the relevant Regular Record Date.
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<PAGE> 5
The U.S. dollar amount of any payment made pursuant to the immediately
preceding paragraph will be determined by the Exchange Rate Agent based upon the
highest bid quotation received by the Exchange Rate Agent as of 11:00 A.M., New
York City time, on the second Business Day preceding the applicable payment
date, from three (or, if three are not available, then two) recognized foreign
exchange dealers selected by the Exchange Rate Agent in The City of New York, in
each case for the purchase by the quoting dealer, for U.S. dollars and for
settlement on such payment date of an amount of the Specified Currency for such
payment equal to the aggregate amount of such Specified Currency payable on such
payment date to all Holders of Securities of this or any other series who elect
to receive U.S. dollar payments on such payment date, and at which the
applicable dealer commits to execute a contract. If the Exchange Rate Agent
determines that two such bid quotations are not available on such second
Business Day, such payment will be made in the Specified Currency for such
payment. All currency exchange costs associated with any payment in U.S. dollars
on this Security will be borne by the Holder entitled to receive such payment,
by deduction from such payment.
Notwithstanding the foregoing, if any amount payable on this Security is
payable on any day (including at Maturity) in a Specified Currency other than
U.S. dollars, and if such Specified Currency is not available to the Company on
the two Business Days before such day, due to the imposition of exchange
controls, disruption in a currency market or any other circumstances beyond the
control of the Company, the Company will be entitled to satisfy its obligation
to pay such amount in such Specified Currency by making such payment in U.S.
dollars. The amount of such payment in U.S. dollars shall be determined by the
Exchange Rate Agent on the basis of the noon buying rate for cable transfers in
The City of New York for such Specified Currency (the "Exchange Rate") as of the
latest day before the day on which such payment is to be made. Any payment made
under such circumstances in U.S. dollars where the required payment is in other
than U.S. dollars will not constitute an Event of Default under the Indenture or
this Security.
MANNER OF PAYMENT - U.S. DOLLARS
Except as provided in the next paragraph, payment of any amount payable on
this Security in U.S. dollars will be made at the office or agency of the
Company maintained for that purpose in The City of New York (or at any other
office or agency maintained by the Company for that
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<PAGE> 6
purpose), against surrender of this Security in the case of any payment due at
the Maturity of the principal hereof (other than any payment of interest that
first becomes due on an Interest Payment Date); provided, however, that, at the
option of the Company and subject to the next paragraph, payment of interest may
be made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register.
Payment of any amount payable on this Security in U.S. dollars will be made
by wire transfer of immediately available funds to an account maintained by the
payee with a bank located in the Borough of Manhattan, The City of New York, if
(i) the principal of this Security is at least $10,000,000 and (ii) the Holder
entitled to receive such payment transmits a written request for such payment to
be made in such manner to the Paying Agent at its Corporate Trust Office,
Attention: Securities Processing Division, on or before the Regular Record Date
preceding the day on which such payment is to be made; provided that, in the
case of any such payment due at the Maturity of the principal hereof (other than
any payment of interest that first becomes due on an Interest Payment Date),
this Security must be surrendered at the office or agency of the Company
maintained for that purpose in The City of New York (or at any other office or
agency maintained by the Company for that purpose) in time for the Paying Agent
to make such payment in such funds in accordance with its normal procedures. Any
such request made with respect to any payment on this Security payable to a
particular Holder will remain in effect for all later payments on this Security
payable to such Holder, unless such request is revoked on or before the Regular
Record Date preceding the day on which such payment is to be made, in which case
such revocation shall be effective for such payment and all later payments;
provided that in the case of any payment due at Maturity of the principal of
this Security to be effective any request for revocation must be made no later
than the 15th day prior to the Maturity of the principal of this Security. In
the case of any payment of interest payable on an Interest Payment Date, such
written request must be made by the Person who is the registered Holder of this
Security on the relevant Regular Record Date. The Company will pay any
administrative costs imposed by banks in connection with making payments by wire
transfer with respect to this Security, but any tax, assessment or other
governmental charge imposed upon any payment will be borne by the Holder of this
Security and may be deducted from the payment by the Company or the Paying
Agent.
MANNER OF PAYMENT - OTHER SPECIFIED CURRENCIES
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<PAGE> 7
Payment of any amount payable on this Security in a Specified Currency
other than U.S. dollars will be made by wire transfer of immediately available
funds to such account as is maintained in such Specified Currency at a bank or
other financial institution acceptable to the Company and the Trustee and as
shall have been designated at least five Business Days prior to the applicable
payment date by the Person entitled to receive such payment; provided that, in
the case of any such payment due at the Maturity of the principal hereof (other
than any payment of interest that first becomes due on an Interest Payment
Date), this Security must be surrendered at the office or agency of the Company
maintained for that purpose in The City of New York (or at any other office or
agency maintained by the Company for that purpose) in time for the Paying Agent
to make such payment in such funds in accordance with its normal procedures.
Such account designation shall be made by transmitting the appropriate
information to the Trustee at its Corporate Trust Office in the Borough of
Manhattan, The City of New York, by mail, hand delivery, telecopier or in any
other manner approved by the Trustee. Unless revoked, any such account
designation made with respect to this Security by the Holder hereof will remain
in effect with respect to any further payments with respect to this Security
payable to such Holder. If a payment in a Specified Currency other than U.S.
dollars with respect to this Security cannot be made by wire transfer because
the required account designation has not been received by the Trustee on or
before the requisite date or for any other reason, the Company will cause a
notice to be given to the Holder of this Security at its registered address
requesting an account designation pursuant to which such wire transfer can be
made and such payment will be made within five Business Days after the Trustee's
receipt of such a designation meeting the requirements specified above, with the
same force and effect as if made on the due date. The Company will pay any
administrative costs imposed by banks in connection with making payments by wire
transfer with respect to this Security, but any tax, assessment or other
governmental charge imposed upon any payment will be borne by the Holder of this
Security and may be deducted from the payment by the Company or the Paying
Agent.
MANNER OF PAYMENT - GLOBAL SECURITIES
Notwithstanding any provision of this Security or the Indenture, if this
Security is a Global Security, the Company may make any and all payments of
principal, premium and interest on this Security pursuant to the Applicable
Procedures of the Depositary for this Security as permitted in the Indenture.
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PAYMENTS DUE ON A BUSINESS DAY
Unless otherwise specified on the face of this Security, the following
sentence shall apply to this Security. Notwithstanding any provision of this
Security or the Indenture, if any amount of principal, premium or interest would
otherwise be due on this Security on a day (the "Specified Day") that is not a
Business Day, such amount may be paid or made available for payment on the next
succeeding Business Day with the same force and effect as if such amount were
paid on the Specified Day. The provisions of this paragraph shall apply to the
Security in lieu of the provisions of Section 113 of the Indenture.
__________________________
Reference is hereby made to the further provisions of this Security 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 Security shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
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<PAGE> 9
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated:
POPULAR NORTH AMERICA, INC.
By____________________________
Name:
Title:
By____________________________
Name:
Title:
Attest:______________________
This Security is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By_________________________________
Authorized Officer
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<PAGE> 10
(Reverse of Security)
1. SECURITIES AND INDENTURE
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), all unconditionally guaranteed by
Popular, Inc. (hereinafter called the "Guarantor") and issued and to be issued
in one or more series under an Indenture, dated as of October 1, 1991, as
supplemented by the First Supplemental Indenture, dated as of February 28, 1995,
the Second Supplemental Indenture, dated as of May 8, 1997 and the Third
Supplemental Indenture, dated as of August 5, 1999 (together herein called the
"Indenture", which term shall have the meaning assigned to it in such
instrument), duly executed and delivered by the Company and the Guarantor to The
First National Bank of Chicago, as Trustee (herein called the "Trustee", which
term includes any successor trustee under the Indenture) and as Successor
Trustee to Citibank, N.A., and reference is hereby made to the Indenture for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Guarantor, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered.
2. SERIES AND DENOMINATIONS
This Security is one of the series designated on the face hereof, limited
to an aggregate initial offering price not to exceed $1,500,000,000 (or the
equivalent thereof in any other currency or currencies or currency units) less
the aggregate initial offering price of "Securities" (as defined in the
Prospectus dated August 4, 1999 relating to debt securities and preferred stock
of the Company, Popular International Bank, Inc. and the Guarantor)
authenticated and delivered upon initial issuance, other than the Securities of
this series, which amount may be increased at the option of the Company if in
the future it determines that it may wish to sell additional Securities of this
series. References herein to "this series" mean the series of securities
designated on the face hereof.
The Securities of this series are issuable only in registered form without
coupons in "Authorized Denominations", which term shall have the following
meaning. For each Security of this series having a principal amount payable in
U.S. dollars, the Authorized Denominations shall be $100,000 and any integral
multiples of $1,000 in excess
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<PAGE> 11
thereof. For each Security of this series having a principal amount payable in a
Specified Currency other than U.S. dollars, the Authorized Denominations shall
be the amount of such Specified Currency equivalent, at the Exchange Rate on the
first Business Day next preceding the date on which the Company accepts the
offer to purchase such Security, to $100,000 and any integral multiples of
$1,000 in excess thereof.
3. EXCHANGE RATE AGENT AND RELATED TERMS
If the principal of or interest on this Security is payable in a Specified
Currency other than U.S. dollars, the Company has initially appointed the
institution named on the face of this Security as Exchange Rate Agent to act as
such agent with respect to this Security, but the Company may, in its sole
discretion, appoint any other institution (including any Affiliate of the
Company) to serve as any such agent from time to time. The Company will give the
Trustee prompt written notice of any change in any such appointment. Insofar as
this Security provides for any such agent to obtain rates, quotes or other data
from a bank, dealer or other institution for use in making any determination
hereunder, such agent may do so from any institution or institutions of the kind
contemplated hereby notwithstanding that any one or more of such institutions
are such agent, Affiliates of such agent, any of the agents named on the cover
of the Company's Prospectus Supplement dated August 6, 1999 relating to the
Company's Medium-Term Notes, Series E or any Affiliate of any such agent or
Affiliates of the Company.
All determinations made by the Exchange Rate Agent may be made by such
agent in its sole discretion and, absent manifest error, shall be conclusive for
all purposes and binding on the Holder of this Security and the Company. The
Exchange Rate Agent shall not have any liability therefor.
Unless otherwise specified on the face hereof, for all purposes of this
Security, the term "Business Day" means each Monday, Tuesday, Wednesday,
Thursday or Friday that (i) is not a day on which banking institutions in New
York City generally are authorized or obligated by law, regulation or executive
order to close and (ii) if the Specified Currency for any payment on this
Security is other than U.S. dollars, is not a day on which banking institutions
in the principal financial center of the country issuing such Specified Currency
generally are authorized or obligated by law, regulation or executive order to
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<PAGE> 12
close. With respect to any particular location, the close of business on any day
on which business is not being conducted shall be deemed to mean 5:00 P.M., New
York City time, on that day.
References in this Security to U.S. dollars shall mean, as of any time, the
coin or currency that is then legal tender for the payment of public and private
debts in the United States of America.
References in this Security to a particular currency other than U.S.
dollars shall mean, as of any time, the coin or currency that is then legal
tender for the payment of public and private debts in the country issuing such
currency on the Original Issue Date.
4. REDEMPTION AT THE COMPANY'S OPTION
Unless a Redemption Commencement Date is specified on the face hereof,
except as provided below, this Security shall not be redeemable at the option of
the Company before the Stated Maturity Date. If a Redemption Commencement Date
is so specified, and unless otherwise specified on the face hereof, this
Security is subject to redemption upon not less than 30 days' nor more than 60
days' notice at any time and from time to time on or after the Redemption
Commencement Date, in each case as a whole or in part, at the election of the
Company and at the applicable Redemption Price specified on the face hereof
(expressed as a percentage of the principal amount of this Security to be
redeemed), together with accrued interest to the Redemption Date, but interest
installments due on or prior to such Redemption Date will be payable to the
Holder of this Security, or one or more Predecessor Securities, of record at the
close of business on the relevant record date, all as provided in the Indenture;
provided, however, that the first two paragraphs of Section 1103 of the
Indenture shall not apply to this Security, and if less than all of the
Securities of this series are to be redeemed, the Company may select, from
Securities of this series that are subject to redemption pursuant to the terms
thereof, the Security or Securities, or portion or portions thereof, to be
redeemed.
In the event that the Guarantor shall be obligated to pay any Additional
Amounts due to a change in law, regulation or interpretation, the Company may,
at its option, redeem this Security as a whole at a redemption price of 100% of
the principal amount thereof (or, if this Security is an original issue discount
note, 100% of the OID
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<PAGE> 13
Default Amount) together with accrued interest to the date fixed for redemption.
5. REPAYMENT AT THE HOLDER'S OPTION
Except as otherwise may be provided on the face hereof, if one or more
Repayment Dates are specified on the face hereof, this Security will be
repayable in whole or in part in an amount equal to any Authorized Denomination
(provided that the remaining principal amount of any Security surrendered for
partial repayment shall at least equal an Authorized Denomination), on any such
Repayment Date, in each case at the option of the Holder and at the applicable
Repayment Price specified on the face hereof (expressed as a percentage of the
principal amount to be repaid), together with accrued interest to the applicable
Repayment Date (but interest installments due on or prior to such Repayment Date
will be payable to the Holder of this Security, or one or more Predecessor
Securities, of record at the close of business on the relevant Record Date as
provided in the Indenture). If this Security provides for more than one
Repayment Date and the Holder exercises its option to elect repayment, the
Holder shall be deemed to have elected repayment on the earliest Repayment Date
after all conditions to such exercise have been satisfied, and references herein
to the "applicable Repayment Date" shall mean such earliest Repayment Date.
In order for the exercise of such option to be effective and this Security
to be repaid, the Company must receive at the applicable address of the Paying
Agent set forth below (or at such other place or places of which the Company
shall from time to time notify the Holder of this Security), on any Business Day
not later than the 30th, and not earlier than the 60th, calendar day prior to
the applicable Repayment Date (or, if either such calendar day is not a Business
Day, the next succeeding Business Day), either (i) this Security, with the form
below entitled "Option to Elect Repayment" duly com pleted and signed, or (ii) a
telegram, telex, facsimile transmission or letter from a member of a national
securities exchange or the National Association of Securities Dealers, Inc., a
commercial bank or a trust company in the United States of America setting forth
(a) the name, address and telephone number of the Holder of this Security, (b)
the principal amount of this Security and the amount of this Security to be
repaid, (c) a statement that the option to elect repayment is being exercised
thereby and (d) a guarantee stating that the Company will receive this Security,
with
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<PAGE> 14
the form below entitled "Option to Elect Repayment" duly completed and signed,
not later than five Business Days after the date of such telegram, telex,
facsimile transmission or letter (provided that this Security and form duly
completed and signed are received by the Company by such fifth Business Day).
Any such election shall be irrevocable. The address to which such deliveries are
to be made is The First National Bank of Chicago, Attention: Securities
Processing Division, 14 Wall Street, Eighth Floor, New York, New York 10005 (or
at such other places as the Company or the Paying Agent shall notify the Holder
of this Security). All questions as to the validity, eligibility (including time
of receipt) and acceptance of any Security for repayment will be determined by
the Company, whose determination will be final and binding. Notwithstanding the
foregoing, (x) if this Security is a Global Security, the option of the Holder
to elect repayment may be exercised in accordance with the Applicable Procedures
of the Depositary for this Security at least 30 calendar days prior to the
applicable Repayment Date and (y) whether or not this Security is a Global
Security, the option of the Holder to elect repayment may be exercised in any
such manner as the Company may approve.
6. TRANSFER AND EXCHANGE
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security 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 Security 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 or her attorney
duly authorized in writing, and thereupon one or more new Securities of this
series and of like tenor, of Authorized Denominations and for the same aggregate
princi pal amount, will be issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor of a different Authorized
Denomination, as requested by the Holder surrendering the same.
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<PAGE> 15
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 Security for registration of transfer, the
Company, the Guarantor, the Trustee and any agent of the Company, the Guarantor
or the Trustee may treat the Person in whose name this Security is registered as
the owner hereof for all purposes, whether or not this Security be overdue, and
neither the Company nor the Guarantor nor the Trustee nor any such agent shall
be affected by notice to the contrary.
If this Security is a Global Security, this Security shall be subject to
the provisions of the Indenture relating to Global Securities, including the
limitations in Section 305 thereof on transfers and exchanges of Global
Securities.
7. [RESERVED].
8. REMEDIES.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee indemnity reasonably satisfactory to
it, and the Trustee shall not have received from the Holders of a majority in
principal amount of Securities of this series at the time Outstanding a
direction inconsistent with such request, and shall have failed to institute any
such proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder of
this
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<PAGE> 16
Security for the enforcement of any payment of principal hereof or any premium
or interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
9. MODIFICATION AND WAIVER.
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 Guarantor and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company, the
Guarantor and the Trustee with the consent of the Holders of a majority in
principal amount of the Securities at the time Outstanding of all series to be
affected (considered together as one class for this purpose). The Indenture also
contains provisions (i) permitting the Holders of a majority in principal amount
of the Securities at the time Outstanding of all series to be affected under the
Indenture (considered together as one class for this purpose), on behalf of the
Holders of all Securities of such series, to waive compliance by the Company and
the Guarantor with certain provisions of the Indenture and (ii) permitting the
Holders of a majority in principal amount of the Securities at the time
Outstanding of any series to be affected under the Indenture (with each such
series considered separately for this purpose), on behalf of the Holders of all
Securities of such series, to waive certain past defaults under the Indenture
and their consequences. Any such consent or waiver by the Holder of this
Security shall be conclusive and binding upon such Holder and upon all future
Holders of this Security and of any Security 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 Security.
10. GOVERNING LAW.
THIS SECURITY AND THE INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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<PAGE> 17
GUARANTEE
OF
POPULAR, INC.
Popular, Inc. (the "Guarantor") hereby unconditionally guarantees to the
Holder of this Security duly authenticated and delivered by the Trustee, the due
and punctual payment of the principal, and premium, if any, of (including any
amount in respect of original issue discount), and interest, if any (together
with any Additional Amounts payable pursuant to the terms of this Security), on
this Security and the due and punctual payment of the sinking fund payments, if
any, and analogous obligations, if any, provided for pursuant to the terms of
this Security, when and as the same shall become due and payable, whether at
Stated Maturity or upon redemption, repayment or upon declaration of
acceleration or otherwise according to the terms of this Security and of the
Indenture. In case of default by the Company in the payment of any such
principal (including any amount in respect of original issue discount), any
premium or interest (together with any Additional Amounts payable pursuant to
the terms of this Security), sinking fund payment, or analogous obligation, the
Guarantor agrees duly and punctually to pay the same. The Guarantor hereby
agrees that its obligations hereunder shall be as principal and not merely as
surety, and shall be absolute and unconditional irrespective of any extension of
the time for payment of this Security, any modification of this Security, any
invalidity, irregularity or unenforceability of this Security or the Indenture,
any failure to enforce the same or any waiver, modification, consent or
indulgence granted to the Company with respect thereto by the Holder of this
Security or the Trustee, or any other circumstances which may otherwise
constitute a legal or equitable discharge of a surety or guarantor. The
Guarantor hereby waives diligence, presentment, demand of payment, filing of
claims with a court in the event of merger or bankruptcy of the Company, any
right to require a demand or proceeding first against the Company, protest or
notice with respect to this Security or the indebtedness evidenced thereby and
all demands whatsoever, and covenants that this guarantee will not be discharged
as to this Security except by payment in full of the principal of (including any
amount payable in respect of original issue discount), and any premium or
interest (together with any Additional Amounts payable pursuant to the terms of
this Security), thereon.
The Guarantor irrevocably waives any and all rights to which it may be
entitled, by operation of law or otherwise, upon making any payment hereunder
(i) to be subrogated to the rights of a Holder against the Company
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<PAGE> 18
with respect to such payment or otherwise to be reimbursed, indemnified or
exonerated by the Company in respect thereof or (ii) to receive any payment, in
the nature of contribution or for any other reason, from any other obligor with
respect to such payment.
This guarantee shall not be valid or become obligatory for any purpose with
respect to this Security until the certificate of authentication on this
Security shall have been signed by the Trustee.
This guarantee is governed by and construed in accordance with the laws of
the State of New York.
IN WITNESS WHEREOF, Popular, Inc. has caused this guarantee to be signed by
facsimile by its duly authorized officers and has caused a facsimile of its
corporate seal to be affixed hereunto or imprinted hereon.
POPULAR, INC.
By: ________________________
By: ________________________
Attested: ________________________
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<PAGE> 19
REGISTERED NO. FXR __________
CUSIP NO. __________
ORIGINAL ISSUE DATE: __________
POPULAR NORTH AMERICA, INC.
MEDIUM-TERM NOTE, SERIES E
OPTION TO ELECT REPAYMENT
TO BE COMPLETED ONLY IF THIS SECURITY IS REPAYABLE
AT THE OPTION OF THE HOLDER AND THE HOLDER
ELECTS TO EXERCISE SUCH RIGHT
The undersigned hereby irrevocably requests and instructs the Company to
repay the Security referred to in this notice (or the portion thereof specified
below) at the applicable Repayment Price, together with interest to the
Repayment Date, all as provided for in such Security, to the undersigned, whose
name, address and telephone number are as follows:
________________________________________________________________________________
(please print name of the undersigned)
________________________________________________________________________________
(please print address of the undersigned)
________________________________________________________________________________
(please print telephone number of the undersigned)
If such Security provides for more than one Repayment Date, the undersigned
requests repayment on the earliest Repayment Date after the requirements for
exercising this option have been satisfied, and references in this notice to the
Repayment Date mean such earliest Repayment Date. Terms used in this notice that
are defined in such Security are used herein as defined therein.
For such Security to be repaid the Company must receive at the applicable
address of the Trustee set forth below or at such other place or places of which
the Company or the Trustee shall from time to time notify the Holder of such
Security, any Business Day not later than the 30th or earlier than the 60th
calendar day prior to the Repayment Date (or, if either such calendar day is not
a Business Day, the next succeeding Business Day), (i) such Security, with this
"Option to Elect Repayment" form duly completed and signed, or (ii) a telegram,
telex, facsimile transmission or
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<PAGE> 20
letter from a member of a national securities exchange or the National
Association of Securities Dealers, Inc., a commercial bank or a trust company in
the United States of America setting forth (a) the name, address and telephone
number of the Holder of such Security, (b) the principal amount of such Security
and the amount of such Security to be repaid, (c) a statement that the option to
elect repayment is being exercised thereby and (d) a guarantee stating that such
Security to be repaid with the form entitled "Option to Elect Repayment" on the
addendum to the Security duly completed and signed will be received by the
Company not later than five Business Days after the date of such telegram,
telex, facsimile transmission or letter (provided that such Security and form
duly completed and signed are received by the Company by such fifth Business
Day). The address to which such deliveries are to be made is:
The First National Bank of Chicago
Attention: Securities Processing Division
14 Wall Street - Eighth Floor
New York, New York 10005
or at such other place as the Company or the Paying Agent shall notify the
holder of such Security.
If less than the entire principal amount of such Security is to be repaid,
specify the portion thereof (which shall equal any Authorized Denomination) that
the Holder elects to have repaid:
___________________________
and specify the denomination or denominations (which shall equal any Authorized
Denomination) of the Security or Securities to be issued to the Holder in
respect of the portion of such Security not being repaid (in the absence of any
specification, one Security will be issued in respect of the portion not being
repaid):
___________________________
Date: _______________ ______________________________
Notice: The signature to this
Option to Elect Repayment must
correspond with the name of the
Holder as written on the face of
such Security in every particular
without
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<PAGE> 21
alteration or enlargement or any
other change whatsoever.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this Security, 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 the right of
survivorship and not as tenants
in common
UNIF GIFT MIN ACT - __________ Custodian _________
(Cust) (Minor)
under Uniform Gifts to Minors Act
_____________________________
(State)
Additional abbreviations may also be used
though not in the above list.
_____________________________
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<PAGE> 22
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
_______________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
________________________
/_______________________/
_______________________________________________________________________________
_______________________________________________________________________________
(Please Print or Typewrite Name and Address
Including Postal Zip Code of Assignee)
_______________________________________________________________________________
the attached Security and all rights thereunder, and hereby irrevocably
constitutes and appoints_______________________________________________________
_______________________________________________________________________________
to transfer said Security on the books of the Company, with full power of
substitution in the premises.
Dated:______________
Signature Guaranteed
_________________________ _______________________________
NOTICE: Signature must be NOTICE: The signature to
guaranteed. this assignment must correspond
with the name of the Holder as
written upon the face of the
attached Security in every
particular, without alteration or
enlargement or any change whatever.
-22-
<PAGE> 1
Exhibit 4(r)
[Form of Floating Rate Medium-Term Note]
(FACE OF SECURITY)
[IF A GLOBAL SECURITY, INSERT - THIS SECURITY 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 SECURITY MAY NOT BE
EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF
THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON
OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]
[IF DTC IS THE DEPOSITARY, INSERT -- UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A
NEW YORK CORPORATION ("DTC"), TO POPULAR NORTH AMERICA, INC., OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.]
[INSERT ANY LEGEND REQUIRED BY THE INTERNAL REVENUE CODE AND THE
REGULATIONS THEREUNDER.]
<PAGE> 2
REGISTERED No. FLR___ CUSIP No. _______
POPULAR NORTH AMERICA, INC.
MEDIUM-TERM NOTES, SERIES E
(Floating Rate)
Payment of Principal, Premium, if any,
and Interest Guaranteed by
POPULAR, INC.
The following terms apply to this Security, as and to the extent
shown below:
<TABLE>
<S> <C>
PRINCIPAL AMOUNT: REPAYMENT DATE(S):
STATED MATURITY DATE: REDEMPTION OR REPAYMENT
PRICE(S):
SPECIFIED CURRENCY: U.S.
dollars for all payments BASE RATE:
unless otherwise specified - Commercial Paper Rate:
below:
- Prime Rate:
- payments of principal
and any premium: - LIBOR:
- Telerate LIBOR Page:
- payments of interest: - Reuters Screen
LIBOR Page:
- Exchange Rate Agent: - Index Currency
ORIGINAL ISSUE DATE*: - Treasury Rate:
REGULAR RECORD DATE: - CMT Rate:
ORIGINAL ISSUE DISCOUNT
SECURITY: - Telerate Page 7051:
- Telerate Page 7052
- Total Amount of OID: (weekly/monthly):
- Yield to Maturity: - CMT Index Maturity:
- Initial Accrual Period - CD Rate:
OID:
- OID Default Amount: - Federal Funds Rate:
- Default Rate:
- 11th District Rate:
REDEMPTION COMMENCEMENT
DATE:
</TABLE>
- ---------------------
* This date shall be the issue date of this Security, unless there is a
Predecessor Security, in which case this date shall be the issue date of
the first Predecessor Security.
(Face of Security continued on next page)
-2-
<PAGE> 3
<TABLE>
<S> <C>
INDEX MATURITY: the third Wednesday of the
following:
SPREAD: - each of the 12 calendar
months in each year
SPREAD MULTIPLIER: - each March, June,
September and December
in each year
INITIAL BASE RATE:
- each of the following
two calendar months in
MAXIMUM RATE: each year:
- the following calendar
MINIMUM RATE: month in each year:
subject to the second
INTEREST RESET PERIOD: paragraph under "Payments
Due on a Business Day" below
- if semi-annual, reset
will occur in each of INTEREST CALCULATION
the following two months DATE(S): as provided in
in each year: Section 3(n) on the reverse
of this Security (unless
- if annual, reset will otherwise specified)
occur in the following
month in each year:
CALCULATION AGENT:
- otherwise, reset will
occur daily, weekly, OTHER TERMS:
monthly or quarterly in
each year as follows:
INTEREST RESET DATE(S): as
provided in Section 3(a) on
the reverse of this Security
(unless otherwise specified)
INTEREST DETERMINATION
DATE(S): as provided in
Sections 3(b) through 3(j),
as applicable, on the
reverse of this Security
(unless otherwise specified)
INTEREST PAYMENT DATE(S):
unless otherwise specified,
</TABLE>
(Face of Security continued on next page)
-3-
<PAGE> 4
Terms left blank or marked "N/A", "No", "None" or in a similar manner
do not apply to this Security except as otherwise may be specified.
Whenever used in this Security, the terms specified above that apply
to this Security have the meanings specified above, unless the context requires
otherwise. Other terms used in this Security that are not defined herein but
that are defined in the Indenture referred to in Section 1 on the reverse of
this Security are used herein as defined therein.
(Face of Security continued on next page)
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<PAGE> 5
Popular North America, Inc., a corporation duly organized and
existing under the laws of the State of Delaware (hereinafter called the
"Company", which term includes any successor Person under the Indenture), for
value received, hereby promises to pay to _____________, or registered assigns,
as principal the Principal Amount on the Stated Maturity Date and to pay
interest thereon, from the Original Issue Date or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, on the
Interest Payment Date(s) in each year, commencing on the first such date that
is at least 15 calendar days after the Original Issue Date, and at the Maturity
of the principal hereof, at a rate per annum determined in accordance with the
applicable provisions of Section 3 on the reverse hereof, until the principal
hereof is paid or made available for payment. Notwithstanding the foregoing,
interest on any principal that is overdue shall be payable on demand.
The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in the Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the 15th calendar day (whether or not a
Business Day, as such term is defined in Section 3(n) on the reverse hereof)
next preceding such Interest Payment Date, unless otherwise provided on the
face hereof (a "Regular Record Date"). Any interest so payable, but not
punctually paid or duly provided for, on any Interest Payment Date will
forthwith cease to be payable to the Holder on such Regular Record Date and
such Defaulted Interest either may be paid to the Person in whose name this
Security (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 the Holder of this
Security not less than 10 days prior to such Special Record Date, or may be
paid in any other lawful manner not inconsistent with the requirements of any
securities exchange on which this Security may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in the
Indenture.
If this Security is issued with an original issue discount, (i) if an
Event of Default with respect to the Security of this series shall have
occurred and be continuing, the amount of principal of this Security which may
be declared due and payable in the manner, with the effect and subject to the
conditions provided in the Indenture, shall be determined in the manner set
forth under
(Face of Security continued on next page)
-5-
<PAGE> 6
"OID Default Amount" on the face hereof, and (ii) in the case of a default of
payment in principal upon acceleration, redemption, repayment at the option of
the Holder or at the Stated Maturity Date hereof, in lieu of any interest
otherwise payable, the overdue principal of this Security shall bear interest
at a rate of interest per annum equal to the Default Rate stated on the face
hereof (to the extent that the payment of such interest shall be legally
enforceable), which shall accrue from the date of such acceleration,
redemption, repayment at the option of the Holder or Stated Maturity Date, as
the case may be, to the date payment has been made or duly provided for or such
default has been waived in accordance with the terms of the Indenture.
CURRENCY OF PAYMENT
Payment of principal of (and premium, if any) and interest on this
Security will be made in the Specified Currency for such payment, except as
provided in this and the next three paragraphs. The Specified Currency for any
payment shall be the currency specified as such on the face of this Security
unless, at the time of such payment, such currency is not legal tender for the
payment of public and private debts in the country issuing such currency on the
Original Issue Date, in which case the Specified Currency for such payment
shall be such coin or currency as at the time of such payment is legal tender
for the payment of public and private debts in such country.
Except as provided in the next paragraph, any payment to be made on
this Security in a Specified Currency other than U.S. dollars will be made in
U.S. dollars if the Person entitled to receive such payment transmits a written
request for such payment to be made in U.S. dollars to the Trustee at its
Corporate Trust Office, Attention: Securities Processing Division, on or before
the fifth Business Day before the payment is to be made. Such written request
may be mailed, hand delivered, telecopied or delivered in any other manner
approved by the Trustee. Any such request made with respect to any payment on
this Security payable to a particular Holder will remain in effect for all
later payments on this Security payable to such Holder, unless such request is
revoked on or before the fifth Business Day before a payment is to be made, in
which case such revocation shall be effective for such and all later payments.
In the case of any payment of interest payable on an Interest Payment Date,
such written request must be made by the Person who is the registered Holder of
this Security on the relevant Regular Record Date.
(Face of Security continued on next page)
-6-
<PAGE> 7
The U.S. dollar amount of any payment made pursuant to the preceding
paragraph will be determined by the Exchange Rate Agent based upon the highest
bid quotation received by the Exchange Rate Agent as of 11:00 A.M., New York
City time, on the second Business Day preceding the applicable payment date,
from three (or, if three are not available, then two) recognized foreign
exchange dealers selected by the Exchange Rate Agent in The City of New York,
in each case for the purchase by the quoting dealer, for U.S. dollars and for
settlement on such payment date of an amount of the Specified Currency for such
payment equal to the aggregate amount of such Specified Currency payable on
such payment date to all Holders of Securities of this or any other series who
elect to receive U.S. dollar payments on such payment date, and at which the
applicable dealer commits to execute a contract. If the Exchange Rate Agent
determines that two such bid quotations are not available on such second
Business Day, such payment will be made in the Specified Currency for such
payment. All currency exchange costs associated with any payment in U.S.
dollars on this Security will be borne by the Holder entitled to receive such
payment, by deduction from such payment.
Notwithstanding the foregoing, if any amount payable on this Security
is payable on any day (including at Maturity) in a Specified Currency other
than U.S. dollars, and if such Specified Currency is not available to the
Company on the two Business Days before such day, due to the imposition of
exchange controls, disruption in a currency market or any other circumstances
beyond the control of the Company, the Company will be entitled to satisfy its
obligation to pay such amount in such Specified Currency by making such payment
in U.S. dollars. The amount of such payment in U.S. dollars shall be determined
by the Exchange Rate Agent on the basis of the noon buying rate for cable
transfers in The City of New York for such Specified Currency (the "Exchange
Rate") as of the latest day before the day on which such payment is to be made.
Any payment made under such circumstances in U.S. dollars where the required
payment is in other than U.S. dollars will not constitute an Event of Default
under the Indenture or this Security.
MANNER OF PAYMENT - U.S. DOLLARS
Except as provided in the next paragraph, payment of any amount
payable on this Security in U.S. dollars will be made at the office or agency
of the Company maintained for that purpose in The City of New York (or at any
other office or agency maintained by the Company for that
(Face of Security continued on next page)
-7-
<PAGE> 8
purpose), against surrender of this Security in the case of any payment due at
the Maturity of the principal hereof (other than any payment of interest that
first becomes due on an Interest Payment Date); provided, however, that, at the
option of the Company and subject to the next paragraph, payment of interest
may be made by check mailed to the address of the Person entitled thereto as
such address shall appear in the Security Register.
Payment of any amount payable on this Security in U.S. dollars will
be made by wire transfer of immediately available funds to an account
maintained by the payee with a bank located in the Borough of Manhattan, The
City of New York, if (i) the principal of this Security is at least $10,000,000
and (ii) the Holder entitled to receive such payment transmits a written
request for such payment to be made in such manner to the Paying Agent at its
Corporate Trust Office, Attention: Securities Processing Division, on or before
the Regular Record Date preceding the day on which such payment is to be made;
provided that, in the case of any such payment due at the Maturity of the
principal hereof (other than any payment of interest that first becomes due on
an Interest Payment Date), this Security must be surrendered at the office or
agency of the Company maintained for that purpose in The City of New York (or
at any other office or agency maintained by the Company for that purpose) in
time for the Paying Agent to make such payment in such funds in accordance
with its normal procedures. Any such request made with respect to any payment
on this Security payable to a particular Holder will remain in effect for all
later payments on this Security payable to such Holder, unless such request is
revoked on or before the Regular Record Date preceding the day on which such
payment is to be made, in which case such revocation shall be effective for
such and all later payments; provided that in the case of any payment due at
Maturity of the principal of this Security to be effective any request for
revocation must be made no later than the 15th day prior to the Maturity of the
principal of this Security. In the case of any payment of interest payable on
an Interest Payment Date, such written request must be made by the Person who
is the registered Holder of this Security on the relevant Regular Record Date.
The Company will pay any administrative costs imposed by banks in connection
with making payments by wire transfer with respect to this Security, but any
tax, assessment or other governmental charge imposed upon any payment will be
borne by the Holder of this Security and may be deducted from the payment by
the Company or the Paying Agent.
(Face of Security continued on next page)
-8-
<PAGE> 9
MANNER OF PAYMENT - OTHER SPECIFIED CURRENCIES
Payment of any amount payable on this Security in a Specified
Currency other than U.S. dollars will be made by wire transfer of immediately
available funds to such account as is maintained in such Specified Currency at
a bank or other financial institution acceptable to the Company and the Trustee
and as shall have been designated at least five Business Days prior to the
applicable payment date by the Person entitled to receive such payment;
provided that, in the case of any such payment due at the Maturity of the
principal hereof (other than any payment of interest that first becomes due on
an Interest Payment Date), this Security must be surrendered at the office or
agency of the Company maintained for that purpose in The City of New York (or
at any other office or agency maintained by the Company for that purpose) in
time for the Paying Agent to make such payment in such funds in accordance with
its normal procedures. Such account designation shall be made by transmitting
the appropriate information to the Trustee at its Corporate Trust Office in the
Borough of Manhattan, The City of New York, by mail, hand delivery, telecopier
or in any other manner approved by the Trustee. Unless revoked, any such
account designation made with respect to this Security by the Holder hereof
will remain in effect with respect to any further payments with respect to this
Security payable to such Holder. If a payment in a Specified Currency other
than U.S. dollars with respect to this Security cannot be made by wire transfer
because the required account designation has not been received by the Trustee
on or before the requisite date or for any other reason, the Company will cause
a notice to be given to the Holder of this Security at its registered address
requesting an account designation pursuant to which such wire transfer can be
made and such payment will be made within five Business Days after the
Trustee's receipt of such a designation meeting the requirements specified
above, with the same force and effect as if made on the due date. The Company
will pay any administrative costs imposed by banks in connection with making
payments by wire transfer with respect to this Security, but any tax,
assessment or other governmental charge imposed upon any payment will be borne
by the Holder of this Security and may be deducted from the payment by the
Company or the Paying Agent.
MANNER OF PAYMENT - GLOBAL SECURITIES
Notwithstanding any provision of this security or the Indenture, if
this Security is a Global Security, the Company may make any and all payments
of principal, premium
(Face of Security continued on next page)
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<PAGE> 10
and interest on this Security pursuant to the Applicable Procedures of the
Depositary for this Security as permitted in the Indenture.
PAYMENTS DUE ON A BUSINESS DAY
Unless otherwise specified on the face of this Security, the following
sentence shall apply to this Security. Notwithstanding any provision of this
Security or the Indenture other than the following paragraph, if any amount of
principal, premium or interest would otherwise be due on this Security on a day
(the "Specified Day") that is not a Business Day, such amount may be paid or
made available for payment on the next succeeding Business Day (unless the Base
Rate is LIBOR and such next succeeding Business Day falls in the next calendar
month, in which case such amount may be paid or made available for payment on
the next preceding Business Day) with the same force and effect as if such
amount were paid on the Specified Day. The provisions of this paragraph shall
apply to this Security in lieu of the provisions of Section 113 of the
Indenture.
Unless otherwise specified on the face of this Security, the
following sentence shall apply to each Interest Payment Date other than one
that falls on the date of Maturity of the principal hereof. If any such
Interest Payment Date would otherwise be a day that is not a Business Day, such
Interest Payment Date shall be deferred to the next succeeding Business Day,
provided that, if the Base Rate is LIBOR and the next succeeding Business Day
would fall in the next calendar month, then such Interest Payment Date will be
advanced to the next preceding Business Day.
Reference is hereby made to the further provisions of this Security
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 Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
(Face of Security continued on next page)
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<PAGE> 11
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated:
POPULAR NORTH AMERICA, INC.
By
------------------------------
Name:
Title:
By
------------------------------
Name:
Title:
Attest:
---------------
This Security is one of the Securities of the series designated
herein and referred to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF
CHICAGO, as Trustee
By
-----------------------------------
Authorized Officer
-11-
<PAGE> 12
(Reverse of Security)
1. SECURITIES AND INDENTURE
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), all unconditionally guaranteed by
Popular, Inc. (hereinafter called the "Guarantor") and issued and to be issued
in one or more series under an Indenture, dated as of October 1, 1991, as
supplemented by the First Supplemental Indenture, dated as of February 28,
1995, the Second Supplemental Indenture, dated as of May 8, 1997 and the Third
Supplemental Indenture, dated as of August 5, 1999 (together herein called the
"Indenture", which term shall have the meaning assigned to it in such
instrument), duly executed and delivered by the Company and the Guarantor to
The First National Bank of Chicago, as Trustee (herein called the "Trustee",
which term includes any successor trustee under the Indenture) and as Successor
Trustee to Citibank, N.A., and reference is hereby made to the Indenture for a
statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Guarantor, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered.
2. SERIES AND DENOMINATIONS
This Security is one of the series designated on the face hereof,
limited to an aggregate initial offering price not to exceed $1,500,000,000 (or
the equivalent thereof in any other currency or currencies or currency units)
less the aggregate initial offering price of "Securities" (as defined in the
Prospectus dated August 4, 1999 relating to debt securities and preferred stock
of the Company, Popular International Bank, Inc. and the Guarantor)
authenticated and delivered upon initial issuance, other than the Securities of
this series, which amount may be increased at the option of the Company if in
the future it determines that it may wish to sell additional Securities of this
series. References herein to "this series" mean the series of securities
designated on the face hereof.
The Securities of this series are issuable only in registered form
without coupons in "Authorized Denominations", which term shall have the
following meaning. For each Security of this series having a principal amount
payable in U.S. dollars, the Authorized Denominations shall be $100,000 and any
integral multiple of $1,000 in excess thereof. For each Security of this series
having a principal amount payable in a Specified Currency other than
(Reverse of Security continued on next page)
-12-
<PAGE> 13
U.S. dollars, the Authorized Denominations shall be the amount of such
Specified Currency equivalent, at the Exchange Rate on the first Business Day
next preceding the date on which the Company accepts the offer to purchase such
Security, to $100,000 and any integral multiple of $1,000 in excess thereof.
3. INTEREST RATE
(a) INTEREST RATE RESET. The interest rate on this Security will be
reset from time to time, as provided in this Section 3, and each date upon
which such rate is reset as so provided is hereinafter called an "Interest
Reset Date". Unless otherwise specified on the face hereof, the Interest Reset
Dates with respect to this Security will be as follows:
(i) if the Interest Reset Period is daily, each Business Day;
(ii) if the Interest Reset Period is weekly and the Base Rate is not
the Treasury Rate, the Wednesday of each week;
(iii) if the Interest Reset Period is weekly and the Base Rate is the
Treasury Rate, except as otherwise provided in the definition of "Treasury
Interest Determination Date" in Section 3(n) below, the Tuesday of each
week;
(iv) if the Interest Reset Period is monthly, the third Wednesday of
each month;
(v) if the Interest Reset Period is quarterly, the third Wednesday of
each March, June, September and December;
(vi) if the Interest Reset Period is semi-annual, the third Wednesday
of each of two months in each year specified under "Interest Reset Period"
on the face hereof; and
(vii) if the Interest Reset Period is annual, the third Wednesday of
the month in each year specified under "Interest Reset Period" on the face
hereof;
provided, however, that (x) the Base Rate in effect from the Original Issue
Date to but excluding the first Interest Reset Date will be the Initial Base
Rate and (y) if the Interest Reset Period is daily or weekly, the Base Rate in
effect for each day following the second Business Day
(Reverse of Security continued on next page)
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<PAGE> 14
immediately prior to an Interest Payment Date to but excluding such Interest
Payment Date, and for each day following the second Business Day immediately
prior to the day of Maturity of the principal hereof to but excluding such day
of Maturity, will be the Base Rate in effect on such applicable second Business
Day; and provided, further, that, if any Interest Reset Date would otherwise be
a day that is not a Business Day, such Interest Reset Date shall be the next
succeeding day that is a Business Day, except that, unless otherwise specified
on the face hereof, if the Base Rate is LIBOR and such next succeeding Business
Day falls in the next succeeding calendar month, such Interest Reset Date shall
be the immediately preceding Business Day.
Subject to applicable provisions of law and except as otherwise
specified herein, on each Interest Reset Date the interest rate on this
Security shall be the rate determined in accordance with such of the following
Sections 3(b) through 3(j) as provided for determination of the Base Rate for
this Security. The Calculation Agent shall determine the interest rate of this
Security in accordance with the applicable Section below.
Unless the Base Rate is LIBOR, the Calculation Agent will determine
the interest rate of this Security that takes effect on any Interest Reset Date
on a day no later than the Calculation Date (as defined in Section 3(n) below)
corresponding to such Interest Reset Date. However, the Calculation Agent need
not wait until the Calculation Date to determine such interest rate if the rate
information it needs to make such determination in the manner specified in the
applicable provisions of Sections 3(b) through 3(j) hereof is available from
the relevant sources specified in such applicable provisions.
Upon request of the Holder to the Calculation Agent, the Calculation
Agent will provide the interest rate then in effect on this Security and, if
determined, the interest rate that will become effective on the next Interest
Reset Date.
(b) DETERMINATION OF COMMERCIAL PAPER RATE. If the Base Rate is the
Commercial Paper Rate, the Base Rate that takes effect on any Interest Reset
Date shall equal the Money Market Yield (as defined in Section 3(n) below) of
the rate, for the second Business Day immediately preceding such Interest Reset
Date (the "Commercial Paper Interest
(Reverse of Security continued on next page)
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<PAGE> 15
Determination Date"), for commercial paper having the Index Maturity, as
published in H.15(519) (as defined in Section 3(n) below) under the heading
"Commercial Paper -- Nonfinancial". If the Commercial Paper Rate cannot be
determined as described above, the following procedures will apply in
determining the Commercial Paper Rate:
(i) If the rate described above is not published in H.15(519) by
3:00 P.M., New York City time, on the Calculation Date (as defined in
Section 3(n) below) corresponding to such Commercial Paper Interest
Determination Date, then the Commercial Paper Rate will be the rate, for
such Commercial Paper Interest Determination Date, for commercial paper
having the Index Maturity, as published in H.15 Daily Update (as defined
in Section 3(n) below) or any other recognized electronic source used for
displaying that rate, under the heading "Commercial Paper --
Nonfinancial".
(ii) If the rate described in clause (i) above does not appear in
H.15(519), H.15 Daily Update or another recognized electronic source by
3:00 P.M., New York City time, on such Calculation Date (unless the
calculation is made earlier and the rate is available from one of those
sources at that time), the Commercial Paper Rate will be the Money Market
Yield of the arithmetic mean of the following offered rates for U.S.
dollar commercial paper that has the Index Maturity and is placed for an
industrial issuer whose bond rating is "AA", or the equivalent, from a
nationally recognized rating agency: the rates offered as of 11:00 A.M.,
New York City time, on such Commercial Paper Interest Determination Date
by three leading U.S. dollar commercial paper dealers in New York City
selected by the Calculation Agent.
(iii) If fewer than three dealers selected by the Calculation Agent
are quoting as described in clause (ii) above, the Commercial Paper Rate
shall be the Commercial Paper Rate in effect on such Commercial Paper
Interest Determination Date (or, in the case of the first Interest Reset
Date, the Initial Base Rate).
The Base Rate determined in accordance with this Section 3(b) will be
adjusted by the addition or subtraction of the Spread, if any, or by
multiplying such Base Rate by the Spread Multiplier, if any.
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(c) DETERMINATION OF PRIME RATE. If the Base Rate is the Prime
Rate, the Base Rate that takes effect on any Interest Reset Date shall equal
the rate, for the second Business Day immediately preceding such Interest Reset
Date (the "Prime Interest Determination Date"), published in H.15(519) under
the heading "Bank Prime Loan". If the Prime Rate cannot be determined as
described above, the following procedures will apply in determining the Prime
Rate:
(i) If the rate described above is not published in H.15(519) by
3:00 P.M., New York City time, on the Calculation Date corresponding to
such Prime Interest Determination Date, then the Prime Rate will be the
rate, for such Prime Interest Determination Date, as published in H.15
Daily Update or another recognized electronic source used for the purpose
of displaying that rate, under the heading "Bank Prime Loan".
(ii) If the rate described in clause (i) above is not published in
H.15(519), H.15 Daily Update or another recognized electronic source by
3:00 P.M., New York City time, on such Calculation Date (unless the
calculation is made earlier and the rate is available from one of those
sources at that time), then the Prime Rate will be the arithmetic mean of
the following rates as they appear on the Reuters Screen US PRIME 1 Page
(as defined in Section 3(n) below): the rate of interest publicly
announced by each bank appearing on that page as that bank's prime rate or
base lending rate, as of 11:00 A.M., New York City time, on such Prime
Interest Determination Date.
(iii) If fewer than four of the rates referred to in clause (ii)
above appear on the Reuters Screen US PRIME 1 Page, the Prime Rate will be
the arithmetic mean of the prime rates or base lending rates, as of the
close of business on such Prime Interest Determination Date, of three
major banks in New York City selected by the Calculation Agent. For this
purpose, the Calculation Agent will use rates quoted on the basis of the
actual number of days in the year divided by a 360-day year.
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(iv) If fewer than three banks selected by the Calculation Agent
are quoting as described in clause (iii) above, the Prime Rate shall be
the Prime Rate in effect on such Prime Interest Determination Date (or, in
the case of the first Interest Reset Date, the Initial Base Rate).
The Base Rate determined in accordance with this Section 3(c) will be
adjusted by the addition or subtraction of the Spread, if any, or by
multiplying such Base Rate by the Spread Multiplier, if any.
(d) DETERMINATION OF LIBOR. If the Base Rate is LIBOR, the Base
Rate that takes effect on any Interest Reset Date shall be LIBOR on the
corresponding LIBOR Interest Determination Date (as defined in Section 3(n)
below) and shall be determined in accordance with the following provisions:
LIBOR will be either of the following rates, whichever appears on the
face hereof:
(x) the offered rate appearing on the Telerate LIBOR Page (as
defined in Section 3(n) below); or
(y) the arithmetic mean of the offered rates appearing on the
Reuters Screen LIBOR Page (as defined in Section 3(n) below) unless that
page by its terms cites only one rate, in which case that rate;
in either case, as of 11:00 A.M., London time, on such LIBOR Interest
Determination Date for deposits of the Index Currency having the Index Maturity
beginning on such Interest Reset Date. If no reference page is specified on the
face hereof, Telerate LIBOR Page will apply to this Security:
(i) If Telerate LIBOR Page is specified on the face hereof and the
rate referenced in clause (x) above does not appear on that page, or if
Reuters Screen LIBOR Page is specified on the face hereof and fewer than
two of the rates referenced in clause (y) above appear on that page or no
rate appears on any page on which only one rate normally appears, then
LIBOR will be determined on the basis of the rates, at approximately 11:00
A.M., London time, on such
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LIBOR Interest Determination Date, at which deposits of the following kind
are offered to prime banks in the London interbank market by four major
banks in that market selected by the Calculation Agent: deposits of the
Index Currency having the Index Maturity beginning on such Interest Reset
Date and in a Representative Amount (as defined in Section 3(n) below).
The Calculation Agent will request the principal London office of each
such bank to provide a quotation of its rate. If at least two quotations
are provided, LIBOR for such LIBOR Interest Determination Date will be the
arithmetic mean of the quotations.
(ii) If fewer than two quotations are provided as described in
clause (i) above, LIBOR for such LIBOR Interest Determination Date will be
the arithmetic mean of the rates for loans of the following kind to
leading European banks quoted, at approximately 11:00 A.M. in the
principal financial center for the country issuing the Index Currency, on
such LIBOR Interest Determination Date, by three major banks in that
financial center selected by the Calculation Agent: loans of the Index
Currency having the Index Maturity beginning on such Interest Reset Date
and in a Representative Amount.
(iii) If fewer than three banks selected by the Calculation Agent
are quoting as described in clause (ii) above, LIBOR will be the LIBOR in
effect on such LIBOR Interest Determination Date (or, in the case of the
first Interest Reset Date, the Initial Base Rate).
The Base Rate determined in accordance with this Section 3(d) will be
adjusted by the addition or subtraction of the Spread, if any, or by
multiplying such Base Rate by the Spread Multiplier, if any. If the Base Rate
is LIBOR and no currency is specified on the face hereof as the Index Currency,
the Index Currency shall be U.S. dollars.
(e) [RESERVED]
(f) DETERMINATION OF TREASURY RATE. If the Base Rate is the
Treasury Rate, the Base Rate that takes effect
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on any Interest Reset Date shall equal the rate for the auction on the
corresponding Treasury Interest Determination Date (as defined in Section 3(n)
below) of direct obligations of the United States ("Treasury Bills") having the
Index Maturity, as that rate appears on Telerate Page 56 or 57 under the
heading "Investment Rate". If the Treasury Rate cannot be determined as
described above, the following procedures will apply in determining the
Treasury Rate:
(i) If the rate described above does not appear on either Telerate
Page 56 or 57 at 3:00 P.M., New York City time, on the Calculation Date
corresponding to such Treasury Interest Determination Date (unless the
calculation is made earlier and the rate is available from that source at
that time), the Treasury Rate will be the Bond Equivalent Yield (as
defined in Section 3(n) below) of the rate, for such Treasury Interest
Determination Date and for Treasury Bills having the Index Maturity, as
published in H.15 Daily Update, or another recognized electronic source
used for displaying that rate, under the heading "U.S. Government
Securities/Treasury Bills/Auction High".
(ii) If the rate described in clause (i) above does not appear in
H.15 Daily Update or another recognized electronic source by 3:00 P.M.,
New York City time, on such Calculation Date (unless the calculation is
made earlier and the rate is available from one of those sources at that
time), the Treasury Rate will be the Bond Equivalent Yield of the auction
rate, for such Treasury Interest Determination Date and for Treasury Bills
having the Index Maturity, as announced by the U.S. Department of the
Treasury.
(iii) If the auction rate described in clause (ii) above is not so
announced by 3:00 P.M., New York City time, on such Calculation Date, or
if no such auction is held for the relevant week, then the Treasury Rate
will be the Bond Equivalent Yield of the rate, for such Treasury Interest
Determination Date and for Treasury Bills having the Index Maturity, as
published in H.15(519) under the heading "U.S. Government
Securities/Treasury Bills/Secondary Market".
(iv) If the rate described in clause (iii) above does not appear in
H.15(519) by 3:00 P.M., New York City time, on such Calculation Date, then
the Treasury
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Rate will be the rate, for such Treasury Interest Determination Date and
for Treasury Bills having the Index Maturity, as published in H.15 Daily
Update, or another recognized electronic source used for displaying that
rate, under the heading "U.S. Government Securities/ Treasury Bills
/Secondary Market".
(v) If the rate described in clause (iv) above does not appear in
H.15 Daily Update or another recognized electronic source by 3:00 P.M.,
New York City time, on such Calculation Date (unless the calculation is
made earlier and the rate is available from one of those sources at that
time), the Treasury Rate will be the Bond Equivalent Yield of the
arithmetic mean of the following secondary market bid rates for the issue
of Treasury Bills with a remaining maturity closest to the Index Maturity:
the rates bid as of approximately 3:30 P.M., New York City time, on such
Treasury Interest Determination Date, by three primary U.S. government
securities dealers in New York City selected by the Calculation Agent.
(vi) If fewer than three dealers selected by the Calculation Agent
are quoting as described in clause (v) above, the Treasury Rate shall be
the Treasury Rate in effect on such Treasury Interest Determination Date
(or, in the case of the first Interest Reset Date, the Initial Base Rate).
The Base Rate determined in accordance with this Section 3(f) will be
adjusted by the addition or subtraction of the Spread, if any, or by
multiplying such Base Rate by the Spread Multiplier, if any, specified on the
face hereof.
(g) DETERMINATION OF CMT RATE. If the Base Rate is the CMT Rate, the
Base Rate that takes effect on any Interest Reset Date shall equal the CMT Rate
on the second Business Day immediately preceding such Interest Reset Date (the
"CMT Interest Determination Date"). "CMT Rate" means the following rate
displayed on the Designated CMT Telerate Page (as defined in Section 3(n)
below) under the heading " . . . Treasury Constant Maturities . . . Federal
Reserve Board Release H.15 . . . Mondays Approximately 3:45 P.M.", under the
column for the Designated CMT Index Maturity (as defined in Section 3(n)
below):
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(x) if the Designated CMT Telerate Page is Telerate Page 7051, the
rate for such CMT Interest Determination Date; or
(y) if the Designated CMT Telerate Page is Telerate Page 7052, the
weekly or monthly average, as specified on the face hereof, for the week
that ends immediately before the week in which such CMT Interest
Determination Date falls, or for the month that ends immediately before
the month in which such CMT Interest Determination Date falls, as
applicable.
If the CMT Rate cannot be determined as described above, the following
procedures will apply in determining the CMT Rate:
(i) If the applicable rate described above is not displayed on the
relevant Designated CMT Telerate Page at 3:00 P.M., New York City time, on
the Calculation Date corresponding to such CMT Interest Determination Date
(unless the calculation is made earlier and the rate is available from
that source at that time), then the CMT Rate will be the applicable
Treasury constant maturity rate described above -- i.e., for the
Designated CMT Index Maturity and for either such CMT Interest
Determination Date or the weekly or monthly average, as applicable -- as
published in H.15(519).
(ii) If the applicable rate described in clause (i) above is not
published in H.15(519) by 3:00 P.M., New York City time, on such
Calculation Date, then the CMT Rate will be the Treasury constant maturity
rate, or other U.S. Treasury rate, for the Designated CMT Index Maturity
and with reference to such CMT Interest Determination Date, that:
(a) is published by the Board of Governors of the Federal
Reserve System, or the U.S. Department of the Treasury, and
(b) is determined by the Calculation Agent to be comparable to
the applicable rate formerly displayed on the Designated CMT Telerate
Page and published in H.15(519).
(iii) If the rate described in clause (ii) above is not published by
3:00 P.M., New York City time, on such Calculation Date, then the CMT Rate
will be the
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yield to maturity of the arithmetic mean of the following secondary market
offered rates for the most recently issued Treasury Notes (as defined in
Section 3(n) below) having an original maturity of approximately the
Designated CMT Index Maturity, having a remaining term to maturity of not
less than the Designated CMT Index Maturity minus one year and in a
Representative Amount: the offered rates, as of approximately 3:30 P.M.,
New York City time, on such CMT Interest Determination Date, of three
primary U.S. government securities dealers in New York City selected by
the Calculation Agent. In selecting such offered rates, the Calculation
Agent will request quotations from five such primary dealers and will
disregard the highest quotation -- or, if there is equality, one of the
highest -- and the lowest quotation -- or, if there is equality, one of
the lowest.
(iv) If the Calculation Agent is unable to obtain three quotations
of the kind described in clause (iii) above, the CMT Rate will be the
yield to maturity of the arithmetic mean of the following secondary market
offered rates for Treasury Notes having an original maturity longer than
the Designated CMT Index Maturity, having a remaining term to maturity
closest to the Designated CMT Index Maturity and in a Representative
Amount: the offered rates, as of approximately 3:30 P.M., New York City
time, on such CMT Interest Determination Date, of three primary U.S.
government securities dealers in New York City selected by the Calculation
Agent. In selecting such offered rates, the Calculation Agent will request
quotations from five such primary dealers and will disregard the highest
quotation -- or, if there is equality, one of the highest -- and the
lowest quotation -- or, if there is equality, one of the lowest. If two
Treasury Notes with an original maturity longer than the Designated CMT
Index Maturity have remaining terms to maturity that are equally close to
the Designated CMT Index Maturity, the Calculation Agent will obtain
quotations for the Treasury Note with the shorter remaining term to
maturity.
(v) If fewer than five but more than two such primary dealers are
quoting as described in clause (iv) above, then the CMT Rate for such CMT
Interest Determination Date will be based on the arithmetic mean
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<PAGE> 23
of the offered rates so obtained, and neither the highest nor the lowest
of such quotations will be disregarded.
(vi) If two or fewer primary dealers selected by the Calculation
Agent are quoting as described in clause (v) above, the CMT Rate shall be
the CMT Rate in effect on such CMT Interest Determination Date (or, in the
case of the first Interest Reset Date, the Initial Base Rate).
The Base Rate determined in accordance with this Section 3(g) will be
adjusted by the addition or subtraction of the Spread, if any, or by
multiplying such Base Rate by the Spread Multiplier, if any.
(h) DETERMINATION OF CD RATE. If the Base Rate is the CD Rate, the
Base Rate that takes effect on any Interest Reset Date shall equal the rate, on
the second Business Day immediately preceding such Interest Reset Date (the "CD
Interest Determination Date"), for negotiable U.S. dollar certificates of
deposit having the Index Maturity as published in H.15(519) under the heading
"CDs (Secondary Market)". If the CD Rate cannot be determined as described
above, the following procedures will apply in determining the CD Rate:
(i) If the rate described above is not published in H.15(519) by
3:00 P.M., New York City time, on the Calculation Date corresponding to
such CD Interest Determination Date, then the CD Rate shall be the rate
described above as published in H.15 Daily Update, or another recognized
electronic source used for displaying that rate, under the heading "CDs
(Secondary Market)".
(ii) If the rate described in clause (i) above is not published in
H.15(519), H.15 Daily Update or another recognized electronic source by
3:00 P.M., New York City time, on such Calculation Date (unless the
calculation is made earlier and the rate is available from one of those
sources at that time), the CD Rate shall be the arithmetic mean of the
following secondary market offered rates for negotiable U.S. dollar
certificates of deposit of major U.S. money center banks having a
remaining maturity closest to the Index Maturity and in a Representative
Amount: the rates
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<PAGE> 24
offered as of 10:00 A.M., New York City time, on such CD Interest
Determination Date, by three leading nonbank dealers in negotiable U.S.
dollar certificates of deposit in New York City, as selected by the
Calculation Agent.
(iii) If fewer than three dealers selected by the Calculation Agent
are quoting as described in clause (ii) above, the CD Rate will be the CD
Rate in effect on such CD Interest Determination Date (or, in the case of
the first Base Reset Date, the Initial Base Rate).
The Base Rate determined in accordance with this Section 3(h) will be
adjusted by the addition or subtraction of the Spread, if any, or by
multiplying such Base Rate by the Spread Multiplier, if any.
(i) DETERMINATION OF FEDERAL FUNDS RATE. If the Base Rate is the
Federal Funds Rate, the Base Rate that takes effect on any Interest Reset Date
shall equal the rate, on the second Business Day immediately preceding such
Interest Reset Date (the "Federal Funds Interest Determination Date"), for U.S.
dollar Federal Funds as published in H.15(519) under the heading "Federal Funds
(Effective)", as that rate is displayed on Telerate Page 120. If the Federal
Funds Rate cannot be determined as described above, the following procedures
will apply in determining the Federal Funds Rate:
(i) If the rate described above is not displayed on Telerate Page
120 at 3:00 P.M., New York City time, on the Calculation Date
corresponding to such Federal Funds Interest Determination Date (unless
the calculation is made earlier and the rate is available from that source
at that time), then the Federal Funds Rate will be the rate described
above, on such Federal Funds Interest Determination Date, as published in
H.15 Daily Update, or another recognized electronic source used for
displaying that rate, under the heading "Federal Funds (Effective)".
(ii) If the rate described in clause (i) above is not displayed on
Telerate Page 120 and is not published in H.15 (519), H.15 Daily Update or
another recognized electronic source by 3:00 P.M., New York City time, on
such Calculation Date (unless the calculation is made earlier and the rate
is available from one of those
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sources at that time), the Federal Funds Rate will be the arithmetic mean
of the rates for the last transaction in overnight, U.S. dollar federal
funds arranged, before 9:00 A.M., New York City time, on such Federal
Funds Interest Determination Date, by three leading brokers of U.S. dollar
federal funds transactions in New York City selected by the Calculation
Agent.
(iii) If fewer than three brokers selected by the Calculation Agent
are quoting as described in clause (ii) above, the Federal Funds Rate will
be the Federal Funds Rate in effect on such Federal Funds Interest
Determination Date (or, in the case of the first Interest Reset Date, the
Initial Base Rate).
The interest rate determined in accordance with this Section 3(i)
will be adjusted by the addition or subtraction of the Spread, if any, or by
multiplying such Base Rate by the Spread Multiplier, if any.
(j) DETERMINATION OF 11TH DISTRICT RATE. If the Base Rate is the
11th District Rate, the Base Rate that takes effect on any Interest Reset Date
shall equal the 11th District Rate on the 11th District Interest Determination
Date (as defined in Section 3(n) below) corresponding to such Interest Reset
Date. The 11th District Rate on any 11th District Interest Determination Date
shall be the rate equal to the monthly weighted average cost of funds for the
calendar month immediately before such date, as displayed on Telerate Page 7058
under the heading "11th District" as of 11:00 A.M., San Francisco time, on such
date. If the 11th District Rate cannot be determined as described above, the
following procedures will apply in determining the 11th District Rate:
(i) If the rate described above does not appear on Telerate Page
7058 on such 11th District Interest Determination Date, then the 11th
District Rate on such date will be the monthly weighted average cost of
funds paid by institutions that are members of the Eleventh Federal Home
Loan Bank District for the calendar month immediately preceding such date,
as most recently announced by the Federal Home Loan Bank of San Francisco
as such monthly weighted average cost of funds.
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<PAGE> 26
(ii) If the Federal Home Loan Bank of San Francisco fails to
announce the cost of funds described in clause (i) above on or before such
11th District Interest Determination Date, the 11th District Rate that
takes effect on such Interest Reset Date will be the 11th District Rate in
effect on such 11th District Interest Determination Date (or, in the case
of the first Interest Reset Date, the Initial Base Rate).
The interest rate determined in accordance with this Section 3(j)
will be adjusted by the addition or subtraction of the Spread, if any, or by
multiplying such Base Rate by the Spread Multiplier, if any.
(k) MINIMUM AND MAXIMUM LIMITS. Notwithstanding the foregoing, the
rate at which interest accrues on this Security (i) shall not at any time be
higher than the Maximum Rate, if any, or less than the Minimum Rate, if any,
specified on the face hereof, in each case on an accrual basis, and (ii) shall
not at any time be higher than the maximum rate permitted by New York law, as
the same may be modified by United States law of general application.
(l) CALCULATION OF INTEREST. Payments of interest hereon with
respect to any Interest Payment Date or at the Maturity of the principal hereof
will include interest accrued to but excluding such Interest Payment Date or
the date of such Maturity, as the case may be. Accrued interest from the date
of issue or from the last date to which interest has been paid or duly provided
for shall be calculated by the Calculation Agent by multiplying the Principal
Amount by an accrued interest factor. Such accrued interest factor shall be
computed by adding the interest factors calculated for each day from and
including the Original Issue Date or from and including the last date to which
interest has been paid or duly provided for, to but excluding the date for
which accrued interest is being calculated. The interest factor for each such
day shall be expressed as a decimal and computed by dividing the interest rate
(also expressed as a decimal) in effect on such day by 360, if the Base Rate is
the Commercial Paper Rate, Prime Rate, LIBOR, CD Rate, Federal Funds Rate or
11th District Rate, or by the actual number of days in the year, if the Base
Rate is the Treasury Rate or CMT Rate.
All percentages resulting from any calculation with respect to this
Security will be rounded upward or
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<PAGE> 27
downward, as appropriate, to the next higher or lower one hundred-thousandth of
a percentage point (e.g., 9.876541% (or .09876541) being rounded down to
9.87654% (or .0987654) and 9.876545% (or .09876545) being rounded up to
9.87655% (or .0987655)). All amounts used in or resulting from any calculation
with respect to this Security will be rounded upward or downward, as
appropriate, to the nearest cent, in the case of U.S. dollars, or to the
nearest corresponding hundredth of a unit, in the case of a currency other than
U.S. dollars, with one-half cent or one-half of a corresponding hundredth of a
unit or more being rounded upward.
(m) CALCULATION AGENT AND EXCHANGE RATE AGENT. The Company has
initially appointed the institutions named on the face of this Security as
Calculation Agent and Exchange Rate Agent, respectively, to act as such agents
with respect to this Security, but the Company may, in its sole discretion,
appoint any other institution (including any Affiliate of the Company) to serve
as any such agent from time to time. The Company will give the Trustee prompt
written notice of any change in any such appointment. Insofar as this Security
provides for any such agent to obtain rates, quotes or other data from a bank,
dealer or other institution for use in making any determination hereunder, such
agent may do so from any institution or institutions of the kind contemplated
hereby notwithstanding that any one or more of such institutions are any such
agent, Affiliates of any such agent, any of the agents named on the cover of
the Company's Prospectus Supplement dated August 6, 1999 relating to the
Company's Medium-Term Notes, Series E or any Affiliate of any such agent or
Affiliates of the Company.
All determinations made by the Calculation Agent or the Exchange Rate
Agent may be made by such agent in its sole discretion and, absent manifest
error, shall be conclusive for all purposes and binding on the Holder of this
Security and the Company. Neither the Calculation Agent nor the Exchange Rate
Agent shall have any liability therefor.
(n) DEFINITIONS OF CALCULATION TERMS. As used in this Security,
the following terms have the meanings set forth below:
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"Bond Equivalent Yield" means a yield expressed as a percentage and
calculated in accordance with the following formula:
Bond Equivalent Yield = D x N x 100,
---------------
360 - (D x M)
where
- "D" equals the annual rate for Treasury Bills
quoted on a bank discount basis and expressed as a
decimal;
- "N" equals 365 or 366, as the case may be; and
- "M" equals the actual number of days in the period
from and including the relevant Interest Reset
Date to but excluding the next succeeding Interest
Reset Date.
"Business Day" means, for this Security, a day that meets the
requirements set forth in each of clauses (i) through (iii) below, in each case
to the extent such requirements apply to this Security as specified below:
(i) is a Monday, Tuesday, Wednesday, Thursday or Friday that is not a
day on which banking institutions in New York City generally are
authorized or obligated by law, regulation or executive order to
close;
(ii) if the Base Rate is LIBOR, is also a London Business Day; and
(iii) if the Specified Currency for payment of principal of or interest on
this Security is other than U.S. dollars, is also a day on which
banking institutions are not authorized or obligated by law,
regulation or executive order to close in the principal financial
center of the country issuing such Specified Currency.
Solely when used in the third paragraph under the heading "Currency of Payment"
on the face of this Security, the meaning of the term "Business Day" shall be
determined as if the Base Rate for this Security is not LIBOR. With respect to
any particular location, the close of business on any day
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<PAGE> 29
on which business is not being conducted at that location shall be deemed to
mean 5:00 P.M., New York City time, on that day.
The "Calculation Date" corresponding to any Commercial Paper Interest
Determination Date, Prime Interest Determination Date, LIBOR Interest
Determination Date, Treasury Interest Determination Date, CMT Interest
Determination Date, CD Interest Determination Date, Federal Funds Interest
Determination Date or 11th District Interest Determination Date, as the case
may be, means the earlier of:
(i) the tenth day after such interest determination date or, if
any such day is not a Business Day, the next succeeding Business Day; and
(ii) the Business Day immediately preceding the Interest Payment
Date or the date of Maturity of the principal hereof, whichever is the day
on which the next payment of interest will be due.
The Calculation Date corresponding to any Interest Reset Date means the
Calculation Date corresponding to the relevant interest determination date
immediately preceding such Interest Reset Date.
"Designated CMT Index Maturity" means, if the Base Rate is the CMT
Rate, the Index Maturity for this Security and will be the original period to
maturity of a U.S. Treasury security -- either 1, 2, 3, 5, 7, 10, 20 or 30
years -- specified on the face hereof, provided that, if no such original
maturity period is so specified, the Designated CMT Index Maturity will be 2
years.
"Designated CMT Telerate Page" means, if the Base Rate is the CMT
Rate, the Telerate Page specified on the face hereof that displays Treasury
constant maturities as reported in H.15(519), provided that, if no Telerate
Page is so specified, then the applicable page will be Telerate Page 7052 and
provided, further, that if Telerate Page 7052 applies but it is not specified
on the face hereof whether the weekly or monthly average applies, the weekly
average will apply.
The "11th District Interest Determination Date" corresponding to a
particular Interest Reset Date will be
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<PAGE> 30
the last working day in San Francisco, in the first calendar month preceding
such Interest Reset Date, on which the Federal Home Loan Bank of San Francisco
publishes the monthly average cost of funds paid by member institutions of the
Eleventh Federal Home Loan Bank District for the second calendar month
preceding such Interest Reset Date.
"H.15(519)" means the weekly statistical release entitled
"Statistical Release H.15 (519)", or any successor publication, published by
the Board of Governors of the Federal Reserve System.
"H.15 Daily Update" means the daily update of H.15 (519) available
through the worldwide-web site of the Board of Governors of the Federal Reserve
System, at http://www. bog.frb.fed.us/releases/h15/update, or any successor
site or publication.
The "LIBOR Interest Determination Date" corresponding to any
Interest Reset Date means the second London Business Day preceding such
Interest Reset Date, unless the Index Currency is pounds sterling, in which
case the LIBOR Interest Determination Date will be the Interest Reset Date.
"London Business Day" means any day on which dealings in the Index
Currency are transacted in the London interbank market.
"Money Market Yield" means a yield expressed as a percentage and
calculated in accordance with the following formula:
<TABLE>
<S> <C> <C>
Money Market Yield = D x 360 x 100,
--------------
360 - (D x M)
</TABLE>
where
- "D" equals the per annum rate for commercial paper quoted on a
bank discount basis and expressed as a decimal; and
- "M" equals the actual number of days in the period from and
including the relevant Interest Reset Date to but excluding the
next succeeding Interest Reset Date.
(Reverse of Security continued on next page)
-30-
<PAGE> 31
"Representative Amount" means an amount that, in the Calculation
Agent's judgment, is representative of a single transaction in the relevant
market at the relevant time.
"Reuters Screen LIBOR Page" means the display on the Reuters Monitor
Money Rates Service, or any successor service, on the page designated as "LIBO"
or any replacement page or pages on which London interbank rates of major banks
for the Index Currency are displayed.
"Reuters Screen US PRIME 1 Page" means the display on the "US PRIME
1" page on the Reuters Monitor Money Rates Service, or any successor service,
or any replacement page or pages on that service, for the purpose of displaying
prime rates or base lending rates of major U.S. banks.
"Telerate LIBOR Page" means Telerate Page 3750 or any replacement
page or pages on which London interbank rates of major banks for the Index
Currency are displayed.
"Telerate Page" means the display on Bridge Telerate, Inc., or any
successor service, on the page or pages specified on the face hereof, or any
replacement page or pages on that service.
The "Treasury Interest Determination Date" corresponding to any
Interest Reset Date means the day of the week in which such Interest Reset Date
falls on which Treasury bills would normally be auctioned. If, as the result of
a legal holiday, an auction is so held on the Friday in the week immediately
preceding the week in which such Interest Reset Day falls, such Friday will be
the corresponding Treasury Interest Determination Date. If an auction date
shall fall on a day that would otherwise be an Interest Reset Date, then such
Interest Reset Date shall instead be the first Business Day immediately
following such auction date.
"Treasury Notes" means direct, noncallable, fixed rate obligations of
the U.S. government.
References in this Security to U.S. dollars shall mean, as of any
time, the coin or currency that is then legal tender for the payment of public
and private debts in the United States of America.
(Reverse of Security continued on next page)
-31-
<PAGE> 32
References in this Security to a particular currency other than U.S.
dollars shall mean, as of any time, the coin or currency that is then legal
tender for the payment of public and private debts in the country issuing such
currency on the Original Issue Date.
References in this Security to a particular heading or headings on
any of Designated CMT Telerate Page, H.15(519), H.15 Daily Update, Reuters
Screen LIBOR Page, Reuters Screen US Prime 1 Page, Telerate LIBOR Page or
Telerate Page include any successor or replacement heading or headings as
determined by the Calculation Agent.
4. REDEMPTION AT THE COMPANY'S OPTION
Unless a Redemption Commencement Date is specified on the face
hereof, except as provided below, this Security shall not be redeemable at the
option of the Company before the Stated Maturity Date. If a Redemption
Commencement Date is so specified, and unless otherwise specified on the face
hereof, this Security is subject to redemption upon not less than 30 days' nor
more than 60 days' notice at any time and from time to time on or after the
Redemption Commencement Date, in each case as a whole or in part, at the
election of the Company and at the applicable Redemption Price specified on the
face hereof (expressed as a percentage of the principal amount of this Security
to be redeemed), together with accrued interest to the Redemption Date, but
interest installments due on or prior to such Redemption Date will be payable
to the Holder of this Security, or one or more Predecessor Securities, of
record at the close of business on the relevant record date, all as provided in
the Indenture; provided, however, that the first two paragraphs of Section 1103
of the Indenture shall not apply to this Security, and if less than all of the
Securities of this series are to be redeemed, the Company may select, from
Securities of this series that are subject to redemption pursuant to the terms
thereof, the Security or Securities, or portion or portions thereof, to be
redeemed.
In the event that the Guarantor shall be obligated to pay any
Additional Amounts due to a change in law, regulation or interpretation, the
Company may, at its option, redeem this Security as a whole at a redemption
price of 100% of the principal amount thereof (or, if this Security is an
original issue discount note, 100% of the OID
(Reverse of Security continued on next page)
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<PAGE> 33
Default Amount) together with accrued interest to the date fixed for
redemption.
5. REPAYMENT AT THE HOLDER'S OPTION
Except as otherwise may be provided on the face hereof, if one or
more Repayment Dates are specified on the face hereof, this Security will be
repayable in whole or in part in increments of $1,000 (provided that the
remaining principal amount of any Security surrendered for partial repayment
shall at least equal an Authorized Denomination), on any such Repayment Date,
in each case at the option of the Holder and at the applicable Repayment Price
specified on the face hereof (expressed as a percentage of the principal amount
to be repaid), together with accrued interest to the applicable Repayment Date
(but interest installments due on or prior to such Repayment Date will be
payable to the Holder of this Security, or one or more Predecessor Securities,
of record at the close of business on the relevant Record Date as provided in
the Indenture). If this security provides for more than one Repayment Date, and
the Holder exercises its option to elect repayment, the Holder shall be deemed
to have elected repayment on the earliest repayment date after all conditions
to such exercise have been satisfied, and references herein to the applicable
Repayment Date shall mean such earliest Repayment Date.
In order for the exercise of such option to be effective and this
Security to be repaid, the Company must receive at the applicable address of
the Paying Agent set forth below (or at such other place or places of which the
Company shall from time to time notify the Holder of this Security), on any
Business Day not later than the 30th, and not earlier than the 60th, calendar
day prior to the applicable Repayment Date (or, if either such calendar day is
not a Business Day, the next succeeding Business Day), either (i) this
Security, with the form below entitled "Option to Elect Repayment" duly
completed and signed, or (ii) a telegram, telex, facsimile transmission or
letter from a member of a national securities exchange or the National
Association of Securities Dealers, Inc., a commercial bank or a trust company
in the United States of America setting forth (a) the name, address and
telephone number of the Holder of this Security, (b) the principal amount of
this Security and the amount of this Security to be repaid, (c) a statement
that the option to elect
(Reverse of Security continued on next page)
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<PAGE> 34
repayment is being exercised thereby and (d) a guarantee stating that the
Company will receive this Security, with the form below entitled "Option to
Elect Repayment" duly completed and signed, not later than five Business Days
after the date of such telegram, telex, facsimile transmission or letter
(provided that this Security and form duly completed and signed are received by
the Company by such fifth Business Day). Any such election shall be
irrevocable. The address to which such deliveries are to be made is The First
National Bank of Chicago, Attention: Securities Processing Division, 14 Wall
Street, Eighth Floor, New York, New York 10005 (or at such other places as the
Company or the Paying Agent shall notify the Holder of this Security). All
questions as to the validity, eligibility (including time of receipt) and
acceptance of any Security for repayment will be determined by the Company,
whose determination will be final and binding. Notwithstanding the foregoing,
(x) if this Security is a Global Security, the option of the Holder to elect
repayment may be exercised in accordance with the Applicable Procedures of the
Depositary for this Security at least 15 calendar days prior to the applicable
Repayment Date and (y) whether or not this Security is a Global Security, the
option of the Holder to elect repayment may be exercised in any such manner as
the Company may approve.
6. TRANSFER AND EXCHANGE
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security 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 Security 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
or her attorney duly authorized in writing, and thereupon one or more new
Securities of this series and of like tenor, of Authorized Denominations and
for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
As provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series and of like tenor of a
(Reverse of Security continued on next page)
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<PAGE> 35
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 Security for registration of
transfer, the Company, the Guarantor, the Trustee and any agent of the Company,
the Guarantor or the Trustee may treat the Person in whose name this Security
is registered as the owner hereof for all purposes, whether or not this
Security be overdue, and neither the Company nor the Guarantor nor the Trustee
nor any such agent shall be affected by notice to the contrary.
If this Security is a Global Security, this Security shall be subject
to the provisions of the Indenture relating to Global Securities, including the
limitations in Section 305 thereof on transfers and exchanges of Global
Securities.
7. [RESERVED.]
8. REMEDIES.
If an Event of Default with respect to Securities of this series
shall occur and be continuing, the principal of the Securities of this series
may be declared due and payable in the manner and with the effect provided in
the Indenture.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee
or for any other remedy thereunder, unless such Holder shall have previously
given the Trustee written notice of a continuing Event of Default with respect
to the Securities of this series, the Holders of not less than 25% in principal
amount of the Securities of this series at the time Outstanding shall have made
written request to the Trustee to institute proceedings in respect of such
Event of Default as Trustee and offered the Trustee indemnity reasonably
satisfactory to it, and the Trustee shall not have received from the Holders of
a majority in principal
(Reverse of Security continued on next page)
-35-
<PAGE> 36
amount of Securities of this series at the time Outstanding a direction
inconsistent with such request, and shall have failed to institute any such
proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder
of this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest on this Security at the times, place and rate,
and in the coin or currency, herein prescribed.
9. MODIFICATION AND WAIVER.
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 Guarantor and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company, the
Guarantor and the Trustee with the consent of the Holders of a majority in
principal amount of the Securities at the time Outstanding of all series to be
affected (considered together as one class for this purpose). The Indenture
also contains provisions (i) permitting the Holders of a majority in principal
amount of the Securities at the time Outstanding of all series to be affected
under the Indenture (considered together as one class for this purpose), on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company and the Guarantor with certain provisions of the Indenture and (ii)
permitting the Holders of a majority in principal amount of the Securities at
the time Outstanding of any series to be affected under the Indenture (with
each such series considered separately for this purpose), on behalf of the
Holders of all Securities of such series, to waive certain past defaults under
the Indenture and their consequences. Any such consent or waiver by the Holder
of this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security 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 Security.
-36-
<PAGE> 37
10. GOVERNING LAW.
THIS SECURITY AND THE INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
-37-
<PAGE> 38
GUARANTEE
OF
POPULAR, INC.
Popular, Inc. (the "Guarantor") hereby unconditionally guarantees to
the Holder of this Security duly authenticated and delivered by the Trustee,
the due and punctual payment of the principal, and premium, if any, of
(including any amount in respect of original issue discount), and interest, if
any (together with any Additional Amounts payable pursuant to the terms of this
Security), on this Security and the due and punctual payment of the sinking
fund payments, if any, and analogous obligations, if any, provided for pursuant
to the terms of this Security, when and as the same shall become due and
payable, whether at Stated Maturity or upon redemption, repayment or upon
declaration of acceleration or otherwise according to the terms of this
Security and of the Indenture. In case of default by the Company in the payment
of any such principal (including any amount in respect of original issue
discount), any premium or interest (together with any Additional Amounts
payable pursuant to the terms of this Security), sinking fund payment, or
analogous obligation, the Guarantor agrees duly and punctually to pay the same.
The Guarantor hereby agrees that its obligations hereunder shall be as
principal and not merely as surety, and shall be absolute and unconditional
irrespective of any extension of the time for payment of this Security, any
modification of this Security, any invalidity, irregularity or unenforceability
of this Security or the Indenture, any failure to enforce the same or any
waiver, modification, consent or indulgence granted to the Company with respect
thereto by the Holder of this Security or the Trustee, or any other
circumstances which may otherwise constitute a legal or equitable discharge of
a surety or guarantor. The Guarantor hereby waives diligence, presentment,
demand of payment, filing of claims with a court in the event of merger or
bankruptcy of the Company, any right to require a demand or proceeding first
against the Company, protest or notice with respect to this Security or the
indebtedness evidenced thereby and all demands whatsoever, and covenants that
this guarantee will not be discharged as to this Security except by payment in
full of the principal of (including any amount payable in respect of original
issue discount), and any premium or interest (together with any Additional
Amounts payable pursuant to the terms of this Security), thereon.
The Guarantor irrevocably waives any and all rights to which it may
be entitled, by operation of law or
-38-
<PAGE> 39
otherwise, upon making any payment hereunder (i) to be subrogated to the rights
of a Holder against the Company with respect to such payment or otherwise to be
reimbursed, indemnified or exonerated by the Company in respect thereof or (ii)
to receive any payment, in the nature of contribution or for any other reason,
from any other obligor with respect to such payment.
This guarantee shall not be valid or become obligatory for any
purpose with respect to this Security until the certificate of authentication
on this Security shall have been signed by the Trustee.
This guarantee is governed by and construed in accordance with the
laws of the State of New York.
IN WITNESS WHEREOF, Popular, Inc. has caused this guarantee to be
signed by facsimile by its duly authorized officers and has caused a facsimile
of its corporate seal to be affixed hereunto or imprinted hereon.
POPULAR, INC.
By:
----------------------------
By:
----------------------------
Attested:
-------------------------------
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<PAGE> 40
CUSIP NO. __________
ORIGINAL ISSUE DATE: __________
POPULAR NORTH AMERICA, INC.
MEDIUM-TERM NOTE, SERIES E
OPTION TO ELECT REPAYMENT
TO BE COMPLETED ONLY IF THIS SECURITY IS REPAYABLE
AT THE OPTION OF THE HOLDER AND THE HOLDER
ELECTS TO EXERCISE SUCH RIGHT
The undersigned hereby irrevocably requests and instructs the Company
to repay the Security referred to in this notice (or the portion thereof
specified below) at the applicable Repayment Price, together with interest to
the Repayment Date, all as provided for in such Security, to the undersigned,
whose name, address and telephone number are as follows:
- ------------------------------------------------------------------------------
(please print name of the undersigned)
- ------------------------------------------------------------------------------
(please print address of the undersigned)
- ------------------------------------------------------------------------------
(please print telephone number of the undersigned)
If such Security provides for more than one Repayment Date, the
undersigned requests repayment on the earliest Repayment Date after the
requirements for exercising this option have been satisfied, and references in
this notice to the Repayment Date mean such earliest Repayment Date. Terms used
in this notice that are defined in such Security are used herein as defined
therein.
For such Security to be repaid the Company must receive at the
applicable address of the Paying Agent set forth below or at such other place
or places of which the Company shall from time to time notify the Holder of
such Security, any Business Day not later than the 30th or earlier than the
60th calendar day prior to the Repayment Date (or, if either such calendar day
is not a Business Day, the next succeeding Business Day), (i) such Security,
with
-40-
<PAGE> 41
this "Option to Elect Repayment" form duly completed and signed, or (ii) a
telegram, telex, facsimile transmission or letter from a member of a national
securities exchange or the National Association of Securities Dealers, Inc., a
commercial bank or a trust company in the United States of America setting
forth (a) the name, address and telephone number of the Holder of such
Security, (b) the principal amount of such Security and the amount of such
Security to be repaid, (c) a statement that the option to elect repayment is
being exercised thereby and (d) a guarantee stating that such Security to be
repaid with the form entitled "Option to Elect Repayment" on the addendum to
the Security duly completed and signed will be received by the Company not
later than five Business Days after the date of such telegram, telex, facsimile
transmission or letter (provided that such Security and form duly completed and
signed are received by the Company by such fifth Business Day). The address to
which such deliveries are to be made is:
The First National Bank of Chicago
Attention: Securities Processing Division
14 Wall Street - Eighth Floor
New York, New York 10005
or at such other place as the Company or the Paying Agent shall notify the
holder of such Security.
If less than the entire principal amount of such Security is to be
repaid, specify the portion thereof (which shall equal any Authorized
Denomination) that the Holder elects to have repaid:
------------------------
and specify the denomination or denominations (which shall equal any Authorized
Denomination) of the Security or Securities to be issued to the Holder in
respect of the portion of such Security not being repaid (in the absence of any
specification, one Security will be issued in respect of the portion not being
repaid):
------------------------
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<PAGE> 42
Date:
--------------------- ------------------------------
Notice: The signature to this
Option to Elect Repayment must
correspond with the name of
the Holder as written on the
face of such Security in
every particular without
alteration or enlargement or
any other change whatsoever.
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<PAGE> 43
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this Security, 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 the right of
survivorship and not as tenants
in common
UNIF GIFT MIN ACT - __________ Custodian _________
(Cust) (Minor)
under Uniform Gifts to Minors Act
--------------------------------
(State)
Additional abbreviations may also be used though not in the
above list.
-----------------------------
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<PAGE> 44
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
- ---------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
-----------------------
/ /
- -----------------------
- ----------------------------------------------------------------------------
(Please Print or Typewrite Name and Address
Including Postal Zip Code of Assignee)
- ----------------------------------------------------------------------------
the attached Security and all rights thereunder, and hereby irrevocably
constitutes and appoints
---------------------------------------------------
- ----------------------------------------------------------------------------
to transfer said Security on the books of the Company, with full power of
substitution in the premises.
Dated:
-------------------
Signature Guaranteed
- ------------------------- ----------------------------
NOTICE: Signature must be NOTICE: The signature to
guaranteed. this assignment must
correspond with the name
of the Holder as written
upon the face of the
attached Security in every
particular, without
alteration or enlargement
or any change whatever.
-44-
<PAGE> 1
Exhibit 8(a)
[letterhead of Sullivan & Cromwell]
August 4, 1999
Popular, Inc.,
Popular International Bank Inc.,
Popular North America, Inc. ,
c/o Popular, Inc.,
209 Munoz Rivera Avenue,
Hato Rey, Puerto Rico 00918.
Ladies and Gentlemen:
As counsel to Popular, Inc., Popular International Bank, Inc.
and Popular North America, Inc. (the "Registrants") in connection with the
registration of $1,500,000,000 aggregate principal amount of Debt Securities, we
hereby confirm to you our opinions set forth under the headings "United States
Taxation" in the Prospectus Supplements each of which forms a part of the
Registration Statement of the Registrants to which this opinion is filed as an
exhibit, subject to the limitations set forth therein.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the reference to us under the heading
"United States Taxation" in the Prospectus. In giving such consent, we do not
thereby admit that we are in the category of persons whose consent is required
under Section 7 of the Securities Act of 1933.
Very truly yours,
/s/ Sullivan & Cromwell
<PAGE> 1
Exhibit 10(a)
POPULAR, INC.
MEDIUM-TERM NOTE ADMINISTRATIVE PROCEDURES
(DATED AS OF AUGUST 6, 1999)
Medium-Term Notes (collectively, the "Notes") in the aggregate
principal amount of up to $1,500,000,000 are to be offered on a continuous basis
by Popular, Inc. (the "Company") through Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated ("Merrill Lynch"), Credit Suisse First
Boston Corporation ("Credit Suisse First Boston"), Chase Securities Inc. ("Chase
Securities") and Popular Securities, Inc. ("Popular Securities") who, as agents
(each an "Agent"), have agreed to use their reasonable efforts to solicit offers
to purchase the Notes from the Company. The Agents also may purchase Notes as
principal for resale.
The Notes are being sold pursuant to a Distribution Agreement among the
Company, the Agents, and First Chicago Capital Markets, Inc., dated October 6,
1995, as amended on May 23, 1997 and August 6, 1999 (as so amended, the
"Distribution Agreement"). The Notes will be issued pursuant to the Indenture,
dated as of February 15, 1995, as supplemented by the First Supplemental
Indenture, dated as of May 8, 1997 and the Second Supplemental Indenture, dated
as of August 5, 1999 (together, the "Indenture"), each between the Company and
The First National Bank of Chicago, as trustee (the "Trustee"). A Registration
Statement (the "Registration Statement", which term shall include any additional
registration statements filed in connection with the Notes as provided in the
Distribution Agreement) with respect to the Notes has been filed with the
Securities and Exchange Commission (the "Commission"). The Prospectus dated
August 6, 1999, as supplemented with respect to the Notes, is herein referred to
as the "Prospectus." The most recent supplement to the Prospectus with respect
to the specific terms of the Notes is herein referred to as the "Pricing
Supplement."
The Notes will either be issued (a) in book-entry form and represented
by one or more fully registered Notes (each, a "Book-Entry Note") delivered to
the appropriate Trustee, as agent for The Depository Trust Company ("DTC"), and
recorded in the book-entry system maintained by DTC, or (b) in certificated form
(each, a "Certificated Note") delivered to the purchaser thereof
<PAGE> 2
or a person designated by such purchaser. Owners of beneficial interests in
Book-Entry Notes will be entitled to physical delivery of Certificated Notes
equal in principal amount to their respective beneficial interests only upon
certain limited circumstances described in the Prospectus.
General procedures relating to the issuance of all Notes are set forth
in Part I hereof. Additionally, Book-Entry Notes will be issued in accordance
with the procedures set forth in Part II hereof and Certificated Notes will be
issued in accordance with the procedures set forth in Part III hereof.
Capitalized terms used but not otherwise defined herein shall have the meanings
ascribed thereto in the Indenture or the Notes, as the case may be.
PART I: PROCEDURES OF GENERAL APPLICABILITY
Date of Issuance/
Authentication: Each Note will be dated as of the date of its
authentication by the Trustee or its duly appointed
authenticating agent. Each Note shall also bear an
original issue date (the "Original Issue Date"). The
Original Issue Date shall remain the same for all
Notes subsequently issued upon transfer, exchange or
substitution of an original Note regardless of their
dates of authentication.
Maturities: Each Note will mature on a date selected by the
purchaser and agreed to by the Company which is not
less than nine months from its Original Issue Date;
provided, however, that Notes bearing interest at
rates determined by reference to selected indices
("Floating Rate Notes") will mature on an Interest
Payment Date.
Currencies: Each Note shall be denominated in one of the
currencies or currency units, as specified in the
relevant Pricing Supplement, or in such
-2-
<PAGE> 3
other currency or currency unit as may be agreed from
time to time between the Company and each Agent and
as specified in the relevant Pricing Supplement, or,
if no currency or currency unit is specified
therein, in U.S. dollars. Notes denominated in one or
more currencies or currency units other than in U.S.
dollars are herein referred to as "Multi-Currency
Notes." Notes that have the amount of principal
payments determined by reference to an index
currency are herein referred to as "Indexed Notes."
Denominations: The Notes will be issued in denominations of a
minimum of $100,000 and integral multiples of $1,000
in excess thereof. Any Notes denominated other than
in U.S. dollars will be issuable in denominations as
set forth in the relevant Multi-Currency and Indexed
Note Prospectus Supplement. For special provisions
relating to Multi-Currency Notes and Indexed Notes,
see the related Multi-Currency and Indexed Note
Supplement.
Registration: Notes will be issued only in fully registered form.
Redemption/Repayment: The Notes will be subject to repayment at the option
of the Holders thereof in accordance with the terms
of the Notes on their respective Optional Repayment
Dates, if any. Optional Repayment Dates, if any, will
be fixed at the time of sale and set forth in the
applicable Pricing Supplement and in the applicable
Note. If no Optional Repayment Dates are indicated
with respect to a Note, such Note will
-3-
<PAGE> 4
not be repayable at the option of the Holder prior to
Maturity.
The Notes will be subject to redemption by the
Company on and after their respective Initial
Redemption Dates, if any. Initial Redemption Dates,
if any, will be fixed at the time of sale and set
forth in the applicable Pricing Supplement and in the
applicable Note. If no Initial Redemption Dates are
indicated with respect to a Note, such Note will not
be redeemable prior to Maturity, except as set forth
in the Prospectus in the event that the Company is
obligated to pay Additional Amounts in respect of the
Notes.
Calculation of
Interest: In the case of Fixed Rate Notes, interest (including
payments for partial periods) will be calculated and
paid on the basis of a 360-day year of twelve 30-day
months. In the case of Floating Rate Notes, interest
will be calculated and paid on the basis of the
actual number of days in the interest period divided
by 360, with the exception of Treasury Rate Notes and
CMT Rate Notes, for which interest will be calculated
on the basis of the actual number of days in the
interest period divided by the actual number of days
in the year. If an Interest Payment Date with respect
to any Fixed Rate Note falls on a day that is not a
Business Day (as hereinafter defined), the payment of
interest required to be made on such Interest Payment
Date need not be made on such day, but may be made on
the next succeeding Business Day with the same force
and effect as if made on such Interest Payment Date
and no interest shall accrue on such payment for the
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<PAGE> 5
period from and after such Interest Payment Date. If
an Interest Payment Date with respect to any Floating
Rate Note would otherwise fall on a day that is not a
Business Day, such Interest Payment Date will be the
following day that is a Business Day, except that in
the case of a LIBOR Note, if such day falls in the
next calendar month, such Interest Payment Date will
be the preceding day that is a Business Day. If the
Stated Maturity, or date of earlier redemption or
repayment, as the case may be, of a Note is not a
Business Day, the payment of principal and interest
due on such day shall be made on the next succeeding
Business Day and no interest shall accrue on such
payment for the period from and after such Stated
Maturity, or date of earlier redemption or repayment.
For special provisions relating to Multi-Currency
Notes and Indexed Notes, see the related Multi-
Currency and Indexed Note Prospectus Supplement.
Acceptance and
Rejection of Offers: The Company shall have the sole right to accept
offers to purchase Notes from the Company and may
reject any such offer in whole or in part. Each Agent
shall communicate to the Company, orally or in
writing, each reasonable offer to purchase Notes from
the Company received by it. Each Agent shall have the
right, in its discretion reasonably exercised,
without notice to the Company, to reject any offer to
purchase Notes through it in whole or in part.
Preparation of
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<PAGE> 6
Pricing Supplement: If any offer to purchase a Note is accepted by the
Company, the Company, with the approval of the Agent
which presented the order (the "Presenting Agent"),
will prepare a Pricing Supplement reflecting the
terms of such Note and file the Pricing Supplement
relating to the Notes with the Commission in
accordance with Rule 424 under the Act. Information
to be included in the Pricing Supplement shall
include:
1. the name of the Company;
2. the title of the securities, including
series designation, if any;
3. the date of the Pricing Supplement and
the date of the Prospectus Supplement to which the
Pricing Supplement relates;
4. the Price to Public (but only if (a) the
trade is being made on an agency basis and (b) such
Price to Public is other than 100%);
5. Net Proceeds to the Company (but only if
(a) the trade is being made on a principal basis and
(b) the Net Proceeds to the Company is other than
100%), less what would have been the applicable
agency commission;
6. the information with respect to the terms
of the Notes set forth below (whether or not the
applicable Note is a Book-Entry Note) under
"Procedures for Notes Issued in Book-Entry Form --
Settlement Procedures", items 2, 3, 7, 8 and 9; and
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<PAGE> 7
7. any other terms of the Notes not
otherwise specified in the Prospectus or Prospectus
Supplement including, without limitation, any other
terms required by the Prospectus or Prospectus
Supplement.
One copy of such filed document will be sent by
telecopy or overnight express (for delivery not
later than 11:00 A.M. on the Business Day next
following the trade date) to the applicable
Presenting Agent at the following addresses:
To Merrill Lynch:
If by overnight, express or special
delivery:
Merrill Lynch & Co., Tritech
Services, 40 Colonial Drive,
Piscataway, New Jersey 08854,
Attention: Prospectus Operations
/Susan Putnam,
If by all other types of
deliveries:
Tritech Services, #4 Corporate
Place, Corporate Park 287,
Piscataway, New Jersey 08854,
Attention: Prospectus Operations
/Nachman Kimerling
Telephone: (908) 885-2769
Telecopy: (908) 885-2774/2775
/2776
To Credit Suisse First Boston:
Credit Suisse First Boston
Corporation, Five World Trade
Center, New York, New York 10048,
Attention: Joan Bryan, Transaction
Advisory Group
Telephone: (212) 322-5105
Telecopy: (212) 803-4096
To Chase Securities:
Chase Securities Inc.
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<PAGE> 8
270 Park Avenue
8th Floor
New York, New York 10017
Attention: Medium-Term Note Desk
Telephone: (212) 834-4421
Telecopy: (212) 834-6081
To Popular Securities:
Popular Securities Inc.
209 Munoz Rivera Avenue
Suite 1020
Hato Rey, Puerto Rico 00918
Attention: Ken McGrath
Telephone: (787) 766-4200
Telecopy: (787) 766-3485
The Presenting Agent will cause a stickered
supplemented Prospectus with the trade confirmation
to be delivered to the purchaser of the Note.
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<PAGE> 9
For record keeping purposes, one copy of each Pricing
Supplement shall also be mailed or telecopied to each
Agent and the Trustee at the following respective
addresses:
To Merrill Lynch:
Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith
Incorporated, World Financial
Center, North Tower, 10th Floor,
New York, New York 10281-1310,
Attention: MTN Product Management
Telephone: (212) 449-7476
Telecopy: (212) 449-2234
To Credit Suisse First Boston:
Credit Suisse First Boston
Corporation, 55 East 52nd Street,
New York, New York 10055,
Attention: Short and Medium-Term
Finance Department
Telephone: (212) 909-3842
Telecopy: (212) 318-1498
To Chase Securities:
Chase Securities Inc.
270 Park Avenue
8th Floor
New York, New York 10017
Attention: Medium-Term Note Desk
Telephone: (212) 834-4421
Telecopy: (212) 834-6081
To Popular Securities:
Popular Securities, Inc.
209 Munoz Rivera Avenue
Suite 1020
Hato Rey, Puerto Rico 00918
Attention: Ken McGrath
Telephone: (787) 766-4200
Telecopy: (787) 766-3485
To the Trustee:
The First National Bank of Chicago
153 W. 51st Street
5th Floor
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<PAGE> 10
New York, NY 10019
Attention: Corporate Trust
Administration
In each instance that a Pricing Supplement is
prepared, the Presenting Agent will affix the Pricing
Supplement to supplemented Prospectuses prior to its
use. Outdated Pricing Supplements and the
Prospectuses to which they are attached (other than
those retained for files) will be destroyed.
Settlement: The receipt of immediately available funds by the
Company in payment for a Note and the authentication
and delivery of such Note shall, with respect to such
Note, constitute "settlement." Offers accepted by the
Company will be settled at a time as the purchaser
and the Company shall agree and pursuant to the
timetable for settlement set forth in Parts II and
III hereof under "Settlement Procedures" with respect
to Book-Entry Notes and Certificated Notes,
respectively (each such date fixed for settlement, a
"Settlement Date"). If procedures A and B of the
applicable Settlement Procedures with respect to a
particular offer are not completed on or before the
time set forth under the applicable "Settlement
Procedures Timetable", such offer shall not be
settled until the Business Day following the
completion of Settlement Procedures A and B or such
later date as the purchaser and the Company shall
agree.
In the event of a purchase of Notes by the Presenting
Agent as principal, appropriate settlement details
will be set forth in the
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<PAGE> 11
applicable Terms Agreement to be entered into between
the Presenting Agent and the Company pursuant to the
Distribution Agreement.
Procedure for Changing
Rates or Other
Variable Terms: When a decision has been reached to change the
interest rate or any other variable term on any Notes
being offered by the Company, the Company will
promptly advise the Agents and the Agents will
forthwith suspend solicitation of offers to purchase
such Notes. Each Agent will telephone the Company
with recommendations as to the changed interest rates
or other variable terms. At such time as the Company
advises the Agents of the new interest rates or other
variable terms, the Agents may resume solicitation of
offers to purchase such Notes. Until such time, only
"indications of interest" may be recorded.
Immediately after acceptance by the Company of an
offer to purchase at a new interest rate or new
variable term, the Company, the Agents and the
Trustee shall follow the procedures set forth under
the applicable "Settlement Procedures."
Suspension of
Solicitation;
Amendment or
Supplement: The Company may instruct the Agents to suspend
solicitation of purchases at any time. Upon receipt
of such instructions, the Agents will forthwith
suspend solicitation of offers to purchase from the
Company until such time as the Company has advised
them that solicitation of offers to purchase
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<PAGE> 12
may be resumed. If the Company decides to amend the
Registration Statement (including incorporating any
documents by reference therein) or supplement any of
such documents (other than to change rates or other
variable terms), it will promptly advise the Agents
and, except in the case of an amendment by the filing
of a document incorporated by reference in the
Registration Statement, will furnish each Agent and
its counsel with copies of the proposed amendment or
supplement. One copy of such filed document, along
with a copy of the cover letter sent to the
Commission, will be delivered or mailed to the Agents
at the following addresses:
To Merrill Lynch:
Product Management MTNs, Merrill
Lynch Money Markets, North Tower,
World Financial Center, 10th Floor,
New York, New York 10281-1310
Telephone: (212) 449-7476
Telecopy: (212) 449-2234
To Credit Suisse First Boston:
Credit Suisse First Boston
Corporation, 55 East 52nd Street,
New York, New York 10055,
Attention: Short and Medium-Term
Finance Department
Telephone: (212) 909-3842
Telecopy: (212) 318-1498
To Chase Securities:
Chase Securities Inc.
270 Park Avenue
8th Floor
New York, New York 10017
Attention: Medium-Term Note Desk
Telephone: (212) 834-4421
Telecopy: (212) 834-6081
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<PAGE> 13
To Popular Securities:
Popular Securities, Inc.
209 Munoz Rivera Avenue
Suite 1020
Hato Rey, Puerto Rico 00918
Attention: Ken McGrath
Telephone: (787) 766-4200
Telecopy: (787) 766-3485
In the event that at the time the solicitation of
offers to purchase from the Company is suspended
(other than to change interest rates or other
variable terms) there shall be any offers to purchase
Notes that have been accepted by the Company which
have not been settled, the Company will promptly
advise the Agents and the Trustee whether such offers
may be settled and whether copies of the Prospectus
as theretofore amended and/or supplemented as in
effect at the time of the suspension may be delivered
in connection with the settlement of such orders. The
Company will have the sole responsibility for such
decision and for any arrangements which may be made
in the event that the Company determines that such
orders may not be settled or that copies of such
Prospectus may not be so delivered.
Delivery of Prospectus: A copy of the most recent Prospectus and Pricing
Supplement must accompany or precede the earlier of
(a) the written confirmation of a sale sent to a
customer or his agent and (b) the delivery of Notes
to a customer or his agent.
Authenticity of
Signatures: The Agents will have no obligation or liability to
the Company or the Trustee in respect of the
authenticity of the signature of any officer,
employee or agent of the
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<PAGE> 14
Company or the Trustee on any Note or related
Guarantee.
Documents Incorporated
by Reference: The Company shall supply each Agent with an adequate
supply of all documents incorporated by reference in
the Registration Statement.
Business Day: "Business Day" has the meaning set forth in the
Prospectus Supplement.
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<PAGE> 15
PART II: PROCEDURES FOR NOTES ISSUED
IN BOOK-ENTRY FORM
In connection with the qualification of Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, the Trustee will perform
the custodial, document control and administrative functions described below,
in accordance with its obligations under a Letter of Representations from the
Company and the Trustee to DTC, dated August 6, 1999, and a Medium-Term Note
Certificate Agreement between the Trustee and DTC, dated May 26, 1989 (the
"Certificate Agreement"), and its obligations as a participant in DTC, including
DTC's Same-Day Funds Settlement System ("SDFS").
Issuance: All Fixed Rate Book-Entry Notes having the same
Original Issue Date, interest rate, terms of
redemption or repayment, if any, and Stated Maturity
(collectively, the "Fixed Rate Terms") will be
represented initially by a single global security in
fully registered form without coupons; and all
Floating Rate Book-Entry Notes having the same
Original Issue Date, interest rate basis or bases
upon which interest may be determined (each, an
"Interest Rate Basis"), which may be one or more of
the Commercial Paper Rate, the Treasury Rate, LIBOR,
the CD Rate, the CMT Rate, the Federal Funds Rate,
the Prime Rate, the 11th District Rate, any other
rate set forth by the Company, Initial Interest Rate,
Index Maturity, Spread and/or Spread Multiplier, if
any, Minimum Interest Rate, if any, Maximum Interest
Rate, if any, terms of redemption or repayment, if
any, and Stated Maturity (collectively, "Floating
Rate Terms") will be represented initially by a
single Book-Entry Note.
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<PAGE> 16
Each Book-Entry Note will be dated and issued as of
the date of its authentication by the Trustee or its
duly appointed authenticating agent. Each Book-Entry
Note will bear interest from a date (the "Interest
Accrual Date") which will be (a) with respect to an
original Book-Entry Note (or any portion thereof),
its Original Issue Date and (b) with respect to any
Book-Entry Note (or portion thereof) issued
subsequently upon exchange or transfer of a
Book-Entry Note or in lieu of a destroyed, lost or
stolen Book-Entry Note, the most recent Interest
Payment Date (or, in the case of Floating Rate Notes
with interest rates which reset daily or weekly, the
day following the most recent Record Date to which
interest has been paid or duly provided for on the
predecessor Book-Entry Note or Notes or if no such
payment or provision has been made, the Original
Issue Date of the predecessor Book-Entry Note or
Notes), regardless of the date of authentication of
such subsequently issued Book-Entry Note. No Book-
Entry Note shall represent any Certificated Note.
Identification: The Agents have arranged with the CUSIP Service
Bureau (the "CUSIP Service Bureau") of Standard &
Poor's Ratings Service, a division of the McGraw-Hill
Companies ("S&P"), for the reservation of
approximately 900 CUSIP numbers for each rank of
Notes which have been reserved for future assignment
to Book-Entry Notes representing Notes issued in
book-entry form and have delivered to the Company,
the Trustee and DTC an initial written list of such
CUSIP numbers. The
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<PAGE> 17
Trustee will assign CUSIP numbers to Book-Entry Notes
as described below under Settlement Procedure B. DTC
will notify the CUSIP Service Bureau periodically of
the CUSIP numbers that the Trustee has assigned to
Book-Entry Notes. The Trustee will notify the Company
at any time when fewer than 100 of the respective
reserved CUSIP numbers remain unassigned to
Book-Entry Notes, and, if it deems necessary, the
Company will reserve additional CUSIP numbers for
assignment to Book-Entry Notes representing Notes
issued in book-entry form. Upon obtaining such
additional CUSIP numbers, the Company will deliver a
list of such additional numbers to the Trustee and
DTC. Book-Entry Notes having an aggregate principal
amount in excess of $200,000,000 and otherwise
required to be represented by the same Global
Certificate will instead be represented by two or
more Global Certificates which shall be assigned the
same CUSIP number.
Registration: Each Book-Entry Note will be registered in the name
of CEDE & CO., as nominee for DTC, on the register
maintained by the Trustee under the Indenture. The
beneficial owner of a Book-Entry Note (i.e., an owner
of a beneficial interest in a Book-Entry Note), or
one or more indirect participants in DTC designated
by such owner, will designate one or more
participants in DTC (with respect to such Book-Entry
Note, the "Participants") to act as agent for such
beneficial owner in connection with the book-entry
system maintained by DTC, and DTC will record in
book-entry form, in accordance with instructions pro-
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<PAGE> 18
vided by such Participants, a credit balance with
respect to such Book-Entry Note in the account of
such Participants. The ownership interest of such
beneficial owner in such Book-Entry Note will be
recorded through the records of such Participants or
through the separate records of such Participants
and one or more indirect participants in DTC.
Transfers: Transfers of beneficial interests in a Book-Entry
Note will be accomplished by book entries made by DTC
and, in turn, by Participants (and in certain cases,
one or more indirect participants in DTC) acting on
behalf of beneficial transferors and transferees of
such Book-Entry Note.
Exchanges: The Trustee may deliver to DTC and the CUSIP Service
Bureau at any time a written notice specifying (a)
the CUSIP numbers of two or more Book-Entry Notes
Outstanding on such date that represent Book-Entry
Notes having the same Fixed Rate Terms or Floating
Rate Terms, as the case may be, other than Original
Issue Dates, and for which interest has been paid to
the same date; (b) a date, occurring at least 30 days
after such written notice is delivered and at least
30 days before the next Interest Payment Date for the
related Book-Entry Notes, on which such Book-Entry
Notes shall be exchanged for a single replacement
Book-Entry Note; and (c) a new CUSIP number to be
assigned to such replacement Book-Entry Note. Upon
receipt of such a notice, DTC will send to its
Participants (including the Trustee) a written
reorganization
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<PAGE> 19
notice to the effect that such exchange will occur on
such date. Prior to the specified exchange date, the
Trustee will deliver to the CUSIP Service Bureau
written notice setting forth such exchange date and
the new CUSIP number and stating that, as of such
exchange date, the CUSIP numbers of the Book-Entry
Notes to be exchanged will no longer be valid. On the
specified exchange date, the Trustee will exchange
such Book-Entry Notes for a single Book-Entry Note
bearing the new CUSIP number and the CUSIP numbers of
the exchanged Book-Entry Notes will, in accordance
with CUSIP Service Bureau procedures, be cancelled
and not immediately reassigned. Notwithstanding the
foregoing, if the Book-Entry Notes to be exchanged
exceed $200,000,000 in aggregate principal amount,
one replacement Book-Entry Note will be authenticated
and issued to represent each $200,000,000 of
principal amount of the exchanged Book-Entry Notes
and an additional Book-Entry Note will be
authenticated and issued to represent any remaining
principal amount of such Book-Entry Notes (see
"Denominations" below).
Denominations: All Book-Entry Notes will be denominated in U.S.
dollars and will be issued in denominations of a
minimum of $100,000 and integral multiples of $1,000
in excess thereof. Book-Entry Notes will be
denominated in principal amounts not in excess of
$200,000,000. If one or more Book-Entry Notes having
an aggregate principal amount in excess of
$200,000,000 would, but for the preceding sentence,
be represented by a single Book-Entry
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<PAGE> 20
Note, then one Book-Entry Note will be issued to
represent each $200,000,000 principal amount of such
Note or Notes issued in book-entry form and an
additional Book-Entry Note will be issued to
represent any remaining principal amount of such Note
or Notes issued in book-entry form. In such a case,
each of the Book-Entry Notes shall be assigned the
same CUSIP number.
Interest: General. Interest on each Note issued in book-entry
form will accrue from the Interest Accrual Date of
the Book-Entry Note representing such Note. Each
payment of interest on a Book-Entry Note will include
interest accrued through the day preceding, as the
case may be, the Interest Payment Date (provided that
in the case of Floating Rate Notes with interest
rates which reset daily or weekly interest payments
will include interest accrued to and including the
Regular Record Date immediately preceding the
Interest Payment Date), the Stated Maturity Date,
Redemption Date or Repayment Date. Interest payable
at Maturity of a Book-Entry Note will be payable to
the Person to whom the principal of such Note is
payable. DTC will arrange for each pending deposit
message described under Settlement Procedure C below
to be transmitted to S&P, which will use the
information in the message to include certain terms
of the related Book-Entry Note in the appropriate
daily bond report published by S&P.
Interest Payment Dates. Interest
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<PAGE> 21
payments will be made on each Interest Payment Date
commencing with the first Interest Payment Date
following the Original Issue Date; provided, however,
the first payment of interest on any Book-Entry Note
originally issued between a Regular Record Date and
an Interest Payment Date will occur on the Interest
Payment Date following the next Regular Record Date.
Fixed Rate Notes. Interest payments on Fixed Rate
Book-Entry Notes will be made semiannually on June 15
and December 15 of each year and at Maturity.
Floating Rate Notes. Except as provided in Part I
under "Calculation of Interest", the Interest
Payment Date for a Floating Rate Note will be, in the
case of Floating Rate Notes which reset daily, weekly
or monthly, on the third Wednesday of each month or
on the third Wednesday of March, June, September and
December of each year as specified in the applicable
Pricing Supplement; in the case of Floating Rate
Notes which reset quarterly, on the third Wednesday
of March, June, September and December of each year;
in the case of Floating Rate Notes which reset
semiannually, on the third Wednesday of the two
months of each year specified in the applicable
Pricing Supplement; and in the case of Floating Rate
Notes which reset annually, on the third Wednesday of
the month specified in the applicable Pricing
Supplement; and, in each case, at Maturity. For
additional special provisions
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<PAGE> 22
relating to Floating Rate Notes, see the Prospectus
Supplement.
Regular Record Dates. The Regular Record Date with
respect to any Interest Payment Date for a Fixed Rate
Note shall be the May 31 or November 30 preceding
such Interest Payment Date. The Regular Record Date
with respect to any Interest Payment Date for any
Floating Rate Note shall be the date 15 calendar days
(whether or not a Business Day) preceding such
Interest Payment Date.
Notice of Interest Payments and Regular Record Dates.
On the first Business Day of January, April, July and
October of each year, the Trustee will deliver to the
Company and DTC a written list of Regular Record
Dates and Interest Payment Dates that will occur
during the six-month period beginning on such first
Business Day with respect to Floating Rate Book-Entry
Notes. Promptly after each Interest Determination
Date for Floating Rate Book-Entry Notes, the Company
will notify S&P of the interest rates determined on
such Interest Determination Date.
Payments of Principal
and Interest: Payments of Interest Only. Promptly after each
Regular Record Date, the Trustee will deliver to the
Company and DTC a written notice specifying by CUSIP
number the amount of interest to be paid on each
Book-Entry Note issued under the Indenture on the
following Interest Payment Date (other than an
Interest Payment Date coinciding with Maturity) and
the total of such amounts. DTC will
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<PAGE> 23
confirm the amount payable on each Book-Entry Note on
such Interest Payment Date by reference to the daily
bond reports published by Standard & Poor's. On such
Interest Payment Date, the Company will pay to the
Trustee, and the Trustee in turn will pay to DTC,
such total amount of interest due (other than at
Maturity), at the times and in the manner set forth
below under "Manner of Payment."
Payments at Maturity. On or about the first Business
Day of each month, the Trustee will deliver to the
Company and DTC a written list of principal, interest
and premium, if any, to be paid on each Book-Entry
Note issued under the Indenture having a Maturity in
the following month. The Trustee and DTC will confirm
the amounts of such principal, premium and interest
payments with respect to a Book-Entry Note on or
about the fifth Business Day preceding the Maturity
of such Book-Entry Note. At such maturity, the
Company will pay to the Trustee, and the Trustee in
turn will pay to DTC, the principal amount of such
Note, together with interest and premium, if any, due
at such Maturity, at the times and in the manner set
forth below under "Manner of Payment." Promptly after
payment to DTC of the principal, interest and
premium, if any, due at the Maturity of such
Book-Entry Note, the Trustee will cancel and destroy
such Book-Entry Note and deliver to the Company a
certificate of destruction therefor.
Manner of Payment. The total amount of any principal,
premium,
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<PAGE> 24
if any, and interest due on Book-Entry Notes on any
Interest Payment Date or at Maturity shall be paid by
the Company to the Trustee in funds available for use
as of 9:30 a.m., New York City time, on such date.
The Company will make such payment on such Book-Entry
Notes by instructing the Trustee to withdraw funds
from an account maintained by the Company with the
Trustee. The Company will confirm such instructions
in writing to the Trustee. Prior to 10:00 a.m., New
York City time, on such date or as soon as possible
thereafter, the Trustee will pay by separate wire
transfer (using Fedwire message entry instructions in
a form previously specified by DTC) to an account at
the Federal Reserve Bank of New York previously
specified by DTC, in funds available for immediate
use by DTC, each payment of principal (together with
interest and premium, if any) due on a Book-Entry
Note on such date. Thereafter on such payment date,
DTC will pay, in accordance with its SDFS operating
procedures then in effect, such amounts in funds
available for immediate use to the respective
Participants in whose names such Notes are recorded
in the book-entry system maintained by DTC. Neither
the Company nor the Trustee shall have any
responsibility or liability for the payment by DTC
of the principal of, or interest on, the Book-Entry
Notes to such Participants.
Withholding Taxes. The amount of any taxes required
under applicable law to be withheld from any interest
payment on a Note will be determined and withheld by
the
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<PAGE> 25
Participant, indirect participant in DTC or other
Person responsible for forwarding payments and
materials directly to the beneficial owner of such
Note.
Settlement Procedures: Settlement Procedures with regard to each Book-Entry
Note sold by the Agents, as agents of the Company,
will be as follows:
A. The Presenting Agent will advise the Company
by telephone of the following Settlement
information:
1. Taxpayer identification number of
the purchaser.
2. Principal amount of the Note.
3. Fixed Rate Notes:
(a) interest rate
Floating Rate Notes:
(a) interest rate basis;
(b) initial interest
rate;
(c) spread and/or spread
multiplier, if any;
(d) initial interest
reset dates;
(e) interest reset
dates;
(f) interest payment
dates;
(g) index maturity;
(h) calculation agent;
(i) maximum interest
rate, if any;
(j) minimum interest
rate, if any;
(k) alternate rate event
spread; and
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<PAGE> 26
(l) interest rate reset
dates.
5. Price to public of the Note.
6. Trade date.
7. Settlement Date (Original Issue
Date).
8. Stated Maturity.
9. Redemption provisions, if any:
(a) Initial Redemption
Date
(b) Initial Redemption
Percentage
(c) Annual Redemption
Percentage Reduction
10. Optional Repayment Date(s), if any.
11. Net proceeds to the Company.
12. Presenting Agent's commission.
B. The Company will advise the Trustee by
telecopy or other method acceptable to the
Trustee of the above settlement information
received with respect to each Note from the
Presenting Agent and shall confirm to the
Trustee that the principal amount of Notes,
including such Note, issued as of the
relevant Settlement Date shall not exceed
the limit with respect to the principal
amount of Notes
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<PAGE> 27
specified in the most recent Company Order
delivered to the Trustee pursuant to Section
303 of the Indenture.
C. The Trustee will assign a CUSIP Number to
the Book-Entry Note and will telephone and
advise the Company and the Presenting Agent
of such CUSIP Number. The Trustee will
communicate to DTC and the Presenting Agent
through DTC's Participant Terminal System a
pending deposit message specifying the
following settlement information:
1. The information set forth in
Settlement Procedure A.
2. Identification numbers of the
participant accounts maintained by
DTC on behalf of the Trustee and
the Presenting Agent.
3. Identification as a Fixed Rate
Book-Entry Note or Floating Rate
Book-Entry Note.
4. Initial Interest Payment Date for
such Note, number of days by which
such date succeeds the related
record date for DTC purposes (or,
in the case of Floating Rate Notes
which reset daily or weekly, the
date five calendar days preceding
the Interest Payment Date) and, if
then calculable, the amount of
interest payment on such Interest
Payment Date
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<PAGE> 28
(which amount shall have been
confirmed by the Trustee).
5. CUSIP number of the Book-Entry
Note representing such Note.
6. Whether such Book-Entry Note
represents any other Notes issued
or to be issued in book-entry form.
D. The Company will deliver to the Trustee a
Book-Entry Note representing such Note in a
form that has been approved by the Company,
the Agents and the Trustee.
E. The Trustee will complete and authenticate
the Book-Entry Note.
F. DTC will credit such Note to the participant
account of the Trustee maintained by DTC.
G. The Trustee will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC (i) to debit such Note to
the Trustee's participant account and credit
such Note to the participant account of the
Presenting Agent maintained by DTC and (ii)
to debit the settlement account of the
Presenting Agent and credit the settlement
account of the Trustee maintained by DTC, in
an amount equal to the price of such Note
less the Presenting Agent's commission. Any
entry of such a deliver order shall
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<PAGE> 29
be deemed to constitute a representation and
warranty by the Trustee to DTC that (i) the
Book-Entry Note has been issued and
authenticated and (ii) the Trustee is
holding such Book-Entry Note pursuant to the
Certificate Agreement between the Trustee
and DTC.
H. The Presenting Agent will enter an SDFS
deliver order through DTC's Participant
Terminal System instructing DTC (i) to debit
such Note to the Presenting Agent's
participant account and credit such Note to
the participant account of the Participants
maintained by DTC and (ii) to debit the
settlement accounts of such Participants and
credit the settlement account of the
Presenting Agent maintained by DTC, in an
amount equal to the initial public offering
price of such Note.
I. Transfers of funds in accordance with SDFS
delivery orders described in Settlement
Procedures G and H will be settled in
accordance with SDFS operating procedures in
effect on the Settlement Date.
J. The Trustee will credit to an account of the
Company maintained by the Trustee funds
available for immediate use in the amount
transferred to the Trustee in accordance
with Settlement Procedure G.
K. The Trustee will send a copy of the
Book-Entry Note to the
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<PAGE> 30
Company together with a statement setting
forth the principal amount of Notes
Outstanding as of the related Settlement
Date after giving effect to such transaction
and all other offers to purchase Notes of
which the Company has advised the Trustee
but which have not been settled.
L. The Presenting Agent will confirm the
purchase of such Note to the purchaser
either by transmitting to the Participant
with respect to such Note a confirmation
order through DTC's Participant Terminal
System or by mailing a written confirmation
to such purchaser.
Settlement Procedures
Timetable: For offers to purchase Notes accepted by the Company,
Settlement Procedures "A" through "L" set forth above
shall be completed as soon as possible but not later
than the respective times (New York City time) set
forth below:
<TABLE>
<CAPTION>
Settlement
Procedure Time
--------- ----
<S> <C>
A 11:00 a.m. on the trade
date
B 12:00 noon on the trade
date
C 2:00 p.m. on the trade
date
D 3:00 p.m. on the
Business Day before
Settlement Date
E 9:00 a.m. on Settlement
Date
F 10:00 a.m. on
Settlement Date
</TABLE>
-30-
<PAGE> 31
<TABLE>
<S> <C>
G-H No later than 2:00 p.m.
on Settlement Date
I 4:45 p.m. on Settlement
Date
J-L 5:00 p.m. on Settlement
Date
</TABLE>
If a sale is to be settled more than one Business Day
after the trade date, Settlement Procedures A, B, and
C may, if necessary, be completed at any time prior
to the specified times on the first Business Day
after such trade date. In connection with a sale
which is to be settled more than one Business Day
after the trade date, if the initial interest rate
for a Floating Rate Note is not known at the time
that Settlement Procedure A is completed, Settlement
Procedures B and C shall be completed as soon as such
rates have been determined, but no later than 11:00
a.m. and 2:00 p.m., New York City time, respectively,
on the second Business Day before the Settlement
Date. Settlement Procedure I is subject to extension
in accordance with any extension of Fedwire closing
deadlines and in the other events specified in the
SDFS operating procedures in effect on the Settlement
Date.
If settlement of a Book-Entry Note is rescheduled or
cancelled, the Company shall notify the Trustee and
the Trustee will deliver to DTC, through DTC's
Participant Terminal System, a cancellation message
to such effect by no later than 2:00 p.m., New York
City time, on the Business Day immediately preceding
the scheduled Settlement Date.
-31-
<PAGE> 32
Failure to Settle: If the Trustee has not entered an SDFS deliver order
with respect to a Book-Entry Note pursuant to
Settlement Procedure G, then upon written request
(which may be evidenced by facsimile transmission)
of the Company the Trustee shall deliver to DTC,
through DTC's Participant Terminal System, as soon as
practicable a withdrawal message instructing DTC to
debit such Note to the participant account of the
Trustee maintained at DTC. DTC will process the
withdrawal message, provided that such participant
account contains a principal amount of the Book-Entry
Note representing such Note that is at least equal to
the principal amount to be debited. If withdrawal
messages are processed with respect to all the Notes
represented by a Book-Entry Note, the Trustee will
mark such Book-Entry Note "cancelled", make
appropriate entries in its records and send such
cancelled Book-Entry Note to the Company. The CUSIP
number assigned to such Book-Entry Note shall, in
accordance with CUSIP Service Bureau procedures, be
cancelled and not immediately reassigned. If
withdrawal messages are processed with respect to a
portion of the Notes represented by a Book-Entry
Note, the Trustee will exchange such Book-Entry Note
for two Book-Entry Notes, one of which shall
represent the Book-Entry Notes for which withdrawal
messages are processed and shall be cancelled
immediately after issuance, and the other of which
shall represent the other Notes previously
represented by the surrendered Book-Entry Note and
shall bear the
-32-
<PAGE> 33
CUSIP number of the surrendered Book-Entry Note.
If the purchase price for any Book-Entry Note is not
timely paid to the Participants with respect to such
Note by the beneficial purchaser thereof (or a
person, including an indirect participant in DTC,
acting on behalf of such purchaser), such
Participants and, in turn, the Presenting Agent may
enter SDFS deliver orders through DTC's Participant
Terminal System reversing Settlement Procedures G and
H, respectively. Thereafter, the Trustee will deliver
the withdrawal message and take the related actions
described in the preceding paragraph. If such failure
shall have occurred for any reason other than default
by the Presenting Agent to perform its obligations
hereunder or under the Distribution Agreement, the
Company will reimburse the Presenting Agent on an
equitable basis for its loss of the use of funds
during the period when the funds were credited to the
account of the Company.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Book-Entry Note, DTC may
take any actions in accordance with its SDFS
operating procedures then in effect. In the event of
a failure to settle with respect to a Note that was
to have been represented by a Book-Entry Note also
representing other Notes, the Trustee will provide,
in accordance with Settlement Procedures D and E, for
the authentication and issuance of a Book-Entry Note
representing such remaining Notes and will make
appropriate entries in its records.
-33-
<PAGE> 34
PART III: PROCEDURES FOR NOTES ISSUED
IN CERTIFICATED FORM
Denominations: The Certificated Notes, other than Index Notes and
Multi-Currency Notes, will be issued in denominations of
a minimum of $100,000 and integral multiples of $1,000
in excess thereof. Index Notes and Multi-Currency Notes
will be issued in the denominations specified in a
related Multi-Currency and Indexed Note Prospectus
Supplement and Pricing Supplement.
Interest: Each Certificated Note will bear interest in accordance
with its terms. Interest will begin to accrue on the
Original Issue Date of a Certificated Note for the first
Interest Payment Period and on the most recent Interest
Payment Date to which interest has been paid for all
subsequent Interest Payment Periods. Each payment of
interest shall include interest accrued to, but
excluding, the date of such payment. Interest payments
in respect of Fixed Rate Certificated Notes will be made
semiannually on June 15 and December 15 of each year and
at Maturity. However, the first payment of interest on
any Certificated Note issued between a Regular Record
Date and an Interest Payment Date will be made on the
Interest Payment Date following the next succeeding
Regular Record Date. The Regular Record Date with
respect to any Interest Payment Date for a Fixed Rate
Certificated Note shall be the May 31 or November 30
preceding
-34-
<PAGE> 35
such Interest Payment Date. Interest at Maturity will
be payable to the person to whom the principal is
payable.
Except as provided in Part I under "Calculation of
Interest", the Interest Payment Date for a Floating
Rate Certificated Note will be, in the case of
Floating Rate Notes which reset daily, weekly or
monthly, on the third Wednesday of each month or on
the third Wednesday of March, June, September and
December of each year as specified in the applicable
Pricing Supplement; in the case of Floating Rate
Notes which reset quarterly, on the third Wednesday
of March, June, September and December of each year;
in the case of Floating Rate Notes which reset
semiannually, on the third Wednesday of the two
months of each year specified in the applicable
Pricing Supplement; or, in the case of 11th
District Rate Notes, on the first Business Day of
each month or the first Business Day of each March,
June, September or December as specified in the
applicable Pricing Supplement and in the case of
Floating Rate Notes which reset annually, on the
third Wednesday of the month specified in the
applicable Pricing Supplement; and, in each case, at
Maturity. The Regular Record Date with respect to a
Floating Rate Note shall be the date 15 calendar days
(whether or not a Business Day) preceding an Interest
Payment Date.
Notwithstanding the above, in the case of Floating
Rate Certificated Notes having interest rates which
reset daily or weekly, interest
-35-
<PAGE> 36
payments shall include accrued interest from, and
including, the date of issue or from, but excluding,
the last date in respect of which interest has been
accrued and paid, as the case may be, through, and
including, the Regular Record Date, except that at
Maturity the interest payable will include interest
accrued to, but excluding, the date of Maturity. For
additional special provisions relating to Floating
Rate Certificated Notes, see the Prospectus
Supplement.
Payments of Principal
and Interest: Upon presentment and delivery of the Certificated
Note, the Trustee or the Company's duly authorized
agent will pay the principal amount of each
Certificated Note at Maturity and the final
installment of interest in next-day funds. All
interest payments in U.S. dollars on a Certificated
Note, other than interest due at Maturity, will be
made by check drawn on the Trustee or the Company's
duly authorized agent and mailed by such Trustee or
agent to the person entitled thereto as provided in
the Certificated Note. However, the Registered Owners
(as hereinafter defined) of ten million dollars or
more in aggregate principal amount of the same series
of Certificated Notes (whether having identical or
different terms and provisions) shall be entitled to
receive payments of interest, other than at Maturity,
by wire transfer of immediately available funds if
appropriate wire transfer instructions have been
received in writing by the appropriate Trustee or
such agent not less than 16 days prior
-36-
<PAGE> 37
to the applicable Interest Payment Date.
For special provisions relating to Multi-Currency
Notes and Indexed Notes, see the related
Multi-Currency and Indexed Note Prospectus
Supplement.
The Trustee will provide monthly to the Company a
list of the principal and interest in each currency
to be paid on Certificated Notes maturing in the next
succeeding month. Such Trustee or agent will be
responsible for withholding taxes on interest paid
as required by applicable law, but shall be relieved
from any such responsibility if it acts in good faith
and in reliance upon an opinion of counsel.
Certificated Notes presented to the Trustee or the
Company's duly authorized agent at Maturity for
payment will be cancelled by such Trustee or agent.
All cancelled Certificated Notes held by such Trustee
shall be destroyed, and the Trustee shall furnish to
the Company a certificate with respect to such
destruction.
Settlement Procedures: Settlement Procedures with regard to each
Certificated Note purchased through the Agents, as
agents, shall be as follows:
A. Each Agent will advise the Company by
telephone of the following Settlement
information with regard to each
Certificated Note:
1. Exact name in which the
Certificated Note is to
-37-
<PAGE> 38
be registered (the "Registered
Owner").
2. Exact address or addresses of the
Registered Owner for delivery,
notices and payments of principal,
premium, if any, and interest.
3. Taxpayer identification number of
the Registered Owner.
4. Principal amount of the
Certificated Note.
5. Denomination of the Certificated
Note.
6. Fixed Rate Notes:
(a) interest rate
Floating Rate Notes:
(a) interest rate basis
or bases;
(b) initial interest
rate;
(c) spread or spread
multiplier, if any;
(d) initial interest
reset date;
(e) interest reset
dates;
(f) interest payment
dates;
(g) index maturity;
(h) calculation agent;
(i) maximum interest
rates, if any;
(j) minimum interest
rate, if any;
(k) alternate rate event
spread; and
-38-
<PAGE> 39
(l) interest determination dates
Indexed Notes:
(a) specified currency;
(b) indexed currency;
and
(c) base rate of
exchange.
8. Currency or currency unit in which
the Certificated Note is to be
denominated.
9. Price to public of the Certificated
Note.
10. Settlement Date (Original Issue
Date).
11. Stated Maturity.
12. Redemption provisions, if any:
(a) Initial Redemption
Date
(b) Initial Redemption
Percentage
(c) Annual Redemption
Percentage Reduction
13. Optional Repayment Date(s), if any.
14. Net proceeds to the Company.
15. Presenting Agent's commission.
B. The Company shall provide to the Trustee by
telecopy or other method acceptable to the
Trustee the above Settlement
-39-
<PAGE> 40
information with respect to each
Certificated Note received from the Agents,
the name of the Presenting Agent and shall
confirm to the Trustee that the principal
amount of Notes, including such Certificated
Note, issued as of the relevant Settlement
Date shall not exceed the limit with respect
to the principal amount of Notes specified
in the most recent Company Order delivered
to the Trustee pursuant to Section 303 of
the Indenture. The Company also shall cause
the Trustee or its duly appointed agent to
issue, authenticate and deliver Certificated
Notes in accordance with the Settlement
Procedures Timetable set forth below. The
Company also shall provide to the Trustee
and the Presenting Agent a copy of the
applicable Pricing Supplement. The Company
also shall provide to the Trustee and the
Presenting Agent a copy of a Multi-Currency
and Indexed Note Supplement, if applicable.
C. The Trustee or its duly appointed agent will
complete and authenticate the Certificated
Notes, including the Guarantee, in forms
approved by the Company.
D. With respect to each trade, the Trustee will
deliver the Certificated Notes and one
photocopy thereof to the
-40-
<PAGE> 41
applicable Presenting Agent at the following
addresses:
Merrill Lynch & Co., Money Markets
Clearance, 55 Water Street, 3rd Floor,
N.S.C.C. Window, New York, New York 10041,
Attention: Al Mitchell
Telephone: (212) 558-2405
Telecopy: (212) 558-2457
Credit Suisse First Boston Corporation, Five
World Trade Center, New York, New York
10048, Attention: Paul Riley
Chase Securities, Inc., 55 Water Street,
Room 226, Windows 17 and 18, New York, New
York 10041
Telephone: (212) 638-6787
Telecopy: (212) 638-5618
Popular Securities, Inc. 209 Munoz Rivera
Avenue Suite 1020 Hato Rey, Puerto Rico
00918 Attention: Ken McGrath
Telephone: (787) 766-4200
Telecopy: (787) 766-3485
The Trustee will keep Stub 1. The Presenting
Agent will acknowledge receipt of the
Certificated Note through a broker's receipt
and will keep the photocopy. Delivery of the
Certificated Note will be made only against
such acknowledgment of receipt.
Upon determination that the Certificated
Note, including the related Guarantee, has
been authorized, delivered and completed as
aforementioned, the Presenting Agent will
wire
-41-
<PAGE> 42
the net proceeds of the Certificated Note
after deduction of its applicable commission
to the Company pursuant to standard wire
instructions given by the Company.
E. The Presenting Agent will deliver the
Certificated Note, the related Guarantee
endorsed thereon, as well as a copy of the
Prospectus and any applicable Pricing
Supplement or Supplements received from the
Trustee, to the purchaser against payment in
immediately available funds.
F. The Trustee will send a photocopy of the
Certified Note to the Company.
Settlement Procedures
Timetable: For offers to purchase Certificated Notes accepted by
the Company, Settlement Procedures "A" through "F"
set forth above shall be completed on or before the
respective times set forth below:
<TABLE>
<CAPTION>
Settlement
Procedure Time
--------- ----
<S> <C>
A-B 3:00 PM on Business Day
prior to Settlement
C-D 2:15 PM on Settlement
Date
E 3:00 PM on Settlement
Date
F 5:00 PM on Settlement
Date
</TABLE>
Failure to Settle: In the event that a purchaser of a Certificated Note
from the Company shall either fail to accept delivery
of or make payment for a
-42-
<PAGE> 43
Certificated Note on the date fixed for settlement,
the Presenting Agent will forthwith notify the
Trustee and the Company by telephone, confirmed in
writing, and return the Certificated Note to such
Trustee.
The Trustee or the Company's duly authorized agent,
upon receipt of the Certificated Note from the
Presenting Agent, will immediately advise the
Company, and the Company will promptly arrange to
credit the account of the Presenting Agent in an
amount of immediately available funds equal to the
amount previously paid by the Presenting Agent in
settlement for the Certificated Note. Such credits
will be made on the Settlement Date if possible, and
in any event not later than the Business Day
following the Settlement Date; provided that the
Company has received notice on the same day. If such
failure shall have occurred for any reason other than
failure by the Presenting Agent to perform its
obligations hereunder or under the Distribution
Agreement, the Company will reimburse the Presenting
Agent on an equitable basis for its loss of the use
of funds during the period when the funds were
credited to the account of the Company. Immediately
upon receipt of the Certificated Note in respect of
which the failure occurred, the Trustee or the
Company's duly authorized agent will cancel and
destroy the Certificated Note, make appropriate
entries in its records to reflect the fact that the
Certificated Note was never issued, and accordingly
notify in writing the Company.
-43-
<PAGE> 1
Exhibit (10)(b)
POPULAR NORTH AMERICA, INC.
MEDIUM-TERM NOTE ADMINISTRATIVE PROCEDURES
(DATED AS OF AUGUST 6, 1999)
Medium-Term Notes (collectively, the "Notes") in the aggregate
principal amount of up to $1,500,000,000 are to be offered on a continuous basis
by Popular North America, Inc. (the "Company") through Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch"), Credit
Suisse First Boston Corporation ("Credit Suisse First Boston"), Chase Securities
Inc. ("Chase Securities") and Popular Securities, Inc. ("Popular Securities")
who, as agents (each an "Agent"), have agreed to use their reasonable efforts to
solicit offers to purchase the Notes from the Company. The Agents also may
purchase Notes as principals for resale.
The Notes are being sold pursuant to a Distribution Agreement among the
Company, the Agents, First Chicago Capital Markets, Inc. and Popular, Inc. (the
"Guarantor"), dated October 11, 1991, as amended on December 2, 1993, October 6,
1995 and August 6, 1999 and as supplemented on June 16, 1993 and August 1, 1994
and as amended and supplemented on May 23, 1997 (as so amended and supplemented,
the "Distribution Agreement"). The Notes will be issued pursuant to the
Indenture, dated as of October 1, 1991, as supplemented by the First
Supplemental Indenture, dated as of February 28, 1995, the Second Supplemental
Indenture, dated as of May 8, 1997 and the Third Supplemental Indenture, dated
as of August 5, 1999 (together, the "Indenture"), each between the Company and
The First National Bank of Chicago, as Trustee (the "Trustee") and as Successor
Trustee to Citibank, N.A. (the "Original Trustee"). A Registration Statement
(the "Registration Statement", which term shall include any additional
registration statements filed in connection with the Notes as provided in the
Distribution Agreement) with respect to the Notes has been filed with the
Securities and Exchange Commission (the "Commission"). The Prospectus dated
August 6, 1999, as supplemented with respect to the Notes, is herein referred to
as the "Prospectus." The most recent supplement to the Prospectus with respect
to the
<PAGE> 2
specific terms of the Notes is herein referred to as the "Pricing Supplement."
The Notes will either be issued (a) in book-entry form and represented
by one or more fully registered Notes (each, a "Book-Entry Note") delivered to
the appropriate Trustee, as agent for The Depository Trust Company ("DTC"), and
recorded in the book-entry system maintained by DTC, or (b) in certificated form
(each, a "Certificated Note") delivered to the purchaser thereof or a person
designated by such purchaser. Owners of beneficial interests in Book-Entry Notes
will be entitled to physical delivery of Certificated Notes equal in principal
amount to their respective beneficial interests only upon certain limited
circumstances described in the Prospectus.
General procedures relating to the issuance of all Notes are set forth
in Part I hereof. Additionally, Book-Entry Notes will be issued in accordance
with the procedures set forth in Part II hereof and Certificated Notes will be
issued in accordance with the procedures set forth in Part III hereof.
Capitalized terms used but not otherwise defined herein shall have the meanings
ascribed thereto in the Indenture or the Notes, as the case may be.
PART I: PROCEDURES OF GENERAL APPLICABILITY
Date of Issuance/
Authentication: Each Note will be dated as of the date of its
authentication by the Trustee or its duly appointed
authenticating agent. Each Note shall also bear an
original issue date (the "Original Issue Date"). The
Original Issue Date shall remain the same for all
Notes subsequently issued upon transfer, exchange or
substitution of an original Note regardless of their
dates of authentication.
Maturities: Each Note will mature on a date selected by the
purchaser and agreed to by the Company which is not
less than nine months from its Original Issue Date;
provided, however, that
-2-
<PAGE> 3
Notes bearing interest at rates determined by
reference to selected indices ("Floating Rate Notes")
will mature on an Interest Payment Date.
Currencies: Each Note shall be denominated in one of the
currencies or currency units, as specified in the
relevant Pricing Supplement, or in such other
currency or currency unit as may be agreed from time
to time between the Company and each Agent and as
specified in the relevant Pricing Supplement, or, if
no currency or currency unit is specified therein,
in U.S. dollars. Notes denominated in one or more
currencies or currency units other than in U.S.
dollars are herein referred to as "Multi-Currency
Notes." Notes that have the amount of principal
payments determined by reference to an index
currency are herein referred to as "Indexed Notes."
Denominations: The Notes will be issued in denominations of a
minimum of $100,000 and integral multiples of $1,000
in excess thereof. Any Notes denominated other than
in U.S. dollars will be issuable in denominations as
set forth in the relevant Multi-Currency and Indexed
Note Prospectus Supplement. For special provisions
relating to Multi-Currency Notes and Indexed Notes,
see the related Multi-Currency and Indexed Note
Supplement.
Registration: Notes will be issued only in fully registered form.
Redemption/Repayment: The Notes will be subject to repayment at the option
of the Holders
-3-
<PAGE> 4
thereof in accordance with the terms of the Notes on
their respective repayment dates, if any. Optional
Repayment dates, if any, will be fixed at the time of
sale and set forth in the applicable Pricing
Supplement and in the applicable Note. If no Optional
Repayment dates are indicated with respect to a Note,
such Note will not be repayable at the option of the
Holder prior to Maturity.
The Notes will be subject to redemption by the
Company on and after their respective Initial
Redemption dates, if any. Initial Redemption dates,
if any, will be fixed at the time of sale and set
forth in the applicable Pricing Supplement and in the
applicable Note. If no Initial Redemption dates are
indicated with respect to a Note, such Note will not
be redeemable prior to Maturity, except as set forth
in the Prospectus in the event that the Guarantor is
obligated to pay Additional Amounts in respect of the
Notes.
Calculation of
Interest: In the case of Fixed Rate Notes, interest (including
payments for partial periods) will be calculated and
paid on the basis of a 360-day year of twelve 30-day
months. In the case of Floating Rate Notes, interest
will be calculated and paid on the basis of the
actual number of days in the interest period divided
by 360, with the exception of Treasury Rate Notes and
CMT Rate Notes, for which interest will be calculated
on the basis of the actual number of days in the
interest period divided by the actual number of days
in the year. If an Interest Payment Date with respect
to any Fixed Rate Note falls on a day that is not a
Business Day (as hereinafter defined), the payment
-4-
<PAGE> 5
of interest required to be made on such Interest
Payment Date need not be made on such day, but may be
made on the next succeeding Business Day with the
same force and effect as if made on such Interest
Payment Date and no interest shall accrue on such
payment for the period from and after such Interest
Payment Date. If an Interest Payment Date with
respect to any Floating Rate Note would otherwise
fall on a day that is not a Business Day, such
Interest Payment Date will be the following day that
is a Business Day, except that in the case of a LIBOR
Note, if such day falls in the next calendar month,
such Interest Payment Date will be the preceding day
that is a Business Day. If the Stated Maturity, or
date of earlier redemption or repayment, as the case
may be, of a Note is not a Business Day, the payment
of principal and interest due on such day shall be
made on the next succeeding Business Day and no
interest shall accrue on such payment for the period
from and after such Stated Maturity, or date of
earlier redemption or repayment. For special
provisions relating to Multi-Currency Notes and
Indexed Notes, see the related Multi-Currency and
Indexed Note Prospectus Supplement.
Acceptance and
Rejection of Offers: The Company shall have the sole right to accept
offers to purchase Notes from the Company and may
reject any such offer in whole or in part. Each Agent
shall communicate to the Company, orally or in
writing, each reasonable offer to purchase Notes from
the Company
-5-
<PAGE> 6
received by it. Each Agent shall have the right, in
its discretion reasonably exercised, without notice
to the Company, to reject any offer to purchase Notes
through it in whole or in part.
Preparation of
Pricing Supplement: If any offer to purchase a Note is accepted by the
Company, the Company, with the approval of the Agent
which presented the order (the "Presenting Agent"),
will prepare a Pricing Supplement reflecting the
terms of such Note and file the Pricing Supplement
relating to the Notes with the Commission in
accordance with Rule 424 under the Act. Information
to be included in the Pricing Supplement shall
include:
1. the name of the Company;
2. the title of the securities, including
series designation, if any;
3. the date of the Pricing Supplement and
the date of the Prospectus Supplement to which the
Pricing Supplement relates;
4. the Price to Public (but only if (a) the
trade is being made on an agency basis and (b) such
Price to Public is other than 100%);
5. Net Proceeds to the Company (but only if
(a) the trade is being made on a principal basis and
(b) the Net Proceeds to the Company is other than
100%), less what
-6-
<PAGE> 7
would have been the applicable agency commission;
6. the information with respect to the terms
of the Notes set forth below (whether or not the
applicable Note is a Book-Entry Note) under
"Procedures for Notes Issued in Book-Entry Form --
Settlement Procedures", items 2, 3, 7, 8 and 9; and
7. any other terms of the Notes not
otherwise specified in the Prospectus or Prospectus
Supplement.
One copy of such filed document will be sent by
telecopy or over night express (for delivery not
later than 11:00 A.M. on the Business Day next
following the trade date) to the applicable
Presenting Agent at the following addresses:
To Merrill Lynch:
If by overnight, express or special delivery:
Merrill Lynch & Co., Tritech
Services, 40 Colonial Drive,
Piscataway, New Jersey 08854,
Attention: Prospectus Operations
/Susan Putnam,
If by all other types of deliveries:
Tritech Services, #4 Corporate
Place, Corporate Park 287,
Piscataway, New Jersey 08854,
Attention: Prospectus Operations
/Nachman Kimerling
Telephone: (908) 885-2769
Telecopy: (908) 885-2774/2775/2776
-7-
<PAGE> 8
To Credit Suisse First Boston:
Credit Suisse First Boston
Corporation, Five World Trade
Center, New York, New York 10048,
Attention: Joan Bryan, Transaction
Advisory Group
Telephone: (212) 322-5105
Telecopy: (212) 803-4096
To Chase Securities:
Chase Securities Inc.
270 Park Avenue
8th Floor
New York, New York 10017
Attention: Medium-Term Note Desk
Telephone: (212) 834-4421
Telecopy: (212) 834-6081
To Popular Securities:
Popular Securities Inc.
209 Munoz Rivera Avenue
Suite 1020
Hato Rey, Puerto Rico 00918
Attention: Ken McGrath
Telephone: (787) 766-4200
Telecopy: (787) 766-3485
The Presenting Agent will cause a stickered
supplemented Prospectus with the trade confirmation
to be delivered to the purchaser of the Note.
For record keeping purposes, one copy of each Pricing
Supplement shall also be mailed or telecopied to each
Agent and the Trustee at the following respective
addresses:
To Merrill Lynch:
Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith
Incorporated, World Financial Center,
North Tower, 10th Floor,
New York, New York 10281-1310,
Attention: MTN Product Management
Telephone: (212) 449-7476
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<PAGE> 9
Telecopy: (212) 449-2234
To Credit Suisse First Boston:
Credit Suisse First Boston
Corporation, 11 Madison Avenue
New York, New York 10010,
Attention: Short and Medium-Term
Finance Department
Telephone: (212) 909-3842
Telecopy: (212) 318-1498
To Chase Securities:
Chase Securities Inc.
270 Park Avenue
8th Floor
New York, New York 10017
Attention: Medium-Term Note Desk
Telephone: (212) 834-4421
Telecopy: (212) 834-6081
To Popular Securities:
Popular Securities Inc.
209 Munoz Rivea Avenue
Suite 1020
Hato Rey, Puerto Rico 00918
Attention: Ken McGrath
Telephone: (787) 766-4200
Telecopy: (787) 766-3485
To the Trustee:
The First National Bank of Chicago
153 W. 51st Street
5th Floor
New York, NY 10019
Attention: Corporate Trust
Administration
In each instance that a Pricing Supplement is
prepared, the Presenting Agent will affix the Pricing
Supplement to supplemented Prospectuses prior to its
use. Outdated Pricing Supplements and the
Prospectuses to which they are attached (other than
those retained for files) will be destroyed.
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<PAGE> 10
Settlement: The receipt of immediately avail able funds by the
Company in payment for a Note and the authentication
and delivery of such Note shall, with respect to such
Note, constitute "settlement." Offers accepted by the
Company will be settled at a time as the purchaser
and the Company shall agree and pursuant to the
timetable for settlement set forth in Parts II and
III hereof under "Settlement Procedures" with respect
to Book-Entry Notes and Certificated Notes,
respectively (each such date fixed for settlement, a
"Settlement Date"). If procedures A and B of the
applicable Settlement Procedures with respect to a
particular offer are not completed on or before the
time set forth under the applicable "Settlement
Procedures Timetable", such offer shall not be
settled until the Business Day following the
completion of Settlement Procedures A and B or such
later date as the purchaser and the Company shall
agree.
In the event of a purchase of Notes by the Presenting
Agent as principal, appropriate settlement details
will be set forth in the applicable Terms Agreement
to be entered into between the Presenting Agent and
the Company pursuant to the Distribution Agreement.
Procedure for Changing
Rates or Other
Variable Terms: When a decision has been reached to change the
interest rate or any other variable term on any Notes
being offered by the Company, the Company will
promptly advise the Agents and the Agents will
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<PAGE> 11
forthwith suspend solicitation of offers to purchase
such Notes. Each Agent will telephone the Company
with recommendations as to the changed interest rates
or other variable terms. At such time as the Company
advises the Agents of the new interest rates or other
variable terms, the Agents may resume solicitation of
offers to purchase such Notes. Until such time, only
"indications of interest" may be recorded.
Immediately after acceptance by the Company of an
offer to purchase at a new interest rate or new
variable term, the Company, the Agents and the
Trustee shall follow the procedures set forth under
the applicable "Settlement Procedures."
Suspension of
Solicitation;
Amendment or
Supplement: The Company may instruct the Agents to suspend
solicitation of purchases at any time. Upon receipt
of such instructions, the Agents will forthwith
suspend solicitation of offers to purchase from the
Company until such time as the Company has advised
them that solicitation of offers to purchase may be
resumed. If the Company decides to amend the
Registration Statement (including incorporating any
documents by reference therein) or supplement any of
such documents (other than to change rates or other
variable terms), it will promptly advise the Agents
and, except in the case of an amendment by the filing
of a document incorporated by reference in the
Registration Statement, will furnish each Agent and
its counsel with copies of the proposed amend-
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<PAGE> 12
ment or supplement. One copy of such filed document,
along with a copy of the cover letter sent to the
Commission, will be delivered or mailed to the Agents
at the following addresses:
To Merrill Lynch:
Product Management MTNs, Merrill
Lynch Money Markets, North Tower,
World Financial Center, 10th Floor,
New York, New York 10281-1310
Telephone: (212) 449-7476
Telecopy: (212) 449-2234
To Credit Suisse First Boston:
Credit Suisse First Boston
Corporation, 11 Madison Avenue
New York, New York 10010,
Attention: Short and Medium-Term
Finance Department
Telephone: (212) 909-3842
Telecopy: (212) 318-1498
To Chase Securities:
Chase Securities Inc.
270 Park Avenue
8th Floor
New York, New York 10017
Attention: Medium-Term Note Desk
Telephone: (212) 834-4421
Telecopy: (212) 834-6081
To Popular Securities:
Popular Securities Inc.
209 Munoz Rivea Avenue
Suite 1020
Hato Rey, Puerto Rico 00918
Attention: Ken McGrath
Telephone: (787) 766-4200
Telecopy: (787) 766-3485
In the event that at the time the solicitation of
offers to purchase from the Company is suspended
(other than to change interest
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<PAGE> 13
rates or other variable terms) there shall be any
offers to purchase Notes that have been accepted by
the Company which have not been settled, the Company
will promptly advise the Agents and the Trustee
whether such offers may be settled and whether copies
of the Prospectus as theretofore amended and/or
supplemented as in effect at the time of the
suspension may be delivered in connection with the
settlement of such orders. The Company will have the
sole responsibility for such decision and for any
arrangements which may be made in the event that the
Company determines that such orders may not be
settled or that copies of such Prospectus may not be
so delivered.
Delivery of Prospectus: A copy of the most recent Prospectus and Pricing
Supplement must accompany or precede the earlier of
(a) the written confirmation of a sale sent to a
customer or his agent and (b) the delivery of Notes
to a customer or his agent.
Authenticity of
Signatures: The Agents will have no obligation or liability to
the Company or the Trustee in respect of the authen-
ticity of the signature of any officer, employee or
agent of the Company or the Trustee on any Note or
related Guarantee.
Documents Incorporated
by Reference: The Company shall supply each Agent with an adequate
supply of all documents incorporated by reference in
the Registration Statement.
Business Day: "Business Day" has the meaning set forth in
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<PAGE> 14
the Prospectus Supplement.
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<PAGE> 15
PART II: PROCEDURES FOR NOTES ISSUED
IN BOOK-ENTRY FORM
In connection with the qualification of Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, the Trustee will perform
the custodial, document control and administrative functions described below, in
accordance with its obligations under a Letter of Representations from the
Company and the Trustee to DTC, dated August 6, 1999, and a Medium-Term Note
Certificate Agreement between the Trustee and DTC, dated May 26, 1989 (the
"Certificate Agreement"), and its obligations as a participant in DTC, including
DTC's Same-Day Funds Settlement System ("SDFS").
Issuance: All Fixed Rate Book-Entry Notes having the same
Original Issue Date, interest rate, terms of
redemption or repayment, if any, and Stated Maturity
(collectively, the "Fixed Rate Terms") will be
represented initially by a single global security in
fully registered form without coupons; and all
Floating Rate Book-Entry Notes having the same
Original Issue Date, interest rate basis or bases
upon which interest may be determined (each, an
"Interest Rate Basis"), which may be one or more of
the Commercial Paper Rate, the Treasury Rate, LIBOR,
the CD Rate, the CMT Rate, the Federal Funds Rate,
the Prime Rate, the 11th District Rate, any other
rate set forth by the Company, Initial Interest Rate,
Index Maturity, Spread and/or Spread Multiplier, if
any, Minimum Interest Rate, if any, Maximum Interest
Rate, if any, terms of redemption or repayment, if
any, and Stated Maturity (collectively, "Floating
Rate Terms") will be represented initially by a
single Book-Entry Note.
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<PAGE> 16
Each Book-Entry Note will be dated and issued as of
the date of its authentication by the Trustee or its
duly appointed authenticating agent. Each Book-Entry
Note will bear interest from a date (the "Interest
Accrual Date") which will be (a) with respect to an
original Book-Entry Note (or any portion thereof),
its Original Issue Date and (b) with respect to any
Book-Entry Note (or portion thereof) issued
subsequently upon exchange or transfer of a
Book-Entry Note or in lieu of a destroyed, lost or
stolen Book-Entry Note, the most recent Interest
Payment Date (or, in the case of Floating Rate Notes
with interest rates which reset daily or weekly, the
day following the most recent Record Date to which
interest has been paid or duly provided for on the
predecessor Book-Entry Note or Notes or if no such
payment or provision has been made, the Original
Issue Date of the predecessor Book-Entry Note or
Notes), regardless of the date of authentication of
such subsequently issued Book-Entry Note. No Book-
Entry Note shall represent any Certificated Note.
Identification: The Agents have arranged with the CUSIP Service
Bureau (the "CUSIP Service Bureau") of Standard &
Poor's Ratings Service, a division of the McGraw-Hill
Companies ("S&P"), for the reservation of
approximately 900 CUSIP numbers for each rank of
Notes which have been reserved for future assignment
to Book-Entry Notes representing Notes issued in
book-entry form and have delivered to the Company,
the Trustee and DTC an initial written list of such
CUSIP numbers. The
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<PAGE> 17
Trustee will assign CUSIP numbers to Book-Entry Notes
as described below under Settlement Procedure B. DTC
will notify the CUSIP Service Bureau periodically of
the CUSIP numbers that the Trustee has assigned to
Book-Entry Notes. The Trustee will notify the Company
at any time when fewer than 100 of the respective
reserved CUSIP numbers remain unassigned to
Book-Entry Notes, and, if it deems necessary, the
Company will reserve additional CUSIP numbers for
assignment to Book-Entry Notes representing Notes
issued in book-entry form. Upon obtaining such
additional CUSIP numbers, the Company will deliver a
list of such additional numbers to the Trustee and
DTC. Book-Entry Notes having an aggregate principal
amount in excess of $200,000,000 and otherwise
required to be represented by the same Global
Certificate will instead be represented by two or
more Global Certificates which shall be assigned the
same CUSIP number.
Registration: Each Book-Entry Note will be registered in the name
of CEDE & CO., as nominee for DTC, on the register
maintained by the Trustee under the Indenture. The
beneficial owner of a Book-Entry Note (i.e., an owner
of a beneficial interest in a Book-Entry Note), or
one or more indirect participants in DTC designated
by such owner, will designate one or more
participants in DTC (with respect to such Book-Entry
Note, the "Participants") to act as agent for such
beneficial owner in connection with the book-entry
system maintained by DTC, and DTC will record in
book-entry form, in accordance with instructions pro-
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<PAGE> 18
vided by such Participants, a credit balance with
respect to such Book-Entry Note in the account of
such Participants. The ownership interest of such
beneficial owner in such Book-Entry Note will be
recorded through the records of such Participants or
through the separate records of such Participants
and one or more indirect participants in DTC.
Transfers: Transfers of beneficial interests in a Book-Entry
Note will be accomplished by book entries made by DTC
and, in turn, by Participants (and in certain cases,
one or more indirect participants in DTC) acting on
behalf of beneficial transferors and transferees of
such Book-Entry Note.
Exchanges: The Trustee may deliver to DTC and the CUSIP Service
Bureau at any time a written notice specifying (a)
the CUSIP numbers of two or more Book-Entry Notes
Outstanding on such date that represent Book-Entry
Notes having the same Fixed Rate Terms or Floating
Rate Terms, as the case may be, other than Original
Issue Dates, and for which interest has been paid to
the same date; (b) a date, occurring at least 30 days
after such written notice is delivered and at least
30 days before the next Interest Payment Date for the
related Book-Entry Notes, on which such Book-Entry
Notes shall be exchanged for a single replacement
Book-Entry Note; and (c) a new CUSIP number to be
assigned to such replacement Book-Entry Note. Upon
receipt of such a notice, DTC will send to its
Participants (including the Trustee) a written
reorganization
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<PAGE> 19
notice to the effect that such exchange will occur on
such date. Prior to the specified exchange date, the
Trustee will deliver to the CUSIP Service Bureau
written notice setting forth such exchange date and
the new CUSIP number and stating that, as of such
exchange date, the CUSIP numbers of the Book-Entry
Notes to be exchanged will no longer be valid. On the
specified exchange date, the Trustee will exchange
such Book-Entry Notes for a single Book-Entry Note
bearing the new CUSIP number and the CUSIP numbers of
the exchanged Book-Entry Notes will, in accordance
with CUSIP Service Bureau procedures, be cancelled
and not immediately reassigned. Not withstanding the
foregoing, if the Book-Entry Notes to be exchanged
exceed $200,000,000 in aggregate principal amount,
one replacement Book-Entry Note will be authenti-
cated and issued to represent each $200,000,000 of
principal amount of the exchanged Book-Entry Notes
and an additional Book-Entry Note will be
authenticated and issued to represent any remaining
principal amount of such Book-Entry Notes (see
"Denominations" below).
Denominations: All Book-Entry Notes will be denominated in U.S.
dollars and will be issued in denominations of a
minimum of $100,000 and integral multiples of $1,000
in excess thereof. Book-Entry Notes will be
denominated in principal amounts not in excess of
$200,000,000. If one or more Book-Entry Notes having
an aggregate principal amount in excess of
$200,000,000 would, but for the preceding sentence,
be represented by a single Book-Entry Note, then
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<PAGE> 20
one Book-Entry Note will be issued to represent each
$200,000,000 principal amount of such Note or Notes
issued in book-entry form and an additional
Book-Entry Note will be issued to represent any
remaining principal amount of such Note or Notes
issued in book-entry form. In such a case, each of
the Book-Entry Notes shall be assigned the same CUSIP
number.
Interest: General. Interest on each Note issued in book-entry
form will accrue from the Interest Accrual Date of
the Book-Entry Note representing such Note. Each
payment of interest on a Book-Entry Note will include
interest accrued through the day preceding, as the
case may be, the Interest Payment Date (provided that
in the case of Floating Rate Notes with interest
rates which reset daily or weekly interest payments
will include interest accrued to and including the
Regular Record Date immediately preceding the
Interest Payment Date), the Stated Maturity Date,
Redemption Date or Repayment Date. Interest payable
at Maturity of a Book-Entry Note will be payable to
the Person to whom the principal of such Note is
payable. DTC will arrange for each pending deposit
message described under Settlement Procedure C below
to be transmitted to S&P, which will use the
information in the message to include certain terms
of the related Book-Entry Note in the appropriate
daily bond report published by S&P.
Interest Payment Dates. Interest payments will be
made on each
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<PAGE> 21
Interest Payment Date commencing with the first
Interest Payment Date following the Original Issue
Date; provided, however, the first payment of
interest on any Book-Entry Note originally issued
between a Regular Record Date and an Interest Payment
Date will occur on the Interest Payment Date fol-
lowing the next Regular Record Date.
Fixed Rate Notes. Interest payments on Fixed Rate
Book-Entry Notes will be made semiannually on June 15
and December 15 of each year and at Maturity.
Floating Rate Notes. Except as provided in Part I
under "Calculation of Interest", the Interest
Payment Date for a Floating Rate Note will be, in the
case of Floating Rate Notes which reset daily, weekly
or monthly, on the third Wednesday of each month or
on the third Wednesday of March, June, September and
December of each year as specified in the applicable
Pricing Supplement; in the case of Floating Rate
Notes which reset quarterly, on the third Wednesday
of March, June, September and December of each year;
in the case of Floating Rate Notes which reset
semiannually, on the third Wednesday of the two
months of each year specified in the applicable
Pricing Supplement; and in the case of Floating Rate
Notes which reset annually, on the third Wednesday of
the month specified in the applicable Pricing
Supplement; and, in each case, at Maturity. For
additional special provisions relating to Floating
Rate Notes, see the Prospectus Supplement.
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<PAGE> 22
Regular Record Dates. The Regular Record Date with
respect to any Interest Payment Date for a Fixed Rate
Note shall be the May 31 or November 30 preceding
such Interest Payment Date. The Regular Record Date
with respect to any Interest Payment Date for any
Floating Rate Note shall be the date 15 calendar days
(whether or not a Business Day) preceding such
Interest Payment Date.
Notice of Interest Payments and Regular Record Dates.
On the first Business Day of January, April, July and
October of each year, the Trustee will deliver to the
Company and DTC a written list of Regular Record
Dates and Interest Payment Dates that will occur
during the six-month period beginning on such first
Business Day with respect to Floating Rate Book-Entry
Notes. Promptly after each Interest Determination
Date for Floating Rate Book-Entry Notes, the Company
will notify S&P of the interest rates determined on
such Interest Determination Date.
Payments of Principal
and Interest: Payments of Interest Only. Promptly after each
Regular Record Date, the Trustee will deliver to the
Company and DTC a written notice specifying by CUSIP
number the amount of interest to be paid on each
Book-Entry Note issued under the Indenture on the
following Interest Payment Date (other than an
Interest Payment Date coinciding with Maturity) and
the total of such amounts. DTC will confirm the
amount payable on each Book-Entry Note on such
Interest Payment Date by reference to the
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<PAGE> 23
daily bond reports published by Standard & Poor's. On
such Interest Payment Date, the Company will pay to
the Trustee, and the Trustee in turn will pay to DTC,
such total amount of interest due (other than at
Maturity), at the times and in the manner set forth
below under "Manner of Payment."
Payments at Maturity. On or about the first Business
Day of each month, the Trustee will deliver to the
Company and DTC a written list of principal, interest
and premium, if any, to be paid on each Book-Entry
Note issued under the Indenture having a Maturity in
the following month. The Trustee and DTC will confirm
the amounts of such principal, premium and interest
payments with respect to a Book-Entry Note on or
about the fifth Business Day preceding the Maturity
of such Book-Entry Note. At such maturity, the
Company will pay to the Trustee, and the Trustee in
turn will pay to DTC, the principal amount of such
Note, together with interest and premium, if any, due
at such Maturity, at the times and in the manner set
forth below under "Manner of Payment." Promptly after
payment to DTC of the principal, interest and
premium, if any, due at the Maturity of such
Book-Entry Note, the Trustee will cancel and destroy
such Book-Entry Note and deliver to the Company a
certificate of destruction therefor.
Manner of Payment. The total amount of any principal,
premium, if any, and interest due on Book- Entry
Notes on any Interest Payment Date or at Maturity
shall be paid
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<PAGE> 24
by the Company to the Trustee in funds available for
use as of 9:30 a.m., New York City time on such date.
The Company will make such payment on such Book-Entry
Notes by instructing the Trustee to withdraw funds
from an account maintained by the Company with the
Trustee. The Company will confirm such instructions
in writing to the Trustee. Prior to 10:00 a.m., New
York City time, on such date or as soon as possible
thereafter, the Trustee will pay by separate wire
transfer (using Fedwire message entry instructions in
a form previously specified by DTC) to an account at
the Federal Reserve Bank of New York previously
specified by DTC, in funds available for immediate
use by DTC, each payment of principal (together with
interest and premium, if any) due on a Book-Entry
Note on such date. There after on such payment date,
DTC will pay, in accordance with its SDFS operating
procedures then in effect, such amounts in funds
available for immediate use to the respective
Participants in whose names such Notes are recorded
in the book-entry system maintained by DTC. Neither
the Company nor the Trustee shall have any
responsibility or liability for the payment by DTC
of the principal of, or interest on, the Book-Entry
Notes to such Participants.
Withholding Taxes. The amount of any taxes required
under applicable law to be withheld from any inter-
est payment on a Note will be determined and withheld
by the Participant, indirect participant in DTC or
other Person responsible for forwarding payments and
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<PAGE> 25
materials directly to the beneficial owner of such
Note.
Settlement Procedures: Settlement Procedures with regard to each Book-Entry
Note sold by the Agents, as agents of the Company,
will be as follows:
A. The Presenting Agent will advise the Company
by telephone of the following Settlement
information:
1. Taxpayer identification number of
the purchaser.
2. Principal amount of the Note.
3. Fixed Rate Notes:
(a) interest rate
Floating Rate Notes:
(a) interest rate basis;
(b) initial interest rate;
(c) spread and/or spread
multiplier, if any;
(d) initial interest reset
dates;
(e) interest reset dates;
(f) interest payment dates;
(g) index maturity;
(h) calculation agent;
(i) maximum interest rate, if
any;
(j) minimum interest rate, if
any;
(k) alternate rate event
spread; and
(l) interest rate reset dates.
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<PAGE> 26
5. Price to public of the Note.
6. Trade date.
7. Settlement Date (Original Issue
Date).
8. Stated Maturity.
9. Redemption provisions, if any:
(a) Initial Redemption Date
(b) Initial Redemption
Percentage
(c) Annual Redemption
Percentage Reduction
10. Optional Repayment Date(s), if any.
11. Net proceeds to the Company.
12. Presenting Agent's commission.
B. The Company will advise the Trustee by
telecopy or other method acceptable to the
Trustee of the above settlement information
received with respect to each Note from the
Presenting Agent and shall confirm to the
Trustee that the principal amount of Notes,
including such Note, issued as of the
relevant Settlement Date shall not exceed
the limit with respect to the principal
amount of Notes specified in the most recent
Company Order delivered to the
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<PAGE> 27
Trustee pursuant to Section 303 of the
Indenture.
C. The Trustee will assign a CUSIP Number to
the Book-Entry Note and will telephone and
advise the Company and the Presenting Agent
of such CUSIP Number. The Trustee will
communicate to DTC and the Presenting Agent
through DTC's Participant Terminal System a
pending deposit message specifying the
following settlement information:
1. The information set forth in
Settlement Procedure A.
2. Identification numbers of the
participant accounts maintained by
DTC on behalf of the Trustee and
the Presenting Agent.
3. Identification as a Fixed Rate
Book-Entry Note or Floating Rate
Book-Entry Note.
4. Initial Interest Payment Date for
such Note, number of days by which
such date succeeds the related
record date for DTC purposes (or,
in the case of Floating Rate Notes
which reset daily or weekly, the
date five calendar days preceding
the Interest Payment Date) and, if
then calculable, the amount of
interest payment on such Interest
Payment Date (which amount shall
have
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<PAGE> 28
been confirmed by the Trustee).
5. CUSIP number of the Book-Entry
Note representing such Note.
6. Whether such Book-Entry Note
represents any other Notes issued
or to be issued in book-entry form.
D. The Company will deliver to the Trustee a
Book-Entry Note representing such Note in a
form that has been approved by the Company,
the Agents and the Trustee.
E. The Trustee will complete and authenticate
the Book-Entry Note.
F. DTC will credit such Note to the participant
account of the Trustee maintained by DTC.
G. The Trustee will enter an SDFS deliver order
through DTC's Participant Terminal System
instructing DTC (i) to debit such Note to
the Trustee's participant account and credit
such Note to the participant account of the
Presenting Agent maintained by DTC and (ii)
to debit the settlement account of the
Presenting Agent and credit the settlement
account of the Trustee maintained by DTC, in
an amount equal to the price of such Note
less the Presenting Agent's commission. Any
entry of such a deliver order shall be
deemed to constitute a
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<PAGE> 29
representation and warranty by the Trustee
to DTC that (i) the Book-Entry Note has been
issued and authenticated and (ii) the
Trustee is holding such Book-Entry Note
pursuant to the Certificate Agreement
between the Trustee and DTC.
H. The Presenting Agent will enter an SDFS
deliver order through DTC's Participant
Terminal System instructing DTC (i) to debit
such Note to the Presenting Agent's parti-
cipant account and credit such Note to the
participant account of the Participants
maintained by DTC and (ii) to debit the
settlement accounts of such Participants and
credit the settlement account of the
Presenting Agent maintained by DTC, in an
amount equal to the initial public offering
price of such Note.
I. Transfers of funds in accordance with SDFS
delivery orders described in Settlement
Procedures G and H will be settled in
accordance with SDFS operating procedures in
effect on the Settlement Date.
J. The Trustee will credit to an account of the
Company maintained by the Trustee funds
available for immediate use in the amount
transferred to the Trustee in accordance
with Settlement Procedure G.
K. The Trustee will send a copy of the
Book-Entry Note to the Company together with
a
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<PAGE> 30
statement setting forth the principal amount
of Notes Outstanding as of the related
Settlement Date after giving effect to such
transaction and all other offers to purchase
Notes of which the Company has advised the
Trustee but which have not been settled.
L. The Presenting Agent will confirm the
purchase of such Note to the purchaser
either by transmitting to the Participant
with respect to such Note a confirmation
order through DTC's Participant Terminal
System or by mailing a written confirmation
to such purchaser.
Settlement Procedures
Timetable: For offers to purchase Notes accepted by the Company,
Settlement Procedures "A" through "L" set forth above
shall be completed as soon as possible but not later
than the respective times (New York City time) set
forth below:
Settlement
Procedure Time
--------- ----
A 11:00 a.m. on the trade date
B 12:00 noon on the trade date
C 2:00 p.m. on the trade date
D 3:00 p.m. on the Business Day
before Settlement Date
E 9:00 a.m. on Settlement Date
F 10:00 a.m. on Settlement Date
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<PAGE> 31
G-H No later than 2:00 p.m. on
Settlement Date
I 4:45 p.m. on Settlement Date
J-L 5:00 p.m. on Settlement Date
If a sale is to be settled more than one Business Day
after the trade date, Settlement Procedures A, B, and
C may, if necessary, be completed at any time prior
to the specified times on the first Business Day
after such trade date. In connection with a sale
which is to be settled more than one Business Day
after the trade date, if the initial interest rate
for a Floating Rate Note is not known at the time
that Settlement Procedure A is completed, Settlement
Procedures B and C shall be completed as soon as such
rates have been determined, but no later than 11:00
a.m. and 2:00 p.m., New York City time, respectively,
on the second Business Day before the Settlement
Date. Settlement Procedure I is subject to extension
in accordance with any extension of Fedwire closing
deadlines and in the other events specified in the
SDFS operating procedures in effect on the Settlement
Date.
If settlement of a Book-Entry Note is rescheduled or
cancelled, the Company shall notify the Trustee and
the Trustee will deliver to DTC, through DTC's
Participant Terminal System, a cancellation message
to such effect by no later than 2:00 p.m., New York
City time, on the Business Day immediately preceding
the scheduled Settlement Date.
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<PAGE> 32
Failure to Settle: If the Trustee has not entered an SDFS deliver order
with respect to a Book-Entry Note pursuant to
Settlement Procedure G, then upon written request
(which may be evidenced by facsimile transmission)
of the Company the Trustee shall deliver to DTC,
through DTC's Participant Terminal System, as soon as
practicable a withdrawal message instructing DTC to
debit such Note to the participant account of the
Trustee maintained at DTC. DTC will process the
withdrawal message, provided that such participant
account contains a principal amount of the Book-Entry
Note representing such Note that is at least equal to
the principal amount to be debited. If withdrawal
messages are processed with respect to all the Notes
represented by a Book-Entry Note, the Trustee will
mark such Book-Entry Note "cancelled", make
appropriate entries in its records and send such
cancelled Book-Entry Note to the Company. The CUSIP
number assigned to such Book-Entry Note shall, in
accordance with CUSIP Service Bureau procedures, be
cancelled and not immediately reassigned. If
withdrawal messages are processed with respect to a
portion of the Notes represented by a Book-Entry
Note, the Trustee will exchange such Book-Entry Note
for two Book-Entry Notes, one of which shall
represent the Book-Entry Notes for which withdrawal
messages are processed and shall be can celled
immediately after issuance, and the other of which
shall represent the other Notes previously
represented by the surrendered Book-Entry Note and
shall bear the
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<PAGE> 33
CUSIP number of the surrendered Book-Entry Note.
If the purchase price for any Book-Entry Note is not
timely paid to the Participants with respect to such
Note by the beneficial purchaser thereof (or a
person, including an indirect participant in DTC,
acting on behalf of such purchaser), such
Participants and, in turn, the Presenting Agent may
enter SDFS deliver orders through DTC's Participant
Terminal System reversing Settlement Procedures G and
H, respectively. Thereafter, the Trustee will deliver
the withdrawal message and take the related actions
described in the preceding paragraph. If such failure
shall have occurred for any reason other than default
by the Presenting Agent to perform its obligations
hereunder or under the Distribution Agreement, the
Company will reimburse the Presenting Agent on an
equitable basis for its loss of the use of funds
during the period when the funds were credited to the
account of the Company.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Book-Entry Note, DTC may
take any actions in accordance with its SDFS
operating procedures then in effect. In the event of
a failure to settle with respect to a Note that was
to have been represented by a Book-Entry Note also F
representing other Notes, the Trustee will provide,
in accordance with Settlement Procedures D and E, for
the authentication and issuance of a Book-Entry Note
representing such remaining Notes and will make
appropriate entries in its records.
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<PAGE> 34
PART III: PROCEDURES FOR NOTES ISSUED
IN CERTIFICATED FORM
Denominations: The Certificated Notes, other than Index Notes and
Multi-Currency Notes, will be issued in denominations
of a minimum of $100,000 and integral multiples of
$1,000 in excess thereof. Index Notes and
Multi-Currency Notes will be issued in the
denominations specified in a related Multi-Currency
and Indexed Note Prospectus Supplement and Pricing
Supplement.
Interest: Each Certificated Note will bear interest in
accordance with its terms. Interest will begin to
accrue on the Original Issue Date of a Certificated
Note for the first Interest Payment Period and on the
most recent Interest Payment Date to which interest
has been paid for all subsequent Interest Payment
Periods. Each payment of interest shall include
interest accrued to, but excluding, the date of such
payment. Interest payments in respect of Fixed Rate
Certificated Notes will be made semiannually on
June 15 and December 15 of each year and at Maturity.
However, the first payment of interest on any
Certificated Note issued between a Regular Record
Date and an Interest Payment Date will be made on the
Interest Payment Date following the next succeeding
Regular Record Date. The Regular Record Date with
respect to any Interest Payment Date for a Fixed Rate
Certificated Note shall be the May 31 or November 30
preceding such Interest Payment Date. Interest at
Maturity will be payable to
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<PAGE> 35
the person to whom the principal is payable.
Except as provided in Part I under "Calculation of
Interest", the Interest Payment Date for a Floating
Rate Certificated Note will be, in the case of
Floating Rate Notes which reset daily, weekly or
monthly, on the third Wednesday of each month or on
the third Wednesday of March, June, September and
December of each year as specified in the applicable
Pricing Supplement; in the case of Floating Rate
Notes which reset quarterly, on the third Wednesday
of March, June, September and December of each year;
in the case of Floating Rate Notes which reset
semiannually, on the third Wednesday of the two
months of each year specified in the applicable
Pricing Supplement; or, in the case of 11th District
Rate Notes, on the first Business Day of each month
or the first Business Day of each March, June,
September or December as specified in the applicable
Pricing Supplement and in the case of Floating Rate
Notes which reset annually, on the third Wednesday of
the month specified in the applicable Pricing
Supplement; and, in each case, at Maturity. The
Regular Record Date with respect to a Floating Rate
Note shall be the date 15 calendar days (whether or
not a Business Day) preceding an Interest Payment
Date.
Notwithstanding the above, in the case of Floating
Rate Certificated Notes having interest rates which
reset daily or weekly, interest payments shall
include accrued interest from, and including, the
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<PAGE> 36
date of issue or from, but excluding, the last date
in respect of which interest has been accrued and
paid, as the case may be, through, and including, the
Regular Record Date, except that at Maturity the
interest payable will include interest accrued to,
but excluding, the date of Maturity. For additional
special provisions relating to Floating Rate
Certificated Notes, see the Prospectus Supplement.
Payments of Principal
and Interest: Upon presentment and delivery of the Certificated
Note, the Trustee or the Company's duly authorized
agent will pay the principal amount of each
Certificated Note at Maturity and the final
installment of interest in next day funds. All
interest payments in U.S. dollars on a Certificated
Note, other than interest due at Maturity, will be
made by check drawn on the Trustee or the Company's
duly authorized agent and mailed by such Trustee or
agent to the person entitled thereto as provided in
the Certificated Note. However, the Registered Owners
(as hereinafter defined) of ten million dollars or
more in aggregate principal amount of the same series
of Certificated Notes (whether having identical or
different terms and provisions) shall be entitled to
receive payments of interest, other than at Maturity,
by wire transfer of immediately available funds if
appropriate wire transfer instructions have been
received in writing by the appropriate Trustee or
such agent not less than 16 days prior to the
applicable Interest Payment Date.
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<PAGE> 37
For special provisions relating to Multi-Currency
Notes and Indexed Notes, see the related Multi-Cur-
rency and Indexed Note Prospectus Supplement.
The Trustee will provide monthly to the Company a
list of the principal and interest in each currency
to be paid on Certificated Notes maturing in the next
succeeding month. Such Trustee or agent will be
responsible for withholding taxes on interest paid
as required by applicable law, but shall be relieved
from any such responsibility if it acts in good faith
and in reliance upon an opinion of counsel.
Certificated Notes presented to the Trustee or the
Company's duly authorized agent at Maturity for
payment will be cancelled by such Trustee or agent.
All cancelled Certificated Notes held by such Trustee
shall be destroyed, and the Trustee shall furnish to
the Company a certificate with respect to such
destruction.
Settlement Procedures: Settlement Procedures with regard to each
Certificated Note purchased through the Agents, as
agents, shall be as follows:
A. Each Agent will advise the Company by
telephone of the following Settlement
information with regard to each
Certificated Note:
1. Exact name in which the
Certificated Note is to be
registered (the "Registered
Owner").
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<PAGE> 38
2. Exact address or addresses of the
Registered Owner for delivery,
notices and payments of principal,
premium, if any, and interest.
3. Taxpayer identification number of
the Registered Owner.
4. Principal amount of the
Certificated Note.
5. Denomination of the Certificated
Note.
6. Fixed Rate Notes:
(a) interest rate
Floating Rate Notes:
(a) interest rate basis
or bases;
(b) initial interest rate;
(c) spread or spread
multiplier, if any;
(d) initial interest reset
date;
(e) interest reset dates;
(f) interest payment dates;
(g) index maturity;
(h) calculation agent;
(i) maximum interest rates,
if any;
(j) minimum interest rate,
if any;
(k) alternate rate event
spread; and
(l) interest determination
dates
Indexed Notes:
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<PAGE> 39
(a) specified currency;
(b) indexed currency; and
(c) base rate of exchange.
8. Currency or currency unit in which
the Certificated Note is to be
denominated.
9. Price to public of the Certificated
Note.
10. Settlement Date (Original Issue
Date).
11. Stated Maturity.
12. Redemption provisions, if any:
(a) Initial Redemption Date
(b) Initial Redemption
Percentage
(c) Annual Redemption
Percentage Reduction
13. Optional Repayment Date(s), if any.
14. Net proceeds to the Company.
15. Presenting Agent's commission.
B. The Company shall provide to the Trustee by
telecopy or other method acceptable to the
Trustee the above Settlement information
with respect to each Certificated Note
received from the Agents, the name of the
Presenting Agent and shall confirm to the
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<PAGE> 40
Trustee that the principal amount of Notes,
including such Certificated Note, issued as
of the relevant Settlement Date shall not
exceed the limit with respect to the
principal amount of Notes specified in the
most recent Company Order delivered to the
Trustee pursuant to Section 303 of the
Indenture. The Company also shall cause the
Trustee or its duly appointed agent to
issue, authenticate and deliver Certificated
Notes in accordance with the Settlement
Procedures Timetable set forth below. The
Company also shall provide to the Trustee
and the Presenting Agent a copy of the
applicable Pricing Supplement. The Company
also shall provide to the Trustee and the
Presenting Agent a copy of a Multi-Currency
and Indexed Note Supplement, if applicable.
C. The Trustee or its duly appointed agent will
complete and authenticate the Certificated
Notes, including the Guarantee, in forms
approved by the Company.
D. With respect to each trade, the Trustee will
deliver the Certificated Notes and one
photocopy thereof to the applicable
Presenting Agent at the following addresses:
Merrill Lynch & Co., Money Markets
Clearance, 55 Water Street, 3rd Floor,
N.S.C.C.
-40-
<PAGE> 41
Window, New York, New York
10041, Attention: Al Mitchell
Telephone: (212) 558-2405
Telecopy: (212) 558-2457
Credit Suisse First Boston
Corporation, Five World Trade
Center, New York, New York
10048, Attention: Paul Riley
Chase Securities, Inc., 55
Water Street, Room 226,
Windows 17 and 18, New York,
New York 10041
Telephone: (212) 638-6787
Telecopy: (212) 638-5618
To Popular Securities:
Popular Securities Inc.
209 Munoz Rivera Avenue
Suite 1020
Hato Rey, Puerto Rico 00918
Attention: Ken McGrath
Telephone: (787) 766-4200
Telecopy: (787) 766-3485
The Trustee will keep Stub 1. The Presenting
Agent will acknowledge receipt of the
Certificated Note through a broker's receipt
and will keep the photocopy. Delivery of the
Certificated Note will be made only against
such acknowledgment of receipt.
Upon determination that the Certificated
Note, including the related Guarantee, has
been authorized, delivered and completed as
aforementioned, the Presenting Agent will
wire the net proceeds of the Certificated
Note after deduction of its applicable
commission to the Company pursuant to
standard wire
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<PAGE> 42
instructions given by the Company.
E. The Presenting Agent will deliver the
Certificated Note, the related Guarantee
endorsed thereon, as well as a copy of the
Prospectus and any applicable Pricing
Supplement or Supplements received from the
Trustee, to the purchaser against payment in
immediately available funds.
F. The Trustee will send a photocopy of the
Certified Note to the Company.
Settlement Procedures
Timetable: For offers to purchase Certificated Notes accepted by
the Company, Settlement Procedures "A" through "F"
set forth above shall be completed on or before the
respective times set forth below:
Settlement
Procedure Time
--------- ----
A-B 3:00 PM on Business Day prior to
Settlement
C-D 2:15 PM on Settlement Date
E 3:00 PM on Settlement Date
F 5:00 PM on Settlement Date
Failure to Settle: In the event that a purchaser of a Certificated Note
from the Company shall either fail to accept delivery
of or make payment for a Certificated Note on the
date fixed for settlement, the Presenting Agent will
forthwith notify the Trustee and the Company by
telephone, confirmed in writing,
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<PAGE> 43
and return the Certificated Note to such Trustee.
The Trustee or the Company's duly authorized agent,
upon receipt of the Certificated Note from the
Presenting Agent, will immediately advise the
Company, and the Company will promptly arrange to
credit the account of the Presenting Agent in an
amount of immediately available funds equal to the
amount previously paid by the Presenting Agent in
settlement for the Certificated Note. Such credits
will be made on the Settlement Date if possible, and
in any event not later than the Business Day follow-
ing the Settlement Date; provided that the Company
has received notice on the same day. If such failure
shall have occurred for any reason other than failure
by the Presenting Agent to perform its obligations
hereunder or under the Distribution Agreement, the
Company will reimburse the Presenting Agent on an
equitable basis for its loss of the use of funds
during the period when the funds were credited to the
account of the Company. Immediately upon receipt of
the Certificated Note in respect of which the failure
occurred, the Trustee or the Company's duly
authorized agent will cancel and destroy the
Certificated Note, make appropriate entries in its
records to reflect the fact that the Certificated
Note was never issued, and accordingly notify in
writing the Company.
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<PAGE> 1
Exhibit 10(c)
POPULAR, INC.
INTEREST CALCULATION AGENCY AGREEMENT
INTEREST CALCULATION AGENCY AGREEMENT between Popular, Inc. a
Puerto Rico corporation (the "Issuer"), and The First National Bank of Chicago,
dated as of August 6, 1999.
PRELIMINARY STATEMENT
1. The Issuer proposes to issue and sell its Medium-Term
Notes, Series 4 (the "Notes") from time to time under, and pursuant to, the
terms of an Indenture, dated as of February 15, 1995, as supplemented by the
First Supplemental Indenture dated as of May 8, 1997 and the Second Supplemental
Indenture dated as of August 5, 1999 (together the "Indenture," the terms
defined being used herein as defined therein or in the Notes), between the
Issuer and The First National Bank of Chicago, trustee thereunder (acting in
such capacity, the "Trustee").
2. The Issuer desires to appoint an agent of the Issuer to
calculate the base rates applicable to those Notes on which interest is to
accrue at a variable or floating rate ("Floating Rate Notes"), determined by
references to LIBOR, the 11th District Rate, the Commercial Paper Rate, the
Treasury Rate, the CD Rate, the CMT Rate, the Prime Rate or the Federal Funds
Rate (collectively, the "Base Rates") as are specified and described in the
Floating Rate Notes, a copy of which is attached hereto as Exhibit A.
NOW, THEREFORE, the Issuer and The First National Bank of
Chicago hereby agree as follows:
Section 1. Appointment of Calculation Agent. The Issuer hereby
appoints The First National Bank of Chicago as Calculation Agent (in such
capacity, the "Calculation Agent") of the Issuer with respect to any Floating
Rate Notes to be issued by the Issuer under and pursuant to the terms of the
Indenture, and the Calculation Agent hereby accepts its obligations as set forth
in this Agreement upon the terms and conditions set forth herein.
Section 2. Calculation of Base Rates. Unless otherwise
specified to the Calculation Agent with respect to any particular Note, the
calculation date for each applicable Interest Determination Date for any Note
shall be
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<PAGE> 2
the earlier of (i) the tenth calendar day after such Interest Determination
Date, or if any such day is not a Business Day (as defined in the Notes) the
next succeeding Business Day or (ii) the Business Day preceding the applicable
Interest Payment Date or Maturity, as the case may be. The Calculation Agent
shall notify the Issuer and the Trustee of such Base Rate on such calculation
date. If at any time the Calculation Agent is not also acting as Trustee under
the Indenture, the Issuer shall, upon the issuance of each Floating Rate Note
having a different Base Rate or different Interest Determination Dates than the
Base Rate or Interest Determination Dates for any prior Floating Rate Note,
notify such Calculation Agent of such Interest Determination Dates and Base Rate
for such Floating Rate Note.
Section 3. New Base Rates. If the Issuer proposes to issue
Floating Rate Notes whose interest rate will be determined on a basis or formula
not referred to above (a "New Base Rate"), the Issuer shall give a description
of such New Base Rate to the Calculation Agent. The Calculation Agent shall
determine if it is able and willing to calculate the New Base Rate and upon its
agreement in writing to do so the term "Base Rate" shall be deemed to include
the New Base Rate. If the Calculation Agent notifies the Issuer that it is not
able or willing to calculate the New Base Rate, or that it is only willing to do
so on the basis of an increase of its fees not acceptable to the Issuer, the
Calculation Agent shall have no responsibility with respect to such New Base
Rate and the Issuer shall appoint a different calculation agent to determine the
New Base Rate.
Section 4. Fees and Expenses. The Calculation Agent shall be
entitled to such compensation for its services under this Agreement as may be
agreed upon with the Issuer, and the Issuer shall pay such compensation and
shall reimburse the Calculation Agent for all reasonable expenses, disbursements
and advances incurred or made by the Calculation Agent in connection with the
services rendered by it under this Agreement, including reasonable legal fees
and expenses, upon receiving an accounting therefor from the Calculation Agent.
Section 5. Right and Liabilities of Calculation Agent. The
Calculation Agent shall incur no liability for, or in respect of, any action
taken, omitted to be taken or suffered by it in reliance upon any Floating Rate
Note, certificate, affidavit, instruction, notice, request, direction, order,
statement or other paper, document or
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<PAGE> 3
communication reasonably believed by it to be genuine. Any order, certificate,
affidavit, instruction, notice, request, direction, statement or other
communication from the Issuer made or given by it and sent, delivered or
directed to the Calculation Agent under, pursuant to or as permitted by any
provision of this Agreement shall be sufficient for purposes of this Agreement
if such communication is in writing and signed by any officer of the Issuer. The
Calculation Agent may consult with counsel satisfactory to it and the opinion of
such counsel shall constitute full and complete authorization and protection of
the Calculation Agent with respect to any action taken, omitted to be taken or
suffered by it hereunder in good faith and in accordance with and in reliance
upon the opinion of such counsel. In acting under this Agreement, the
Calculation Agent (in its capacity as such) does not assume any obligation
towards, or any relationship of agency or trust for or with the holders of the
Notes.
Section 6. Right of Calculation Agent to Own Floating Rate
Notes. The Calculation Agent may act as Trustee under the Indenture and it, its
officers, employees and shareholders may become owners of, or acquire any
interests in, Floating Rate Notes, with the same rights as if the Calculation
Agent were not the Calculation Agent, and may engage in, or have an interest in,
any financial or other transaction with the Issuer as if the Calculation Agent
were not the Calculation Agent.
Section 7. Duties of Calculation Agent. The Calculation Agent
shall be obliged only to perform such duties as are specifically set forth
herein and no other duties or obligations on the part of the Calculation Agent,
in its capacity as such, shall be implied by this Agreement.
Section 8. Termination, Resignation or Removal of Calculation
Agent. The Calculation Agent may at any time terminate this Agreement by giving
no less than 90 days' written notice to the Issuer unless the Issuer consents in
writing to a shorter time. Upon receipt of notice of termination by the
Calculation Agent, the Issuer agrees promptly to appoint a successor Calculation
Agent. The Issuer may terminate this Agreement at any time by giving written
notice to the Calculation Agent and specifying the date when the termination
shall become effective; provided, however, that termination by the Calculation
Agent or by the Issuer shall not become effective prior to the date of the
appointment by the Issuer, as provided in Section 9 hereof, of a successor
Calculation Agent and the acceptance of such appointment by such successor
Calculation Agent. If an
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<PAGE> 4
instrument of acceptance by a successor Calculation Agent shall not have been
delivered to the Calculation Agent within 30 days after the giving of such
notice of resignation, the resigning Calculation Agent may petition any court of
competent jurisdiction for the appointment of a successor Calculation Agent.
Upon termination by either party pursuant to the provisions of this Section, the
Calculation Agent shall be entitled to the payment of any compensation owed to
it by the Issuer hereunder and to the reimbursement of all reasonable expenses,
disbursements and advances incurred or made by the Calculation Agent in
connection with the services rendered by it hereunder, as provided by Section 4
hereof.
Section 9. Appointment of Successor Calculation Agent. Any
successor Calculation Agent appointed by the Issuer or by a court following
termination of this Agreement pursuant to the provisions of Section 8 hereof
shall execute and deliver to the Calculation Agent and to the Issuer an
instrument accepting such appointment, and thereupon such successor Calculation
Agent shall, without any further act or instrument, become vested with all the
rights, immunities, duties and obligations of the Calculation Agent, with like
effect as if originally named as Calculation Agent hereunder, and the
Calculation Agent shall thereupon be obligated to transfer and deliver, and such
successor Calculation Agent shall be entitled to receive and accept, copies of
any available records maintained by the Calculation Agent in connection with
performance of its obligations hereunder.
Section 10. Indemnification. The Issuer shall indemnify and
hold harmless the Calculation Agent, its officers and employees from and against
all actions, claims, damages, liabilities, losses and expenses (including
reasonable legal fees and expenses) relating to or arising out of actions or
omissions in any capacity hereunder, except actions, claims, damages,
liabilities, losses and expenses caused by the gross negligence or wilful
misconduct of the Calculation Agent, its officers or employees. This Section 10
shall survive the payment in full of all obligations under the Notes, whether by
redemption, repayment or otherwise.
Section 11. Merger, Consolidation or Sale of Business by
Calculation Agent. Any corporation into which the Calculation Agent may be
merged, converted or consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Calculation Agent may be a party, or
any corporation to which the Calculation
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<PAGE> 5
Agent may sell or otherwise transfer all or substantially all of its corporate
trust business, shall, to the extent permitted by applicable law, become the
Calculation Agent under this Agreement without the execution of any paper or any
further act by the parties hereto.
Section 12. Notices. Any notice or other communication given
hereunder shall be delivered in person, sent by letter, telecopy or telex or
communicated by telephone (subject, in the case of communication by telephone,
to written confirmation dispatched within 24 hours) to the addresses given below
or such other address as the party to receive such notice may have previously
specified:
To the Issuer:
Popular, Inc.
209 Munoz Rivera Avenue
Hato Rey, Puerto Rico 00918
Attention: Chief Financial Officer
Facsimile: (787) 751-2137
To the Calculation Agent:
The First National Bank of Chicago
153 W. 51st Street
Suite 4011
New York, New York 10019
Attention: Corporate Trust Administration
Facsimile: (212) 373-1383
To the Trustee:
The First National Bank of Chicago
One First National Plaza
Suite 0126
Chicago, Illinois 60670-0126
Attention: Corporate Trust Administration
Facsimile: (312) 407-1708
Any notice hereunder given by letter, telecopy or telex shall be deemed to have
been received when it would have been received in the ordinary course of post or
transmission, as the case may be.
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<PAGE> 6
Section 13. Benefit of Agreement. Except as provided herein,
this Agreement is solely for the benefit of the parties hereto and their
successors and assigns and no other persons shall acquire or have any rights
under or by virtue hereof.
Section 14. Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York.
Section 15. Counterparts. This Agreement may be executed in
any number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
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<PAGE> 7
IN WITNESS WHEREOF, this Agreement has been entered into the
day and year first above written.
POPULAR, INC.
By: /s/ Jorge A. Junquera
--------------------------------------------
Name: Jorge A. Junquera
Title: Senior Executive Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Michael D. Pinzon
--------------------------------------------
Name: Michael D. Pinzon
Title: Trust Officer
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<PAGE> 1
EXHIBIT 10(d)
POPULAR NORTH AMERICA, INC.
INTEREST CALCULATION AGENCY AGREEMENT
INTEREST CALCULATION AGENCY AGREEMENT between Popular North
America, Inc., a Delaware corporation (the "Issuer"), and The First National
Bank of Chicago, dated as of August 6, 1999.
PRELIMINARY STATEMENT
1. The Issuer proposes to issue and sell its Medium-Term
Notes, Series E (the "Notes") from time to time under, and pursuant to, the
terms of an Indenture, dated as of October 1, 1991, as amended by the First
Supplemental Indenture, dated as of February 28, 1995, by the Second
Supplemental Indenture, dated as of May 8, 1997 and by the Third Supplemental
Indenture, dated as of August 5, 1999 (together, the "Indenture," the terms
defined being used herein as defined therein or in the Notes), among the Issuer,
Popular, Inc., a Puerto Rico corporation, and The First National Bank of
Chicago, trustee thereunder (acting in such capacity, the "Trustee"), as
Successor Trustee to Citibank, N.A.
2. The Issuer desires to appoint an agent of the Issuer to
calculate the base rates applicable to those Notes on which interest is to
accrue at a variable or floating rate ("Floating Rate Notes"), determined by
references to LIBOR, the 11th District Cost of Funds Rate, the Commercial
<PAGE> 2
Paper Rate, the Treasury Rate, the Certificate of Deposit Rate, the CMT Rate,
the Prime Rate or the Federal Funds Rate (collectively, the "Base Rates") as are
specified and described in the Floating Rate Notes, a copy of which is attached
hereto as Exhibit A.
NOW, THEREFORE, the Issuer and The First National Bank of
Chicago hereby agree as follows:
Section 1. Appointment of Calculation Agent. The Issuer hereby
appoints The First National Bank of Chicago as Calculation Agent (in such
capacity, the "Calculation Agent") of the Issuer with respect to any Floating
Rate Notes to be issued by the Issuer under and pursuant to the terms of the
Indenture, and the Calculation Agent hereby accepts its obligations as set forth
in this Agreement upon the terms and conditions set forth herein.
Section 2. Calculation of Base Rates. Unless otherwise
specified to the Calculation Agent with respect to any particular note, the
calculation date for each applicable Interest Determination Date for any Note
shall be the earlier of (i) the tenth calendar day after such Interest
Determination Date, or if any such day is not a Business Day (as defined in the
Indenture) the next succeeding Business Day or (ii) the Business Day preceding
the applicable Interest Payment Date or Maturity, as the case may be. The
Calculation Agent shall notify the Issuer and the Trustee of such Base Rate on
such calculation date.
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<PAGE> 3
If at any time the Calculation Agent is not also acting as Trustee under the
Indenture, the Issuer shall, upon the issuance of each Floating Rate Note having
a different Base Rate or different Interest Determination Dates than the Base
Rate or Interest Determination Dates for any prior Floating Rate Note, notify
such Calculation Agent of such Interest Determination Dates and Base Rate for
such Floating Rate Note.
Section 3. New Base Rates. If the Issuer proposes to issue
Floating Rate Notes whose interest rate will be determined on a basis or formula
not referred to above (a "New Base Rate"), the Issuer shall give a description
of such New Base Rate to the Calculation Agent. The Calculation Agent shall
determine if it is able and willing to calculate the New Base Rate and upon its
agreement in writing to do so the term "Base Rate" shall be deemed to include
the New Base Rate. If the Calculation Agent notifies the Issuer that it is not
able or willing to calculate the New Base Rate, or that it is only willing to do
so on the basis of an increase of its fees not acceptable to the Issuer, the
Calculation Agent shall have no responsibility with respect to such New Base
Rate and the Issuer shall appoint a different calculation agent to determine the
New Base Rate.
Section 4. Fees and Expenses. The Calculation Agent shall be
entitled to such compensation for its
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<PAGE> 4
services under this Agreement as may be agreed upon with the Issuer, and the
Issuer shall pay such compensation and shall reimburse the Calculation Agent for
all reasonable expenses, disbursements and advances incurred or made by the
Calculation Agent in connection with the services rendered by it under this
Agreement, including reasonable legal fees and expenses, upon receiving an
accounting therefor from the Calculation Agent.
Section 5. Right and Liabilities of Calculation Agent. The
Calculation Agent shall incur no liability for, or in respect of, any action
taken, omitted to be taken or suffered by it in reliance upon any Floating Rate
Note, certificate, affidavit, instruction, notice, request, direction, order,
statement or other paper, document or communication reasonably believed by it to
be genuine. Any order, certificate, affidavit, instruction, notice, request,
direction, statement or other communication from the Issuer made or given by it
and sent, delivered or directed to the Calculation Agent under, pursuant to or
as permitted by any provision of this Agreement shall be sufficient for purposes
of this Agreement if such communication is in writing and signed by any officer
of the Issuer. The Calculation Agent may consult with counsel satisfactory to it
and the opinion of such counsel shall constitute full and complete authorization
and protection of the Calculation Agent with respect to any action taken,
omitted to be taken or suffered
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by it hereunder in good faith and in accordance with and in reliance upon the
opinion of such counsel. In acting under this Agreement, the Calculation Agent
(in its capacity as such) does not assume any obligation towards, or any
relationship of agency or trust for or with the holders of the Notes.
Section 6. Right of Calculation Agent to Own Floating Rate
Notes. The Calculation Agent may act as Trustee under the Indenture and it, its
officers, employees and shareholders may become owners of, or acquire any
interests in, Floating Rate Notes, with the same rights as if the Calculation
Agent were not the Calculation Agent, and may engage in, or have an interest in,
any financial or other transaction with the Issuer as if the Calculation Agent
were not the Calculation Agent.
Section 7. Duties of Calculation Agent. The Calculation Agent
shall be obliged only to perform such duties as are specifically set forth
herein and no other duties or obligations on the part of the Calculation Agent,
in its capacity as such, shall be implied by this Agreement.
Section 8. Termination, Resignation or Removal of Calculation
Agent. The Calculation Agent may at any time terminate this Agreement by giving
no less than 90 days' written notice to the Issuer unless the Issuer consents in
writing to a shorter time. Upon receipt of notice of termination by the
Calculation Agent, the Issuer agrees
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promptly to appoint a successor Calculation Agent. The Issuer may terminate this
Agreement at any time by giving written notice to the Calculation Agent and
specifying the date when the termination shall become effective; provided,
however, that not termination by the Calculation Agent or by the Issuer shall
become effective prior to the date of the appointment by the Issuer, as provided
in Section 9 hereof, of a successor Calculation Agent and the acceptance of such
appointment by such successor Calculation Agent. If an instrument of acceptance
by a successor Calculation Agent shall not have been delivered to the
Calculation Agent within 30 days after the giving of such notice of resignation,
the resigning Calculation Agent may petition any court of competent jurisdiction
for the appointment of a successor Calculation Agent. Upon termination by either
party pursuant to the provisions of this Section, the Calculation Agent shall be
entitled to the payment of any compensation owed to it by the Issuer hereunder
and to the reimbursement of all reasonable expenses, disbursements and advances
incurred or made by the Calculation Agent in connection with the services
rendered by it hereunder, as provided by Section 4 hereof.
Section 9. Appointment of Successor Calculation Agent. Any
successor Calculation Agent appointed by the Issuer or by a court following
termination of this Agreement pursuant to the provisions of Section 8 hereof
shall execute
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and deliver to the Calculation Agent and to the Issuer an instrument accepting
such appointment, and thereupon such successor Calculation Agent shall, without
any further act or instrument, become vested with all the rights, immunities,
duties and obligations of the Calculation Agent, with like effect as if
originally named as Calculation Agent hereunder, and the Calculation Agent shall
thereupon be obligated to transfer and deliver, and such successor Calculation
Agent shall be entitled to receive and accept, copies of any available records
maintained by the Calculation Agent in connection with performance of its
obligations hereunder.
Section 10. Indemnification. The Issuer shall indemnify and
hold harmless the Calculation Agent, its officers and employees from and against
all actions, claims, damages, liabilities, losses and expenses (including
reasonable legal fees and expenses) relating to or arising out of actions or
omissions in any capacity hereunder, except actions, claims, damages,
liabilities, losses and expenses caused by the gross negligence or wilful
misconduct of the Calculation Agent, its officers or employees. This Section 10
shall survive the payment in full of all obligations under the Notes, whether by
redemption, repayment or otherwise.
Section 11. Merger, Consolidation or Sale of Business by
Calculation Agent. Any corporation into which
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the Calculation Agent may be merged, converted or consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Calculation Agent may be a party, or any corporation to which the Calculation
Agent may sell or otherwise transfer all or substantially all of its corporate
trust business, shall, to the extent permitted by applicable law, become the
Calculation Agent under this Agreement without the execution of any paper or any
further act by the parties hereto.
Section 12. Notices. Any notice or other communication given
hereunder shall be delivered in person, sent by letter, telecopy or telex or
communicated by telephone (subject, in the case of communication by telephone,
to written confirmation dispatched within 24 hours) to the addresses given below
or such other address as the party to receive such notice may have previously
specified:
To the Issuer:
Popular North America, Inc.
c/o Popular, Inc.
209 Munoz Rivera Avenue
Hato Rey, Puerto Rico 00918
Attention: Chief Financial Officer
Facsimile: (787) 767-8948
To the Calculation Agent:
The First National Bank of Chicago
153 W. 51st Street
Suite 4011
New York, New York 10019
Attention: Corporate Trust Administration
Facsimile: (212) 373-1383
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To the Trustee:
The First National Bank of Chicago
One First National Plaza
Suite 0126
Chicago, Illinois 60670-0126
Attention: Corporate Trust Administration
Facsimile: (312) 407-1708
Any notice hereunder given by letter, telecopy or telex shall be deemed to have
been received when it would have been received in the ordinary course of post or
transmission, as the case may be.
Section 13. Benefit of Agreement. Except as provided herein,
this Agreement is solely for the benefit of the parties hereto and their
successors and assigns and no other persons shall acquire or have any rights
under or by virtue hereof.
Section 14. Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York.
Section 15. Counterparts. This Agreement may be executed in
any number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
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IN WITNESS WHEREOF, this Agreement has been entered into the
day and year first above written.
POPULAR NORTH AMERICA, INC.
By: /s/ Jorge A. Junquera
---------------------------
Name: Jorge A. Junquera
Title: President
THE FIRST NATIONAL BANK
OF CHICAGO
By: /s/ Michael D. Pinzon
----------------------------
Name: Michael D. Pinzon
Title: Trust Officer
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