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EXHIBIT 4.9
FIRST SUPPLEMENTAL INDENTURE, dated as of March 30, 2001 between DORAL
FINANCIAL CORPORATION, a Puerto Rico corporation (the "Company"), and BANKERS
TRUST COMPANY, a New York banking corporation, as Trustee (the "Trustee").
RECITALS
The Company and the Trustee, as Trustee, are parties to an Indenture,
dated as of May 14, 1999 (the "Original Indenture"), which provides for the
issuance from time to time of senior unsecured debt securities of the Company.
Section 11.01 of the Original Indenture provides that without prior
notice to or the consent of any Holders, the Company, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental to the Original Indenture, in a form
satisfactory to the Trustee, to change or eliminate any of the provisions of the
Original Indenture in respect of one or more series of Debt Securities, provided
that, among other circumstances, any such change or elimination shall become
effective only when there is no Outstanding Debt Security or Coupon of any
series created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision and as to which such supplemental
indenture would apply.
The Company believes that Section 12.05 of the Original Indenture
should be amended and restated in its entirety, with effect only as to Debt
Securities of any series created after the execution of this First Supplemental
Indenture.
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The Board of Directors of the Company has duly authorized the execution
and delivery by the Company of this First Supplemental Indenture.
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE
WITNESSETH:
For and in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Company and the Trustee mutually agree as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
Except as otherwise expressly provided or unless context otherwise
requires, all terms used in this First Supplemental Indenture shall have the
meanings ascribed to them by the Original Indenture, as amended.
SECTION 102. EFFECT OF HEADINGS.
The Article and Section headings herein are for convenience only and
shall not affect the construction hereof.
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SECTION 103. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this First Supplemental Indenture by
the parties hereto shall bind their respective successors and assigns, whether
so expressed or not.
SECTION 104. SEPARABILITY CLAUSE.
In case any provision in this First Supplemental Indenture shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 105. BENEFITS OF INSTRUMENT.
Nothing in this First Supplemental Indenture, express or implied, shall
give to any Person, other than the parties hereto and their successors hereunder
and the Holders, any benefit or any legal or equitable right, remedy or claim
under this First Supplemental Indenture or the Original Indenture.
SECTION 106. GOVERNING LAW.
This First Supplemental Indenture shall be governed by and construed in
accordance with the laws of the State of New York.
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ARTICLE TWO
AMENDMENT OF THE ORIGINAL INDENTURE
SECTION 201. AMENDMENT OF SECTION 3.03 AND SECTION 12.05
a. Section 12.05 of the Original Indenture is hereby amended
and restated in its entirety as follows:
"Subject to the provisions of Article Ten hereof, the
Company will do or cause to be done all things necessary to
preserve and keep in full force and effect the corporate
existence, rights (charter and statutory) and franchises of
the Company and each Significant Subsidiary; provided,
however, that the Company shall not be required to preserve
any such right or franchise or corporate existence of a
Significant Subsidiary if the Company shall determine that the
preservation thereof is no longer desirable in the conduct of
the business of the Company and that the loss thereof is not
disadvantageous in any material respect to the Holders."
b. Clause (iii)(5) in the fourth paragraph of Section 3.03
is hereby amended in its entirety to read as follows:
"(5) to the best of such counsel's knowledge, no
filing with, or approval, authorization, consent, license,
registration, qualification, order or decree of, any court or
governmental authority or agency is necessary for the due
authorization, execution and delivery by the Company of the
Indenture, except such as have been previously made, obtained
or rendered, as applicable, and other than such as may be
required by the securities or blue sky laws of the various
states in connection with the offer and sale of the Debt
Securities."
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SECTION 202. EFFECTIVENESS OF SECTION 201.
Section 201 of this First Supplemental Indenture shall become effective
upon its execution provided that it shall not apply to any Debt Security or
Coupon of any series created prior to the execution of this First Supplemental
Indenture which is entitled to the benefit of Section 12.05 of the Original
Indenture. The only series of Debt Securities created prior to the execution of
this First Supplemental Indenture is the Company's "Medium-Term Senior Notes,
Series A."
SECTION 203. REAFFIRMATION OF ORIGINAL INDENTURE.
Except as expressly amended or supplemented hereby, the Company and the
Trustee hereby confirm, reaffirm and agree that the provisions of the Original
Indenture shall remain in full force and effect.
SECTION 204. TRUST INDENTURE ACT.
If any provision of this First Supplemental Indenture limits, qualifies
or conflicts with a provision of the Trust Indenture Act of 1939, as it may be
amended from time to time (the "Act"), that is required under the Act to be a
part of and govern this First Supplemental Indenture, the relevant provision of
the Act control. If any provision hereof modifies or excludes any provision of
such Act that may be so modified or excluded, the latter provision of the Act
shall be deemed to apply to this First Supplemental Indenture as so modified or
excluded, as the case may be.
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SECTION 205. COUNTERPARTS.
This First Supplemental Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year first above
written.
DORAL FINANCIAL CORPORATION
By: /S/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Executive Vice President
and Treasurer
Attest:
/s/ Xxxxxxxx Xxxxxx Munich
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Xxxxxxxx Xxxxxx Munich
Assistant Secretary
Affidavit No. 393
Subscribed to before me by Xxxxx X. Xxxxx of legal age, married and
resident of San Xxxx, Puerto Rico, as Executive Vice President of Doral
Financial; and Xxxxxxxx Xxxxxx Munich, of legal age, married and resident of
Guaynabo, Puerto Rico, as Assistant Secretary of Doral Financial Corporation and
who are personally known to me, in San Xxxx, Puerto Rico, this 30th day of
March, 2001.
/s/ Xxxxxxx Xxxxxxx Xxxxxxxx
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NOTARY PUBLIC
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BANKERS TRUST COMPANY
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Vice President
Attest:
/s/ Xxxxxx Xxxxxxxx
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 30th day of March 2001, before me personally came Xxxxx Xxxxxxx,
me known, who, being by me duly sworn, did depose and say that he/she is a Vice
President of Bankers Trust Company, one of the corporations described in and
which executed the foregoing instrument; that he/she knows the seal of said New
York banking corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors of
said corporation, and that he/she signed his/her name thereto by like authority.
[SEAL] /s/ Xxxxx X. Xxxxxxxx
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Notary Public
Xxxxx X. Xxxxxxxx
Notary Public, State of New York
Registration #015A6040727
Qualified in New York County
My Commission Expires April 24, 2002
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