EXHIBIT 4.3
CAPITAL ONE BANK
AMENDED AND RESTATED ISSUING AND PAYING AGENCY AGREEMENT
THIS AGREEMENT, dated as of April 30, 1996, between Capital One
Bank, a banking association chartered under the laws of the Commonwealth of
Virginia (the "Bank") and Chemical Bank, as issuing and paying agent (the
"Issuing and Paying Agent," which term shall also refer to any duly appointed
successor thereto).
WITNESSETH:
Section 1. Appointment of Issuing and Paying Agent. The Bank
proposes to issue from time to time its Bank Notes (each, a "Bank Note" and
collectively, the "Bank Notes") in such amounts as may be duly authorized by
the Bank pursuant to the Amended and Restated Distribution Agreement, dated
April 30, 1996 (the "Distribution Agreement"), among the Bank and the agents
named therein (the "Agents").
Each Bank Note will be issued in book-entry form and will be
represented by a global certificate (each, a "Global Bank Note" and
collectively, the "Global Bank Notes") registered in the name of The
Depository Trust Company, as depository ("DTC," which term includes any
successor thereof), or a nominee thereof (which successor shall be a clearing
agency registered under the Securities Exchange Act of 1934, as amended, if so
required by applicable law) (each beneficial interest in a Global Bank Note, a
"Book-Entry Bank Note" and collectively, the "Book-Entry Bank Notes").
The Bank hereby appoints the Issuing and Paying Agent to act, on the
terms and conditions specified herein, as issuing and paying agent for the
Global Bank Notes and as registrar, transfer agent and authenticating agent
for the Global Bank Notes and to perform such other responsibilities as are
described herein and the Issuing and Paying Agent hereby accepts such
appointments. The aggregate principal amount of the Global Bank Notes which
may be issued pursuant to this Agreement outstanding at any one time is
unlimited.
The Issuing and Paying Agent shall exercise due care in the
performance of its obligations hereunder and shall perform such obligations in
a manner consistent with industry standards.
Section 2. Global Bank Note Forms; Terms; Execution.
(i) The Global Bank Notes shall be substantially (A) in the
form set forth in Exhibit A-1 hereto if such Global Bank Note is a Senior Bank
Note (each, a "Senior Bank Note" and collectively, the "Senior Bank Notes")
and bears interest at a fixed rate of interest (each such Global Bank Note, a
"Fixed Rate Global Senior Bank Note" and collectively, the "Fixed Rate Global
Senior Bank Notes"), (B) in the form of Exhibit A-2 hereto if such Global Bank
Note is a Senior Bank Note and bears interest at a floating rate of interest
determined by reference to an interest rate basis specified therein (each such
Global Bank Note, a "Floating Rate Global Senior Bank Note" and collectively,
the "Floating Rate Global Senior Bank Notes"), (C) in the form of Exhibit A-3
hereto if such Global Bank Note is a Subordinated Bank Note (each, a
"Subordinated Bank Note" and collectively, the "Subordinated Bank Notes") and
bears interest at a fixed rate of interest (each such Global Bank Note, a
"Fixed Rate Global Subordinated Bank Note" and collectively, the "Fixed Rate
Global Subordinated Bank Notes"), (D) in the form of Exhibit A-4 hereto if
such Global Bank Note is a Subordinated Bank Note and bears interest at a
floating rate of interest determined by reference to an interest rate basis
specified therein (each such Global Bank Note, a "Floating Rate Global
Subordinated Bank Note" and collectively, the "Floating Rate Global
Subordinated Bank Notes"), or (E) in such other form as the Bank may from time
to time designate.
(ii) Each Senior Bank Note issued by the Bank shall have a
maturity of 30 days to 30 years from its original date of issuance, and each
Subordinated Bank Note issued by the Bank shall have a maturity from five
years to 30 years from its original date of issue. The Book-Entry Bank Notes
shall be issued in minimum denominations of $250,000 and in integral multiples
of $1,000 in excess thereof.
The interest rate borne by any particular Global Bank Note may vary
from the interest rates borne by any other Global Bank Notes. Any such
variation shall not affect the interest rate borne by any other Global Bank
Notes previously issued hereunder.
(iii) The Bank will from time to time deliver or cause to
be delivered to the Issuing and Paying Agent a supply of blank Global Bank
Notes in such quantities as the Bank shall determine, bearing consecutive
control numbers. Each Global Bank Note will have been executed by the manual
or facsimile signature of an Authorized Representative (as defined in Section
3 hereof) of the Bank. The Issuing and Paying Agent will acknowledge receipt
of the Global Bank Notes delivered to it and will hold such blank Global Bank
Notes in safekeeping in accordance with its customary practice and shall
complete, authenticate and
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deliver such Global Bank Notes in accordance with the provisions hereof.
Section 3. Authorized Representatives. From time to time, the Bank
will furnish the Issuing and Paying Agent with a certificate executed by an
officer of the Bank certifying the incumbency and specimen signatures of those
officers of the Bank authorized to execute Global Bank Notes on behalf of the
Bank by manual or facsimile signature and to give instructions and notices on
behalf of the Bank hereunder (the "Authorized Representatives"). Until the
Issuing and Paying Agent receives a subsequent certificate, the Issuing and
Paying Agent shall be entitled to rely on the last such certificate delivered
to it for the purposes of determining the identities of Authorized
Representatives of the Bank. Any Global Bank Note bearing the manual or
facsimile signatures of persons who are Authorized Representatives of the Bank
on the date such signatures are affixed shall bind the Bank after the
completion, authentication and delivery thereof by the Issuing and Paying
Agent, notwithstanding that such persons shall have ceased to hold office on
the date such Global Bank Note is so completed, authenticated and delivered by
the Issuing and Paying Agent.
Section 4. Issuance Instructions; Completion, Authentication and
Delivery of Global Bank Notes.
(i) All instructions regarding the completion, authentication
and delivery of Global Bank Notes shall be given by an Authorized
Representative of the Bank by telephone (confirmed in writing as soon as
practicable), by facsimile transmission or by other acceptable written means
by such Authorized Representative.
(ii) Upon receipt of the instructions described above, the
Issuing and Paying Agent shall cause to be withdrawn the necessary and
applicable Global Bank Notes from safekeeping and, in accordance with such
instructions, shall:
(a) complete each Global Bank Note;
(b) record each Global Bank Note in the applicable Bank Note
Register (as defined in Section 10 hereof);
(c) cause each Global Bank Note to be manually authenticated by any
one of the signatories of the Issuing and Paying Agent duly
authorized and designated by it for such purpose; and
(d) with respect to the Global Bank Notes, hold each Global Bank
Note in safekeeping on behalf of the registered holder thereof;
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provided that instructions regarding the completion and authentication of a
Global Bank Note, whether delivered by facsimile transmission or by other
written means, are received by the Issuing and Paying Agent by 11:00 A.M., New
York City time, on the Business Day immediately preceding the date of
settlement relating to such Global Bank Note (or 9:00 A.M., New York City
time, on the date of settlement relating to such Bank Note if the trade date
and the date of settlement relating to such Bank Note are the same day). As
used in this Agreement, the term "Business Day" shall mean any day that is not
a Saturday or Sunday and that is not a day on which banking institutions in
The City of New York or the city in which the Bank is headquartered are
authorized or required by law, regulation or executive order to close, and
with respect to LIBOR Notes (as defined in the applicable Floating Rate Global
Bank Note) only, any day that is also a London Business Day. As used in this
Agreement, "London Business Day" means any day on which dealings in deposits
in U.S. dollars are transacted in the London interbank market.
Section 5. Reliance on Instructions; Request for Instructions. The
Issuing and Paying Agent shall incur no liability to the Bank in acting
hereunder upon instructions contemplated hereby which the Issuing and Paying
Agent reasonably believed in good faith to have been given by an Authorized
Representative of the Bank. In the event a discrepancy exists between the
instructions as originally received by the Issuing and Paying Agent and any
subsequent written confirmation thereof, such original instructions will be
deemed controlling; provided that the Issuing and Paying Agent gives notice to
the Bank of such discrepancy promptly upon the receipt of such written
confirmation.
Any application by the Issuing and Paying Agent for written
instructions from the Bank may, at the option of the Issuing and Paying Agent,
set forth in writing any action proposed to be taken or omitted by the Issuing
and Paying Agent under this Agreement and the date on and/or after which such
action shall be taken or such omission shall be effective. The Issuing and
Paying Agent shall not be liable for any action taken by, or omission of, the
Issuing and Paying Agent in accordance with a proposal included in such
application on or after the date specified in such application (which date
shall not be less than three Business Days after the Bank has confirmed its
receipt to the Issuing and Paying Agent of such application, unless any such
officer shall have consented in writing to any earlier date) unless prior to
taking any such action (or the effective date in the case of an omission), the
Issuing and Paying Agent shall have received written instructions in response
to such application specifying the action to be taken or omitted.
Section 6. The Bank's Representations and Warranties. Each
instruction given to the Issuing and Paying Agent in
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accordance with Section 4 hereof shall constitute a representation and
warranty to the Issuing and Paying Agent by the Bank that the issuance and
delivery of the Global Bank Notes have been duly and validly authorized by the
Bank and that the Global Bank Notes, when completed and authenticated pursuant
hereto, will constitute the valid and legally binding obligations of the Bank
subject to applicable bankruptcy, liquidation, insolvency, reorganization,
moratorium and similar laws of general applicability relating to, or
affecting, creditors' rights and to general equity principles. The Bank
further warrants that it is free to enter into this Agreement and to perform
the terms hereof.
Section 7. Payments of Interest; Interest Payment Dates; Record
Dates. Interest payments on Global Bank Notes with maturities of more than
one year will be made: (i) in the case of the Fixed Rate Global Senior Bank
Notes and Fixed Rate Global Subordinated Bank Notes (collectively, the "Fixed
Rate Global Bank Notes"), semi-annually on May 15 and November 15 of each year
(unless otherwise specified in any applicable Fixed Rate Global Bank Notes)
and (ii) in the case of Floating Rate Global Senior Bank Notes and Floating
Rate Global Subordinated Bank Notes (collectively, the "Floating Rate Global
Bank Notes"), on such dates as are specified therein (collectively, the
"Interest Payment Dates") and, in each case, at maturity or upon earlier
redemption or repayment if so indicated in the applicable Global Bank Note.
All such interest payments (other than interest due at maturity or upon
earlier redemption or repayment) will be made to the Holders (as defined in
Section 10 hereof) in whose names Fixed Rate Global Bank Notes are registered
at the close of business on May 1 or November 1 (unless otherwise specified in
any applicable Fixed Rate Global Bank Notes) (whether or not a Business Day)
next preceding such Interest Payment Dates and in whose names Floating Rate
Global Bank Notes are registered at the close of business on the fifteenth
calendar day (whether or not a Business Day) prior to each such Interest
Payment Date (each such May 1, November 1 and fifteenth calendar day, a
"Record Date"). Notwithstanding the foregoing, if the Original Issue Date of
any Global Bank Note with a maturity of more than one year occurs between a
Record Date and the next succeeding Interest Payment Date, the first payment
of interest on any such Global Bank Note will be made on the second Interest
Payment Date succeeding the Original Issue Date (as defined in the Global Bank
Notes). Interest payments will be calculated and made in the manner provided
in the applicable Global Bank Note.
If the Bank does not deposit adequate funds pursuant to Section 9
hereof with respect to the interest due on a Global Bank Note with a maturity
of more than one year on an Interest Payment Date, such interest will cease to
be due to the Holder of such Global Bank Note as of the close of business on
the Record Date relating to such Interest Payment Date and will be paid to
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the Holder of such Global Bank Note as of the close of business on a special
record date to be fixed by the Issuing and Paying Agent when funds for the
payment of such interest have been deposited pursuant to Section 9 hereof.
Notice of such special record date shall be given by the Issuing and Paying
Agent, at the Bank's expense, to the registered Holder of such Global Bank
Note not less than 10 calendar days prior to such special record date.
Interest payments on Fixed Rate Global Bank Notes with maturities of
one year or less will be made only upon maturity upon presentation and
surrender of the applicable Fixed Rate Global Bank Note (unless otherwise
specified in the applicable Fixed Rate Global Bank Note). Interest payments
on Fixed Rate Global Bank Notes with maturities of one year or less will be
calculated in the manner provided in the applicable Fixed Rate Global Bank
Note. Interest payments on Floating Rate Global Bank Notes with maturities of
one year or less will be made on the Interest Payment Dates specified in such
Floating Rate Global Bank Note and, in each case, at maturity or upon earlier
redemption or repayment. Interest payments on Floating Rate Global Bank Notes
with maturities of one year or less will be calculated in the manner provided
in the applicable Floating Rate Global Bank Note.
Section 8. Payment of Principal. The Issuing and Paying Agent will
pay the Holder of each Global Bank Note the principal amount of each such
Global Bank Note, together with accrued interest and premium, if any, at
maturity (or upon earlier redemption or repayment, if applicable).
Section 9. Deposit of Funds. The total amount of any principal of,
premium, if any, and interest due on Global Bank Notes, on any Interest
Payment Date or any maturity date or date of redemption or repayment shall be
paid by the Bank to the Issuing and Paying Agent no later than 1:00 P.M., New
York City time, in funds available for use by the Issuing and Paying Agent on
such date. The Bank will make such payment on such Global Bank Notes via
Fedwire to an account specified by the Issuing and Paying Agent. Upon receipt
of funds from the Bank with respect to any Global Bank Note, on such date or
as soon as possible thereafter, the Issuing and Paying Agent will pay by
separate wire transfer (using message entry instructions in a form previously
specified by DTC) to an account previously specified by DTC, in funds
available for immediate use by DTC, each payment of principal of, premium, if
any, and interest due on a Global Bank Note on such date.
The Issuing and Paying Agent shall hold such amounts paid to it by
the Bank in trust for the Holders but shall, pending payment by it to the
account specified above, not be under any liability for interest on monies at
any time received
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by it pursuant to any of the terms of this Agreement or of the Global Bank
Notes, nor shall the Issuing and Paying Agent be required to invest such
monies.
Section 10. Bank Note Register; Registration, Transfer, Exchange;
Persons Deemed Owners.
(i) The Issuing and Paying Agent shall maintain at its offices
the Senior Note Register and Subordinated Note Register (together, the "Bank
Note Registers"). The Issuing and Paying Agent is hereby appointed as
Registrar for the purpose of registering each Global Bank Note and transfers
of such Global Bank Note as herein provided. The terms "Senior Note Register"
and "Subordinated Note Register" shall mean the definitive records in which
shall be recorded the names, addresses and taxpayer identifying numbers of the
holders of the Global Senior Bank Notes and Global Subordinated Bank Notes,
respectively (collectively, the "Holders"), the serial and CUSIP numbers of
each such Global Bank Note and the Original Issue Date thereof and details
with respect to the transfer and exchange of each Global Bank Note.
(ii) Upon surrender for registration of transfer of any Global
Bank Note at the offices of the Issuing and Paying Agent, the Bank shall
execute, and the Issuing and Paying Agent shall complete, authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Global Bank Notes of any authorized denominations and having identical
terms and provisions and for an equal aggregate principal amount.
(iii) At the option of the Holder of a Global Bank Note,
such Global Bank Note may be exchanged for other Global Bank Notes of any
authorized denominations of an equal aggregate principal amount and having
identical terms and provisions, upon surrender of the Global Bank Notes to be
exchanged at the designated offices of the Issuing and Paying Agent. Whenever
any Global Bank Notes are so surrendered for exchange, the Bank shall execute,
and the Issuing and Paying Agent shall complete, authenticate and deliver, the
Global Bank Notes which the Holder of the Global Bank Note making the exchange
is entitled to receive. Except as provided below, owners of beneficial
interests in a Global Bank Note representing Book-Entry Bank Notes will not be
entitled to have such Book-Entry Bank Notes registered in their names, will
not receive or be entitled to receive physical delivery of Bank Notes in
certificated form and will not be considered the owners or holders thereof
under this Agreement. However, if DTC notifies the Bank that it is unwilling
or unable to continue as depositary or if at any time DTC ceases to be a
clearing agency registered under the Securities Exchange Act of 1934, as
amended, and a successor depositary is not appointed by the Bank within 60
days, or the Bank in its sole discretion determines not to have
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Book-Entry Bank Notes represented by one or more Global Bank Notes, then
Global Bank Notes representing Book-Entry Bank Notes may be exchanged in whole
for definitive Bank Notes in registered form, of like tenor and of an equal
aggregate principal amount, in minimum denominations of $250,000 and integral
multiples of $1,000 in excess thereof, upon surrender of the Global Bank Notes
to be exchanged at the offices of the Issuing and Paying Agent.
(iv) Notwithstanding the foregoing, the Issuing and Paying
Agent shall not register the transfer of or exchange (i) any Global Bank Note
that has been called for redemption in whole or in part, except the unredeemed
portion of Global Bank Notes being redeemed in part, (ii) any Global Bank Note
during the period beginning at the opening of business 15 days before the
mailing of a notice of such redemption and ending at the close of business on
the day of such mailing, or (iii) any Global Bank Note in violation of the
legend contained on the face of such Global Bank Note.
(v) All Global Bank Notes issued upon any registration of
transfer or exchange of Global Bank Notes shall be the valid obligations of
the Bank, evidencing the same debt, and entitled to the same benefits as the
Global Bank Notes surrendered upon such registration of transfer or exchange.
(vi) Every Global Bank Note presented or surrendered for
registration of transfer or for exchange shall be duly endorsed, or be
accompanied by a written instrument of transfer with such evidence of due
authorization and guaranty of signature as may reasonably be required by the
Issuing and Paying Agent, in form satisfactory to the Issuing and Paying
Agent, duly executed by the Holder thereof or his attorney duly authorized in
writing.
(vii) No service charge shall be made to a holder of Global
Bank Notes for any transfer or exchange of Global Bank Notes, but the Bank may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection therewith.
(viii) The Bank and the Issuing and Paying Agent, and any
agent of the Bank or the Issuing and Paying Agent may treat the Holder in
whose name a Global Bank Note is registered as the owner of such Global Bank
Note for all purposes, whether or not such Global Bank Note be overdue, and
neither the Bank, the Issuing and Paying Agent nor any such agent shall be
affected by notice to the contrary except as required by applicable law.
Section 11. Mutilated, Destroyed, Lost, or Stolen Global Bank
Notes. In case any Global Bank Note shall at any time become mutilated,
destroyed, lost or stolen, and such Global
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Bank Note or evidence of the loss, theft or destruction thereof satisfactory
to the Bank and the Issuing and Paying Agent (together with indemnity
hereinafter referred to and such other documents or proof as may be required
by the Bank and the Issuing and Paying Agent) shall be delivered to the
Issuing and Paying Agent, the Bank shall execute a new Global Bank Note, of
like tenor and principal amount, having a serial number not contemporaneously
outstanding, in exchange and substitution for the mutilated Global Bank Note
or in lieu of the Global Bank Note destroyed, lost or stolen but, in the case
of any destroyed, lost or stolen Global Bank Note, only upon receipt of
evidence satisfactory to the Issuing and Paying Agent and the Bank that such
Global Bank Note was destroyed, stolen or lost, and, if required, upon receipt
of indemnity satisfactory to each of them. The Issuing and Paying Agent shall
authenticate any such substituted Global Bank Note and deliver the same upon
the written request or authorization of any Authorized Representative of the
Bank. Upon the issuance of any substituted Global Bank Note, the Bank and the
Issuing and Paying Agent may require the payment of a sum sufficient to cover
all expenses and reasonable charges connected with the preparation,
authentication and delivery of a new Global Bank Note. If any Global Bank
Note which has matured or has been redeemed or repaid or is about to mature or
to be redeemed or repaid, as the case may be, shall become mutilated,
destroyed, lost or stolen, the Bank may, instead of issuing a substitute
Global Bank Note, pay or authorize the payment of the same (without surrender
thereof except in the case of a mutilated Global Bank Note) upon compliance by
the Holder with the provisions of this Section.
Section 12. Cancellation. All Global Bank Notes surrendered for
payment, registration of transfer or exchange shall, if surrendered to any
person other than the Issuing and Paying Agent, be delivered to the Issuing
and Paying Agent and shall be promptly cancelled by it. The Bank may at any
time deliver to the Issuing and Paying Agent for cancellation any Global Bank
Notes previously authenticated and delivered hereunder which the Bank may have
acquired in any manner whatsoever, and all Global Bank Notes so delivered
shall be promptly cancelled by the Issuing and Paying Agent. No Global Bank
Note shall be authenticated in lieu of or in exchange for any Global Bank Note
cancelled as provided in this Section, except as expressly permitted by this
Agreement. All cancelled Global Bank Notes held by the Issuing and Paying
Agent shall be returned to the Bank.
Upon the written request of the Bank, the Issuing and Paying Agent
shall promptly cancel and return to the Bank all unissued Global Bank Notes in
its possession.
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Section 13. Redemption of Global Bank Notes.
(i) If any Global Bank Notes are to be redeemed prior to
maturity, the Bank shall notify the Issuing and Paying Agent not more than 60
nor less than 45 calendar days prior to the date fixed by the Bank for such
redemption (the "Redemption Date") of the Bank's election to redeem such
Global Bank Notes in whole or in part in increments of $1,000 (provided that
any remaining principal amount of such Global Bank Notes shall be at least
$250,000).
(ii) Whenever less than all the Global Bank Notes at any time
outstanding are to be redeemed, the terms of the Global Bank Notes to be so
redeemed shall be selected by the Bank. If less than all the Global Bank
Notes with identical terms at any time outstanding are to be redeemed, the
Global Bank Notes to be so redeemed shall be selected by the Issuing and
Paying Agent by lot or in any usual manner approved by it. The Issuing and
Paying Agent shall promptly notify the Bank in writing of the Global Bank
Notes selected for redemption and, in the case of Global Bank Notes selected
for partial redemption, the principal amount thereof to be redeemed.
(iii) Unless otherwise specified in the applicable Global
Bank Note, notice of redemption shall be given by the Issuing and Paying
Agent, at the Bank's expense, by first-class mail, postage prepaid, mailed not
more than 60 nor less than 30 calendar days prior to the Redemption Date, to
each Holder of such Global Bank Note to be redeemed, at its address appearing
in the Bank Note Register. All notices of redemption shall identify the
Global Bank Notes to be redeemed (including CUSIP number) and shall state:
(i) the Redemption Date; (ii) the redemption price, which shall be determined
in accordance with the terms of the Global Bank Note (the "Redemption Price");
(iii) if less than all of the Global Bank Notes at any time outstanding are to
be redeemed, the identification (and, in the case of partial redemption, the
principal amounts) of the particular Global Bank Notes to be redeemed;
(iv) that on the Redemption Date the Redemption Price plus accrued interest,
if any, to the Redemption Date will become due and payable with respect to
each Global Bank Note to be redeemed and that interest thereon will cease to
accrue on and after said date; and (v) the place or places where such Global
Bank Notes are to be surrendered for payment.
(iv) Notice of redemption having been given as described above,
the Global Bank Notes so to be redeemed shall, on the Redemption Date, become
due and payable at the Redemption Price, and from and after such date such
Global Bank Notes shall cease to bear interest. The Bank shall deposit funds
with the Issuing and Paying Agent prior to the Redemption Date which are
sufficient to redeem such Global Bank Notes which are scheduled
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to be so redeemed. Upon surrender of any such Global Bank Notes for
redemption in accordance with such notice, the Issuing and Paying Agent shall
pay such Global Bank Notes at the Redemption Price, together with unpaid
interest accrued on such Global Bank Notes at the applicable rate borne by
such Global Bank Notes to the Redemption Date.
(v) Any Global Bank Note which is to be redeemed only in part
shall be surrendered to the Issuing and Paying Agent, and the Issuing and
Paying Agent shall complete, authenticate and deliver to the Holder of such
Global Bank Note, without service charge, a new Global Bank Note or Global
Bank Notes, of any authorized denomination as requested by such Holder (which
shall be $250,000 or an integral multiple of $1,000 in excess thereof), in an
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Global Bank Note so surrendered.
(vi) The Bank, in issuing the Global Bank Notes, may use
"CUSIP" numbers and, if so, the Issuing and Paying Agent shall use "CUSIP"
numbers in notices of redemption as a convenience to Holders; provided,
however, that any such notice may state that no representation is made as to
the correctness of such numbers either as printed on the Global Bank Notes or
as contained in any notice of a redemption and that reliance may be placed
only on the other identification numbers printed on the Global Bank Notes, and
any such redemption shall not be affected by any defect in or omission of such
numbers.
Section 14. Repayment of Global Bank Notes.
(i) In order for any Global Bank Note to be repaid in whole or
in part at the option of the Holder thereof, such Global Bank Note must be
delivered by the Holder thereof, with the form entitled "Option to Elect
Repayment" (set forth in such Global Bank Note) duly completed, to the Issuing
and Paying Agent at its offices located at the address set forth in Section 20
hereof, or such other place or places of which the Bank shall from time to
time notify the Holders of the Global Bank Notes, not more than 60 nor less
than 30 calendar days prior to any date fixed for such repayment of such
Global Bank Notes (the "Optional Repayment Date").
(ii) Upon surrender of any Global Bank Note for repayment in
accordance with the provisions set forth above, the Global Bank Note to be
repaid shall, on the Optional Repayment Date, become due and payable, and the
Issuing and Paying Agent shall pay such Global Bank Note on the Optional
Repayment Date at a price equal to 100% of the principal amount thereof,
together with accrued interest to the Optional Repayment Date.
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(iii) If less than the entire principal amount of any
Global Bank Note is to be repaid, the Holder thereof shall specify the portion
thereof (which shall be in increments of $1,000) which such Holder elects to
have repaid and shall surrender such Global Bank Note to the Issuing and
Paying Agent, and the Issuing and Paying Agent shall complete, authenticate
and deliver to the Holder of such Global Bank Note, without service charge, a
new Global Bank Note or Global Bank Notes in an aggregate principal amount
equal to and in exchange for the unrepaid portion of the principal of the
Global Bank Note so surrendered and in such denominations as shall be
specified by such Holder (which shall be $250,000 or an integral multiple of
$1,000 in excess thereof).
Section 15. Acceleration of Maturity. If an Event of Default (as
defined in the applicable Global Bank Note) with respect to a Senior Bank Note
or Subordinated Bank Note, as the case may be, issued by the Bank shall occur,
then the Holder of the applicable Senior Bank Note or Subordinated Bank Note
may declare the principal amount of, and accrued interest and premium, if any,
on such Senior Bank Note or Subordinated Bank Note due and payable by written
notice to the Bank. Upon such declaration and notice, such principal amount,
accrued interest and premium, if any, shall become immediately due and
payable. The Bank shall promptly notify, and provide copies of any such
notice to, the Issuing and Paying Agent, and the Issuing and Paying Agent
shall promptly mail by first-class mail, postage prepaid, copies of such
notice to the Holders of the Senior Bank Notes or the Subordinated Bank Notes,
as the case may be, upon the occurrence of an Event of Default or of the
curing or waiver of an Event of Default. Any Event of Default with respect to
a Bank Note may be waived by the Holder thereof.
Notwithstanding the foregoing, the acceleration of any Bank Note issued
prior to the date of this Agreement pursuant to the terms of the Issuing and
Paying Agency Agreement dated as of December 7, 1994 which is amended and
restated by this Agreement, shall be governed by the terms of such Agreement
and of such Bank Notes. Holders of the Bank Notes issued on or after the date
of such Agreement shall be disregarded for purposes of computing the
percentage of Holders which may declare the principal amount of, and accrued
interest and premium, if any, on such Bank Notes issued prior to the date of
this Agreement due and payable.
Section 16. Application of Funds; Return of Unclaimed Funds. Any
monies paid by the Bank and held by the Issuing and Paying Agent in trust for
payment of principal of, premium, if any, or interest on, any Global Bank
Notes that remain unclaimed for two years following the date on which such
principal, premium or interest shall have become due and payable shall be
returned to the Bank by the Issuing and Paying Agent and the Issuing and
Paying Agent shall inform the Bank as to the specific Global Bank
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Notes to which such monies related, and any Holder shall thereafter look, as
an unsecured general creditor, only to the Bank for the payment thereof and
all liability of the Issuing and Paying Agent with respect to such trust
monies shall thereupon cease. Any funds deposited by the Bank with the
Issuing and Paying Agent for the payment of principal of, premium, if any, or
interest on, any Bank Note shall be held in trust on behalf of the Bank by the
Issuing and Paying Agent for the payment of principal of, premium, if any, or
interest on, any Bank Note until paid or returned to the Bank.
Section 17. Cancellation of Unissued Notes. Upon the written
request of the Bank, the Issuing and Paying Agent promptly shall cancel and
return to the Bank all unissued Bank Notes in its possession.
Section 18. Liability. Neither the Issuing and Paying Agent nor
its directors, officers, employees or agents shall be liable to the Bank for
any act or omission hereunder except in the case of gross negligence or
willful misconduct. The duties and obligations of the Issuing and Paying
Agent, its directors, officers and employees shall be determined by the
express provisions of this Agreement and no implied covenants shall be read
into this Agreement against any of them. Notwithstanding any other provision
elsewhere contained in this Agreement, the Issuing and Paying Agent is acting
solely as agent of the Bank and does not assume any obligation or relationship
of trust or agency for or with any Holders. Neither the Issuing and Paying
Agent nor any of its directors, officers or employees shall be required to
ascertain whether any issuance or sale of Bank Notes (or any amendment or
termination of this Agreement) has been duly authorized (provided that the
Issuing and Paying Agent in good faith has determined that the facsimile or
manual signature of the Authorized Representative or any person who has been
designated by the Authorized Representative in writing to the Issuing and
Paying Agent reasonably resembles the specimen signatures filed with the
Issuing and Paying Agent) or is in compliance with any other agreement to
which the Bank is a party (whether or not the Issuing and Paying Agent is also
a party to such other agreement), and the Issuing and Paying Agent and each of
its officers and employees shall be entitled to rely upon any instructions
reasonably believed (in accordance with Section 3 hereof) by the Issuing and
Paying Agent and its officers and employees to be given on behalf of the Bank
by an Authorized Representative or by any person who has been designated by an
Authorized Representative in writing to the Issuing and Paying Agent as a
person authorized to give such instructions hereunder, whether or not in fact
given by the Authorized Representative or such designated person. In no event
shall the Issuing and Paying Agent be liable for special, indirect or
consequential loss or damage of any kind whatsoever (including but not limited
to lost profits), even if the Issuing and Paying Agent has been advised
13
of the likelihood of such loss or damage and regardless of the form of action.
The Issuing and Paying Agent may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Issuing and Paying Agent shall not be responsible
for any willful misconduct or gross negligence on the part of any agent or
attorney appointed with due care by it hereunder. The Issuing and Paying
Agent may consult with counsel of its selection and the advice of such counsel
or any opinion of counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon. The Issuing and Paying Agent shall not
be liable for any action taken, suffered, or omitted to be taken by it in good
faith and reasonably believed by it to be authorized or within the discretion
or rights or powers conferred upon it by this Agreement.
Section 19. Indemnification, Risk of Funds. The Bank shall
indemnify and hold harmless the Issuing and Paying Agent, its directors,
officers, employees and agents from and against all actions, claims, losses,
damages, liabilities, losses and expenses (including reasonable legal fees and
expenses) relating to or arising out of their actions or inactions taken or
omitted to be taken by the Issuing and Paying Agent in good faith in
connection with its performance under this Agreement including, but not
limited to, any actions taken or omitted upon instructions by the Bank (in
accordance with Section 3) or the issuance, delivery, payment or non-payment
of any Bank Note or interest thereon, or other receipt or other funds for the
payment of the Bank Notes or interest or premium thereon; provided, however,
that the Issuing and Paying Agent shall be liable for any liabilities, losses,
claims, damages, costs and expenses (including reasonable legal fees and
expenses) caused by the negligence, bad faith or willful misconduct of its
directors, officers, employees or agents. This indemnity shall survive the
termination of this Agreement.
No provision of this Agreement shall require the Issuing and Paying
Agent to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
Section 20. Compensation of the Issuing and Paying Agent. The Bank
agrees to pay the compensation of the Issuing and Paying Agent, at such rates
as shall be mutually agreed upon in writing between the Bank and the Issuing
and Paying Agent from time to time. The Bank shall reimburse upon demand the
Issuing
14
and Paying Agent for all reasonable out-of-pocket expenses (including
reasonable legal fees and expenses), disbursements and advances incurred or
made by the Issuing and Paying Agent with respect to the Bank in accordance
with any provisions of this Agreement, except any such expense, disbursement
or advance proven to be attributable to the breach of this Agreement or the
gross negligence, bad faith or willful misconduct of the Issuing and Paying
Agent, upon receipt of such invoices as the Bank may reasonably require. The
provisions of this Section 20 shall survive the termination of this Agreement.
Section 21. Notices.
(i) All communications by or on behalf of the Bank relating to
the issuance, transfer, exchange or payment of Bank Notes or interest thereon
shall be directed to the offices of the Issuing and Paying Agent located at
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Global Trust
Securities Group, or to such other offices as the Issuing and Paying Agent
shall specify in writing to the Bank. The Bank will send all Global Bank
Notes to be completed and delivered by the Issuing and Paying Agent to such
offices or such other offices as the Issuing and Paying Agent shall specify in
writing to the Bank.
(ii) All other notices and communications hereunder shall be in
writing and shall be addressed as follows:
(a) if to the Bank:
Capital One Bank
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Telecopy: [ ]
(b) if to the Issuing and Paying Agent:
Chemical Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Global Trust Securities Group
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Section 22. Resignation or Removal of Issuing and Paying Agent and
Appointment of Successor Issuing and Paying Agent; Merger, Conversion and
Consolidation. The Bank agrees, for the benefit of the Holders from time to
time of the Bank Notes, that there shall at all times be an Issuing and Paying
Agent hereunder which shall be a bank or trust company organized and doing
business under the laws of the United States or any
15
state thereof authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least $10,000,000 and subject to
supervision and examination by federal or state authority, until all the
Global Bank Notes authenticated and delivered hereunder (A) shall have been
delivered to the Issuing and Paying Agent for cancellation or (B) shall have
become due and payable and funds sufficient to pay the principal of, premium,
if any, and interest on, the Global Bank Notes shall have been made available
for payment and either paid or returned to the Bank, whichever event occurs
earlier. The foregoing capital and surplus requirements shall not be
applicable if any of the Bank or an affiliate of the Bank is appointed as
successor Issuing and Paying Agent.
The Issuing and Paying Agent may resign at any time as such agent
upon written notice to the Bank of such intention on its part, specifying the
date on which its desired resignation shall become effective; provided,
however, that such date shall be not less than 90 calendar days after the
giving of such notice by the Issuing and Paying Agent to the Bank. The
Issuing and Paying Agent may be removed at any time as such agent by the
filing with it of an instrument in writing signed by a duly authorized officer
of the Bank and specifying such removal and the date, which shall be at least
30 calendar days following receipt of such written notice, upon which it is
intended to become effective. Any such resignation or removal shall take
effect on the date of the appointment by the Bank of a successor issuing and
paying agent and the acceptance of such appointment by such successor issuing
and paying agent that qualifies as such under the first paragraph of this
Section. In the event of the resignation or removal of the Issuing and Paying
Agent, if a successor issuing and paying agent has not been appointed by the
Bank within 90 calendar days after the giving of notice of resignation or
within 30 calendar days after receipt of notice of removal, the Issuing and
Paying Agent may, at the expense of the Bank, petition any court of competent
jurisdiction for appointment of a successor Issuing and Paying Agent. Upon
any such resignation or removal, the Issuing and Paying Agent shall transfer
to the successor Issuing and Paying Agent (or, if none shall have been
appointed, to the Bank) all monies held by the Issuing and Paying Agent on
behalf of the Bank in respect of any Global Bank Notes, any unissued Global
Bank Notes and all books and records or copies thereof related to Global Bank
Notes maintained by the Issuing and Paying Agent, including copies of the Bank
Note Registers. Any resignation or removal hereunder shall not affect the
Issuing and Paying Agent's rights to the payment of fees earned or charges
incurred through the effective date of such resignation or removal.
Any corporation or bank into which the Issuing and Paying Agent
hereunder may be merged or converted, or any corporation or bank with which
the Issuing and Paying Agent may
16
be consolidated, or any corporation or bank resulting from any merger,
conversion or consolidation to which the Issuing and Paying Agent shall be a
party, or any corporation or bank to which the Issuing and Paying Agent shall
sell or otherwise transfer all or substantially all of the assets and business
of the Issuing and Paying Agent, provided that it shall be qualified under the
first paragraph of this Section, shall be the successor Issuing and Paying
Agent under this Agreement without the execution or filing of any paper or any
further act on the part of any of the parties hereto.
Section 23. Benefit of Agreement. This Agreement is solely for the
benefit of the parties hereto, Holders of Bank Notes, and their successors and
assigns, and nothing herein, express or implied, shall give to any other
persons any benefits or any legal or equitable right, remedy or claim under or
by virtue of this Agreement. No party hereto may assign any of its rights or
obligations hereunder except with the prior written consent of all the parties
hereto.
Section 24. Bank Notes Held by the Issuing and Paying Agent. The
Issuing and Paying Agent, in its individual or other capacity, may become the
owner or pledgee of the Bank Notes with the same rights it would have if it
were not acting as an issuing and paying agent hereunder.
Section 25. Amendment. This Agreement shall not be amended by any
party hereto except in writing executed by the duly authorized officers of all
parties.
Section 26. Governing Law. This Agreement shall be governed by,
construed and enforced in accordance with, the laws of the State of New York
applicable to agreements made and to be performed in such State, without
regard to conflicts of laws principles.
Section 27. Counterparts. This Agreement may be executed by the
parties hereto in any number of counterparts, and by each of the parties
hereto in separate counterparts, and each such counterpart, when so executed
and delivered, shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
17
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed on their behalf by their officers thereunto duly authorized, all
as of the day and year first above written.
CAPITAL ONE BANK
By: /s/
------------------------------
Name:
Title:
CHEMICAL BANK,
as Issuing and Paying Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Assistant Vice President
18
A-1
THIS SENIOR NOTE IS AN OBLIGATION SOLELY OF THE BANK AND WILL NOT BE AN
OBLIGATION OF, OR OTHERWISE GUARANTEED BY, ANY OTHER BANK OR CAPITAL ONE
FINANCIAL CORPORATION. THIS SENIOR NOTE DOES NOT EVIDENCE DEPOSITS OF THE
BANK AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY
OTHER GOVERNMENT AGENCY. THE OBLIGATIONS EVIDENCED BY THIS SENIOR NOTE RANK
PARI PASSU WITH ALL OTHER SENIOR UNSECURED INDEBTEDNESS OF THE BANK, EXCEPT
DEPOSIT LIABILITIES (AS PROVIDED IN SECTION 11(D)(11) OF THE FEDERAL DEPOSIT
INSURANCE ACT) AND OTHER OBLIGATIONS THAT ARE SUBJECT TO ANY PRIORITIES OR
PREFERENCES. IN A LIQUIDATION OR OTHER RESOLUTION OF THE BANK, THIS SENIOR
NOTE WOULD BE TREATED DIFFERENTLY FROM, AND HOLDERS OF THIS SENIOR NOTE COULD
RECEIVE, IF ANYTHING, SIGNIFICANTLY LESS THAN HOLDERS OF, DEPOSIT LIABILITIES
OF THE BANK.
UNLESS THIS SENIOR NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) (THE
"DEPOSITARY") TO THE BANK OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY SENIOR NOTE ISSUED UPON REGISTRATION OF TRANSFER OF, OR IN
EXCHANGE FOR, OR IN LIEU OF, THIS SENIOR NOTE IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITARY AND ANY PAYMENT HEREON IS MADE TO CEDE & CO., ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH
NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
THIS SENIOR NOTE IS ISSUABLE ONLY IN FULLY REGISTERED FORM IN MINIMUM
DENOMINATIONS OF $250,000 AND INTEGRAL MULTIPLES OF $1,000 IN EXCESS THEREOF.
EACH OWNER OF A BENEFICIAL INTEREST IN THIS SENIOR NOTE MUST BE AN
INSTITUTIONAL INVESTOR WHO IS AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF
RULE 501 UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND IS REQUIRED TO HOLD
A BENEFICIAL INTEREST IN $250,000 PRINCIPAL AMOUNT OR ANY INTEGRAL MULTIPLE OF
$1,000 IN EXCESS THEREOF OF THIS SENIOR NOTE AT ALL TIMES.
No. FXR-________
CUSIP NO.: _______ REGISTERED
CAPITAL ONE BANK
GLOBAL SENIOR BANK NOTE
(Fixed Rate)
ORIGINAL ISSUE DATE: PRINCIPAL AMOUNT:
INTEREST RATE: _______% MATURITY DATE:
INTEREST PAYMENT DATE(S): REGULAR RECORD DATES (FOR
[ ] At Maturity only NOTES WITH MATURITIES OF
[ ] May 15 and November 15 MORE THAN ONE YEAR)
[ ] Other: (if other than May 1
or November 1, prior to each
INITIAL REDEMPTION Interest Payment Date):
DATE:
INITIAL REDEMPTION
PERCENTAGE:
ANNUAL REDEMPTION HOLDER'S OPTIONAL
PERCENTAGE REDUCTION: REPAYMENT DATE(S):
DAY COUNT CONVENTION
[ ] 30/360 FOR THE PERIOD FROM TO .
[ ] ACTUAL/360 FOR THE PERIOD FROM TO .
[ ] ACTUAL/ACTUAL FOR THE PERIOD FROM TO .
ADDENDUM ATTACHED: ORIGINAL ISSUE DISCOUNT:
[ ] Yes [ ] Yes
[ ] No [ ] No
Total Amount of OID:
DEFAULT RATE: _______% Yield to Maturity:
Initial Accrual Period:
OTHER PROVISIONS:
2
Capital One Bank, a bank duly authorized and existing under the laws of
the Commonwealth of Virginia (the "Bank"), for value received, hereby promises
to pay to CEDE & CO., or registered assigns, the principal sum of ____________
_____________________________________________________________ United States
Dollars on the Maturity Date specified above (except to the extent redeemed or
repaid prior to the Maturity Date) and to pay interest thereon from and
including the Original Issue Date specified above or from and including the
most recent interest payment date on which interest on this Senior Note (or
any predecessor Senior Note) has been paid or duly provided for, semi-annually
on May 15 and November 15 of each year (unless otherwise specified on the
face hereof) (each, an "Interest Payment Date") and at maturity or upon
earlier redemption or repayment, if applicable, commencing on the first
Interest Payment Date next succeeding the Original Issue Date (or, if the
Original Issue Date is between a Regular Record Date (as defined below) and
the Interest Payment Date immediately following such Regular Record Date, on
the second Interest Payment Date following the Original Issue Date), at the
Interest Rate per annum specified above, until the principal hereof is paid or
made available for payment, and (to the extent that the payment of such
interest shall be legally enforceable) at the Default Rate per annum specified
above on any overdue principal and premium, if any, and on any overdue
installment of interest. If no Default Rate is specified above, the Default
Rate shall be the Interest Rate on this Senior Note specified above. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will be paid to the person in whose name this Senior Note (or any
predecessor Senior Note) is registered at the close of business on the Regular
Record Date, which shall be May 1 and November 1 (whether or not a Business
Day (as defined below)), as the case may be, next preceding the applicable
Interest Payment Date (unless otherwise specified on the face hereof) (each, a
"Regular Record Date"); provided, however, that interest payable at maturity
or upon earlier redemption or repayment, if applicable, will be payable to the
person to whom principal shall be payable. Any such interest not so
punctually paid or duly provided for shall forthwith cease to be payable to
the holder as of the close of business on such Regular Record Date, and may
either be paid to the person in whose name this Senior Note (or any
predecessor Senior Note) is registered at the close of business on a special
record date for the payment of such defaulted interest (the "Special Record
Date") to be fixed by the Bank, notice of which shall be given to the holders
of Senior Notes not less than 10 calendar days prior
3
to such Special Record Date, or be paid at any time in any other lawful
manner.
Payment of principal of, premium, if any, and interest on, this Senior
Note will be made in such coin or currency of the United States of America as
at the time of payment is legal tender for payment of public and private
debts. The Bank will at all times appoint and maintain an issuing and paying
agent (the "Issuing and Paying Agent," which term shall include any successor
Issuing and Paying Agent), authorized by the Bank to pay principal of,
premium, if any, and interest on, this Senior Note on behalf of the Bank
pursuant to an issuing and paying agency agreement (the "Issuing and Paying
Agency Agreement") and having an office or agency (the "Issuing and Paying
Agent Office") in The City of New York or in the city in which the Bank is
headquartered (the "Place of Payment"), where this Senior Note may be
presented or surrendered for payment and where notices, designations or
requests in respect of payments with respect to this Senior Note may be
served. The Bank has initially appointed Chemical Bank as the Issuing and
Paying Agent, with the Issuing and Paying Agent Office currently located at
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Global Trust
Securities Group. The Bank may remove the Issuing and Paying Agent pursuant
to the terms of the Issuing and Paying Agency Agreement and may appoint a
successor Issuing and Paying Agent.
Payment of principal of, premium, if any, and interest on, this Senior
Note due at maturity or upon earlier redemption or repayment, if applicable,
will be made in immediately available funds upon presentation and surrender of
this Senior Note to the Issuing and Paying Agent at the Issuing and Paying
Agent Office; provided that this Senior Note is presented to the Issuing and
Paying Agent in time for the Issuing and Paying Agent to make such payment in
accordance with its normal procedures. Payments of interest on this Senior
Note (other than at maturity or upon earlier redemption or repayment) will be
made by wire transfer to such account as has been appropriately designated to
the Issuing and Paying Agent by the person entitled to such payments.
Reference herein to "this Senior Note", "hereof", "herein" and comparable
terms shall include an Addendum hereto if an Addendum is specified above.
Reference is hereby made to the further provisions of this Senior Note
set forth on the reverse hereof, which further
4
provisions shall for all purposes have the same effect as if set forth at this
place.
IN WITNESS WHEREOF, the Bank has caused this Senior Note to be duly
executed.
CAPITAL ONE BANK
By:
------------------------------------------------
Authorized Signatory
Dated:
ISSUING AND PAYING AGENT'S CERTIFICATE OF AUTHENTICATION
This is one of the Senior Notes referred to in the Issuing and Paying Agency
Agreement.
CHEMICAL BANK,
as Issuing and Paying Agent
By:
--------------------------
Authorized Signatory
5
[Reverse]
This Senior Note is one of a duly authorized issue of Senior Bank Notes
of the Bank due from 30 days to 30 years from date of issue (the "Senior
Notes").
Payments of interest hereon will include interest accrued to but
excluding the relevant Interest Payment Date or Maturity Date or date of
earlier redemption or repayment, as the case may be. Unless otherwise
specified on the face hereof, interest on Senior Notes with maturities of
greater than one year will be computed on the basis of a 360-day year of
twelve 30-day months. Unless otherwise specified on the face hereof, interest
on Senior Notes with maturities of one year or less will be computed on the
basis of the actual number of days in the year divided by 360 and will be
payable only at maturity to the person to whom principal shall be payable.
Any provision contained herein with respect to the calculation of the
rate of interest applicable to this Senior Note, its Interest Payment Dates or
any other matter relating hereto may be modified as specified in an Addendum
relating hereto if so specified on the face hereof.
If any Interest Payment Date, Maturity Date or date of earlier redemption
or repayment of this Senior Note falls on a day which is not a Business Day,
the related payment of principal of, premium, if any, or interest on, this
Senior Note shall be made on the next succeeding Business Day with the same
force and effect as if made on the date such payment were due, and no interest
shall accrue on the amount so payable for the period from and after such
Interest Payment Date, Maturity Date or date of earlier redemption or
repayment, as the case may be. "Business Day" means, unless otherwise
specified on the face hereof, any day that is not a Saturday or Sunday and
that in The City of New York or in the city in which the Bank is headquartered
is not a day on which banking institutions are authorized or required by law,
regulation or executive order to close.
This Senior Note will not be subject to any sinking fund. If so provided
on the face of this Senior Note, this Senior Note may be redeemed by the Bank
either in whole or in part on and after the Initial Redemption Date, if any,
specified on the face
6
hereof. If no Initial Redemption Date is specified on the face hereof, this
Senior Note may not be redeemed prior to the Maturity Date. On and after the
Initial Redemption Date, if any, this Senior Note may be redeemed in
increments of $1,000 (provided that any remaining principal amount hereof
shall be at least $250,000) at the option of the Bank at the applicable
Redemption Price (as defined below), together with unpaid interest accrued
hereon at the applicable rate borne by this Senior Note to the date of
redemption (each such date, a "Redemption Date"), on written notice given not
more than 60 nor less than 30 calendar days prior to the Redemption Date to
the registered holder hereof. Whenever less than all the Senior Notes at any
time outstanding are to be redeemed, the terms of the Senior Notes to be so
redeemed shall be selected by the Bank. If less than all the Senior Notes
with identical terms at any time outstanding are to be redeemed, the Senior
Notes to be so redeemed shall be selected by the Issuing and Paying Agent by
lot or in any usual manner approved by it. In the event of redemption of this
Senior Note in part only, a new Senior Note for the unredeemed portion hereof
shall be issued in the name of the holder hereof upon the surrender hereof.
The "Redemption Price" shall initially be the Initial Redemption
Percentage specified on the face hereof of the principal amount of this Senior
Note to be redeemed and shall decline at each anniversary of the Initial
Redemption Date specified on the face hereof by the Annual Redemption
Percentage Reduction, if any, specified on the face hereof, of the principal
amount to be redeemed until the Redemption Price is 100% of such principal
amount.
This Senior Note may be subject to repayment at the option of the holder
hereof in accordance with the terms hereof on any Holder's Optional Repayment
Date(s), if any, specified on the face hereof. If no Holder's Optional
Repayment Date is specified on the face hereof, this Senior Note will not be
repayable at the option of the holder hereof prior to maturity. On any
Holder's Optional Repayment Date, this Senior Note will be repayable in whole
or in part in increments of $1,000 (provided that any remaining principal
amount hereof will be at least $250,000) at the option of the holder hereof at
a repayment price equal to 100% of the principal amount to be repaid, together
with accrued and unpaid interest hereon payable to the date of repayment. For
this Senior Note to be repaid in whole or in part at the option of the holder
hereof on a Holder's Optional Repayment Date, this Senior Note must be
delivered, with the form entitled "Option to Elect Repayment" attached hereto
duly completed, to the Issuing
7
and Paying Agent at its offices located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention: Global Trust Securities Group, or at such other address
which the Bank shall from time to time notify the holders of the Senior Notes,
not more than 60 nor less than 30 calendar days prior to such Holder's
Optional Repayment Date. In the event of repayment of this Senior Note in
part only, a new Senior Note for the unrepaid portion hereof shall be issued
in the name of the holder hereof upon the surrender hereof. Exercise of such
repayment option by the holder hereof shall be irrevocable.
If this Senior Note is an Original Issue Discount Note and if an Event of
Default with respect to this Senior Note shall have occurred and be
continuing, the Default Amount (as defined hereafter) of this Senior Note may
be declared due and payable in the manner and with the effect provided herein.
The "Default Amount" shall be equal to the adjusted issue price as of the
first day of the accrual period as determined under Final Treasury Regulation
Section 1.1275-1(b) (or successor regulation) under the United States Internal
Revenue Code of 1986, as amended, in which the date of acceleration occurs
increased by the daily portion of the original issue discount for each day in
such accrual period ending on the date of acceleration, as determined under
Final Treasury Regulation Section 1.1272-1(b) (or successor regulation) under
the United States Internal Revenue Code of 1986, as amended. Upon payment of
(i) the principal, or premium, if any, so declared due and payable and (ii)
interest on any overdue principal and overdue interest or premium, if any (in
each case to the extent that the payment of such interest shall be legally
enforceable), all of the Bank's obligations in respect of the payment of
principal of, premium, if any, and interest on, this Senior Note shall
terminate.
In case any Senior Note shall at any time become mutilated, destroyed,
lost or stolen, and such Senior Note or evidence of the loss, theft or
destruction thereof satisfactory to the Bank and the Issuing and Paying Agent
and such other documents or proof as may be required by the Bank and the
Issuing and Paying Agent shall be delivered to the Issuing and Paying Agent,
the Bank shall issue a new Senior Note, of like tenor and principal amount,
having a serial number not contemporaneously outstanding, in exchange and
substitution for the mutilated Senior Note or in lieu of the Senior Note
destroyed, lost or stolen but, in the case of any destroyed, lost or stolen
Senior Note, only upon receipt of evidence satisfactory to the Bank and the
Issuing and Paying Agent that such Senior Note was destroyed, stolen or lost,
8
and, if required, upon receipt of indemnity satisfactory to the Bank and the
Issuing and Paying Agent. Upon the issuance of any substituted Senior Note,
the Bank and the Issuing and Paying Agent may require the payment of a sum
sufficient to cover all expenses and reasonable charges connected with the
preparation and delivery of a new Senior Note. If any Senior Note which has
matured or has been redeemed or repaid or is about to mature or to be redeemed
or repaid shall become mutilated, destroyed, lost or stolen, the Bank may,
instead of issuing a substitute Senior Note, pay or authorize the payment of
the same (without surrender thereof except in the case of a mutilated Senior
Note) upon compliance by the holder with the provisions of this paragraph.
No recourse shall be had for the payment of principal of, premium, if
any, or interest on, this Senior Note for any claim based hereon, or otherwise
in respect hereof, against any shareholder, employee, agent, officer or
director, as such, past, present or future, of the Bank or of any successor
corporation, banking association or other legal entity (collectively,
"corporation"), either directly or through the Bank or any corporation,
whether by virtue of any constitution, statute or rule of law or by the
enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the issue
hereof, expressly waived and released.
The occurrence of any of the following events shall constitute an "Event
of Default" with respect to this Senior Note: (i) default in the payment of
any interest with respect to any of the Senior Notes issued by the Bank when
due, which continues for 30 calendar days; (ii) default in the payment of any
principal of, or premium, if any, on, any of the Senior Notes issued by the
Bank when due; (iii) the entry by a court having jurisdiction in the premises
of (a) a decree or order for relief in respect of the Bank in an involuntary
case or proceeding under any applicable United States federal or state
bankruptcy, insolvency, reorganization or other similar law or (b) a decree or
order appointing a conservator, receiver, liquidator, assignee, trustee,
sequestrator or any other similar official of the Bank, or of substantially
all of the property of the Bank, or ordering the winding up or liquidation of
the affairs of the Bank, and the continuance of any such decree or order for
relief or any such other decree or order unstayed and in effect for a period
of 60 consecutive days; or (iv) the commencement by the Bank of a voluntary
case or proceeding under any applicable United States federal or state
bankruptcy, insolvency, reorganization or other similar law or of any other
case or proceeding to be adjudicated as bankrupt or insolvent, or the consent
by the Bank to the entry of a decree or order for relief in an involuntary
case or proceeding under any applicable United States federal or state
bankruptcy, insolvency,
9
reorganization or other similar law or to the commencement of any bankruptcy
or insolvency case or proceeding, or the filing by the Bank of a petition or
answer or consent seeking reorganization or relief under any applicable United
States federal or state bankruptcy, insolvency, reorganization or similar law,
or the consent by the Bank to the filing of such petition or to the
appointment of or taking possession by a custodian, conservator, receiver,
liquidator, assignee, trustee, sequestrator or similar official of the Bank or
of substantially all of the property of the Bank, or the making by the Bank of
an assignment for the benefit of creditors, or the taking of corporate action
by the Bank in furtherance of any such action. If an Event of Default shall
occur and be continuing, the holder of this Senior Note may declare the
principal amount of, accrued interest and premium, if any, on, this Senior
Note due and payable immediately by written notice to the Bank. Upon such
declaration and notice, such principal amount, accrued interest and premium,
if any, shall become immediately due and payable. Any Event of Default with
respect to this Senior Note may be waived by the holder hereof.
The Issuing and Paying Agency Agreement provides that the Bank will
promptly notify, and provide copies of any such notice to, the Issuing and
Paying Agent, and the Issuing and Paying Agent will promptly mail by
first-class mail, postage prepaid, copies of such notice to the holders of the
Senior Notes, upon the occurrence of an Event of Default or of the curing or
waiver of an Event of Default.
Nothing contained herein shall prevent any consolidation or merger of the
Bank with any other corporation or successive consolidations or mergers in
which the Bank or its successor or successors shall be a party or parties, or
shall prevent any sale, conveyance, transfer or lease of the property of the
Bank as an entirety or substantially as an entirety to any other corporation
authorized to acquire and operate the same; provided, however (and the Bank
hereby covenants and agrees) that any such consolidation, merger, sale or
conveyance shall be upon the condition that: (i) immediately after such
consolidation, merger, sale or conveyance the corporation (whether the Bank or
such other corporation) formed by or surviving any such consolidation or
merger, or the corporation to which such sale or
10
conveyance shall have been made, shall not be in default in the performance or
observance of any of the terms, covenants and conditions of this Senior Note
to be observed or performed by the Bank; and (ii) the corporation (if other
than the Bank) formed by or surviving any such consolidation or merger, or the
corporation to which such sale or conveyance shall have been made, shall be
organized under the laws of the United States of America or any state thereof
or the District of Columbia and shall expressly assume the due and punctual
payment of the principal of, premium, if any, and interest on, this Senior
Note. In case of any such consolidation, merger, sale, conveyance, transfer
or lease, and upon the assumption by the successor corporation of the due and
punctual performance of all of the covenants in this Senior Note to be
performed or observed by the Bank, such successor corporation shall succeed to
and be substituted for the Bank with the same effect as if it had been named
in this Senior Note as the Bank and thereafter the predecessor corporation
shall be relieved of all obligations and covenants in this Senior Note and may
be liquidated and dissolved.
Any action by the holder of this Senior Note shall bind all future
holders of this Senior Note, and of any Senior Note issued in exchange or
substitution herefor or in place hereof, in respect of anything done or
permitted by the Bank or by the Issuing and Paying Agent in pursuance of such
action.
The Issuing and Paying Agent shall maintain at its offices a register
(the register maintained in such office or any other office or agency of the
Issuing and Paying Agent in The City of New York, herein referred to as the
"Senior Note Register") in which, subject to such reasonable regulations as it
may prescribe, the Issuing and Paying Agent shall provide for the registration
of the Senior Notes and of transfers of the Senior Notes (in such capacity,
the "Senior Notes Registrar").
The transfer of this Senior Note is registrable in the Senior Note
Register, upon surrender of this Senior Note for registration of transfer at
the office or agency of the Issuing and Paying Agent in the Place of Payment,
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Bank and the Issuing and Paying Agent duly executed by,
the holder hereof or his attorney duly authorized in writing, and thereupon
one or more new Senior Notes of like tenor, of authorized denominations and
for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
11
No provision of this Senior Note shall alter or impair the obligation of
the Bank, which is absolute and unconditional, to pay principal of, premium,
if any, and interest on, this Senior Note in U.S. dollars at the times, places
and rate herein prescribed in accordance with its terms.
No service charge shall be made to a holder of this Senior Note for any
transfer or exchange of this Senior Note, but the Bank may require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection therewith.
Beneficial interests represented by this Senior Note are exchangeable for
definitive Senior Notes in registered form, of like tenor and of an equal
aggregate principal amount, only if (x) The Depository Trust Company, as
Depositary (the "Depositary") notifies the Bank that it is unwilling or unable
to continue as Depositary for this Senior Note or if at any time the
Depositary ceases to be a clearing agency registered under the Securities
Exchange Act of 1934, as amended, and a successor depositary is not appointed
by the Bank within 60 days, or (y) the Bank in its sole discretion determines
not to have such beneficial interests represented by this Senior Note. Any
Senior Note representing such beneficial interests that is exchangeable
pursuant to the preceding sentence shall be exchangeable in whole for
definitive Senior Notes in registered form, of like tenor and of an equal
aggregate principal amount, in minimum denominations of $250,000 and integral
multiples of $1,000 in excess thereof. Such definitive Senior Notes shall be
registered in the name or names of such person or persons as the Depositary
shall instruct the Issuing and Paying Agent.
Prior to due presentment of this Senior Note for registration of
transfer, the Bank, the Issuing and Paying Agent or any agent of the Bank or
the Issuing and Paying Agent may treat the holder in whose name this Senior
Note is registered as the owner hereof for all purposes, whether or not this
Senior Note be overdue, and neither the Bank, the Issuing and Paying Agent nor
any such agent shall be affected by notice to the contrary except as required
by applicable law.
All notices to the Bank under this Senior Note shall be in writing and
addressed to the Bank, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Treasurer, or to such other address of the Bank as the Bank may
notify the holders of the Senior Notes.
This Senior Note shall be governed by, and construed in accordance with,
the laws of the State of New York, without regard to conflicts of laws
principles and all applicable federal laws and regulations.
12
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
the within Senior Note, shall be construed as though they were written out in
full according to applicable laws or regulations.
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of
survivorship and not as tenants
in common
UNIF GIFT MIN ACT -- Custodian
-------------- ---------
(Cust) (Minor)
under Uniform Gifts to Minors Act
----------------------------------
(State)
Additional abbreviations may also be used
though not in the above list.
13
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s),
assign(s) and transfer(s) unto _______________________________________________
______________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY NUMBER OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
____________________________
/___________________________/
______________________________________________________________________________
______________________________________________________________________________
(Please print or typewrite name and address,
including postal zip code, of assignee)
the within Senior Note and all rights thereunder, and hereby irrevocably
constitutes and appoints _____________________________________________________
______________________________________________________________________________
______________________________________________________________________________
to transfer said Senior Note on the books of the Issuing and Paying Agent,
with full power of substitution in the premises.
Dated: ---------------------------------
------------------ NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of the within Senior Note in
every particular, without
alteration or enlargement or any
change whatsoever.
--------------------------------
Signature Guarantee
14
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the Bank to
repay this Senior Note (or portion hereof specified below) pursuant to its
terms at a price equal to 100% of the principal amount hereof to be repaid,
together with accrued and unpaid interest hereon, payable to the date of
repayment, to the undersigned, at ____________________________________________
_____________________________________________________________________________.
(Please print or typewrite name and address of the undersigned)
For this Senior Note to be repaid, the undersigned must give to the
Issuing and Paying Agent at its offices located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Global Trust Securities Group, or at such
other place or places of which the Bank shall from time to time notify the
holders of the Senior Notes, not more than 60 days nor less than 30 days prior
notice to the date of repayment, with this "Option to Elect Repayment" form
duly completed.
If less than the entire principal amount of this Senior Note is to be
repaid, specify the portion hereof (which shall be increments of $1,000) which
the holder elects to have repaid and specify the denomination or denominations
(which shall be $250,000 or an integral multiple of $1,000 in excess thereof)
of the Senior Notes to be issued to the holder for the portion of this Senior
Note not being repaid (in the absence of any such specification, one such
Senior Note will be issued for the portion not being repaid):
$
------------------------------ ------------------------------
NOTICE: The signature on this
Dated: "Option to Elect Repayment" form must
------------------------ correspond with the name as written upon
the face of the within Senior Note in every
particular, without alteration or
enlargement or any change whatsoever.
--------------------------------
Signature Guarantee
15
A-2
THIS SENIOR NOTE IS AN OBLIGATION SOLELY OF THE BANK AND WILL NOT BE AN
OBLIGATION OF, OR OTHERWISE GUARANTEED BY, ANY OTHER BANK OR CAPITAL ONE
FINANCIAL CORPORATION THIS SENIOR NOTE DOES NOT EVIDENCE DEPOSITS OF THE BANK
AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENT AGENCY. THE OBLIGATIONS EVIDENCED BY THIS SENIOR NOTE RANK PARI
PASSU WITH ALL OTHER SENIOR UNSECURED INDEBTEDNESS OF THE BANK, EXCEPT DEPOSIT
LIABILITIES (AS PROVIDED IN SECTION 11(D)(11) OF THE FEDERAL DEPOSIT INSURANCE
ACT) AND OTHER OBLIGATIONS THAT ARE SUBJECT TO ANY PRIORITIES OR PREFERENCES.
IN A LIQUIDATION OR OTHER RESOLUTION OF THE BANK, THIS SENIOR NOTE WOULD BE
TREATED DIFFERENTLY FROM, AND HOLDERS OF THIS SENIOR NOTE COULD RECEIVE, IF
ANYTHING, SIGNIFICANTLY LESS THAN HOLDERS OF, DEPOSIT LIABILITIES OF THE BANK.
UNLESS THIS SENIOR NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) (THE
"DEPOSITARY") TO THE BANK OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY SENIOR NOTE ISSUED UPON REGISTRATION OF TRANSFER OF, OR IN
EXCHANGE FOR, OR IN LIEU OF, THIS SENIOR NOTE IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITARY AND ANY PAYMENT HEREON IS MADE TO CEDE & CO., ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH
NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
THIS SENIOR NOTE IS ISSUABLE ONLY IN FULLY REGISTERED FORM IN MINIMUM
DENOMINATIONS OF $250,000 AND INTEGRAL MULTIPLES OF $1,000 IN EXCESS THEREOF.
EACH OWNER OF A BENEFICIAL INTEREST IN THIS SENIOR NOTE MUST BE AN
INSTITUTIONAL INVESTOR WHO IS AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF
RULE 501 UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND IS REQUIRED TO HOLD
A BENEFICIAL INTEREST IN $250,000 PRINCIPAL AMOUNT OR ANY INTEGRAL MULTIPLE OF
$1,000 IN EXCESS THEREOF OF THIS SENIOR NOTE AT ALL TIMES.
No. FLR-_____ REGISTERED
CUSIP NO.: _____
CAPITAL ONE BANK
GLOBAL SENIOR BANK NOTE
(Floating Rate)
ORIGINAL ISSUE DATE: PRINCIPAL AMOUNT:
INITIAL INTEREST RATE: _____% MATURITY DATE:
INTEREST RATE INDEX MATURITY:
BASIS OR BASES:
IF LIBOR: REGULAR RECORD
[ ] Libor Telerate DATES (if other than the 15th day
[ ] Libor Reuters prior to each Interest Payment
Date):
INDEX CURRENCY:
SPREAD (PLUS OR MINUS) MINIMUM INTEREST RATE:
AND/OR SPREAD MULTIPLIER:
INTEREST PAYMENT PERIOD:
MAXIMUM INTEREST RATE:
INTEREST RESET PERIOD:
INTEREST PAYMENT DATES:
CALCULATION AGENT:
INITIAL INTEREST RESET DATE:
ANNUAL REDEMPTION
INTEREST RESET DATES: PERCENTAGE REDUCTION:
INITIAL REDEMPTION DATE: HOLDER'S OPTIONAL
REPAYMENT DATE(S):
INITIAL REDEMPTION
PERCENTAGE: DAY COUNT CONVENTION
[ ] 30/360 for the period
INTEREST CALCULATION: from __________ to __________.
[ ] Regular Floating Rate [ ] Actual/360 for the
Senior Note period from _______ to _______.
[ ] Floating Rate/Fixed Rate [ ] Actual/Actual for the
Senior Note period from __________ to
Fixed Rate Commencement Date: ____________.
Fixed Interest Rate:
[ ] Inverse Floating Rate Senior ORIGINAL ISSUE DISCOUNT
Note [ ] Yes
Fixed Interest Rate: [ ] No
ADDENDUM ATTACHED: Total Amount of OID:
[ ] Yes Yield to Maturity:
[ ] No Initial Accrual Period:
OTHER PROVISIONS: DEFAULT RATE: ______%
2
Capital One Bank, a bank duly organized and existing under the laws of
the Commonwealth of Virginia (the "Bank"), for value received, hereby promises
to pay to CEDE & CO., or registered assigns, the principal sum of ____________
_______________________________________________________ United States Dollars
on the Maturity Date specified above (except to the extent redeemed or repaid
prior to the Maturity Date) and to pay interest thereon from and including the
Original Issue Date specified above or from and including the most recent
interest payment date to which interest on this Senior Note (or any
predecessor Senior Note) has been paid or duly provided for (each, an
"Interest Payment Date"), on the Interest Payment Dates specified above and at
maturity or upon earlier redemption or repayment, if applicable, commencing on
the first Interest Payment Date next succeeding the Original Issue Date (or,
if the Original Issue Date is between a Regular Record Date (as defined below)
and the Interest Payment Date immediately following such Regular Record Date,
on the second Interest Payment Date following the Original Issue Date), at a
rate per annum equal to the Initial Interest Rate specified above until the
Initial Interest Reset Date specified above and thereafter at a rate per annum
determined in accordance with the provisions hereof and any Addendum relating
hereto depending upon the Interest Rate Basis or Bases, if any, and such other
terms specified above, until the principal hereof is paid or made available
for payment, and (to the extent that the payment of such interest shall be
legally enforceable) at the Default Rate per annum specified above on any
overdue principal and premium, if any, and on any overdue installment of
interest. If no Default Rate is specified above, the Default Rate shall be
the Interest Rate on this Senior Note specified above. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment
Date will be paid to the person in whose name this Senior Note (or any
predecessor Senior Note) is registered at the close of business on the Regular
Record Date, which shall be the 15th calendar day (whether or not a Business
Day (as defined below)) prior to such Interest Payment Date (unless otherwise
specified on the face hereof) (each, a "Regular Record Date"); provided,
however, that interest payable at maturity or upon earlier redemption or
repayment, if applicable, will be payable to the person to whom principal
shall be payable. Any such interest not so punctually paid or duly provided
for shall forthwith cease to be payable to the holder as of the close of
business on such Regular Record Date and may either be paid to the person in
whose name this Senior Note (or any predecessor
3
Senior Note) is registered at the close of business on a special record date
for the payment of such defaulted interest (the "Special Record Date") to be
fixed by the Bank, notice of which shall be given to the holders of Senior
Notes not less than 10 calendar days prior to such Special Record Date, or be
paid at any time in any other lawful manner.
Payment of principal of, premium, if any, and interest on, this Senior
Note will be made in such coin or currency of the United States of America as
at the time of payment is legal tender for payment of public and private
debts. The Bank will at all times appoint and maintain an issuing and paying
agent (the "Issuing and Paying Agent," which term shall include any successor
Issuing and Paying Agent), authorized by the Bank to pay principal of,
premium, if any, and interest on, this Senior Note on behalf of the Bank
pursuant to an issuing and paying agency agreement (the "Issuing and Paying
Agency Agreement") and having an office or agency (the "Issuing and Paying
Agent Office") in The City of New York or the city in which the Bank is
headquartered (the "Place of Payment"), where this Senior Note may be
presented or surrendered for payment and where notices, designations or
requests in respect of payments with respect to this Senior Note may be
served. The Bank has initially appointed Chemical Bank as the Issuing and
Paying Agent, with the Issuing and Paying Agent Office currently located at
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Global Trust
Securities Group. The Bank may remove the Issuing and Paying Agent pursuant
to the terms of the Issuing and Paying Agency Agreement, and appoint a
successor Issuing and Paying Agent.
Payment of principal of, premium, if any, and interest on, this Senior
Note due at maturity or upon earlier redemption or repayment, if applicable,
will be made in immediately available funds upon presentation and surrender of
this Senior Note to the Issuing and Paying Agent at the Issuing and Paying
Agent Office; provided that this Senior Note is presented to the Issuing and
Paying Agent in time for the Issuing and Paying Agent to make such payment in
accordance with its normal procedures. Payments of interest on this Senior
Note (other than at maturity or upon earlier redemption or repayment) will be
made by wire transfer to such account as has been appropriately designated to
the Issuing and Paying Agent by the person entitled to such payments.
4
Reference herein to "this Senior Note", "hereof", "herein" and comparable
terms shall include an Addendum hereto if an Addendum is specified above.
Reference is hereby made to the further provisions of this Senior Note
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Bank has caused this Senior Note to be duly
executed.
CAPITAL ONE BANK
By:
-----------------------------------
Authorized Signatory
Dated:
ISSUING AND PAYING AGENT'S CERTIFICATE OF AUTHENTICATION
This is one of the Senior Notes referred to in the Issuing and Paying Agency
Agreement.
CHEMICAL BANK,
as Issuing and Paying Agent
By:
--------------------------
Authorized Signatory
5
[Reverse]
This Senior Note is one of a duly authorized issue of Senior Bank Notes
of the Bank due from 30 days to 30 years from date of issue (the "Senior
Notes").
If any Interest Payment Date (other than an Interest Payment Date at the
Maturity Date or date of earlier redemption or repayment of this Senior Note)
would otherwise fall on a day that is not a Business Day, such Interest
Payment Date shall be postponed to the next succeeding day that is a Business
Day, except that if an Interest Rate Basis is LIBOR, as indicated on the face
hereof, and such next Business Day falls in the next succeeding calendar
month, such Interest Payment Date shall be the immediately preceding day that
is a Business Day. Except as provided above, interest payments will be made
on the Interest Payment Dates shown on the face hereof. If the Maturity Date
or date of earlier redemption or repayment of this Senior Note falls on a day
which is not a Business Day, the related payment of principal of, premium, if
any, and interest on, this Senior Note will be made on the next succeeding
Business Day with the same force and effect as if made on the date such
payment was due, and no interest shall accrue on the amount so payable for the
period from and after such Maturity Date or date of earlier redemption or
repayment, as the case may be.
This Senior Note will not be subject to any sinking fund. If so provided
on the face of this Senior Note, this Senior Note may be redeemed by the Bank
either in whole or in part on and after the Initial Redemption Date, if any,
specified on the face hereof. If no Initial Redemption Date is specified on
the face hereof, this Senior Note may not be redeemed prior to the Maturity
Date. On and after the Initial Redemption Date, if any, this Senior Note may
be redeemed in increments of $1,000 (provided that any remaining principal
amount hereof shall be at least $250,000) at the option of the Bank at the
applicable Redemption Price (as defined below), together with unpaid interest
accrued hereon at the applicable rate borne by this Senior Note to the date of
redemption (each such date, a "Redemption Date"), on written notice given not
more than 60 nor less than 30 calendar days prior to the Redemption Date to
the registered holder hereof. Whenever less than all the Senior Notes at any
time outstanding are to be redeemed, the terms of
6
the Senior Notes to be so redeemed shall be selected by the Bank. If less
than all the Senior Notes with identical terms at any time outstanding are to
be redeemed, the Senior Notes to be so redeemed shall be selected by the
Issuing and Paying Agent by lot or in any usual manner approved by it. In the
event of redemption of this Senior Note in part only, a new Senior Note for
the unredeemed portion hereof shall be issued in the name of the holder hereof
upon the surrender hereof.
The "Redemption Price" shall initially be the Initial Redemption
Percentage specified on the face hereof of the principal amount of this Senior
Note to be redeemed and shall decline at each anniversary of the Initial
Redemption Date specified on the face hereof by the Annual Redemption
Percentage Reduction, if any, specified on the face hereof, of the principal
amount to be redeemed until the Redemption Price is 100% of such principal
amount.
This Senior Note may be subject to repayment at the option of the holder
hereof in accordance with the terms hereof on any Holder's Optional Repayment
Date(s), if any, specified on the face hereof. If no Holder's Optional
Repayment Date is specified on the face hereof, this Senior Note will not be
repayable at the option of the holder hereof prior to maturity. On any
Holder's Optional Repayment Date, this Senior Note will be repayable in whole
or in part in increments of $1,000 (provided that any remaining principal
amount hereof will be at least $250,000) at the option of the holder hereof at
a repayment price equal to 100% of the principal amount to be repaid, together
with accrued and unpaid interest hereon payable to the date of repayment. For
this Senior Note to be repaid in whole or in part at the option of the holder
hereof on a Holder's Optional Repayment Date, this Senior Note must be
delivered, with the form entitled "Option to Elect Repayment" attached hereto
duly completed, to the Issuing and Paying Agent at its offices located at ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Global Trust
Securities Group, or at such other address which the Bank shall from time to
time notify the holders of the Senior Notes, not more than 60 nor less than 30
calendar days prior to such Holder's Optional Repayment Date. In the event of
repayment of this Senior Note in part only, a new Senior Note for the unrepaid
portion hereof shall be issued in the name of the holder hereof upon the
surrender hereof. Exercise of such repayment option by the holder hereof
shall be irrevocable.
7
The interest rate borne by this Senior Note shall be determined as
follows:
1. If this Senior Note is designated as a Regular Floating Rate
Senior Note on the face hereof or if no designation is made for Interest
Calculation on the face hereof, then, except as described below or in an
Addendum hereto, this Senior Note shall bear interest at the rate
determined by reference to the applicable Interest Rate Basis or Bases
shown on the face hereof (i) plus or minus the applicable Spread, if any,
and/or (ii) multiplied by the applicable Spread Multiplier, if any,
specified and applied in the manner described on the face hereof.
Commencing on the Initial Interest Reset Date, the rate at which interest
on this Senior Note is payable shall be reset as of each Interest Reset
Date specified on the face hereof; provided, however, that the interest
rate in effect for the period from the Original Issue Date to the Initial
Interest Reset Date will be the Initial Interest Rate.
2. If this Senior Note is designated as a Floating Rate/Fixed Rate
Senior Note on the face hereof, then, except as described below or in an
Addendum hereto, this Senior Note shall bear interest at the rate
determined by reference to the applicable Interest Rate Basis or Bases
shown on the face hereof (i) plus or minus the applicable Spread, if any,
and/or (ii) multiplied by the applicable Spread Multiplier, if any,
specified and applied in the manner described on the face hereof.
Commencing on the Initial Interest Reset Date, the rate at which interest
on this Senior Note is payable shall be reset as of each Interest Reset
Date specified on the face hereof; provided, however, that (i) the
interest rate in effect for the period from the Original Issue Date to
the Initial Interest Reset Date shall be the Initial Interest Rate; and
(ii) the interest rate in effect commencing on, and including, the Fixed
Rate Commencement Date to the Maturity Date or date of earlier redemption
or repayment shall be the Fixed Interest Rate, if such a rate is
specified on the face hereof, or if no such Fixed Interest Rate is so
specified, the interest rate in effect hereon on the Business Day
immediately preceding the Fixed Rate Commencement Date.
8
3. If this Senior Note is designated as an Inverse Floating Rate
Senior Note on the face hereof, then, except as described below or in an
Addendum hereto, this Senior Note shall bear interest equal to the Fixed
Interest Rate indicated on the face hereof minus the rate determined by
reference to the applicable Interest Rate Basis or Bases shown on the
face hereof (i) plus or minus the applicable Spread, if any, and/or (ii)
multiplied by the applicable Spread Multiplier, if any, specified and
applied in the manner described on the face hereof; provided, however,
that, unless otherwise specified on the face hereof, the interest rate
hereon will not be less than zero percent. Commencing on the Initial
Interest Reset Date, the rate at which interest on this Senior Note is
payable shall be reset as of each Interest Rate Reset Date specified on
the face hereof; provided, however, that the interest rate in effect for
the period from the Original Issue Date to the Initial Interest Reset
Date shall be the Initial Interest Rate.
Notwithstanding the foregoing, if this Senior Note is designated on the
face hereof as having an Addendum attached, this Senior Note shall bear
interest in accordance with the terms described in such Addendum.
Except as provided above, the interest rate in effect on each day shall
be (a) if such day is an Interest Reset Date, the interest rate determined as
of the Interest Determination Date (as defined below) immediately preceding
such Interest Reset Date or (b) if such day is not an Interest Reset Date, the
interest rate determined as of the Interest Determination Date immediately
preceding the next preceding Interest Reset Date. Each Interest Rate Basis
shall be the rate determined in accordance with the applicable provision
below. If any Interest Reset Date (which term includes the term Initial
Interest Reset Date unless the context otherwise requires) would otherwise be
a day that is not a Business Day, such Interest Reset Date shall be postponed
to the next succeeding day that is a Business Day, except that if an Interest
Rate Basis specified on the face hereof is LIBOR and such next Business Day
falls in the next succeeding calendar month, such Interest Reset Date shall be
the immediately preceding Business Day.
Unless otherwise specified on the face hereof, interest payable on this
Senior Note on any Interest Payment Date shall be
9
the amount of interest accrued from and including the next preceding Interest
Payment Date in respect of which interest has been paid (or from and including
the Original Issue Date specified on the face hereof, if no interest has been
paid), to but excluding the related Interest Payment Date or Maturity Date or
date of earlier redemption or repayment, as the case may be.
Unless otherwise specified on the face hereof, accrued interest hereon
shall be an amount calculated by multiplying the face amount hereof by an
accrued interest factor. Such accrued interest factor shall be computed by
adding the interest factor calculated for each day in the period for which
accrued interest is being calculated. Unless otherwise specified on the face
hereof, the interest factor for each such day shall be computed and paid on
the basis of a 360-day year of twelve 30-day months if the Day Count
Convention specified on the face hereof is "30/360" for the period specified
thereunder, or by dividing the interest rate applicable to such day by 360 if
the Day Count Convention specified on the face hereof is "Actual/360" for the
period specified thereunder or by the actual number of days in the year if the
Day Count Convention specified on the face hereof is "Actual/Actual" for the
period specified thereunder. If interest on this Senior Note is to be
calculated with reference to two or more Interest Rate Bases as specified on
the face hereof, the interest factor will be calculated in each period in the
same manner as if only one of the applicable Interest Rate Bases applied.
Unless otherwise specified on the face hereof, the "Interest
Determination Date" with respect to the Commercial Paper Rate, the Federal
Funds Rate and the Prime Rate will be the second Business Day preceding each
Interest Reset Date; the "Interest Determination Date" with respect to the
Eleventh District Cost of Funds Rate will be the last working day of the month
immediately preceding each Interest Reset Date on which the Federal Home Loan
Bank of San Francisco (the "FHLB of San Francisco") publishes the Index (as
defined below); the "Interest Determination Date" with respect to LIBOR shall
be the second London Business Day (as defined below) preceding each Interest
Reset Date; the "Interest Determination Date" with respect to the Treasury
Rate will be the day in the week in which the related Interest Reset Date
falls on which day Treasury Bills (as defined below) are normally auctioned
(Treasury Bills are normally sold at auction on Monday of each week, unless
that day is a legal holiday, in which case
10
the auction is normally held on the following Tuesday, except that such
auction may be held on the preceding Friday); provided, however, that if an
auction is held on the Friday of the week preceding the related Interest Reset
Date, the related Interest Determination Date shall be such preceding Friday;
and provided further that if an auction shall fall on any Interest Reset Date,
then the Interest Reset Date shall instead be the first Business Day following
such auction. If the interest rate of this Senior Note is determined with
reference to two or more Interest Rate Bases as specified on the face hereof,
the Interest Determination Date pertaining to this Senior Note will be the
latest Business Day which is at least two Business Days prior to such Interest
Reset Date on which each Interest Rate Basis is determinable. Each Interest
Rate Basis shall be determined on such date, and the applicable interest rate
shall take effect on the Interest Reset Date.
Unless otherwise specified on the face hereof, the "Calculation Date"
pertaining to any Interest Determination Date will be the earlier of (i) the
tenth calendar day after such Interest Determination Date or, if such day is
not a Business Day, the next succeeding Business Day and (ii) the Business Day
immediately preceding the applicable Interest Payment Date or Maturity Date or
date of earlier redemption or repayment, as the case may be. All calculations
on this Senior Note shall be made by the Calculation Agent specified on the
face hereof or such successor thereto as is duly appointed by the Bank.
All percentages resulting from any calculation on this Senior Note will
be rounded, if necessary, to the nearest one hundred-thousandth of a
percentage point, with five one-millionths of a percentage point rounded
upward (e.g., 9.876545% (or 0.09876545) would be rounded to 9.87655% (or
0.0987655) and 9.876544% (or 0.09876544) would be rounded to 9.87654% (or
0.0987654)), and all dollar amounts used in or resulting from such calculation
will be rounded to the nearest cent (with one-half cent being rounded upward).
As used herein, "Business Day" means, unless otherwise specified on the
face hereof, any day that is not a Saturday or Sunday and that in The City of
New York or in the city in which the Bank is headquartered is not a day on
which banking institutions are authorized or required by law, regulation or
11
executive order to close and, if an Interest Rate Basis shown on the face
hereof is LIBOR, is also a London Business Day.
As used herein, unless otherwise specified on the face hereof, "London
Business Day" means any day on which dealings in deposits in U.S. dollars are
transacted in the London interbank market.
Determination of Commercial Paper Rate. If an Interest Rate Basis for
this Senior Note is the Commercial Paper Rate, as indicated on the face
hereof, the Commercial Paper Rate shall be determined as of the applicable
Interest Determination Date (a "Commercial Paper Rate Interest Determination
Date"), as the Money Market Yield (as defined below) on such date of the rate
for commercial paper having the Index Maturity specified on the face hereof as
published by the Board of Governors of the Federal Reserve System in the
relevant weekly statistical release entitled "Statistical Release H.15(519),
Selected Interest Rates," or any successor publication of the Board of
Governors of the Federal Reserve System ("H.15(519)") under the heading
"Commercial Paper". In the event that such rate is not published by 3:00
P.M., New York City time, on the related Calculation Date, then the Commercial
Paper Rate shall be the Money Market Yield on such Commercial Paper Rate
Interest Determination Date of the rate for commercial paper having the Index
Maturity shown on the face hereof as published in the daily statistical
release entitled "Composite 3:30 P.M. Quotations for U.S. Government
Securities" or any successor publication published by the Federal Reserve Bank
of New York ("Composite Quotations") under the heading "Commercial Paper"
(with an Index Maturity of one month or three months being deemed to be
equivalent to an Index Maturity of 30 days or 90 days, respectively). If by
3:00 P.M., New York City time, on the related Calculation Date such rate is
not yet published in either H.15(519) or Composite Quotations, then the
Commercial Paper Rate on such Commercial Paper Rate Interest Determination
Date shall be calculated by the Calculation Agent and shall be the Money
Market Yield of the arithmetic mean of the offered rates at approximately
11:00 A.M., New York City time, on such Commercial Paper Rate Interest
Determination Date of three leading dealers of commercial paper in The City of
New York selected by the Calculation Agent for commercial paper having the
Index Maturity specified on the face hereof placed for an industrial issuer
whose bond rating is "AA," or the equivalent, from a nationally recognized
securities rating
12
agency; provided, however, that if any of the dealers selected as aforesaid by
the Calculation Agent are not quoting as mentioned in this sentence, the
Commercial Paper Rate determined as of such Commercial Paper Rate Interest
Determination Date shall be the rate in effect on such Commercial Paper Rate
Interest Determination Date.
"Money Market Yield" shall be a yield (expressed as a percentage)
calculated in accordance with the following formula:
Money Market Yield = D x 360 x 100
------------
360-(D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted
on a bank discount basis and expressed as a decimal and "M" refers to the
actual number of days in the interest period for which interest is being
calculated.
Determination of Eleventh District Cost of Funds Rate. If an Interest
Rate Basis for this Senior Note is the Eleventh District Cost of Funds Rate,
as indicated on the face hereof, the Eleventh District Cost of Funds Rate
shall be determined as of the applicable Interest Determination Date (an
"Eleventh District Cost of Funds Rate Interest Determination Date"), as the
rate equal to the monthly weighted average cost of funds for the calendar
month immediately preceding the month in which such Eleventh District Cost of
Funds Rate Interest Determination Date falls, as set forth under the caption
"11th District" on Telerate Page 7058 as of 11:00 A.M., San Francisco time, on
such Eleventh District Cost of Funds Rate Interest Determination Date. If
such rate does not appear on Telerate Page 7058 on any related Eleventh
District Cost of Funds Rate Interest Determination Date, the Eleventh District
Cost of Funds Rate for such Eleventh District Cost of Funds Rate Interest
Determination Date shall be the monthly weighted average cost of funds paid by
member institutions of the Eleventh Federal Home Loan Bank District that was
most recently announced (the "Index") by the FHLB of San Francisco as such
cost of funds for the calendar month immediately preceding the date of such
announcement. If the FHLB of San Francisco fails to announce such rate for
the calendar month immediately preceding such Eleventh District Cost of Funds
Rate Interest Determination Date, then the Eleventh District Cost of Funds
Rate determined as of such Eleventh District Cost of Funds Rate Interest
Determination Date shall be the Eleventh
13
District Cost of Funds Rate in effect on such Eleventh District Cost of Funds
Rate Interest Determination Date.
"Telerate Page 7058" means the display designated as page "7058" on the
Dow ▇▇▇▇▇ Telerate Service (or such other page as may replace the 7058 page on
that service for the purpose of displaying the monthly weighted average cost
of funds paid by member institutions of the Eleventh Federal Home Loan Bank
District).
Determination of Federal Funds Rate. If an Interest Rate Basis for this
Senior Note is the Federal Funds Rate, as indicated on the face hereof, the
Federal Funds Rate shall be determined as of the applicable Interest
Determination Date (a "Federal Funds Rate Interest Determination Date"), as
the rate on such date for federal funds as published in H.15(519) under the
heading "Federal Funds (Effective)" or, if not so published by 3:00 P.M., New
York City time, on the related Calculation Date, the rate on such Federal
Funds Rate Interest Determination Date, as published in Composite Quotations
under the heading "Federal Funds/Effective Rate." If by 3:00 P.M., New York
City time, on the related Calculation Date such rate is not published in
either H.15(519) or Composite Quotations, then the Federal Funds Rate on such
Federal Funds Rate Interest Determination Date shall be calculated by the
Calculation Agent and shall be the arithmetic mean of the rates for the last
transaction in overnight United States dollar federal funds arranged prior to
9:00 A.M., New York City time on such Federal Funds Rate Interest
Determination Date by three leading brokers of federal funds transactions in
The City of New York selected by the Calculation Agent; provided, however,
that if any of the brokers selected as aforesaid by the Calculation Agent are
not quoting as mentioned in this sentence, the Federal Funds Rate determined
as of such Federal Funds Rate Interest Determination Date shall be the Federal
Funds Rate in effect on such Federal Funds Rate Interest Determination Date.
Determination of LIBOR. If an Interest Rate Basis for this Senior Note
is LIBOR, as indicated on the face hereof, LIBOR shall be determined by the
Calculation Agent as of the applicable Interest Determination Date (a "LIBOR
Interest Determination Date") in accordance with the following provisions:
(a) With respect to any LIBOR Interest Determination Date, LIBOR
will be, as specified on the face hereof,
14
either: (i) the rate for deposits in U.S. dollars having the Index
Maturity designated on the face hereof, commencing on the second London
Business Day immediately following that LIBOR Interest Determination
Date, that appears on the Telerate Page 3750 as of 11:00 A.M., London
time, on that LIBOR Interest Determination Date ("LIBOR Telerate") or
(ii) the arithmetic mean of the offered rates for deposits in U.S.
dollars having the Index Maturity designated on the face hereof,
commencing on the second London Business Day immediately following that
LIBOR Interest Determination Date, that appear on the Reuters Screen LIBO
Page as of 11:00 A.M., London time, on that LIBOR Interest Determination
Date, if at least two such offered rates appear on the Reuters Screen
LIBO Page ("LIBOR Reuters"). "Telerate Page 3750" means the display
designated as page "3750" on the Telerate Service (or such other page as
may replace the 3750 page on that service or such other service or
services as may be nominated by the British Bankers' Association for the
purpose of displaying London interbank offered rates for U.S. dollar
deposits). "Reuters Screen LIBO Page" means the display designated as
page "LIBO" on the Reuters Monitor Money Rates Service (or such other
page as may replace the LIBO page on that service for the purpose of
displaying London interbank offered rates of major banks). If neither
LIBOR Telerate nor LIBOR Reuters is specified on the face hereof, LIBOR
will be determined as if LIBOR Telerate had been specified. If no rate
appears on the Telerate Page 3750, or if fewer than two offered rates
appear on the Reuters Screen LIBO Page, as applicable, LIBOR in respect
of that LIBOR Interest Determination Date will be determined as if the
parties had specified the rate described in (b) below.
(b) With respect to a LIBOR Interest Determination Date on which no
rate appears on Telerate Page 3750, as specified in (a)(i) above, or on
which fewer than two offered rates appear on the Reuters Screen LIBO
Page, as specified in (a)(ii) above, as applicable, LIBOR will be
determined on the basis of the rates at which deposits in U.S. dollars
having the Index Maturity designated on the face hereof, are offered at
approximately 11:00 A.M., London time, on that LIBOR Interest
Determination Date by four major banks in the London interbank market
selected by the Calculation Agent ("Reference Banks") to prime banks in
the
15
London interbank market commencing on the second London Business Day
immediately following that LIBOR Interest Determination Date and in a
principal amount equal to an amount of not less than $1,000,000 that is
representative for a single transaction in such market at such time. The
Calculation Agent will request the principal London office of each of the
Reference Banks to provide a quotation of its rate. If at least two such
quotations are provided, LIBOR in respect of that LIBOR Interest
Determination Date will be the arithmetic mean of such quotations. If
fewer than two quotations are provided, LIBOR in respect of that LIBOR
Interest Determination Date will be the arithmetic mean of the rates
quoted at approximately 11:00 A.M., New York City time, on that LIBOR
Interest Determination Date by three major banks in The City of New York
selected by the Calculation Agent for loans in U.S. dollars to leading
European banks having the Index Maturity designated on the face hereof,
commencing on the second London Business Day immediately following that
LIBOR Interest Determination Date and in a principal amount equal to an
amount of not less than $1,000,000 that is representative for a single
transaction in such market at such time; provided, however, that if the
banks selected as aforesaid by the Calculation Agent are not quoting as
mentioned in this sentence, LIBOR with respect to such LIBOR Interest
Determination Date will be the rate of LIBOR in effect on such date.
Determination of Prime Rate. If an Interest Rate Basis for this Senior
Note is the Prime Rate, as indicated on the face hereof, the Prime Rate shall
be determined as of the applicable Interest Determination Date (a "Prime Rate
Interest Determination Date") as the rate on such date as such rate is
published in H.15(519) under the heading "Bank Prime Loan". If such rate is
not published prior to 3:00 P.M., New York City time, on the related
Calculation Date, then the Prime Rate shall be the arithmetic mean of the
rates of interest publicly announced by each bank that appears on the Reuters
Screen USPRIME1 (as defined below) as such bank's prime rate or base lending
rate as in effect for such Prime Rate Interest Determination Date. If fewer
than four such rates appear on the Reuters Screen USPRIME1 for such Prime Rate
Interest Determination Date, the Prime Rate shall be the arithmetic mean of
the prime rates quoted on the basis of the actual number of days in the year
divided by a 360-day year as of the close of business on such Prime Rate
Interest
16
Determination Date by four major money center banks in The City of New York
selected by the Calculation Agent. If fewer than four major money center
banks provide such quotations, the Prime Rate will be determined by the
Calculation Agent and will be the arithmetic mean of four prime rates, quoted
on the basis of the actual number of days in the year divided by a 360-day
year, as of the close of business on such Prime Rate Interest Determination
Date as furnished in The City of New York by the major money center banks, if
any, that have provided quotations and as many substitute banks or trust
companies as is necessary in order to obtain four such prime rate quotations,
provided such substitute banks or trust companies are organized and doing
business under the laws of the United States, or any state thereof, each
having total equity capital of at least U.S. $500 million and being subject to
supervision or examination by federal or state authority, selected by the
Calculation Agent to provide such rate or rates; provided, however, that if
the banks or trust companies selected as aforesaid are not quoting as
mentioned in this sentence, the Prime Rate determined as of such Prime Rate
Interest Determination Date shall be the Prime Rate in effect on such Prime
Rate Interest Determination Date.
"Reuters Screen USPRIME1" means the display designated as page "USPRIME1"
on the Reuters Monitor Money Rates Service (or such other page as may replace
the USPRIME1 page on that service for the purpose of displaying prime rates or
base lending rates of major United States banks).
Determination of Treasury Rate. If an Interest Rate Basis for this
Senior Note is the Treasury Rate, as specified on the face hereof, the
Treasury Rate shall be determined as of the applicable Interest Determination
Date (a "Treasury Rate Interest Determination Date") as the rate applicable to
the most recent auction of direct obligations of the United States ("Treasury
Bills") having the Index Maturity specified on the face hereof, as such rate
is published in H.15(519) under the heading "Treasury Bills -- auction average
(investment)" or, if not published by 3:00 P.M., New York City time, on the
related Calculation Date, the auction average rate (expressed as a bond
equivalent on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) as otherwise announced by the United States
Department of the Treasury. In the event that the results of the auction of
Treasury Bills having the Index Maturity specified on the face hereof are not
reported as
17
provided by 3:00 P.M., New York City time, on such Calculation Date, or if no
such auction is held in a particular week, then the Treasury Rate shall be
calculated by the Calculation Agent and shall be a yield to maturity
(expressed as a bond equivalent on the basis of a year of 365 or 366 days, as
applicable, and applied on a daily basis) of the arithmetic mean of the
secondary market bid rates, as of approximately 3:30 P.M., New York City time,
on such Treasury Rate Interest Determination Date, of three leading primary
United States government securities dealers selected by the Calculation Agent,
for the issue of Treasury Bills with a remaining maturity closest to the Index
Maturity specified on the face hereof; provided, however, that if any of the
dealers selected as aforesaid by the Calculation Agent are not quoting as
mentioned in this sentence, the Treasury Rate determined as of such Treasury
Rate Interest Determination Date shall be the Treasury Rate in effect on such
Treasury Rate Interest Determination Date.
Any provision contained herein, including the determination of an
Interest Rate Basis, the specification of an Interest Rate Basis, calculation
of the interest rate applicable to this Senior Note, its Interest Payment
Dates or any other matter relating hereto may be modified as specified in an
Addendum relating hereto if so specified on the face hereof.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, specified on the face hereof. In addition to any
Maximum Interest Rate applicable hereto pursuant to the above provisions, the
interest rate on this Senior Note will in no event be higher than the maximum
rate permitted by New York law, as the same may be modified by United States
law of general application. The Calculation Agent shall calculate the
interest rate hereon in accordance with the foregoing on or before each
Calculation Date. Unless otherwise specified on the face hereof, Chemical
Bank will be the Calculation Agent.
At the request of the Holder hereof, the Calculation Agent shall provide
to the Holder hereof the interest rate hereon then in effect and, if
determined, the interest rate which shall become effective as of the next
Interest Reset Date.
18
If this Senior Note is an Original Issue Discount Note and if an Event of
Default with respect to this Senior Note shall have occurred and be
continuing, the Default Amount (as defined hereafter) of this Senior Note may
be declared due and payable in the manner and with the effect provided herein.
The "Default Amount" shall be equal to the adjusted issue price as of the
first day of the accrual period as determined under Final Treasury Regulation
Section 1.1275-1(b) (or successor regulation) under the United States Internal
Revenue Code of 1986, as amended, in which the date of acceleration occurs
increased by the daily portion of the original issue discount for each day in
such accrual period ending on the date of acceleration, as determined under
Final Treasury Regulation Section 1.1272-1(b) (or successor regulation) under
the United States Internal Revenue Code of 1986, as amended. Upon payment of
(i) the principal, or premium, if any, so declared due and payable and (ii)
interest on any overdue principal and overdue interest or premium, if any (in
each case to the extent that the payment of such interest shall be legally
enforceable), all of the Bank's obligations in respect of the payment of
principal of, premium, if any, and interest on, this Senior Note shall
terminate.
In case any Senior Note shall at any time become mutilated, destroyed,
lost or stolen, and such Senior Note or evidence of the loss, theft or
destruction thereof satisfactory to the Bank and the Issuing and Paying Agent
and such other documents or proof as may be required by the Bank and the
Issuing and Paying Agent shall be delivered to the Issuing and Paying Agent,
the Bank shall issue a new Senior Note, of like tenor and principal amount,
having a serial number not contemporaneously outstanding, in exchange and
substitution for the mutilated Senior Note or in lieu of the Senior Note
destroyed, lost or stolen but, in the case of any destroyed, lost or stolen
Senior Note, only upon receipt of evidence satisfactory to the Bank and the
Issuing and Paying Agent that such Senior Note was destroyed, stolen or lost,
and, if required, upon receipt of indemnity satisfactory to the Bank and the
Issuing and Paying Agent. Upon the issuance of any substituted Senior Note,
the Bank and the Issuing and Paying Agent may require the payment of a sum
sufficient to cover all expenses and reasonable charges connected with the
preparation and delivery of a new Senior Note. If any Senior Note which has
matured or has been redeemed or repaid or is about to mature or to be redeemed
or repaid shall become mutilated, destroyed, lost or stolen, the Bank may,
instead of issuing a substitute Senior
19
Note, pay or authorize the payment of the same (without surrender thereof
except in the case of a mutilated Senior Note) upon compliance by the holder
with the provisions of this paragraph.
No recourse shall be had for the payment of principal of, premium, if
any, or interest on, this Senior Note for any claim based hereon, or otherwise
in respect hereof, against any shareholder, employee, agent, officer or
director, as such, past, present or future, of the Bank or of any successor
corporation, banking association or other legal entity (collectively,
"corporation"), either directly or through the Bank or any corporation,
whether by virtue of any constitution, statute or rule of law or by the
enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the issue
hereof, expressly waived and released.
The occurrence of any of the following events shall constitute an "Event
of Default" with respect to this Senior Note: (i) default in the payment of
any interest with respect to any of the Senior Notes issued by the Bank when
due, which continues for 30 calendar days; (ii) default in the payment of any
principal of, or premium, if any, on, any of the Senior Notes issued by the
Bank when due; (iii) the entry by a court having jurisdiction in the premises
of (a) a decree or order for relief in respect of the Bank in an involuntary
case or proceeding under any applicable United States federal or state
bankruptcy, insolvency, reorganization or other similar law or (b) a decree or
order appointing a conservator, receiver, liquidator, assignee, trustee,
sequestrator or any other similar official of the Bank, or of substantially
all of the property of the Bank, or ordering the winding up or liquidation of
the affairs of the Bank, and the continuance of any such decree or order for
relief or any such other decree or order unstayed and in effect for a period
of 60 consecutive days; or (iv) the commencement by the Bank of a voluntary
case or proceeding under any applicable United States federal or state
bankruptcy, insolvency, reorganization or other similar law or of any other
case or proceeding to be adjudicated as bankrupt or insolvent, or the consent
by the Bank to the entry of a decree or order for relief in an involuntary
case or proceeding under any applicable United States federal or state
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding, or the filing
by the Bank of a
20
petition or answer or consent seeking reorganization or relief under any
applicable United States federal or state bankruptcy, insolvency,
reorganization or similar law, or the consent by the Bank to the filing of
such petition or to the appointment of or taking possession by a custodian,
conservator, receiver, liquidator, assignee, trustee, sequestrator or similar
official of the Bank or of substantially all of the property of the Bank, or
the making by the Bank of an assignment for the benefit of creditors, or the
taking of corporate action by the Bank in furtherance of any such action. If
an Event of Default shall occur and be continuing, the holder of this Senior
Note may declare the principal amount of, accrued interest and premium, if
any, on, this Senior Note due and payable immediately by written notice to the
Bank. Upon such declaration and notice, such principal amount, accrued
interest and premium, if any, shall become immediately due and payable. Any
Event of Default with respect to this Senior Note may be waived by the holder
hereof.
The Issuing and Paying Agency Agreement provides that the Bank will
promptly notify, and provide copies of any such notice to, the Issuing and
Paying Agent, and the Issuing and Paying Agent will promptly mail by
first-class mail, postage prepaid, copies of such notice to the holders of the
Senior Notes, upon the occurrence of an Event of Default or of the curing or
waiver of an Event of Default.
Nothing contained herein shall prevent any consolidation or merger of the
Bank with any other corporation or successive consolidations or mergers in
which the Bank or its successor or successors shall be a party or parties, or
shall prevent any sale, conveyance, transfer or lease of the property of the
Bank as an entirety or substantially as an entirety to any other corporation
authorized to acquire and operate the same; provided, however (and the Bank
hereby covenants and agrees) that any such consolidation, merger, sale or
conveyance shall be upon the condition that: (i) immediately after such
consolidation, merger, sale or conveyance the corporation (whether the Bank or
such other corporation) formed by or surviving any such consolidation or
merger, or the corporation to which such sale or conveyance shall have been
made, shall not be in default in the performance or observance of any of the
terms, covenants and conditions of this Senior Note to be observed or
performed by the Bank; and (ii) the corporation (if other than the Bank)
formed by or surviving any such consolidation or merger, or the corporation
21
to which such sale or conveyance shall have been made, shall be organized
under the laws of the United States of America or any state thereof or the
District of Columbia and shall expressly assume the due and punctual payment
of the principal of, premium, if any, and interest on, this Senior Note. In
case of any such consolidation, merger, sale, conveyance, transfer or lease,
and upon the assumption by the successor corporation of the due and punctual
performance of all of the covenants in this Senior Note to be performed or
observed by the Bank, such successor corporation shall succeed to and be
substituted for the Bank with the same effect as if it had been named in this
Senior Note as the Bank and thereafter the predecessor corporation shall be
relieved of all obligations and covenants in this Senior Note and may be
liquidated and dissolved.
Any action by the holder of this Senior Note shall bind all future
holders of this Senior Note, and of any Senior Note issued in exchange or
substitution hereof or in place hereof, in respect of anything done or
permitted by the Bank or by the Issuing and Paying Agent in pursuance of such
action.
The Issuing and Paying Agent shall maintain at its offices a register
(the register maintained in such office or any other office or agency of the
Issuing and Paying Agent in The City of New York, herein referred to as the
"Senior Note Register") in which, subject to such reasonable regulations as it
may prescribe, the Issuing and Paying Agent shall provide for the registration
of the Senior Notes and of transfers of the Senior Notes.
The transfer of this Senior Note is registrable in the Senior Note
Register, upon surrender of this Senior Note for registration of transfer at
the office or agency of the Issuing and Paying Agent in the Place of Payment,
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Bank and the Issuing and Paying Agent duly executed by,
the holder hereof or his attorney duly authorized in writing, and thereupon
one or more new Senior Notes of like tenor, of authorized denominations and
for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
No provision of this Senior Note shall alter or impair the obligation of
the Bank, which is absolute and unconditional, to
22
pay principal of, premium, if any, and interest on, this Senior Note in U.S.
dollars at the times, places and rate herein prescribed in accordance with its
terms.
No service charge shall be made to a holder of this Senior Note for any
transfer or exchange of this Senior Note, but the Bank may require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection therewith.
Beneficial interests represented by this Senior Note are exchangeable
for definitive Senior Notes in registered form, of like tenor and of an equal
aggregate principal amount, only if (x) The Depository Trust Company, as
Depositary (the "Depositary") notifies the Bank that it is unwilling or unable
to continue as Depositary for this Senior Note or if at any time the
Depositary ceases to be a clearing agency registered under the Securities
Exchange Act of 1934, as amended, and a successor depositary is not appointed
by the Bank within 60 days, or (y) the Bank in its sole discretion determines
not to have such beneficial interests represented by this Senior Note. Any
Senior Note representing such beneficial interests that is exchangeable
pursuant to the preceding sentence shall be exchangeable in whole for
definitive Senior Notes in registered form, of like tenor and of an equal
aggregate principal amount, in minimum denominations of $250,000 and integral
multiples of $1,000 in excess thereof. Such definitive Senior Notes shall be
registered in the name or names of such person or persons as the Depositary
shall instruct the Issuing and Paying Agent.
Prior to due presentment of this Senior Note for registration of
transfer, the Bank, the Issuing and Paying Agent or any agent of the Bank or
the Issuing and Paying Agent may treat the holder in whose name this Senior
Note is registered as the owner hereof for all purposes, whether or not this
Senior Note be overdue, and neither the Bank, the Issuing and Paying Agent nor
any such agent shall be affected by notice to the contrary except as required
by applicable law.
All notices to the Bank under this Senior Note shall be in writing and
addressed to the Bank, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Treasurer, or to such other address of the Bank as the Bank may
notify the holders of the Senior Notes.
This Senior Note shall be governed by, and construed in accordance with,
the laws of the State of New York, without regard to conflicts of laws
principles and all applicable federal laws and regulations.
23
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
the within Senior Note, shall be construed as though they were written out in
full according to applicable laws or regulations.
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of
survivorship and not as tenants
in common
UNIF GIFT MIN ACT -- Custodian
---------- ---------
(Cust) (Minor)
under Uniform Gifts to Minors Act
-----------------------------------
(State)
Additional abbreviations may also be used
though not in the above list.
24
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s),
assign(s) and transfer(s) unto _______________________________________________
______________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY NUMBER OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
____________________________
_________________________/___________________________/
______________________________________________________________________________
______________________________________________________________________________
(Please print or typewrite name and address,
including postal zip code, of assignee)
the within Senior Note and all rights thereunder, and hereby irrevocably
constitutes and appoints _____________________________________________________
______________________________________________________________________________
______________________________________________________________________________
to transfer said Senior Note on the books of the Issuing and Paying Agent,
with full power of substitution in the premises.
Dated: -----------------------------------
------------------ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of the within Senior Note in
every particular, without alteration or
enlargement or any change whatsoever.
--------------------------------
Signature Guarantee
25
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the Bank to
repay this Senior Note (or portion hereof specified below) pursuant to its
terms at a price equal to 100% of the principal amount hereof to be repaid,
together with accrued and unpaid interest hereon, payable to the date of
repayment, to the undersigned, at ____________________________________________
_____________________________________________________________________________.
(Please print or typewrite name and address of the undersigned)
For this Senior Note to be repaid, the undersigned must give to the
Issuing and Paying Agent at its offices located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Global Trust Securities Group, or at such
other place or places of which the Bank shall from time to time notify the
holders of the Senior Notes, not more than 60 days nor less than 30 days prior
notice to the date of repayment, with this "Option to Elect Repayment" form
duly completed.
If less than the entire principal amount of this Senior Note is to be
repaid, specify the portion hereof (which shall be increments of $1,000) which
the holder elects to have repaid and specify the denomination or denominations
(which shall be $250,000 or an integral multiple of $1,000 in excess thereof)
of the Senior Notes to be issued to the holder for the portion of this Senior
Note not being repaid (in the absence of any such specification, one such
Senior Note will be issued for the portion not being repaid):
$
------------------------------ ------------------------------
NOTICE: The signature on this
Dated: "Option to Elect Repayment" form must
------------------------ correspond with the name as written upon
the face of the within Senior Note in every
particular, without alteration or
enlargement or any change whatsoever.
--------------------------------
Signature Guarantee
26
A-3
THIS SUBORDINATED NOTE IS AN OBLIGATION SOLELY OF THE BANK AND WILL NOT BE AN
OBLIGATION OF, OR OTHERWISE GUARANTEED BY, ANY OTHER BANK OR CAPITAL ONE
FINANCIAL CORPORATION. THIS SUBORDINATED NOTE DOES NOT EVIDENCE DEPOSITS OF
THE BANK AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR
ANY OTHER GOVERNMENT AGENCY. THIS SUBORDINATED NOTE IS SUBORDINATED TO THE
CLAIMS OF DEPOSITORS AND GENERAL CREDITORS OF THE BANK, IS INELIGIBLE AS
COLLATERAL FOR A LOAN BY THE BANK AND IS NOT SECURED.
UNLESS THIS SUBORDINATED NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) (THE
"DEPOSITARY") TO THE BANK OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY SUBORDINATED NOTE ISSUED UPON REGISTRATION OF TRANSFER OF,
OR IN EXCHANGE FOR, OR IN LIEU OF, THIS SUBORDINATED NOTE IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY AND ANY PAYMENT HEREON IS MADE TO CEDE & CO.,
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH
NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
THIS SUBORDINATED NOTE IS ISSUABLE ONLY IN FULLY REGISTERED FORM IN MINIMUM
DENOMINATIONS OF $250,000 AND INTEGRAL MULTIPLES OF $1,000 IN EXCESS THEREOF.
EACH OWNER OF A BENEFICIAL INTEREST IN THIS SUBORDINATED NOTE MUST BE AN
INSTITUTIONAL INVESTOR WHO IS AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF
RULE 501 UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND IS REQUIRED TO HOLD
A BENEFICIAL INTEREST IN $250,000 PRINCIPAL AMOUNT OR ANY INTEGRAL MULTIPLE OF
$1,000 IN EXCESS THEREOF OF THIS SUBORDINATED NOTE AT ALL TIMES.
No. FXR-________
CUSIP NO.: _______ REGISTERED
CAPITAL ONE BANK
GLOBAL SUBORDINATED BANK NOTE
(Fixed Rate)
ORIGINAL ISSUE DATE: PRINCIPAL AMOUNT:
INTEREST RATE: ______% MATURITY DATE:
INTEREST PAYMENT DATE(S): REGULAR RECORD DATES
[ ] At Maturity only (if other than May 1
[ ] May 15 and November 15 or November 1, prior to each
[ ] Other: Interest Payment Date):
INITIAL REDEMPTION INITIAL REDEMPTION
DATE: PERCENTAGE:
ANNUAL REDEMPTION HOLDER'S OPTIONAL
PERCENTAGE REDUCTION: REPAYMENT DATE(S):
DAY COUNT CONVENTION
[ ] 30/360 FOR THE PERIOD FROM TO .
[ ] ACTUAL/360 FOR THE PERIOD FROM TO .
[ ] ACTUAL/ACTUAL FOR THE PERIOD FROM TO .
ADDENDUM ATTACHED: ORIGINAL ISSUE DISCOUNT:
[ ] Yes [ ] Yes
[ ] No [ ] No
DEFAULT RATE: ______% Total Amount of OID:
Yield to Maturity:
Initial Accrual Period:
OTHER PROVISIONS:
2
Capital One Bank, a bank duly authorized and existing under the laws of
the Commonwealth of Virginia (the "Bank"), for value received, hereby promises
to pay to CEDE & CO., or registered assigns, the principal sum of ____________
______________________________________________________________ United States
Dollars on the Maturity Date specified above (except to the extent redeemed or
repaid prior to the Maturity Date) and to pay interest thereon from and
including the Original Issue Date specified above or from and including the
most recent interest payment date on which interest on this Subordinated Note
(or any predecessor Subordinated Note) has been paid or duly provided for,
semi-annually on May 15 and November 15 of each year (unless otherwise
specified on the face hereof) (each, an "Interest Payment Date") and at
maturity or upon earlier redemption or repayment, if applicable, commencing on
the first Interest Payment Date next succeeding the Original Issue Date (or,
if the Original Issue Date is between a Regular Record Date (as defined below)
and the Interest Payment Date immediately following such Regular Record Date,
on the second Interest Payment Date following the Original Issue Date), at the
Interest Rate per annum specified above, until the principal hereof is paid or
made available for payment, and (to the extent that the payment of such
interest shall be legally enforceable) at the Default Rate per annum specified
above on any overdue principal and premium, if any, and on any overdue
installment of interest. If no Default Rate is specified above, the Default
Rate shall be the Interest Rate on this Subordinated Note specified above.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will be paid to the person in whose name this
Subordinated Note (or any predecessor Subordinated Note) is registered at the
close of business on the Regular Record Date, which shall be the May 1 and
November 1 (whether or not a Business Day (as defined below)), as the case may
be, next preceding the applicable Interest Payment Date (unless otherwise
specified on the face hereof) (each, a "Regular Record Date"); provided,
however, that interest payable at maturity or upon earlier redemption or
repayment, if applicable, will be payable to the person to whom principal
shall be payable. Any such interest not so punctually paid or duly provided
for shall forthwith cease to be payable to the holder as of the close of
business on such Regular Record Date, and may either be paid to the person in
whose name this Subordinated Note (or any predecessor Subordinated Note) is
registered at the close of business on a special record date for the payment
of such
3
defaulted interest (the "Special Record Date") to be fixed by the Bank, notice
of which shall be given to the holders of Subordinated Notes not less than 10
calendar days prior to such Special Record Date, or be paid at any time in any
other lawful manner.
Payment of principal of, premium, if any, and interest on, this
Subordinated Note will be made in such coin or currency of the United States
of America as at the time of payment is legal tender for payment of public and
private debts. The Bank will at all times appoint and maintain an issuing and
paying agent (the "Issuing and Paying Agent," which term shall include any
successor Issuing and Paying Agent), authorized by the Bank to pay principal
of, premium, if any, and interest on, this Subordinated Note on behalf of the
Bank pursuant to an issuing and paying agency agreement (the "Issuing and
Paying Agency Agreement") and having an office or agency (the "Issuing and
Paying Agent Office") The City of New York or in the city in which the Bank is
headquartered (the "Place of Payment"), where this Subordinated Note may be
presented or surrendered for payment and where notices, designations or
requests in respect of payments with respect to this Subordinated Note may be
served. The Bank has initially appointed Chemical Bank as the Issuing and
Paying Agent, with the Issuing and Paying Agent Office currently located at
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Global Trust
Securities Group. The Bank may remove the Issuing and Paying Agent pursuant
to the terms of the Issuing and Paying Agency Agreement and may appoint a
successor Issuing and Paying Agent.
Payment of principal of, premium, if any, and interest on, this
Subordinated Note due at maturity or upon earlier redemption or repayment, if
applicable, will be made in immediately available funds upon presentation and
surrender of this Subordinated Note to the Issuing and Paying Agent at the
Issuing and Paying Agent Office; provided that this Subordinated Note is
presented to the Issuing and Paying Agent in time for the Issuing and Paying
Agent to make such payment in accordance with its normal procedures. Payments
of interest on this Subordinated Note (other than at maturity or upon earlier
redemption or repayment) will be made by wire transfer to such account as has
been appropriately designated to the Issuing and Paying Agent by the person
entitled to such payments.
4
Reference herein to "this Subordinated Note", "hereof", "herein" and
comparable terms shall include an Addendum hereto if an Addendum is specified
above.
Reference is hereby made to the further provisions of this Subordinated
Note set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Bank has caused this Subordinated Note to be duly
executed.
CAPITAL ONE BANK
By:
------------------------------------------------
Authorized Signatory
Dated:
ISSUING AND PAYING AGENT'S CERTIFICATE OF AUTHENTICATION
This is one of the Subordinated Notes referred to in the Issuing and Paying
Agency Agreement.
CHEMICAL BANK,
as Issuing and Paying Agent
By:
--------------------------
Authorized Signatory
5
[Reverse]
This Subordinated Note is one of a duly authorized issue of Subordinated
Bank Notes of the Bank due from five years to 30 years from date of issue (the
"Subordinated Notes").
Payments of interest hereon will include interest accrued to but
excluding the relevant Interest Payment Date or Maturity Date or date of
earlier redemption or repayment, as the case may be. Unless otherwise
specified on the face hereof, interest on this Subordinated Note will be
computed on the basis of a 360-day year of twelve 30-day months.
Any provision contained herein with respect to the calculation of the
rate of interest applicable to this Subordinated Note, its Interest Payment
Dates or any other matter relating hereto may be modified as specified in an
Addendum relating hereto if so specified on the face hereof.
If any Interest Payment Date, Maturity Date or date of earlier redemption
or repayment of this Subordinated Note falls on a day which is not a Business
Day, the related payment of principal of, premium, if any, or interest on,
this Subordinated Note shall be made on the next succeeding Business Day with
the same force and effect as if made on the date such payment were due, and no
interest shall accrue on the amount so payable for the period from and after
such Interest Payment Date, Maturity Date or date of earlier redemption or
repayment, as the case may be. "Business Day" means, unless otherwise
specified on the face hereof, any day that is not a Saturday or Sunday and
that in The City of New York or in the city in which the Bank is headquartered
is not a day on which banking institutions are authorized or required by law,
regulation or executive order to close.
The indebtedness of the Bank evidenced by this Subordinated Note,
including principal, premium, if any, and interest, shall be subordinate and
junior in right of payment to the Bank's obligations to its depositors, its
obligations under the Senior Notes (as such term is defined in the Issuing and
Paying Agency Agreement) and its obligations to its other creditors, including
its obligations to the Federal Reserve Bank, the Federal Deposit Insurance
Corporation and any rights acquired by the Federal
6
Deposit Insurance Corporation as a result of loans made by the Federal Deposit
Insurance Corporation to the Bank or the purchase or guarantee of any of its
assets by the Federal Deposit Insurance Corporation, pursuant to the
provisions of 12 U.S.C. 1823(c), (d) or (e), whether such obligations are
outstanding at this date or are hereafter incurred, other than any obligations
which by their express terms rank on parity with, or junior to, the
Subordinated Notes. In case of any insolvency, receivership, conservatorship,
reorganization, readjustment of debt, marshalling of assets and liabilities or
similar proceedings or any liquidation or winding-up of or relating to the
Bank, whether voluntary or involuntary, all such obligations (except
obligations which rank on parity with or junior to, the Subordinated Notes)
shall be entitled to be paid in full before any payment shall be made on
account of the principal of, premium, if any, or interest on this Subordinated
Note. In the event of any such proceeding, after payment in full of all sums
owing with respect to such prior obligations, the holder of this Subordinated
Note, together with any obligations of the Bank ranking on a parity with this
Subordinated Note, shall be entitled to be paid from the remaining assets of
the Bank the unpaid principal, premium, if any, and interest before any
payment or other distribution, whether in cash, property or otherwise, shall
be made on account of any capital stock or any obligations of the Bank ranking
junior to this Subordinated Note.
This Subordinated Note will not be subject to any sinking fund. If so
provided on the face of this Subordinated Note, this Subordinated Note may be
redeemed by the Bank either in whole or in part on and after the Initial
Redemption Date, if any, specified on the face hereof. If no Initial
Redemption Date is specified on the face hereof, this Subordinated Note may
not be redeemed prior to the Maturity Date. On and after the Initial
Redemption Date, if any, this Subordinated Note may be redeemed in increments
of $1,000 (provided that any remaining principal amount hereof shall be at
least $250,000) at the option of the Bank at the applicable Redemption Price
(as defined below), together with unpaid interest accrued hereon at the
applicable rate borne by this Subordinated Note to the date of redemption
(each such date, a "Redemption Date"), on written notice given not more than
60 nor less than 30 calendar days prior to the Redemption Date to the
registered holder hereof. Whenever less than all the Subordinated Notes at
any time outstanding are to be redeemed, the terms of the Subordinated Notes
to be so redeemed
7
shall be selected by the Bank. If less than all the Subordinated Notes with
identical terms at any time outstanding are to be redeemed, the Subordinated
Notes to be so redeemed shall be selected by the Issuing and Paying Agent by
lot or in any usual manner approved by it. In the event of redemption of this
Subordinated Note in part only, a new Subordinated Note for the unredeemed
portion hereof shall be issued in the name of the holder hereof upon the
surrender hereof.
The "Redemption Price" shall initially be the Initial Redemption
Percentage specified on the face hereof of the principal amount of this
Subordinated Note to be redeemed and shall decline at each anniversary of the
Initial Redemption Date specified on the face hereof by the Annual Redemption
Percentage Reduction, if any, specified on the face hereof, of the principal
amount to be redeemed until the Redemption Price is 100% of such principal
amount.
This Subordinated Note may be subject to repayment at the option of the
holder hereof in accordance with the terms hereof on any Holder's Optional
Repayment Date(s), if any, specified on the face hereof. If no Holder's
Optional Repayment Date is specified on the face hereof, this Subordinated
Note will not be repayable at the option of the holder hereof prior to
maturity. On any Holder's Optional Repayment Date, this Subordinated Note
will be repayable in whole or in part in increments of $1,000 (provided that
any remaining principal amount hereof will be at least $250,000) at the option
of the holder hereof at a repayment price equal to 100% of the principal
amount to be repaid, together with accrued and unpaid interest hereon payable
to the date of repayment. For this Subordinated Note to be repaid in whole or
in part at the option of the holder hereof on a Holder's Optional Repayment
Date, this Subordinated Note must be delivered, with the form entitled "Option
to Elect Repayment" attached hereto duly completed, to the Issuing and Paying
Agent at its offices located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: Global Trust Securities Group, or at such other address
which the Bank shall from time to time notify the holders of the Subordinated
Notes, not more than 60 nor less than 30 calendar days prior to such Holder's
Optional Repayment Date. In the event of repayment of this Subordinated Note
in part only, a new Subordinated Note for the unrepaid portion hereof shall be
issued in the name of the holder hereof upon the surrender
8
hereof. Exercise of such repayment option by the holder hereof shall be
irrevocable.
If this Subordinated Note is an Original Issue Discount Note and if an
Event of Default with respect to this Subordinated Note shall have occurred
and be continuing, the Default Amount (as defined hereafter) of this
Subordinated Note may be declared due and payable in the manner and with the
effect provided herein. The "Default Amount" shall be equal to the adjusted
issue price as of the first day of the accrual period as determined under
Final Treasury Regulation Section 1.1275-1(b) (or successor regulation) under
the United States Internal Revenue Code of 1986, as amended, in which the date
of acceleration occurs increased by the daily portion of the original issue
discount for each day in such accrual period ending on the date of
acceleration, as determined under Final Treasury Regulation Section
1.1272-1(b) (or successor regulation) under the United States Internal Revenue
Code of 1986, as amended. Upon payment of (i) the principal, or premium, if
any, so declared due and payable and (ii) interest on any overdue principal
and overdue interest or premium, if any (in each case to the extent that the
payment of such interest shall be legally enforceable), all of the Bank's
obligations in respect of the payment of principal of, premium, if any, and
interest on, this Subordinated Note shall terminate.
In case any Subordinated Note shall at any time become mutilated,
destroyed, lost or stolen, and such Subordinated Note or evidence of the loss,
theft or destruction thereof satisfactory to the Bank and the Issuing and
Paying Agent and such other documents or proof as may be required by the Bank
and the Issuing and Paying Agent shall be delivered to the Issuing and Paying
Agent, the Bank shall issue a new Subordinated Note, of like tenor and
principal amount, having a serial number not contemporaneously outstanding, in
exchange and substitution for the mutilated Subordinated Note or in lieu of
the Subordinated Note destroyed, lost or stolen but, in the case of any
destroyed, lost or stolen Subordinated Note, only upon receipt of evidence
satisfactory to the Bank and the Issuing and Paying Agent that such
Subordinated Note was destroyed, stolen or lost, and, if required, upon
receipt of indemnity satisfactory to the Bank and the Issuing and Paying
Agent. Upon the issuance of any substituted Subordinated Note, the Bank and
the Issuing and Paying Agent may require the payment of a sum sufficient to
cover
9
all expenses and reasonable charges connected with the preparation and
delivery of a new Subordinated Note. If any Subordinated Note which has
matured or has been redeemed or repaid or is about to mature or to be redeemed
or repaid shall become mutilated, destroyed, lost or stolen, the Bank may,
instead of issuing a substitute Subordinated Note, pay or authorize the
payment of the same (without surrender thereof except in the case of a
mutilated Subordinated Note) upon compliance by the holder with the provisions
of this paragraph.
No recourse shall be had for the payment of principal of, premium, if
any, or interest on, this Subordinated Note for any claim based hereon, or
otherwise in respect hereof, against any shareholder, employee, agent, officer
or director, as such, past, present or future, of the Bank or of any successor
corporation, banking association or other legal entity (collectively,
"corporation"), either directly or through the Bank or any corporation,
whether by virtue of any constitution, statute or rule of law or by the
enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the issue
hereof, expressly waived and released.
An "Event of Default" with respect to this Subordinated Note will occur
if the Bank shall consent to, or a court or other governmental agency shall
enter a decree or order for, the appointment of a conservator or receiver or
other similar official in any liquidation, insolvency or similar proceeding
with respect to the Bank or all or substantially all of its property and, in
the case of a decree or order, such decree or order shall have remained in
force for a period of 60 consecutive days. If an Event of Default shall occur
and be continuing, the holder of this Subordinated Note may declare the
principal amount of, and accrued interest and premium, if any, on, this
Subordinated Note due and payable immediately by written notice to the Bank.
Upon such declaration and notice, such principal amount, accrued interest and
premium, if any, shall become immediately due and payable. Any Event of
Default with respect to this Subordinated Note may be waived by the holder
hereof. THERE IS NO RIGHT OF ACCELERATION IN THE CASE OF A DEFAULT IN THE
PAYMENT OF PRINCIPAL OF, PREMIUM, IF ANY, OR INTEREST ON, THIS SUBORDINATED
NOTE OR IN THE PERFORMANCE OF ANY OTHER OBLIGATION OF THE BANK UNDER THIS
SUBORDINATED NOTE OR UNDER ANY OTHER SECURITY ISSUED BY THE BANK.
10
The Issuing and Paying Agency Agreement provides that the Bank will
promptly notify, and provide copies of any such notice to, the Issuing and
Paying Agent, and the Issuing and Paying Agent will promptly mail by
first-class mail, postage prepaid, copies of such notice to the holders of the
Subordinated Notes, upon the occurrence of an Event of Default or of the
curing or waiver of an Event of Default.
Nothing contained herein shall prevent any consolidation or merger of the
Bank with any other corporation or successive consolidations or mergers in
which the Bank or its successor or successors shall be a party or parties, or
shall prevent any sale, conveyance, transfer or lease of the property of the
Bank as an entirety or substantially as an entirety to any other corporation
authorized to acquire and operate the same; provided, however (and the Bank
hereby covenants and agrees) that any such consolidation, merger, sale or
conveyance shall be upon the condition that: (i) immediately after such
consolidation, merger, sale or conveyance the corporation (whether the Bank or
such other corporation) formed by or surviving any such consolidation or
merger, or the corporation to which such sale or conveyance shall have been
made, shall not be in default in the performance or observance of any of the
terms, covenants and conditions of this Subordinated Note to be observed or
performed by the Bank; and (ii) the corporation (if other than the Bank)
formed by or surviving any such consolidation or merger, or the corporation to
which such sale or conveyance shall have been made, shall be organized under
the laws of the United States of America or any state thereof or the District
of Columbia and shall expressly assume the due and punctual payment of the
principal of, premium, if any, and interest on, this Subordinated Note. In
case of any such consolidation, merger, sale, conveyance, transfer or lease,
and upon the assumption by the successor corporation of the due and punctual
performance of all of the covenants in this Subordinated Note to be performed
or observed by the Bank, such successor corporation shall succeed to and be
substituted for the Bank with the same effect as if it had been named in this
Subordinated Note as the Bank and thereafter the predecessor corporation shall
be relieved of all obligations and covenants in this Subordinated Note and may
be liquidated and dissolved.
Any action by the holder of this Subordinated Note shall bind all future
holders of this Subordinated Note, and of any Subordinated Note issued in
exchange or substitution herefor or
11
in place hereof, in respect of anything done or permitted by the Bank or by
the Issuing and Paying Agent in pursuance of such action.
The Issuing and Paying Agent shall maintain at its offices a register
(the register maintained in such office or any other office or agency of the
Issuing and Paying Agent in The City of New York, herein referred to as the
"Subordinated Note Register") in which, subject to such reasonable regulations
as it may prescribe, the Issuing and Paying Agent shall provide for the
registration of the Subordinated Notes and of transfers of the Subordinated
Notes (in such capacity, the "Subordinated Notes Registrar").
The transfer of this Subordinated Note is registrable in the Subordinated
Note Register, upon surrender of this Subordinated Note for registration of
transfer at the office or agency of the Issuing and Paying Agent in the Place
of Payment, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Bank and the Issuing and Paying Agent
duly executed by, the holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Subordinated Notes of like tenor, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
No provision of this Subordinated Note shall alter or impair the
obligation of the Bank, which is absolute and unconditional, to pay principal
of, premium, if any, and interest on, this Subordinated Note in U.S. dollars
at the times, places and rate herein prescribed in accordance with its terms.
In the event of the failure by the Bank to make payment of principal of,
premium, if any, or interest on this Subordinated Note (and, in the case of
payment of interest, such failure to pay shall have continued for 2 days), the
Bank will, upon demand of the holder of this Subordinated Note, pay to the
holder of this Subordinated Note the whole amount then due and payable on this
Subordinated Note for principal, premium, if any, and interest, with interest
on the overdue principal of, premium, if any, and interest on, this
Subordinated Note to the extent provided for herein. If the Bank fails to pay
such amount upon such demand, the holder of this Subordinated Note may among
other
12
things, institute a judicial proceeding for the collection of such amount.
No service charge shall be made to a holder of this Subordinated Note for
any transfer or exchange of this Subordinated Note, but the Bank may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith.
Beneficial interests represented by this Subordinated Note are
exchangeable for definitive Subordinated Notes in registered form, of like
tenor and of an equal aggregate principal amount, only if (x) The Depository
Trust Company, as Depositary (the "Depositary") notifies the Bank that it is
unwilling or unable to continue as Depositary for this Subordinated Note or if
at any time the Depositary ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, and a successor depositary is not
appointed by the Bank within 60 days, or (y) the Bank in its sole discretion
determines not to have such beneficial interests represented by this
Subordinated Note. Any Subordinated Note representing such beneficial
interests that is exchangeable pursuant to the preceding sentence shall be
exchangeable in whole for definitive Subordinated Notes in registered form, of
like tenor and of an equal aggregate principal amount, in minimum
denominations of $250,000 and integral multiples of $1,000 in excess thereof.
Such definitive Subordinated Notes shall be registered in the name or names of
such person or persons as the Depositary shall instruct the Issuing and Paying
Agent.
Prior to due presentment of this Subordinated Note for registration of
transfer, the Bank, the Issuing and Paying Agent or any agent of the Bank or
the Issuing and Paying Agent may treat the holder in whose name this
Subordinated Note is registered as the owner hereof for all purposes, whether
or not this Subordinated Note be overdue, and neither the Bank, the Issuing
and Paying Agent nor any such agent shall be affected by notice to the
contrary except as required by applicable law.
All notices to the Bank under this Subordinated Note shall be in writing
and addressed to the Bank, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Treasurer, or to such other address of the Bank as the Bank
may notify the holders of the Subordinated Notes.
This Subordinated Note shall be governed by, and construed in accordance
with, the laws of the State of New York, without regard to conflicts of laws
principles and all applicable federal laws and regulations.
13
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
the within Subordinated Note, shall be construed as though they were written
out in full according to applicable laws or regulations.
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of
survivorship and not as tenants
in common
UNIF GIFT MIN ACT -- Custodian
-------------- ---------
(Cust) (Minor)
under Uniform Gifts to Minors Act
----------------------------------
(State)
Additional abbreviations may also be used
though not in the above list.
14
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s),
assign(s) and transfer(s) unto _______________________________________________
______________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY NUMBER OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
____________________________
/___________________________/
______________________________________________________________________________
______________________________________________________________________________
(Please print or typewrite name and address,
including postal zip code, of assignee)
the within Subordinated Note and all rights thereunder, and hereby irrevocably
constitutes and appoints _____________________________________________________
______________________________________________________________________________
______________________________________________________________________________
to transfer said Subordinated Note on the books of the Issuing and Paying
Agent, with full power of substitution in the premises.
Dated:
------------------ ---------------------------------
NOTICE: The signature to this
assignment must correspond with
the name as written upon the face
of the within Subordinated Note
in every particular, without
alteration or enlargement or any
change whatsoever.
--------------------------------
Signature Guarantee
15
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the Bank to
repay this Subordinated Note (or portion hereof specified below) pursuant to
its terms at a price equal to 100% of the principal amount hereof to be
repaid, together with accrued and unpaid interest hereon, payable to the date
of repayment, to the undersigned, at _________________________________________
_____________________________________________________________________________.
(Please print or typewrite name and address of the undersigned)
For this Subordinated Note to be repaid, the undersigned must give to the
Issuing and Paying Agent at its offices located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Global Trust Securities Group, or at such
other place or places of which the Bank shall from time to time notify the
holders of the Subordinated Notes, not more than 60 days nor less than 30 days
prior notice to the date of repayment, with this "Option to Elect Repayment"
form duly completed.
If less than the entire principal amount of this Subordinated Note is to
be repaid, specify the portion hereof (which shall be increments of $1,000)
which the holder elects to have repaid and specify the denomination or
denominations (which shall be $250,000 or an integral multiple of $1,000 in
excess thereof) of the Subordinated Notes to be issued to the holder for the
portion of this Subordinated Note not being repaid (in the absence of any such
specification, one such Subordinated Note will be issued for the portion not
being repaid):
$
------------------------------ ------------------------------
NOTICE: The signature on this
Dated: "Option to Elect Repayment" form must
------------------------ correspond with the name as written upon
the face of the within Subordinated Note in
every particular, without alteration or
enlargement or any change whatsoever.
--------------------------------
Signature Guarantee
16
A-4
THIS SUBORDINATED NOTE IS AN OBLIGATION SOLELY OF THE BANK AND WILL NOT BE AN
OBLIGATION OF, OR OTHERWISE GUARANTEED BY, ANY OTHER BANK OR CAPITAL ONE
FINANCIAL CORPORATION. THIS SUBORDINATED NOTE DOES NOT EVIDENCE DEPOSITS OF
THE BANK AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR
ANY OTHER GOVERNMENT AGENCY. THIS SUBORDINATED NOTE IS SUBORDINATED TO THE
CLAIMS OF DEPOSITORS AND GENERAL CREDITORS OF THE BANK, IS INELIGIBLE AS
COLLATERAL FOR A LOAN BY THE BANK AND IS NOT SECURED.
UNLESS THIS SUBORDINATED NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) (THE
"DEPOSITARY") TO THE BANK OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY SUBORDINATED NOTE ISSUED UPON REGISTRATION OF TRANSFER OF,
OR IN EXCHANGE FOR, OR IN LIEU OF, THIS SUBORDINATED NOTE IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY AND ANY PAYMENT HEREON IS MADE TO CEDE & CO.,
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH
NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
THIS SUBORDINATED NOTE IS ISSUABLE ONLY IN FULLY REGISTERED FORM IN MINIMUM
DENOMINATIONS OF $250,000 AND INTEGRAL MULTIPLES OF $1,000 IN EXCESS THEREOF.
EACH OWNER OF A BENEFICIAL INTEREST IN THIS SUBORDINATED NOTE MUST BE AN
INSTITUTIONAL INVESTOR WHO IS AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF
RULE 501 UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND IS REQUIRED TO HOLD
A BENEFICIAL INTEREST IN $250,000 PRINCIPAL AMOUNT OR ANY INTEGRAL MULTIPLE OF
$1,000 IN EXCESS THEREOF OF THIS SUBORDINATED NOTE AT ALL TIMES.
No. FLR-__________ REGISTERED
CUSIP NO.: __________
CAPITAL ONE BANK
GLOBAL SUBORDINATED BANK NOTE
(Floating Rate)
ORIGINAL ISSUE DATE: PRINCIPAL AMOUNT:
INITIAL INTEREST RATE: ______% MATURITY DATE:
INTEREST RATE INDEX MATURITY:
BASIS OR BASES:
IF LIBOR: REGULAR RECORD
[ ] Libor Telerate DATES (if other than the 15th day
[ ] Libor Reuters prior to each Interest Payment
Date):
INDEX CURRENCY:
MINIMUM INTEREST RATE:
SPREAD (PLUS OR MINUS)
AND/OR SPREAD MULTIPLIER: INTEREST PAYMENT PERIOD:
MAXIMUM INTEREST RATE: INTEREST RESET PERIOD:
INTEREST PAYMENT DATES: CALCULATION AGENT:
ANNUAL REDEMPTION
INITIAL INTEREST RESET DATE: PERCENTAGE REDUCTION:
HOLDER'S OPTIONAL
INTEREST RESET DATES: REPAYMENT DATE(S):
DAY COUNT CONVENTION
INITIAL REDEMPTION DATE: [ ] 30/360 for the period
from _______ to _________.
[ ] Actual/360 for the
INITIAL REDEMPTION PERCENTAGE: period from _______ to _______.
[ ] Actual/Actual for the
period from _______ to _______.
INTEREST CALCULATION:
[ ] Regular Floating Rate ORIGINAL ISSUE DISCOUNT
Subordinated Note [ ] Yes
[ ] Floating Rate/Fixed Rate [ ] No
Subordinated Note
Fixed Rate Commencement Date: Total Amount of OID:
Fixed Interest Rate: Yield to Maturity:
[ ] Inverse Floating Rate Initial Accrual Period:
Subordinated Note
Fixed Interest Rate: DEFAULT RATE: ______%
ADDENDUM ATTACHED:
[ ] Yes
[ ] No
OTHER PROVISIONS:
2
Capital One Bank, a bank duly authorized and existing under the laws of
the Commonwealth of Virginia (the "Bank"), for value received, hereby promises
to pay to CEDE & CO., or registered assigns, the principal sum of ____________
________________________________________________________________ United States
Dollars on the Maturity Date specified above (except to the extent redeemed or
repaid prior to the Maturity Date) and to pay interest thereon from and
including the Original Issue Date specified above or from and including the
most recent interest payment date to which interest on this Subordinated Note
(or any predecessor Subordinated Note) has been paid or duly provided for
(each, an "Interest Payment Date"), on the Interest Payment Dates specified
above and at maturity or upon earlier redemption or repayment, if applicable,
commencing on the first Interest Payment Date next succeeding the Original
Issue Date (or, if the Original Issue Date is between a Regular Record Date
(as defined below) and the Interest Payment Date immediately following such
Regular Record Date, on the second Interest Payment Date following the
Original Issue Date), at a rate per annum equal to the Initial Interest Rate
specified above until the Initial Interest Reset Date specified above and
thereafter at a rate per annum determined in accordance with the provisions
hereof and any Addendum relating hereto depending upon the Interest Rate Basis
or Bases, if any, and such other terms specified above, until the principal
hereof is paid or made available for payment, and (to the extent that the
payment of such interest shall be legally enforceable) at the Default Rate per
annum specified above on any overdue principal and premium, if any, and on any
overdue installment of interest. If no Default Rate is specified above, the
Default Rate shall be the Interest Rate on this Subordinated Note specified
above. The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will be paid to the person in whose name this
Subordinated Note (or any predecessor Subordinated Note) is registered at the
close of business on the Regular Record Date, which shall be the 15th calendar
day (whether or not a Business Day(as defined below)) prior to such Interest
Payment Date (unless otherwise specified on the face hereof) (each, a "Regular
Record Date"); provided, however, that interest payable at maturity or upon
earlier redemption or repayment, if applicable, will be payable to the person
to whom principal shall be payable. Any such interest not so punctually paid
or duly provided for shall forthwith cease to be payable to the holder as of
the close of business on such Regular Record Date and may
3
either be paid to the person in whose name this Subordinated Note (or any
predecessor Subordinated Note) is registered at the close of business on a
special record date for the payment of such defaulted interest (the "Special
Record Date") to be fixed by the Bank, notice of which shall be given to the
holders of Subordinated Notes not less than 10 calendar days prior to such
Special Record Date, or be paid at any time in any other lawful manner.
Payment of principal of, premium, if any, and interest on, this
Subordinated Note will be made in such coin or currency of the United States
of America as at the time of payment is legal tender for payment of public and
private debts. The Bank will at all times appoint and maintain an issuing and
paying agent (the "Issuing and Paying Agent," which term shall include any
successor Issuing and Paying Agent), authorized by the Bank to pay principal
of, premium, if any, and interest on, this Subordinated Note on behalf of the
Bank pursuant to an issuing and paying agency agreement (the "Issuing and
Paying Agency Agreement") and having an office or agency (the "Issuing and
Paying Agent Office") in The City of New York or the city in which the Bank is
headquartered (the "Place of Payment"), where this Subordinated Note may be
presented or surrendered for payment and where notices, designations or
requests in respect of payments with respect to this Subordinated Note may be
served. The Bank has initially appointed Chemical Bank as the Issuing and
Paying Agent, with the Issuing and Paying Agent Office currently located at
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Global Trust
Securities Group. The Bank may remove the Issuing and Paying Agent pursuant
to the terms of the Issuing and Paying Agency Agreement, and appoint a
successor Issuing and Paying Agent.
Payment of principal of, premium, if any, and interest on, this
Subordinated Note due at maturity or upon earlier redemption or repayment, if
applicable, will be made in immediately available funds upon presentation and
surrender of this Subordinated Note to the Issuing and Paying Agent at the
Issuing and Paying Agent Office; provided that this Subordinated Note is
presented to the Issuing and Paying Agent in time for the Issuing and Paying
Agent to make such payment in accordance with its normal procedures. Payments
of interest on this Subordinated Note (other than at maturity or upon earlier
redemption or
4
repayment) will be made by wire transfer to such account as has been
appropriately designated to the Issuing and Paying Agent by the person
entitled to such payments.
Reference herein to "this Subordinated Note", "hereof", "herein" and
comparable terms shall include an Addendum hereto if an Addendum is specified
above.
Reference is hereby made to the further provisions of this Subordinated
Note set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Bank has caused this Subordinated Note to be duly
executed.
CAPITAL ONE BANK
By:
-----------------------------------
Authorized Signatory
Dated:
ISSUING AND PAYING AGENT'S CERTIFICATE OF AUTHENTICATION
This is one of the Subordinated Notes referred to in the Issuing and Paying
Agency Agreement.
CHEMICAL BANK,
as Issuing and Paying Agent
By:
--------------------------
Authorized Signatory
5
[Reverse]
This Subordinated Note is one of a duly authorized issue of Subordinated
Bank Notes of the Bank due from five years to 30 years from date of issue (the
"Subordinated Notes").
If any Interest Payment Date (other than an Interest Payment Date at the
Maturity Date or date of earlier redemption or repayment of this Subordinated
Note) would otherwise fall on a day that is not a Business Day, such Interest
Payment Date shall be postponed to the next succeeding day that is a Business
Day, except that if an Interest Rate Basis is LIBOR, as indicated on the face
hereof, and such next Business Day falls in the next succeeding calendar
month, such Interest Payment Date shall be the immediately preceding day that
is a Business Day. Except as provided above, interest payments will be made
on the Interest Payment Dates shown on the face hereof. If the Maturity Date
or date of earlier redemption or repayment of this Subordinated Note falls on
a day which is not a Business Day, the related payment of principal of,
premium, if any, and interest on, this Subordinated Note will be made on the
next succeeding Business Day with the same force and effect as if made on the
date such payment was due, and no interest shall accrue on the amount so
payable for the period from and after such Maturity Date or date of earlier
redemption or repayment, as the case may be.
The indebtedness of the Bank evidenced by this Subordinated Note,
including principal, premium, if any, and interest, shall be subordinate and
junior in right of payment to the Bank's obligations to its depositors, its
obligations under the Senior Notes (as such term is defined in the Issuing and
Paying Agency Agreement) and its obligations to its other creditors, including
its obligations to the Federal Reserve Bank, the Federal Deposit Insurance
Corporation and any rights acquired by the Federal Deposit Insurance
Corporation as a result of loans made by the Federal Deposit Insurance
Corporation to the Bank or the purchase or guarantee of any of its assets by
the Federal Deposit Insurance Corporation, pursuant to the provisions of 12
U.S.C. 1823(c), (d) or (e), whether such obligations are outstanding at this
date or are hereafter incurred, other than any obligations which by their
express terms rank on parity with, or junior to, the Subordinated Notes. In
case of any insolvency, receivership,
6
conservatorship, reorganization, readjustment of debt, marshalling of assets
and liabilities or similar proceedings or any liquidation or winding-up of or
relating to the Bank, whether voluntary or involuntary, all such obligations
(except obligations which rank on parity with or junior to, the Subordinated
Notes) shall be entitled to be paid in full before any payment shall be made
on account of the principal of, premium, if any, or interest on this
Subordinated Note. In the event of any such proceeding, after payment in full
of all sums owing with respect to such prior obligations, the holder of this
Subordinated Note, together with any obligations of the Bank ranking on a
parity with this Subordinated Note, shall be entitled to be paid from the
remaining assets of the Bank the unpaid principal, premium, if any, and
interest, before any payment or other distribution, whether in cash, property
or otherwise, shall be made on account of any capital stock or any obligations
of the Bank ranking junior to this Subordinated Note.
This Subordinated Note will not be subject to any sinking fund. If so
provided on the face of this Subordinated Note, this Subordinated Note may be
redeemed by the Bank either in whole or in part on and after the Initial
Redemption Date, if any, specified on the face hereof. If no Initial
Redemption Date is specified on the face hereof, this Subordinated Note may
not be redeemed prior to the Maturity Date. On and after the Initial
Redemption Date, if any, this Subordinated Note may be redeemed in increments
of $1,000 (provided that any remaining principal amount hereof shall be at
least $250,000) at the option of the Bank at the applicable Redemption Price
(as defined below), together with unpaid interest accrued hereon at the
applicable rate borne by this Subordinated Note to the date of redemption
(each such date, a "Redemption Date"), on written notice given not more than
60 nor less than 30 calendar days prior to the Redemption Date to the
registered holder hereof. Whenever less than all the Subordinated Notes at
any time outstanding are to be redeemed, the terms of the Subordinated Notes
to be so redeemed shall be selected by the Bank. If less than all the
Subordinated Notes with identical terms at any time outstanding are to be
redeemed, the Subordinated Notes to be so redeemed shall be selected by the
Issuing and Paying Agent by lot or in any usual manner approved by it. In the
event of redemption of this Subordinated Note in part only, a new Subordinated
Note for the
7
unredeemed portion hereof shall be issued in the name of the holder hereof
upon the surrender hereof.
The "Redemption Price" shall initially be the Initial Redemption
Percentage specified on the face hereof of the principal amount of this
Subordinated Note to be redeemed and shall decline at each anniversary of the
Initial Redemption Date specified on the face hereof by the Annual Redemption
Percentage Reduction, if any, specified on the face hereof, of the principal
amount to be redeemed until the Redemption Price is 100% of such principal
amount.
This Subordinated Note may be subject to repayment at the option of the
holder hereof in accordance with the terms hereof on any Holder's Optional
Repayment Date(s), if any, specified on the face hereof. If no Holder's
Optional Repayment Date is specified on the face hereof, this Subordinated
Note will not be repayable at the option of the holder hereof prior to
maturity. On any Holder's Optional Repayment Date, this Subordinated Note
will be repayable in whole or in part in increments of $1,000 (provided that
any remaining principal amount hereof will be at least $250,000) at the option
of the holder hereof at a repayment price equal to 100% of the principal
amount to be repaid, together with accrued and unpaid interest hereon payable
to the date of repayment. For this Subordinated Note to be repaid in whole or
in part at the option of the holder hereof on a Holder's Optional Repayment
Date, this Subordinated Note must be delivered, with the form entitled "Option
to Elect Repayment" attached hereto duly completed, to the Issuing and Paying
Agent at its offices located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: Global Trust Securities Group, or at such other address
which the Bank shall from time to time notify the holders of the Subordinated
Notes, not more than 60 nor less than 30 calendar days prior to such Holder's
Optional Repayment Date. In the event of repayment of this Subordinated Note
in part only, a new Subordinated Note for the unrepaid portion hereof shall be
issued in the name of the holder hereof upon the surrender hereof. Exercise
of such repayment option by the holder hereof shall be irrevocable.
The interest rate borne by this Subordinated Note shall be determined as
follows:
8
1. If this Subordinated Note is designated as a Regular Floating
Rate Subordinated Note on the face hereof or if no designation is made
for Interest Calculation on the face hereof, then, except as described
below or in an Addendum hereto, this Subordinated Note shall bear
interest at the rate determined by reference to the applicable Interest
Rate Basis or Bases shown on the face hereof (i) plus or minus the
applicable Spread, if any, and/or (ii) multiplied by the applicable
Spread Multiplier, if any, specified and applied in the manner described
on the face hereof. Commencing on the Initial Interest Reset Date, the
rate at which interest on this Subordinated Note is payable shall be
reset as of each Interest Reset Date specified on the face hereof;
provided, however, that the interest rate in effect for the period from
the Original Issue Date to the Initial Interest Reset Date will be the
Initial Interest Rate.
2. If this Subordinated Note is designated as a Floating
Rate/Fixed Rate Subordinated Note on the face hereof, then, except as
described below or in an Addendum hereto, this Subordinated Note shall
bear interest at the rate determined by reference to the applicable
Interest Rate Basis or Bases shown on the face hereof (i) plus or minus
the applicable Spread, if any, and/or (ii) multiplied by the applicable
Spread Multiplier, if any, specified and applied in the manner described
on the face hereof. Commencing on the Initial Interest Reset Date, the
rate at which interest on this Subordinated Note is payable shall be
reset as of each Interest Reset Date specified on the face hereof;
provided, however, that (i) the interest rate in effect for the period
from the Original Issue Date to the Initial Interest Reset Date shall be
the Initial Interest Rate; and (ii) the interest rate in effect
commencing on, and including, the Fixed Rate Commencement Date to the
Maturity Date or date of earlier redemption or repayment shall be the
Fixed Interest Rate, if such a rate is specified on the face hereof, or
if no such Fixed Interest Rate is so specified, the interest rate in
effect hereon on the Business Day immediately preceding the Fixed Rate
Commencement Date.
3. If this Subordinated Note is designated as an Inverse Floating
Rate Subordinated Note on the face hereof,
9
then, except as described below or in an Addendum hereto, this
Subordinated Note shall bear interest equal to the Fixed Interest Rate
indicated on the face hereof minus the rate determined by reference to
the applicable Interest Rate Basis or Bases shown on the face hereof (i)
plus or minus the applicable Spread, if any, and/or (ii) multiplied by
the applicable Spread Multiplier, if any, specified and applied in the
manner described on the face hereof; provided, however, that, unless
otherwise specified on the face hereof, the interest rate hereon will not
be less than zero percent. Commencing on the Initial Interest Reset
Date, the rate at which interest on this Subordinated Note is payable
shall be reset as of each Interest Rate Reset Date specified on the face
hereof; provided, however, that the interest rate in effect for the
period from the Original Issue Date to the Initial Interest Reset Date
shall be the Initial Interest Rate.
Notwithstanding the foregoing, if this Subordinated Note is designated on
the face hereof as having an Addendum attached, this Subordinated Note shall
bear interest in accordance with the terms described in such Addendum.
Except as provided above, the interest rate in effect on each day shall
be (a) if such day is an Interest Reset Date, the interest rate determined as
of the Interest Determination Date (as defined below) immediately preceding
such Interest Reset Date or (b) if such day is not an Interest Reset Date, the
interest rate determined as of the Interest Determination Date immediately
preceding the next preceding Interest Reset Date. Each Interest Rate Basis
shall be the rate determined in accordance with the applicable provision
below. If any Interest Reset Date (which term includes the term Initial
Interest Reset Date unless the context otherwise requires) would otherwise be
a day that is not a Business Day, such Interest Reset Date shall be postponed
to the next succeeding day that is a Business Day, except that if an Interest
Rate Basis specified on the face hereof is LIBOR and such next Business Day
falls in the next succeeding calendar month, such Interest Reset Date shall be
the immediately preceding Business Day.
Unless otherwise specified on the face hereof, interest payable on this
Subordinated Note on any Interest Payment Date
10
shall be the amount of interest accrued from and including the next preceding
Interest Payment Date in respect of which interest has been paid (or from and
including the Original Issue Date specified on the face hereof, if no interest
has been paid), to but excluding the related Interest Payment Date or Maturity
Date or date of earlier redemption or repayment, as the case may be.
Unless otherwise specified on the face hereof, accrued interest hereon
shall be an amount calculated by multiplying the face amount hereof by an
accrued interest factor. Such accrued interest factor shall be computed by
adding the interest factor calculated for each day in the period for which
accrued interest is being calculated. Unless otherwise specified on the face
hereof, the interest factor for each such day shall be computed and paid on
the basis of a 360-day year of twelve 30-day months if the Day Count
Convention specified on the face hereof is "30/360" for the period specified
thereunder, or by dividing the interest rate applicable to such day by 360 if
the Day Count Convention specified on the face hereof is "Actual/360" for the
period specified thereunder or by the actual number of days in the year if the
Day Count Convention specified on the face hereof is "Actual/Actual" for the
period specified thereunder. If interest on this Subordinated Note is to be
calculated with reference to two or more Interest Rate Bases as specified on
the face hereof, the interest factor will be calculated in each period in the
same manner as if only one of the applicable Interest Rate Bases applied.
Unless otherwise specified on the face hereof, the "Interest
Determination Date" with respect to the Commercial Paper Rate, the Federal
Funds Rate and the Prime Rate will be the second Business Day preceding each
Interest Reset Date; the "Interest Determination Date" with respect to the
Eleventh District Cost of Funds Rate will be the last working day of the month
immediately preceding each Interest Reset Date on which the Federal Home Loan
Bank of San Francisco (the "FHLB of San Francisco") publishes the Index (as
defined below); the "Interest Determination Date" with respect to LIBOR shall
be the second London Business Day (as defined below) preceding each Interest
Reset Date; the "Interest Determination Date" with respect to the Treasury
Rate will be the day in the week in which the related Interest Reset Date
falls on which day Treasury Bills (as defined below) are normally auctioned
(Treasury Bills are normally sold at auction on Monday
11
of each week, unless that day is a legal holiday, in which case the auction is
normally held on the following Tuesday, except that such auction may be held
on the preceding Friday); provided, however, that if an auction is held on the
Friday of the week preceding the related Interest Reset Date, the related
Interest Determination Date shall be such preceding Friday; and provided
further that if an auction shall fall on any Interest Reset Date, then the
Interest Reset Date shall instead be the first Business Day following such
auction. If the interest rate of this Subordinated Note is determined with
reference to two or more Interest Rate Bases as specified on the face hereof,
the Interest Determination Date pertaining to this Subordinated Note will be
the latest Business Day which is at least two Business Days prior to such
Interest Reset Date on which each Interest Rate Basis is determinable. Each
Interest Rate Basis shall be determined on such date, and the applicable
interest rate shall take effect on the Interest Reset Date.
Unless otherwise specified on the face hereof, the "Calculation Date"
pertaining to any Interest Determination Date will be the earlier of (i) the
tenth calendar day after such Interest Determination Date or, if such day is
not a Business Day, the next succeeding Business Day and (ii) the Business Day
immediately preceding the applicable Interest Payment Date or Maturity Date or
date of earlier redemption or repayment, as the case may be. All calculations
on this Subordinated Note shall be made by the Calculation Agent specified on
the face hereof or such successor thereto as is duly appointed by the Bank.
All percentages resulting from any calculation on this Subordinated Note
will be rounded, if necessary, to the nearest one hundred-thousandth of a
percentage point, with five one-millionths of a percentage point rounded
upward (e.g., 9.876545% (or 0.09876545) would be rounded to 9.87655% (or
0.0987655) and 9.876544% (or 0.09876544) would be rounded to 9.87654% (or
0.0987654)), and all dollar amounts used in or resulting from such calculation
will be rounded to the nearest cent (with one-half cent being rounded upward).
As used herein, "Business Day" means, unless otherwise specified on the
face hereof, any day that is not a Saturday or Sunday and that in The City of
New York or in the city in which the Bank is headquartered is not a day on
which banking
12
institutions are authorized or required by law, regulation or executive order
to close and, if an Interest Rate Basis shown on the face hereof is LIBOR, is
also a London Business Day.
As used herein, unless otherwise specified on the face hereof, "London
Business Day" means any day on which dealings in deposits in U.S. dollars are
transacted in the London interbank market.
Determination of Commercial Paper Rate. If an Interest Rate Basis for
this Subordinated Note is the Commercial Paper Rate, as indicated on the face
hereof, the Commercial Paper Rate shall be determined as of the applicable
Interest Determination Date (a "Commercial Paper Rate Interest Determination
Date"), as the Money Market Yield (as defined below) on such date of the rate
for commercial paper having the Index Maturity specified on the face hereof as
published by the Board of Governors of the Federal Reserve System in the
relevant weekly statistical release entitled "Statistical Release H.15(519),
Selected Interest Rates," or any successor publication of the Board of
Governors of the Federal Reserve System ("H.15(519)") under the heading
"Commercial Paper". In the event that such rate is not published by 3:00
P.M., New York City time, on the related Calculation Date, then the Commercial
Paper Rate shall be the Money Market Yield on such Commercial Paper Rate
Interest Determination Date of the rate for commercial paper having the Index
Maturity shown on the face hereof as published in the daily statistical
release entitled "Composite 3:30 P.M. Quotations for U.S. Government
Securities" or any successor publication published by the Federal Reserve Bank
of New York ("Composite Quotations") under the heading "Commercial Paper"
(with an Index Maturity of one month or three months being deemed to be
equivalent to an Index Maturity of 30 days or 90 days, respectively). If by
3:00 P.M., New York City time, on the related Calculation Date such rate is
not yet published in either H.15(519) or Composite Quotations, then the
Commercial Paper Rate on such Commercial Paper Rate Interest Determination
Date shall be calculated by the Calculation Agent and shall be the Money
Market Yield of the arithmetic mean of the offered rates at approximately
11:00 A.M., New York City time, on such Commercial Paper Rate Interest
Determination Date of three leading dealers of commercial paper in The City of
New York selected by the Calculation Agent for commercial paper having the
Index Maturity specified on the face
13
hereof placed for an industrial issuer whose bond rating is "AA," or the
equivalent, from a nationally recognized securities rating agency; provided,
however, that if any of the dealers selected as aforesaid by the Calculation
Agent are not quoting as mentioned in this sentence, the Commercial Paper Rate
determined as of such Commercial Paper Rate Interest Determination Date shall
be the rate in effect on such Commercial Paper Rate Interest Determination
Date.
"Money Market Yield" shall be a yield (expressed as a percentage)
calculated in accordance with the following formula:
Money Market Yield = D x 360 x 100
------------
360-(D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted
on a bank discount basis and expressed as a decimal and "M" refers to the
actual number of days in the interest period for which interest is being
calculated.
Determination of Eleventh District Cost of Funds Rate. If an Interest
Rate Basis for this Subordinated Note is the Eleventh District Cost of Funds
Rate, as indicated on the face hereof, the Eleventh District Cost of Funds
Rate shall be determined as of the applicable Interest Determination Date (an
"Eleventh District Cost of Funds Rate Interest Determination Date"), as the
rate equal to the monthly weighted average cost of funds for the calendar
month immediately preceding the month in which such Eleventh District Cost of
Funds Rate Interest Determination Date falls, as set forth under the caption
"11th District" on Telerate Page 7058 as of 11:00 A.M., San Francisco time, on
such Eleventh District Cost of Funds Rate Interest Determination Date. If
such rate does not appear on Telerate Page 7058 on any related Eleventh
District Cost of Funds Rate Interest Determination Date, the Eleventh District
Cost of Funds Rate for such Eleventh District Cost of Funds Rate Interest
Determination Date shall be the monthly weighted average cost of funds paid by
member institutions of the Eleventh Federal Home Loan Bank District that was
most recently announced (the "Index") by the FHLB of San Francisco as such
cost of funds for the calendar month immediately preceding the date of such
announcement. If the FHLB of San Francisco fails to announce such rate for
the calendar month immediately preceding such Eleventh District Cost of Funds
14
Rate Interest Determination Date, then the Eleventh District Cost of Funds
Rate determined as of such Eleventh District Cost of Funds Rate Interest
Determination Date shall be the Eleventh District Cost of Funds Rate in effect
on such Eleventh District Cost of Funds Rate Interest Determination Date.
"Telerate Page 7058" means the display designated as page "7058" on the
Dow ▇▇▇▇▇ Telerate Service (or such other page as may replace the 7058 page on
that service for the purpose of displaying the monthly weighted average cost
of funds paid by member institutions of the Eleventh Federal Home Loan Bank
District).
Determination of Federal Funds Rate. If an Interest Rate Basis for this
Subordinated Note is the Federal Funds Rate, as indicated on the face hereof,
the Federal Funds Rate shall be determined as of the applicable Interest
Determination Date (a "Federal Funds Rate Interest Determination Date"), as
the rate on such date for federal funds as published in H.15(519) under the
heading "Federal Funds (Effective)" or, if not so published by 3:00 P.M., New
York City time, on the related Calculation Date, the rate on such Federal
Funds Rate Interest Determination Date, as published in Composite Quotations
under the heading "Federal Funds/Effective Rate." If by 3:00 P.M., New York
City time, on the related Calculation Date such rate is not published in
either H.15(519) or Composite Quotations, then the Federal Funds Rate on such
Federal Funds Rate Interest Determination Date shall be calculated by the
Calculation Agent and shall be the arithmetic mean of the rates for the last
transaction in overnight United States dollar federal funds arranged prior to
9:00 A.M., New York City time on such Federal Funds Rate Interest
Determination Date by three leading brokers of federal funds transactions in
The City of New York selected by the Calculation Agent; provided, however,
that if any of the brokers selected as aforesaid by the Calculation Agent are
not quoting as mentioned in this sentence, the Federal Funds Rate determined
as of such Federal Funds Rate Interest Determination Date shall be the Federal
Funds Rate in effect on such Federal Funds Rate Interest Determination Date.
Determination of LIBOR. If an Interest Rate Basis for this Subordinated
Note is LIBOR, as indicated on the face hereof, LIBOR shall be determined by
the Calculation Agent as of the
15
applicable Interest Determination Date (a "LIBOR Interest Determination Date")
in accordance with the following provisions:
(a) With respect to any LIBOR Interest Determination Date, LIBOR
will be, as specified on the face hereof, either: (i) the rate for
deposits in U.S. dollars having the Index Maturity designated on the face
hereof, commencing on the second London Business Day immediately
following that LIBOR Interest Determination Date, that appears on the
Telerate Page 3750 as of 11:00 A.M., London time, on that LIBOR Interest
Determination Date ("LIBOR Telerate") or (ii) the arithmetic mean of the
offered rates for deposits in U.S. dollars having the Index Maturity
designated on the face hereof, commencing on the second London Business
Day immediately following that LIBOR Interest Determination Date, that
appear on the Reuters Screen LIBO Page as of 11:00 A.M., London time, on
that LIBOR Interest Determination Date, if at least two such offered
rates appear on the Reuters Screen LIBO Page ("LIBOR Reuters").
"Telerate Page 3750" means the display designated as page "3750" on the
Telerate Service (or such other page as may replace the 3750 page on that
service or such other service or services as may be nominated by the
British Bankers' Association for the purpose of displaying London
interbank offered rates for U.S. dollar deposits). "Reuters Screen LIBO
Page" means the display designated as page "LIBO" on the Reuters Monitor
Money Rates Service (or such other page as may replace the LIBO page on
that service for the purpose of displaying London interbank offered rates
of major banks). If neither LIBOR Telerate nor LIBOR Reuters is
specified on the face hereof, LIBOR will be determined as if LIBOR
Telerate had been specified. If no rate appears on the Telerate Page
3750, or if fewer than two offered rates appear on the Reuters Screen
LIBO Page, as applicable, LIBOR in respect of that LIBOR Interest
Determination Date will be determined as if the parties had specified the
rate described in (b) below.
(b) With respect to a LIBOR Interest Determination Date on which no
rate appears on Telerate Page 3750, as specified in (a)(i) above, or on
which fewer than two offered rates appear on the Reuters Screen LIBO
Page, as specified in (a)(ii) above, as applicable, LIBOR will be
16
determined on the basis of the rates at which deposits in U.S. dollars
having the Index Maturity designated on the face hereof, are offered at
approximately 11:00 A.M., London time, on that LIBOR Interest
Determination Date by four major banks in the London interbank market
selected by the Calculation Agent ("Reference Banks") to prime banks in
the London interbank market commencing on the second London Business Day
immediately following that LIBOR Interest Determination Date and in a
principal amount equal to an amount of not less than $1,000,000 that is
representative for a single transaction in such market at such time. The
Calculation Agent will request the principal London office of each of the
Reference Banks to provide a quotation of its rate. If at least two such
quotations are provided, LIBOR in respect of that LIBOR Interest
Determination Date will be the arithmetic mean of such quotations. If
fewer than two quotations are provided, LIBOR in respect of that LIBOR
Interest Determination Date will be the arithmetic mean of the rates
quoted at approximately 11:00 A.M., New York City time, on that LIBOR
Interest Determination Date by three major banks in The City of New York
selected by the Calculation Agent for loans in U.S. dollars to leading
European banks having the Index Maturity designated on the face hereof,
commencing on the second London Business Day immediately following that
LIBOR Interest Determination Date and in a principal amount equal to an
amount of not less than $1,000,000 that is representative for a single
transaction in such market at such time; provided, however, that if the
banks selected as aforesaid by the Calculation Agent are not quoting as
mentioned in this sentence, LIBOR with respect to such LIBOR Interest
Determination Date will be the rate of LIBOR in effect on such date.
Determination of Prime Rate. If an Interest Rate Basis for this
Subordinated Note is the Prime Rate, as indicated on the face hereof, the
Prime Rate shall be determined as of the applicable Interest Determination
Date (a "Prime Rate Interest Determination Date") as the rate on such date as
such rate is published in H.15(519) under the heading "Bank Prime Loan". If
such rate is not published prior to 3:00 P.M., New York City time, on the
related Calculation Date, then the Prime Rate shall be the arithmetic mean of
the rates of interest publicly announced by each bank that appears on the
Reuters Screen
17
USPRIME1 (as defined below) as such bank's prime rate or base lending rate as
in effect for such Prime Rate Interest Determination Date. If fewer than four
such rates appear on the Reuters Screen USPRIME1 for such Prime Rate Interest
Determination Date, the Prime Rate shall be the arithmetic mean of the prime
rates quoted on the basis of the actual number of days in the year divided by
a 360-day year as of the close of business on such Prime Rate Interest
Determination Date by four major money center banks in The City of New York
selected by the Calculation Agent. If fewer than four major money center
banks provide such quotations, the Prime Rate will be determined by the
Calculation Agent and will be the arithmetic mean of four prime rates, quoted
on the basis of the actual number of days in the year divided by a 360-day
year, as of the close of business on such Prime Rate Interest Determination
Date as furnished in The City of New York by the major money center banks, if
any, that have provided quotations and as many substitute banks or trust
companies as is necessary in order to obtain four such prime rate quotations,
provided such substitute banks or trust companies are organized and doing
business under the laws of the United States, or any state thereof, each
having total equity capital of at least U.S. $500 million and being subject to
supervision or examination by federal or state authority, selected by the
Calculation Agent to provide such rate or rates; provided, however, that if
the banks or trust companies selected as aforesaid are not quoting as
mentioned in this sentence, the Prime Rate determined as of such Prime Rate
Interest Determination Date shall be the Prime Rate in effect on such Prime
Rate Interest Determination Date.
"Reuters Screen USPRIME1" means the display designated as page "USPRIME1"
on the Reuters Monitor Money Rates Service (or such other page as may replace
the USPRIME1 page on that service for the purpose of displaying prime rates or
base lending rates of major United States banks).
Determination of Treasury Rate. If an Interest Rate Basis for this
Subordinated Note is the Treasury Rate, as specified on the face hereof, the
Treasury Rate shall be determined as of the applicable Interest Determination
Date (a "Treasury Rate Interest Determination Date") as the rate applicable to
the most recent auction of direct obligations of the United States ("Treasury
Bills") having the Index Maturity specified on the face hereof,
18
as such rate is published in H.15(519) under the heading "Treasury Bills --
auction average (investment)" or, if not published by 3:00 P.M., New York City
time, on the related Calculation Date, the auction average rate (expressed as
a bond equivalent on the basis of a year of 365 or 366 days, as applicable,
and applied on a daily basis) as otherwise announced by the United States
Department of the Treasury. In the event that the results of the auction of
Treasury Bills having the Index Maturity specified on the face hereof are not
reported as provided by 3:00 P.M., New York City time, on such Calculation
Date, or if no such auction is held in a particular week, then the Treasury
Rate shall be calculated by the Calculation Agent and shall be a yield to
maturity (expressed as a bond equivalent on the basis of a year of 365 or 366
days, as applicable, and applied on a daily basis) of the arithmetic mean of
the secondary market bid rates, as of approximately 3:30 P.M., New York City
time, on such Treasury Rate Interest Determination Date, of three leading
primary United States government securities dealers selected by the
Calculation Agent, for the issue of Treasury Bills with a remaining maturity
closest to the Index Maturity specified on the face hereof; provided, however,
that if any of the dealers selected as aforesaid by the Calculation Agent are
not quoting as mentioned in this sentence, the Treasury Rate determined as of
such Treasury Rate Interest Determination Date shall be the Treasury Rate in
effect on such Treasury Rate Interest Determination Date.
Any provision contained herein, including the determination of an
Interest Rate Basis, the specification of an Interest Rate Basis, calculation
of the interest rate applicable to this Subordinated Note, its Interest
Payment Dates or any other matter relating hereto may be modified as specified
in an Addendum relating hereto if so specified on the face hereof.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, specified on the face hereof. In addition to any
Maximum Interest Rate applicable hereto pursuant to the above provisions, the
interest rate on this Subordinated Note will in no event be higher than the
maximum rate permitted by New York law, as the same may be modified by United
States law of general application. The Calculation Agent shall calculate the
interest rate hereon in
19
accordance with the foregoing on or before each Calculation Date. Unless
otherwise specified on the face hereof, Chemical Bank will be the Calculation
Agent.
At the request of the Holder hereof, the Calculation Agent shall provide
to the Holder hereof the interest rate hereon then in effect and, if
determined, the interest rate which shall become effective as of the next
Interest Reset Date.
If this Subordinated Note is an Original Issue Discount Note and if an
Event of Default with respect to this Subordinated Note shall have occurred
and be continuing, the Default Amount (as defined hereafter) of this
Subordinated Note may be declared due and payable in the manner and with the
effect provided herein. The "Default Amount" shall be equal to the adjusted
issue price as of the first day of the accrual period as determined under
Final Treasury Regulation Section 1.1275-1(b) (or successor regulation) under
the United States Internal Revenue Code of 1986, as amended, in which the date
of acceleration occurs increased by the daily portion of the original issue
discount for each day in such accrual period ending on the date of
acceleration, as determined under Final Treasury Regulation Section
1.1272-1(b) (or successor regulation) under the United States Internal Revenue
Code of 1986, as amended. Upon payment of (i) the principal, or premium, if
any, so declared due and payable and (ii) interest on any overdue principal
and overdue interest or premium, if any (in each case to the extent that the
payment of such interest shall be legally enforceable), all of the Bank's
obligations in respect of the payment of principal of, premium, if any, and
interest on, this Subordinated Note shall terminate.
In case any Subordinated Note shall at any time become mutilated,
destroyed, lost or stolen, and such Subordinated Note or evidence of the loss,
theft or destruction thereof satisfactory to the Bank and the Issuing and
Paying Agent and such other documents or proof as may be required by the Bank
and the Issuing and Paying Agent shall be delivered to the Issuing and Paying
Agent, the Bank shall issue a new Subordinated Note, of like tenor and
principal amount, having a serial number not contemporaneously outstanding, in
exchange and substitution for the mutilated Subordinated Note or in lieu of
the Subordinated Note destroyed, lost or stolen but, in the case of any
destroyed,
20
lost or stolen Subordinated Note, only upon receipt of evidence satisfactory
to the Bank and the Issuing and Paying Agent that such Subordinated Note was
destroyed, stolen or lost, and, if required, upon receipt of indemnity
satisfactory to the Bank and the Issuing and Paying Agent. Upon the issuance
of any substituted Subordinated Note, the Bank and the Issuing and Paying
Agent may require the payment of a sum sufficient to cover all expenses and
reasonable charges connected with the preparation and delivery of a new
Subordinated Note. If any Subordinated Note which has matured or has been
redeemed or repaid or is about to mature or to be redeemed or repaid shall
become mutilated, destroyed, lost or stolen, the Bank may, instead of issuing
a substitute Subordinated Note, pay or authorize the payment of the same
(without surrender thereof except in the case of a mutilated Subordinated
Note) upon compliance by the holder with the provisions of this paragraph.
No recourse shall be had for the payment of principal of, premium, if
any, or interest on, this Subordinated Note for any claim based hereon, or
otherwise in respect hereof, against any shareholder, employee, agent, officer
or director, as such, past, present or future, of the Bank or of any successor
corporation, banking association or other legal entity (collectively,
"corporation"), either directly or through the Bank or any corporation,
whether by virtue of any constitution, statute or rule of law or by the
enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the issue
hereof, expressly waived and released.
An "Event of Default" with respect to this Subordinated Note will occur
if the Bank shall consent to, or a court or other governmental agency shall
enter a decree or order for, the appointment of a conservator or receiver or
other similar official in any liquidation, insolvency or similar proceeding
with respect to the Bank or all or substantially all of its property and, in
the case of a decree or order, such decree or order shall have remained in
force for a period of 60 consecutive days. If an Event of Default shall occur
and be continuing, the holder of this Subordinated Note may declare the
principal amount of, and accrued interest and premium, if any, on, this
Subordinated Note due and payable immediately by written notice to the Bank.
Upon such declaration and notice, such principal
21
amount, accrued interest and premium, if any, shall become immediately due and
payable. Any Event of Default with respect to this Subordinated Note may be
waived by the holder hereof. THERE IS NO RIGHT OF ACCELERATION IN THE CASE OF
A DEFAULT IN THE PAYMENT OF PRINCIPAL OF, PREMIUM, IF ANY, OR INTEREST ON,
THIS SUBORDINATED NOTE OR IN THE PERFORMANCE OF ANY OTHER OBLIGATION OF THE
BANK UNDER THIS SUBORDINATED NOTE OR UNDER ANY OTHER SECURITY ISSUED BY THE
BANK.
The Issuing and Paying Agency Agreement provides that the Bank will
promptly notify, and provide copies of any such notice to, the Issuing and
Paying Agent, and the Issuing and Paying Agent will promptly mail by
first-class mail, postage prepaid, copies of such notice to the holders of the
Subordinated Notes, upon the occurrence of an Event of Default or of the
curing or waiver of an Event of Default.
Nothing contained herein shall prevent any consolidation or merger of the
Bank with any other corporation or successive consolidations or mergers in
which the Bank or its successor or successors shall be a party or parties, or
shall prevent any sale, conveyance, transfer or lease of the property of the
Bank as an entirety or substantially as an entirety to any other corporation
authorized to acquire and operate the same; provided, however (and the Bank
hereby covenants and agrees) that any such consolidation, merger, sale or
conveyance shall be upon the condition that: (i) immediately after such
consolidation, merger, sale or conveyance the corporation (whether the Bank or
such other corporation) formed by or surviving any such consolidation or
merger, or the corporation to which such sale or conveyance shall have been
made, shall not be in default in the performance or observance of any of the
terms, covenants and conditions of this Subordinated Note to be observed or
performed by the Bank; and (ii) the corporation (if other than the Bank)
formed by or surviving any such consolidation or merger, or the corporation to
which such sale or conveyance shall have been made, shall be organized under
the laws of the United States of America or any state thereof or the District
of Columbia and shall expressly assume the due and punctual payment of the
principal of, premium, if any, and interest on, this Subordinated Note. In
case of any such consolidation, merger, sale, conveyance, transfer or lease,
and upon the assumption by the successor corporation of the due and punctual
performance of all of the covenants in this
22
Subordinated Note to be performed or observed by the Bank, such successor
corporation shall succeed to and be substituted for the Bank with the same
effect as if it had been named in this Subordinated Note as the Bank and
thereafter the predecessor corporation shall be relieved of all obligations
and covenants in this Subordinated Note and may be liquidated and dissolved.
Any action by the holder of this Subordinated Note shall bind all future
holders of this Subordinated Note, and of any Subordinated Note issued in
exchange or substitution hereof or in place hereof, in respect of anything
done or permitted by the Bank or by the Issuing and Paying Agent in pursuance
of such action.
The Issuing and Paying Agent shall maintain at its offices a register
(the register maintained in such office or any other office or agency of the
Issuing and Paying Agent in The City of New York herein referred to as the
"Subordinated Note Register") in which, subject to such reasonable regulations
as it may prescribe, the Issuing and Paying Agent shall provide for the
registration of the Subordinated Notes and of transfers of the Subordinated
Notes.
The transfer of this Subordinated Note is registrable in the Subordinated
Note Register, upon surrender of this Subordinated Note for registration of
transfer at the office or agency of the Issuing and Paying Agent in the Place
of Payment, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Bank and the Issuing and Paying Agent
duly executed by, the holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Subordinated Notes of like tenor, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
No provision of this Subordinated Note shall alter or impair the
obligation of the Bank, which is absolute and unconditional, to pay principal
of, premium, if any, and interest on, this Subordinated Note in U.S. dollars
at the times, places and rate herein prescribed in accordance with its terms.
In the event of the failure by the Bank to make payment of principal of,
premium, if any, or interest on this Subordinated
23
Note (and, in the case of payment of interest, such failure to pay shall have
continued for 2 days), the Bank will, upon demand of the holder of this
Subordinated Note, pay to the holder of this Subordinated Note the whole
amount then due and payable on this Subordinated Note for principal of,
premium, if any, and interest, with interest on the overdue principal of,
premium, if any, and interest on, this Subordinated Note to the extent
provided for herein. If the Bank fails to pay such amount upon such demand,
the holder of this Subordinated Note may among other things, institute a
judicial proceeding for the collection of such amount.
No service charge shall be made to a holder of this Subordinated Note for
any transfer or exchange of this Subordinated Note, but the Bank may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith.
Beneficial interests represented by this Subordinated Note are
exchangeable for definitive Subordinated Notes in registered form, of like
tenor and of an equal aggregate principal amount, only if (x) The Depository
Trust Company, as Depositary (the "Depositary") notifies the Bank that it is
unwilling or unable to continue as Depositary for this Subordinated Note or if
at any time the Depositary ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, and a successor depositary is not
appointed by the Bank within 60 days, or (y) the Bank in its sole discretion
determines not to have such beneficial interests represented by this
Subordinated Note. Any Subordinated Note representing such beneficial
interests that is exchangeable pursuant to the preceding sentence shall be
exchangeable in whole for definitive Subordinated Notes in registered form, of
like tenor and of an equal aggregate principal amount, in minimum
denominations of $250,000 and integral multiples of $1,000 in excess thereof.
Such definitive Subordinated Notes shall be registered in the name or names of
such person or persons as the Depositary shall instruct the Issuing and Paying
Agent.
Prior to due presentment of this Subordinated Note for registration of
transfer, the Bank, the Issuing and Paying Agent or any agent of the Bank or
the Issuing and Paying Agent may treat the holder in whose name this
Subordinated Note is
24
registered as the owner hereof for all purposes, whether or not this
Subordinated Note be overdue, and neither the Bank, the Issuing and Paying
Agent nor any such agent shall be affected by notice to the contrary except as
required by applicable law.
All notices to the Bank under this Subordinated Note shall be in writing
and addressed to the Bank, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Treasurer, or to such other address of the Bank as the Bank
may notify the holders of the Subordinated Notes.
This Subordinated Note shall be governed by, and construed in accordance
with, the laws of the State of New York, without regard to conflicts of laws
principles, and all applicable federal laws and regulations.
25
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
the within Subordinated Note, shall be construed as though they were written
out in full according to applicable laws or regulations.
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of
survivorship and not as tenants
in common
UNIF GIFT MIN ACT -- Custodian
---------- ---------
(Cust) (Minor)
under Uniform Gifts to Minors Act
----------------------------------
(State)
Additional abbreviations may also be used
though not in the above list.
26
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s),
assign(s) and transfer(s) unto _______________________________________________
______________________________________________________________________________
PLEASE INSERT SOCIAL SECURITY NUMBER OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
____________________________
_________________________/___________________________/
______________________________________________________________________________
______________________________________________________________________________
(Please print or typewrite name and address,
including postal zip code, of assignee)
the within Subordinated Note and all rights thereunder, and hereby irrevocably
constitutes and appoints _____________________________________________________
______________________________________________________________________________
______________________________________________________________________________
to transfer said Subordinated Note on the books of the Issuing and Paying
Agent, with full power of substitution in the premises.
Dated: -----------------------------------
------------------ NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of the within Subordinated
Note in every particular, without
alteration or enlargement or any change
whatsoever.
--------------------------------
Signature Guarantee
27
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the Bank to
repay this Subordinated Note (or portion hereof specified below) pursuant to
its terms at a price equal to 100% of the principal amount hereof to be
repaid, together with accrued and unpaid interest hereon, payable to the date
of repayment, to the undersigned, ____________________________________________
_____________________________________________________________________________.
(Please print or typewrite name and address of the undersigned)
For this Subordinated Note to be repaid, the undersigned must give to the
Issuing and Paying Agent at its offices located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Global Trust Securities Group, or at such
other place or places of which the Bank shall from time to time notify the
holders of the Subordinated Notes, not more than 60 days nor less than 30 days
prior notice to the date of repayment, with this "Option to Elect Repayment"
form duly completed.
If less than the entire principal amount of this Subordinated Note is to
be repaid, specify the portion hereof (which shall be increments of $1,000)
which the holder elects to have repaid and specify the denomination or
denominations (which shall be $250,000 or an integral multiple of $1,000 in
excess thereof) of the Subordinated Notes to be issued to the holder for the
portion of this Subordinated Note not being repaid (in the absence of any such
specification, one such Subordinated Note will be issued for the portion not
being repaid):
$
------------------------------ ------------------------------
NOTICE: The signature on this
Dated: "Option to Elect Repayment" form must
------------------------ correspond with the name as written upon
the face of the within Subordinated Note in
every particular, without alteration or
enlargement or any change whatsoever.
--------------------------------
Signature Guarantee
28