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Exhibit 4(e)
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POPULAR, INC.,
Issuer
TO
THE FIRST NATIONAL BANK OF CHICAGO,
Trustee
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SECOND SUPPLEMENTAL INDENTURE
Dated as of August 5, 1999
to Indenture dated as of February 15, 1995
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SECOND SUPPLEMENTAL INDENTURE, dated as of August 5, 1999 between Popular,
Inc. (formerly BanPonce Corporation), a Puerto Rico corporation (the "Company")
and THE FIRST NATIONAL BANK OF CHICAGO, a national banking association, as
Trustee (the "Trustee").
RECITALS
The Company and the Trustee, as Trustee, are parties to an Indenture, dated
as of February 15, 1995 (the "Original Indenture"), which provides for the
issuance from time to time of unsecured debt securities of the Company.
Section 901(5) of the Original Indenture provides that without the consent
of any Holders, the Company, when authorized by a Board Resolution, and the
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental to the Original Indenture, in form satisfactory to the
Trustee, to add to, change or eliminate any of the provisions of the Original
Indenture in respect of one or more series of Securities, provided that any such
addition, change or elimination (i) shall neither (A) apply to any Security of
any series created prior to the execution of such supplemental indenture and
entitled to the benefit of such provision nor (B) modify the rights of the
Holder of any such Security with respect to such provision or (ii) shall become
effective only when there is no such Security Outstanding.
The Company believes that Section 1011 of the Original Indenture should be
amended and restated in its entirety, with effect only as to Securities of any
series created after the execution of this Second Supplemental Indenture.
The Board of Directors of the Company has duly authorized the execution and
delivery by the Company of this Second Supplemental Indenture.
NOW, THEREFORE, THIS
SECOND SUPPLEMENTAL INDENTURE
WITNESSETH:
For and in consideration of the premises and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Company and the Trustee mutually agree as follows:
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ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions.
Except as otherwise expressly provided or unless context otherwise
requires, all terms used in this Second Supplemental Indenture shall have the
meanings ascribed to them by the Original Indenture, as amended.
Section 102. Effect of Headings.
The Article and Section headings herein are for convenience only and shall
not affect the construction hereof.
Section 103. Successors and Assigns.
All covenants and agreements in this Second Supplemental Indenture by the
parties hereto shall bind their respective successors and assigns, whether so
expressed or not.
Section 104. Separability Clause.
In case any provision in this Second Supplemental Indenture shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 105. Benefits of Instrument.
Nothing in this Second Supplemental Indenture, express or implied, shall
give to any Person, other than the parties hereto and their successors hereunder
and the Holders, any benefit or any legal or equitable right, remedy or claim
under this Second Supplemental Indenture or the Original Indenture.
Section 106. Governing Law.
This Second Supplemental Indenture shall be governed by and construed in
accordance with the laws of the State of New York.
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ARTICLE TWO
Amendment of the Original Indenture
Section 201. Amendment of Section 1011.
Section 1011 of the Original Indenture is hereby amended and restated in
its entirety as follows:
"The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 1006 to 1009,
inclusive, with respect to the Securities of any series if before the
time for such compliance the Holders of at least a majority in
principal amount of the Outstanding Securities of such series shall,
by Act of such Holders, either waive such compliance in such instance
or generally waive compliance with such term, provision or condition,
but no such waiver shall extend to or affect such term, provision or
condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect."
Section 202. Effectiveness of Section 201.
Section 201 of this Second Supplemental Indenture shall neither (i) apply
to any Security of any series created prior to the execution of this Second
Supplemental Indenture and entitled to the benefit of Section 1011 of the
Original Indenture nor (ii) modify the rights of the Holder of any such Security
with respect to Section 1011 of the Original Indenture.
Section 203. Reaffirmation of Original Indenture.
Each of the Company and the Trustee hereby confirms, reaffirms and agrees
to the Original Indenture in every particular, as amended by this Second
Supplemental Indenture.
Section 204. Trust Indenture Act.
If any provision of this Second Supplemental Indenture limits, qualifies or
conflicts with a provision of the Trust Indenture Act of 1939, as it may be
amended from time to time, that is required under such Act to be a part of and
govern this Second Supplemental Indenture, the latter
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provision shall control. If any provision hereof modifies or excludes any
provision of such Act that may be so modified or excluded, the latter provision
shall be deemed to apply to this Second Supplemental Indenture as so modified or
excluded, as the case may be.
* * *
This Second Supplemental Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
POPULAR, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President
By:
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Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
Attest:
/s/ Xxxxx Xxxxxxxx San Xxxxxx
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Assistant Secretary
Affidavit No. ___
Subscribed to before me by Xxxxxxx X. Xxxxxxxx of legal age, married and
resident of Glenview, Illinois, as Executive Vice President of
Popular, Inc. and ____________________, of legal age, married and resident of
_______________________ as _____________________ of Popular, Inc. and who are
personally known to me, in San Xxxx, Puerto Rico, this 16th day of August, 1999.
/s/ Xxxx Xxxxxx
[SEAL] --------------------------------
Notary Public
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IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
POPULAR, INC.
By:
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Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
Attest:
/s/ Xxxxx Xxxxxxxx San Xxxxxx
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Xxxxx Xxxxxxxx San Xxxxxx,
Assistant Secretary
Affidavit No. 1,187
Subscribed to before me by Xxxxx X. Xxxxxx, of legal age, married and
resident of Guaynabo, Puerto Rico as Executive Vice President of Popular, Inc.
and who is personally known to me, in San Xxxx, Puerto Rico, this 12th day of
August, 1999.
/S/ Xxxxxx Xxxxxxxx
[SEAL] -----------------------------
Notary Public
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THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Trust Officer
Attest:
/s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
Assistant Vice President
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 5 day of August, 1999, before me personally came Xxxxxxx Xxxxxx,
to me known, who, being by me duly sworn, did depose and say that he/she is a
Trust Officer of The First National Bank of Chicago, one of the corporations
described in and which executed the foregoing instrument; that he/she knows
the seal of said national banking association; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he/she signed his/her name
thereto by like authority.
[SEAL] /s/ Xxxx X. Xxxxx
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Notary Public
Xxxx X. Xxxxx
Notary Public, State of New York
Reg. No. 01DA6004466
Qualified in New York County
Commission Expires March 23, 2000
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