EXHIBIT 4.17
THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY, UNLESS AND UNTIL THIS NOTE IS EXCHANGED IN WHOLE OR IN PART FOR
NOTES IN DEFINITIVE FORM.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY SECURITY
ISSUED UPON REGISTRATION OF TRANSFER OF, OR IN EXCHANGE FOR, OR IN LIEU OF, THIS
NOTE IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE &
CO. OR SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
THIS NOTE IS A DIRECT, UNCONDITIONAL AND UNSECURED OBLIGATION OF DORAL
FINANCIAL CORPORATION, IS NOT A SAVINGS ACCOUNT, DEPOSIT OR OTHER OBLIGATION OF
ANY BANK OR NONBANK SUBSIDIARY OF DORAL FINANCIAL CORPORATION, AND IS NOT
INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENTAL AGENCY.
CUSIP XX. 00000X XX 0 XXXXXXXXX XXXXXX: $40,000,000
No. 1
DORAL FINANCIAL CORPORATION
7.10% Senior Notes due 2017
DORAL FINANCIAL CORPORATION, a corporation duly organized and existing
under the laws of the Commonwealth of Puerto Rico (herein called the "Company",
which term includes any successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of U.S. Forty Million Dollars on April 26,
2017, and to pay interest thereon from April 10, 2002 or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
monthly on the 26th day of each month, commencing May 26, 2002, at the rate of
7.10% per annum, until the principal hereof is paid or made available for
payment. The interest so payable, and punctually paid or duly provided for, on
any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose
name this Note (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be
the 15th day of the month of the related Interest Payment Date (whether or not a
Business Day). Any such interest not so punctually paid or duly provided for
will forthwith cease to be payable to the Holder on such Regular Record Date and
may either be paid to the Person in whose name this Note (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Debt Securities of this series may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture.
Payment of interest on this Note due on any Interest Payment Date
(other than interest on this Note due to the Holder hereof at Maturity) shall be
paid by check mailed to the Person entitled thereto at his last address as it
appears on the Security Register or, if a U.S. Depositary with respect to this
Note is specified above or if $10,000,000 aggregate principal amount of Debt
Securities of this series are registered in the name of the Holder hereof, in
immediately available funds by wire transfer to such account as may have been
designated by the Person entitled thereto as set forth herein in time for the
Paying Agent under the Indenture to make such payments in accordance with its
normal procedures. Payment of the principal of (and premium, if any) and
interest on this Note due to the Holder hereof at Maturity shall be paid in
immediately available funds upon presentation of this Note for surrender at the
office or agency of the Paying Agent in the Borough of Manhattan, The City of
New York, provided that this Note is presented for surrender in time for the
Paying Agent to make such payment in such funds in accordance with its normal
procedures.
Any such designation for wire transfer purposes shall be made by filing
the appropriate information with the Trustee at its Corporate Trust Office in
the Borough of Manhattan, The City of New York and, unless revoked by written
notice to the Trustee received on or prior to the Regular Record Date
immediately preceding the applicable Interest Payment Date or the fifteenth
calendar day preceding Maturity, shall remain in effect with respect to any
further payments with respect to this Note payable to such Holder.
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Any payment of principal, premium or interest on this Note due on any
day which is not a Business Day in The City of New York need not be made on such
day, but may be made on the next succeeding Business Day in The City of New York
with the same force and effect as if made on the due date and no interest shall
accrue on the amount due on such date for the period from such date until the
next succeeding Business Day. "Business Day" shall mean, as used herein with
respect to any particular location, any day, other than Saturday and Sunday, and
which is a day on which commercial banks settle payments and are open for
general business in the City of New York.
This Note is one of a duly authorized issue of Debt Securities of the
Company (herein called the "Securities")issued and to be issued in one or more
series under a senior indenture, dated as of May 14, 1999, as supplemented by a
First Supplemental Indenture, dated as of March 30, 2001 (herein called the
"Indenture"), between the Company and Bankers Trust Company, as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee and the Holders of
the Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Note is one of the series designated 7.10%
Senior Notes due 2017 (herein called the "Notes"), limited in aggregate
principal amount to U.S. $40,000,000. This Note is issued subject to the
provisions of the Indenture with respect thereto.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of not less than a majority in principal amount of the
Securities at the time Outstanding of each series to be affected. The Indenture
also contains provisions permitting the Holders of specified percentages in
principal amount of the Securities of each series at the time outstanding, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Note shall be conclusive and binding upon such
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Holder and upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Note at the times, place and rate, and in the coin or currency, herein
prescribed.
The Notes are subject to mandatory redemption in whole upon the
occurrence of an Event of Taxability (as defined in the immediately succeeding
paragraph), at a redemption price equal to the principal amount thereof plus
accrued and unpaid interest up to the redemption date, without premium.
The Company covenants that for each taxable year, up to and including
the taxable year when all interest on and principal of this Note is paid in
full, not later than the 120th day following the close of each such taxable
year, beginning with the first taxable year ending after the original issuance
of this Note, it will (1) deliver to the Trustee and the Company's independent
accountants a certificate (the "Source of Income Certificate") addressed to the
Trustee and the Company's independent accountants: (i) stating, for the three
immediately preceding taxable years of the Company (or for such part of such
period as may be applicable), the percentage of the Company's gross income that
was derived from sources within the Commonwealth of Puerto Rico (the
"Commonwealth") under the general sourcing rules of the United States Internal
Revenue Code as in effect on the date of the original issuance of this Note (the
"Code"); (ii) stating the percentage of the Company's gross income that was
attributable to the active conduct of (A) its trade or business in the
Commonwealth and (B) any trade or business outside the Commonwealth, in each
case as determined under Section 861(c)(1)(B) of the Code; (iii) making an
assertion as to whether or not the Company has met the following requirements
(the "Source of Income Requirements"): that (x) during the three taxable years
(or for such part of such period as may be applicable) immediately preceding the
taxable year during which interest is paid on this Note, more than 20% of the
Company's total gross income was attributable to its trade or business in the
Commonwealth, as determined under Section 861(c)(1)(B) of the Code, as in effect
on the date of the original issuance of this Note, and was derived from sources
within the Commonwealth under the general source of income rules of the Code, as
in effect on the date of original issuance of this Note; and (y) no part of the
interest
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paid on this Note was treated, under the Code, as paid by a trade or business of
the Company conducted outside the Commonwealth, such determination to be made in
accordance with Section 884(f)(1)(A) of the Code and Treas. Regs. Section
1.884-4(b)(1)(i)(A) or (B) issued thereunder, as in effect on the date of
original issuance of this Note; and (iv) making an assertion as to whether the
Company has taken any other action which shall cause interest on the Notes to
become subject to federal income taxation for individuals who are bona fide
residents of Puerto Rico for the entire taxable year or to corporations
organized under the laws of Puerto Rico ("Puerto Rico Residents"); and,
accordingly, whether or not an Event of Taxability has occurred; and (2) cause
the Company's independent accountants to deliver to the Trustee a report (the
"Independent Accountant's Report") stating (i) that they have examined (such
examination being made in accordance with standards established by the American
Institute of Certified Public Accountants) management's assertion included in
the Source of Income Certificate as to the Company's compliance with the Source
of Income Requirements and (ii) whether in their opinion the Company's assertion
as to compliance with such Source of Income Requirements is correct. If the
Source of Income certificate or the Independent Accountant's Report indicates
that the Company has failed to comply with the Source of Income Requirements, or
that the Company has taken any other action which shall cause interest on this
Note to become subject to federal income taxation for Puerto Rico Residents, an
Event of Taxability shall have occurred and the Trustee shall cause a copy of
such report to be mailed to each Holder of Notes together with a notice to each
Holder of Notes that an Event of Taxability has occurred, within ten (10)
Business Days of the receipt of such report.
The Company is not required to make any additional payments on this
Note if any Holder is required to pay United States income taxes as a result of
an Event of Taxability.
At least forty-five (45) days but not more than sixty (60) days before
the redemption date of the Notes, the Trustee shall cause a notice of any such
redemption, signed by the Trustee, to be mailed, first-class, postage prepaid,
to all Holders of the Notes, but failure to mail any such notice to any Holder
or any defect in any notice so mailed shall not affect the validity of the
proceedings for the redemption of the Notes, nor the validity of the proceedings
for the redemption of the Notes of any other Holders.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registerable in the Security
Register, upon surrender of this Note for registration of transfer at the office
or agency of the Company
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in any place where the principal of and any premium and interest on this Note
are payable, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Notes and of like tenor, of authorized denominations
and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Notes are
exchangeable for a like aggregate principal amount of Notes and of like tenor of
a different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to below by manual signature, this Note shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
This Note shall be governed by and construed in accordance with the
laws of the State of New York.
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IN WITNESS WHEREOF, DORAL FINANCIAL CORPORATION has caused this
instrument to be signed by its duly authorized officer, and has caused its
corporate seal or a facsimile thereof to be affixed herein or imprinted hereon.
Dated: April 10, 2002
DORAL FINANCIAL CORPORATION
By:
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Name: Xxxxx X. Xxxxx
Title: Executive Vice President
and Treasurer
Attest:
By:
--------------------------------
Name: Xxxxx Xxxxxx
Title: Assistant Secretary
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated therein
issued under the within-mentioned indenture.
Bankers Trust Company,
as Trustee
Dated: By:
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Name: Xxxxx Xxxxxxx
Title: Vice President
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common UNIF GIFT MIN ACT -- ________ Custodian _________
TEN ENT -- as tenants by the entireties (Cust) (Minor)
JT TEN -- as joint tenants with right Under Uniform Gifts to Minors Act
of survivorship and not as
tenants in common
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(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
Please Insert Social Security or
Other Identifying Number of Assignee
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PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING
POSTAL ZIP CODE OF ASSIGNEE
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the within Note of DORAL FINANCIAL CORPORATION and does hereby irrevocably
constitute and appoint ________________________________________________________
attorney to transfer the said Note on the books of the Company, with full power
of substitution in the premises.
Dated:
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NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within instrument in every particular, without
alteration or enlargement or any change whatsoever.
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