Exhibit 4.7
FIRST SUPPLEMENTAL INDENTURE
between
SANTANDER BANCORP
and
BANCO POPULAR DE PUERTO RICO
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Dated as of February 28, 2006
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TABLE OF CONTENTS
Page
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ARTICLE 1 DEFINITIONS.................................................... 2
SECTION 1.1 Definition of Terms...................................... 2
ARTICLE 2 GENERAL TERMS AND CONDITIONS OF THE DEBENTURES................. 3
SECTION 2.1 Designation and Principal Amount......................... 3
SECTION 2.2 Maturity................................................. 3
SECTION 2.3 Form and Payment......................................... 3
SECTION 2.4 Global Debenture......................................... 4
SECTION 2.5 Interest................................................. 5
SECTION 2.6 Denomination............................................. 6
SECTION 2.7 Restrictions on Transfer................................. 6
ARTICLE 3 REDEMPTION OF THE DEBENTURES................................... 7
SECTION 3.1 Optional Redemption...................................... 7
SECTION 3.2 Redemption Procedures.................................... 7
SECTION 3.3 No Sinking Fund.......................................... 8
ARTICLE 4 EXTENSION OF INTEREST PAYMENT PERIOD........................... 8
SECTION 4.1 Extension of Interest Payment Period..................... 8
SECTION 4.2 Notice of Extension...................................... 8
SECTION 4.3 Limitation of Transactions............................... 9
ARTICLE 5 EXPENSES....................................................... 9
SECTION 5.1 Payment of Expenses...................................... 9
SECTION 5.2 Payment Upon Resignation or Removal...................... 10
ARTICLE 6 COVENANT TO LIST ON EXCHANGE................................... 10
SECTION 6.1 Listing on an Exchange................................... 10
ARTICLE 7 FORM OF DEBENTURE.............................................. 11
SECTION 7.1 Form of Debenture........................................ 11
ARTICLE 8 ORIGINAL ISSUE OF DEBENTURES................................... 11
SECTION 8.1 Original Issue of Debentures............................. 11
ARTICLE 9 REPORTS BY TRUSTEE AND COMPANY................................. 11
SECTION 9.1 Reports by Trustee....................................... 11
SECTION 9.2 Reports by the Company................................... 12
ARTICLE 10 MISCELLANEOUS................................................. 12
SECTION 10.1 Ratification of Indenture................................ 12
SECTION 10.2 Trustee Not Responsible for Recitals..................... 12
SECTION 10.3 Governing Law............................................ 12
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SECTION 10.4 Separability............................................. 12
SECTION 10.5 Counterparts............................................. 13
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FIRST SUPPLEMENTAL INDENTURE, dated as of February 28, 2006 (the "First
Supplemental Indenture"), between Santander BanCorp, a Puerto Rico corporation
(hereinafter sometimes called the "Company"), and Banco Popular de Puerto Rico,
a Commonwealth of Puerto Rico banking corporation, as trustee (hereinafter
sometimes called the "Trustee") under the Indenture dated as of February 28,
2006, between the Company and the Trustee (the "Indenture").
WHEREAS, the Company executed and delivered the Indenture to the Trustee to
provide for the future issuance of the Company's unsecured junior subordinated
debt securities to be issued from time to time in one or more series as might be
determined by the Company under the Indenture, in an unlimited aggregate
principal amount which may be authenticated and delivered as provided in the
Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company desires to
provide for the establishment of a new series of such securities to be known as
its 7.00% Junior Subordinated Debentures, Series A due July 1, 2036 (the
"Debentures"), the form and substance of such Debentures and the terms,
provisions and conditions thereof to be set forth as provided in the Indenture
and this First Supplemental Indenture;
WHEREAS, the Company and Santander PR Capital Trust I, a Delaware statutory
trust (the "Trust"), propose to offer to the public $125,000,000 aggregate
liquidation amount of the Trust's 7.00% Trust Preferred Securities (the
"Preferred Securities"), representing preferred undivided beneficial interests
in the assets of the Trust, and the Trust proposes to invest the proceeds from
such offering, together with the proceeds of the issuance and sale by the Trust
to the Company of $4,000,000 aggregate liquidation amount of its 7.00% Common
Securities (the "Common Securities"), in $129,000,000 aggregate principal amount
of the Debentures; and
WHEREAS, the Company has requested that the Trustee execute and deliver
this First Supplemental Indenture and all requirements necessary to make this
First Supplemental Indenture a valid instrument in accordance with its terms,
and to make the Debentures, when executed by the Company, and authenticated and
delivered by the Trustee, the valid obligations of the Company, have been
performed, and the execution and delivery of this First Supplemental Indenture
has been duly authorized in all respects.
NOW THEREFORE, in consideration of the purchase and acceptance of the
Debentures by the Holders thereof, and for the purpose of setting forth, as
provided in the Indenture, the form and substance of the Debentures and the
terms, provisions and conditions thereof, the Company covenants and agrees with
the Trustee as follows:
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ARTICLE 1
DEFINITIONS
SECTION 1.1 Definition of Terms.
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when used in this
First Supplemental Indenture;
(b) a term defined anywhere in this First Supplemental Indenture has the
same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or Article of this
First Supplemental Indenture;
(e) headings are for convenience of reference only and do not affect
interpretation;
(f) the following terms have the meanings given to them in the Declaration:
(i) Capital Securities Certificate; (ii) Capital Security; (iii) Delaware
Trustee; (iv) Distributions; (v) Property Trustee; and (vi) Purchase Agreement;
(g) the following terms have the meanings given to them in this Section
1.1(g):
"Compound Interest" shall have the meaning set forth in Section 4.1.
"Coupon Rate" shall have the meaning set forth in Section 2.5(a).
"Creditor" shall have the meaning set forth in Section 5.1.
"Declaration" means the Amended and Restated Declaration of Trust and Trust
Agreement of Santander PR Capital Trust I, a Delaware statutory trust, dated as
of February 28, 2006.
"Deferred Interest" shall have the meaning set forth in Section 4.1.
"Dissolution Event" means the dissolution of the Trust and distribution of
the Debentures held by the Property Trustee pro rata to the holders of the Trust
Securities in liquidation of such holders' interests in the Trust in accordance
with the Declaration, such event to occur at the option of the Company at any
time upon the terms and conditions set forth in the Declaration.
"Extended Interest Payment Period" shall have the meaning set forth in
Section 4.1.
"Global Debenture" shall have the meaning set forth in Section 2.4(a).
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"Holder" means any person in whose name at the time a Debenture is
registered on the Security Register.
"Interest Payment Date" shall have the meaning set forth in Section 2.5(a).
"Interest Period" means the period beginning on (and including) the date of
issue and ending on (but excluding) the first Interest Payment Date and each
successive period beginning on (and including) the Interest Payment Date and
ending on (but excluding) the next succeeding Interest Payment Date.
"Non Book-Entry Preferred Securities" shall have the meaning set forth in
Section 2.4(a).
"Prepayment Price" shall have the meaning set forth in Section 3.1.
"Registration Rights Agreement" means the Registration Rights Agreement
dated as of February 28, 2006, among the Company, the Trust and Santusa Holding,
S.L., relating to the Capital Securities.
"Special Redemption Event" means a Tax Event, Investment Company Event or a
Capital Treatment Event, as the case may be.
ARTICLE 2
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1 Designation and Principal Amount.
There is hereby authorized (a) a series of Securities designated as the
"7.00% Junior Subordinated Debentures, Series A due July 1, 2036", in aggregate
principal amount of $129,000,000.
SECTION 2.2 Maturity.
The Debentures shall mature on July 1, 2036.
SECTION 2.3 Form and Payment.
Except as provided in Section 2.4, the Debentures shall be issued in fully
registered certificated form without interest coupons. Principal and interest on
the Debentures issued in certificated form will be payable, the transfer of such
Debentures will be registrable and such Debentures will be exchangeable for
Debentures bearing identical terms and provisions at the office or agency of the
Trustee in San Xxxx, Puerto Rico; provided, however, that payment of interest
may be made at the option of the Company by check mailed to the Holder entitled
thereto at such address as shall appear in the Security Register or by wire
transfer to an account appropriately designated by the Holder entitled thereto.
Notwithstanding the foregoing, so long as the Holder of any Debentures is the
Property Trustee, the payment of the principal of and interest (including
Compound Interest and Additional Interest, if any) on such Debentures held by
the Property Trustee will be made at such place and to such account as may be
designated by the Property Trustee.
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SECTION 2.4 Global Debenture.
(a) In connection with a Dissolution Event,
(i) the Debentures in certificated form may be presented to the
Trustee by the Property Trustee in exchange for a global Debenture in an
aggregate principal amount equal to the aggregate principal amount of all
outstanding Debentures (a "Global Debenture"), to be registered in the name
of the Depositary, or its nominee, and delivered by the Trustee to the
Depositary for crediting to the accounts of its participants pursuant to
the instructions of the Administrative Trustees. The Company upon any such
presentation shall execute a Global Debenture in such aggregate principal
amount and deliver the same to the Trustee for authentication and delivery
in accordance with the Indenture and this First Supplemental Indenture.
Payments on the Debentures issued as a Global Debenture will be made to the
Depositary; and
(ii) As long as any Capital Securities are held in non book-entry
certificated form ("Non Book-Entry Capital Securities"), the Debentures in
certificated form may be presented to the Trustee by the Property Trustee
and any Capital Security Certificate which represents Non Book-Entry
Capital Securities will be deemed to represent beneficial interests in
Debentures presented to the Trustee by the Property Trustee having an
aggregate principal amount equal to the aggregate liquidation amount of the
Non Book-Entry Capital Securities until such Capital Security Certificates
are presented to the Security registrar for transfer or reissuance, at
which time such Non Book-Entry Capital Security Certificates will be
canceled and a Debenture, registered in the name of the holder of the
Capital Security Certificate or the transferee of the holder of such
Capital Security Certificate, as the case may be, with an aggregate
principal amount equal to the aggregate liquidation amount of the Capital
Security Certificate canceled, will be executed by the Company and
delivered to the Trustee for authentication and delivery in accordance with
the Indenture and this First Supplemental Indenture. On issue of such
Debentures, Debentures with an equivalent aggregate principal amount that
were presented by the Property Trustee to the Trustee will be deemed to
have been canceled.
(b) A Global Debenture may be transferred, in whole but not in part, only
by the Depositary to another nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary, or to a
successor Depositary selected or approved by the Company or to a nominee of such
successor Depositary. The Depositary shall initially be The Depository Trust
Company, New York, New York.
Except as otherwise provided in or pursuant to this First Supplemental
Indenture, a Global Debenture shall be exchangeable for Debentures in definitive
registered form only if (i) the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary and a successor Depositary is not
appointed by the Company within 90 days of the date the Company is so informed
in writing or becomes aware of such condition, (ii) the Depository ceases to be
registered as a "clearing agency" under the Securities Exchange Act of 1934, as
amended, (iii) an Event of Default, as defined in the Indenture, has occurred
and is continuing with respect to the Debentures, or (iv) the Company, in its
sole discretion determines that such Global Debenture shall be exchangeable into
definitive registered form. Upon the occurrence of any of (i) through
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(iv) above, the Company shall execute, and, subject to Article II of the
Indenture, the Trustee, upon written notice from the Company, shall authenticate
and deliver the Debentures in definitive registered form without coupons, in
authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Debenture in exchange for such Global Debenture.
In the event the Company determines that the Debentures shall no longer be
represented by a Global Debenture pursuant to clause (iv) above, the Company
shall execute, and, subject to Section 305 of the Indenture, the Trustee, upon
receipt of an Officers' Certificate evidencing such determination by the
Company, shall authenticate and deliver the Debentures in definitive registered
form without coupons, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Debenture in exchange for
such Global Debenture. Upon the exchange of the Global Debenture for such
Debentures in definitive registered form without coupons, in authorized
denominations, the Global Debenture shall be canceled by the Trustee. Such
Debentures in definitive registered form issued in exchange for the Global
Debenture shall be registered in such names and in such authorized denominations
as the Depositary, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall deliver
such Debt Securities to the Depositary for delivery to the Persons in whose
names such Debt Securities are so registered.
SECTION 2.5 Interest.
(a) Each Debenture will bear interest at the rate of 7.00% per annum (the
"Coupon Rate") from February 28, 2006 until the principal thereof becomes due
and payable, and on any overdue principal and, to the extent that payment of
such interest is enforceable under applicable law, on any overdue installment of
interest at the Coupon Rate, payable semiannually in arrears on the first day of
each January and July of each year (each, an "Interest Payment Date"),
commencing on January 1, 2007, to the Person in whose name such Debenture or any
predecessor Debenture is registered at the close of business on the relevant
record date, which will be, as long as the Capital Securities are not in
book-entry form (or if no Capital Securities remain outstanding, in the event
the Debentures are not in book-entry form), the 15th day of the month next
preceding each Interest Payment Date and, the event the Capital Securities are
in book-entry form (or if no Capital Securities remain outstanding, as long in
the event the Debentures are in book-entry form) one Business Day prior to the
relevant Interest Payment Date, except as otherwise provided pursuant to the
provisions of Article IV hereof.
(b) The amount of interest payable for any Interest Period will be computed
on the basis of a 360-day year of twelve 30-day months. Except as provided in
the following sentence, the amount of interest payable for any Interest Period
shorter than a full semiannual period for which interest is computed, will be
computed on the basis of the actual number of days elapsed. In the event that
any date on which interest is payable on the Debentures is not a Business Day,
then payment of interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on the date that such interest otherwise would have been payable.
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SECTION 2.6 Denomination.
The Debentures shall be issued in denominations of $25 and integral
multiples thereof.
SECTION 2.7 Restrictions on Transfer.
The Debentures have not been registered under the Securities Act and,
except in connection with a Registration Statement contemplated by and in
accordance with the terms of the Registration Rights Agreement relating to the
Debentures, may not be resold, pledged or otherwise transferred except in
compliance with the restricted securities legend set forth below, unless
otherwise determined by the Company, upon the advise of counsel, in accordance
with applicable law:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER THE PUERTO RICO UNIFORM
SECURITIES ACT OR ANY OTHER STATE OR COMMONWEALTH OF PUERTO RICO SECURITIES
LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION
IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.
THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT
OF SANTANDER BANCORP THAT (a) THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED OTHER THAN (1) TO SANTANDER BANCORP OR A SUBSIDIARY
THEREOF OR TO THE TRUST, (2) IN A TRANSACTION ENTITLED TO AN EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE),
(3) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING
OF RULE 144A PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE,
PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (4) TO A
"NON U.S. PERSON" IN AN "OFFSHORE TRANSACTION" PURSUANT TO REGULATION S
UNDER THE SECURITIES ACT, (5) PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT TO AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF
SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT
THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF
SUCH AN "ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH A VIEW
TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION
OF THE
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SECURITIES ACT, OR (6) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT, SUBJECT, IN THE CASE OF CLAUSES (5)
OR (6), TO THE RECEIPT BY SANTANDER BANCORP OF AN OPINION OF COUNSEL OR
SUCH OTHER EVIDENCE ACCEPTABLE TO SANTANDER BANCORP THAT SUCH RESALE,
PLEDGE OR TRANSFER IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT OR (7) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND
THAT (b) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY
ANY PURCHASER OF THIS SECURITY OF THE RESALE RESTRICTIONS REFERRED TO IN
THE AMENDED AND RESTATED DECLARATION OF TRUST AND DELIVER TO THE TRANSFEREE
(OTHER THAN A QUALIFIED INSTITUTIONAL BUYER) PRIOR TO THE SALE A COPY OF
THE TRANSFER RESTRICTIONS APPLICABLE HERETO (COPIES OF WHICH MAY BE
OBTAINED FROM SANTANDER BANCORP).
THE HOLDER OF THIS SECURITY IS ENTITLED TO THE BENEFITS OF A
REGISTRATION RIGHTS AGREEMENT DATED AS OF FEBRUARY 28, 2006 AND, BY ITS
ACCEPTANCE HEREOF, AGREES TO BE BOUND BY AND TO COMPLY WITH THE PROVISIONS
OF SUCH REGISTRATION RIGHTS AGREEMENT.
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE
REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS MAY
BE REQUIRED BY THE DECLARATION TO CONFIRM THAT THE TRANSFER COMPLIES WITH
THE FOREGOING RESTRICTIONS."
ARTICLE 3
REDEMPTION OF THE DEBENTURES
SECTION 3.1 Optional Redemption.
Subject to any required prior approval of the Primary Federal Regulator,
the Debentures are prepayable prior to the Stated Maturity at the option of the
Company (i) in whole or in part, from time to time, on or after July 1, 2011 or
(ii) at any time prior to July 1, 2011, in whole but not in part, at any time
within 90 days following the occurrence and continuation of a Special Redemption
Event, in either case at a prepayment price (the "Prepayment Price") equal to
100% of the principal amount thereof, plus accrued and unpaid interest thereon
(including Compound Interest, if any) to the date of prepayment.
SECTION 3.2 Redemption Procedures.
Notice of any redemption will be mailed at least 30 days but not more than
60 days before the redemption date to each Holder of Debentures to be prepaid at
its registered address. Unless the Company defaults in payment of the prepayment
price, on and after the redemption date interest shall cease to accrue on such
Debentures called for redemption. If the Debentures
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are only partially redeemed pursuant to Section 3.1, the Debentures will be
redeemed pro rata or by lot or by any other method selected by the Trustee;
provided, that if at the time of redemption the Debentures are registered as a
Global Debenture, the Depositary shall determine, in accordance with its
procedures, the principal amount of such Debentures held by each Depositary
participant to be redeemed. The Prepayment Price shall be paid prior to 12:00
noon, New York time, on the date of such prepayment or at such earlier time as
the Company determines; provided that the Company shall deposit with the Trustee
an amount sufficient to pay the Prepayment Price by 10:00 a.m., New York time,
on the date such prepayment price is to be paid.
SECTION 3.3 No Sinking Fund.
The Debentures are not entitled to the benefit of any sinking fund.
ARTICLE 4
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1 Extension of Interest Payment Period.
Provided that no Event of Default has occurred and is continuing, the
Company shall have the right, at any time and from time to time during the term
of the Debentures, to defer payments of interest by extending the interest
payment period of such Debentures for a period not exceeding 60 consecutive
months (the "Extended Interest Payment Period"), during which Extended Interest
Payment Period no interest shall be due and payable; provided that no Extended
Interest Payment Period may extend beyond the Stated Maturity of the principal
of the Debentures. To the extent permitted by applicable law, interest, the
payment of which has been deferred because of the extension of the interest
payment period pursuant to this Section 4.1, will bear interest thereon at the
Coupon Rate compounded semiannually for each semiannual period of the Extended
Interest Payment Period ("Compound Interest"). At the end of the Extended
Interest Payment Period, the Company shall pay all interest accrued and unpaid
on the Debentures, including any Compound Interest (together, "Deferred
Interest") that shall be payable to the Holders in whose names the Debentures
are registered in the Security Register on the record date for the first
Interest Payment Date after the end of the Extended Interest Payment Period.
Before the termination of any Extended Interest Payment Period, the Company may
further extend such period, provided that such period together with all such
previous or further extensions thereof shall not exceed 60 consecutive months,
or extend beyond the Stated Maturity of the Debentures. Upon the termination of
any Extended Interest Payment Period and upon the payment of all Deferred
Interest then due, the Company may commence a new Extended Interest Payment
Period, subject to the foregoing requirements. No interest shall be due and
payable during an Extended Interest Payment Period, except at the end thereof,
but the Company may prepay at any time all or any portion of the interest
accrued during an Extended Interest Payment Period.
SECTION 4.2 Notice of Extension.
(a) If the Property Trustee is the only registered Holder at the time the
Company selects an Extended Interest Payment Period, the Company shall give
written notice to the
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Property Trustee and the Trustee of its selection of such Extended Interest
Payment Period one Business Day before the earlier of (i) the next succeeding
date on which Distributions on the Trust Securities issued by the Trust are
payable, or (ii) if the Debentures are then listed on the New York Stock
Exchange, the Nasdaq National Market or other similar self-regulatory
organization, the date the Company is required to give notice of the record
date, or the date such Distributions are payable to such organization or to
holders of the Capital Securities issued by the Trust.
(b) If the Property Trustee is not the only Holder at the time the Company
selects an Extended Interest Payment Period, the Company shall give the Holders
of the Debentures notice of its election of such Extended Interest Payment
Period at least ten Business Days before the earlier of (i) the next succeeding
Interest Payment Date, or (ii) if the Debentures are the listed on the New York
Stock Exchange, the Nasdaq National Market or other similar self-regulatory
organization, the date the Company is required to give notice of the record date
or the Interest Payment Date to such organization or to Holders of the
Debentures.
(c) The month in which any notice is given pursuant to paragraphs (a) or
(b) of this Section 4.2 shall be counted as one of the 60 months permitted in
the maximum Extended Interest Payment Period permitted under Section 4.1.
SECTION 4.3 Limitation of Transactions.
If the Company shall exercise its right to defer payment of interest as
provided in Section 4.1 and the Extended Interest Payment Period is continuing,
the Company shall be subject to the limitations set forth in Section 1008 of the
Indenture.
ARTICLE 5
EXPENSES
SECTION 5.1 Payment of Expenses.
In connection with the offering, sale and issuance of the Debentures to the
Property Trustee and in connection with the sale of the Trust Securities by the
Trust, the Company, in its capacity as borrower with respect to the Debentures,
shall:
(a) pay all costs and expenses relating to the offering, sale and issuance
of the Trust Securities and the Debentures, including compensation of the
Trustee under the Indenture in accordance with the provisions of Section 607 of
the Indenture;
(b) be responsible for and shall pay all debts and obligations (other than
with respect to the Trust Securities) and all costs and expenses of the Trust
(including, but not limited to, costs and expenses relating to the organization,
maintenance and dissolution of the Trust, the fees and expenses (including
reasonable counsel fees and expenses) of the Property Trustee, the Delaware
Trustee and the Administrative Trustees (including any amounts payable under
Article VIII of the Declaration), the costs and expenses relating to the
operation of the Trust, including without limitation, costs and expenses of
accountants, attorneys, statistical or bookkeeping services, expenses for
printing and engraving and computing or accounting
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equipment, paying agent(s), exchange rate agent(s), registrar(s), transfer
agent(s), duplicating, travel and telephone and other telecommunications
expenses and costs and expenses incurred in connection with the acquisition,
financing, and disposition of Trust assets and the enforcement by the Property
Trustee of the rights of the holders of the Capital Securities issued by the
Trust);
(c) be liable for any indemnification obligations arising with respect to
the Declaration; and
(d) pay any and all taxes (other than United States and Puerto Rico
withholding taxes attributable to the Trust or its assets) and all liabilities,
costs and expenses with respect to such taxes of the Trust.
The Company's obligations under this Section 5.1 shall be for the benefit
of, and shall be enforceable by, any Person to whom such debts, obligations,
costs, expenses and taxes are owed (a "Creditor") whether or not such Creditor
has received notice hereof. Any such Creditor may enforce the Company's
obligations under this Section 5.1 directly against the Company and the Company
irrevocably waives any right of remedy to require that any such Creditor take
any action against the Trust or any other Person before proceeding against the
Company. The Company agrees to execute such additional agreements as may be
necessary or desirable in order to give full effect to the provisions of this
Section 5.1.
The provisions of this Section shall survive the resignation or removal of
the Trustee and the satisfaction and discharge of this First Supplemental
Indenture.
SECTION 5.2 Payment Upon Resignation or Removal.
Upon termination of this First Supplemental Indenture or the Indenture or
the removal or resignation of the Trustee, unless otherwise stated, the Company
shall pay to the Trustee all amounts accrued to the date of such termination,
removal or resignation that are payable pursuant to Section 607 of the
Indenture. Upon termination of the Declaration or the removal or resignation of
the Delaware Trustee or the Property Trustee, as the case may be, pursuant to
Section 8.10 of the Declaration, the Company shall pay to the Delaware Trustee
or the Property Trustee, as the case may be, all amounts accrued to the date of
such termination, removal or resignation.
ARTICLE 6
COVENANT TO LIST ON EXCHANGE
SECTION 6.1 Listing on an Exchange.
If the Debentures are distributed to the holders of the Securities issued
by the Trust, and the Preferred Securities are then so listed, the Company will
use its commercially reasonable efforts to list such Debentures on the New York
Stock Exchange, the Nasdaq National Market or with another organization on which
the Capital Securities of the Trust are then listed.
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ARTICLE 7
FORM OF DEBENTURE
SECTION 7.1 Form of Debenture.
The Debentures, and the Trustee's Certificate of Authentication to be
endorsed thereon, are to be substantially in the forms attached hereto as
Exhibit A.
ARTICLE 8
ORIGINAL ISSUE OF DEBENTURES
SECTION 8.1 Original Issue of Debentures.
Debentures in the aggregate principal amount of $129,000,000, may, upon
execution of this First Supplemental Indenture or upon any written order of the
Company setting forth the amount therefor, be executed by the Company and
delivered to the Trustee for authentication, and the Trustee shall thereupon
authenticate and deliver said Debentures to or upon the written order of the
Company, signed by any two of the Chairman of the Board, the President, any
Senior Executive Vice President, any Executive Vice President, any First Senior
Vice President or any Senior Vice President and its Secretary or any Assistant
Secretary, without any further action by the Company.
ARTICLE 9
REPORTS BY TRUSTEE AND COMPANY
SECTION 9.1 Reports by Trustee.
(a) Notwithstanding the provisions of Section 703 of the Indenture, the
reports required by such Section shall not be required to be filed
until the registration of the Debentures under the Securities Act
pursuant to the Registration Rights Agreement and at any other time
required by the Trust Indenture Act.
(b) A copy of each such report shall, at the time of transmission to
Holders, be filed by the Trustee with each stock exchange upon which
the Debentures are listed, with the Commission and also with the
Company. The Company will notify the Trustee if the Debentures are
listed on any stock exchange.
11
SECTION 9.2 Reports by the Company.
Notwithstanding the provisions of Section 704 of the Indenture, the reports
required by such section shall not be required to be filed until the
registration of the Debentures under the Securities Act pursuant to the
Registration Rights Agreement, or as may be required pursuant to the Trust
Indenture Act at the time and in the manner pursuant to such Act.
ARTICLE 10
MISCELLANEOUS
SECTION 10.1 Ratification of Indenture.
The Indenture, as supplemented by this First Supplemental Indenture, is in
all respects ratified and confirmed, and this First Supplemental Indenture shall
be deemed part of the Indenture in the manner and to the extent herein and
therein provided.
SECTION 10.2 Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Company and not by the
Trustee, and the Trustee assumes no responsibility for the correctness thereof.
The Trustee makes no representation as to the validity or sufficiency of this
First Supplemental Indenture.
SECTION 10.3 Governing Law.
This First Supplemental Indenture and each Debenture shall be deemed to be
a contract made under the internal laws of the Commonwealth of Puerto Rico, and
for all purposes shall be construed in accordance with the laws of such
jurisdiction without regard to conflicts of laws principles.
SECTION 10.4 Separability.
In case any one or more of the provisions contained in this First
Supplemental Indenture or in the Debentures shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this First
Supplemental Indenture or of the Debentures, but this First Supplemental
Indenture and the Debentures shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.
12
SECTION 10.5 Counterparts.
This First Supplemental Indenture may be executed in any number of
counterparts, each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
13
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed by their respective officers thereunto duly
authorized as of the day and year first above written.
SANTANDER BANCORP
By:
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Executive Vice President
and Chief Operating Officer
By:
------------------------------------
Name: Xxxx X. Xxxxx Xxxxxx
Title: Senior Vice President and
Treasurer
BANCO POPULAR DE PUERTO RICO, as Trustee
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
14
EXHIBIT A
(FORM OF FACE OF DEBENTURE)
THIS SECURITY IS NOT A DEPOSIT OR OTHER OBLIGATION OF A DEPOSITORY
INSTITUTION AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE
BANK INSURANCE FUND OR ANY OTHER GOVERNMENTAL AGENCY.
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR UNDER THE PUERTO RICO UNIFORM SECURITIES ACT
OR ANY OTHER STATE OR COMMONWEALTH OF PUERTO RICO SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF
SANTANDER BANCORP THAT (a) THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED OTHER THAN (1) TO SANTANDER BANCORP OR A SUBSIDIARY THEREOF OR TO
THE TRUST, (2) IN A TRANSACTION ENTITLED TO AN EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (3) SO LONG AS
THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES
ACT ("RULE 144A"), TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A PURCHASING FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE
IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (4) TO A "NON U.S. PERSON" IN AN "OFFSHORE TRANSACTION" PURSUANT TO
REGULATION S UNDER THE SECURITIES ACT, (5) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT TO AN "ACCREDITED INVESTOR" WITHIN THE
MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE 501 UNDER THE
SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE
ACCOUNT OF SUCH AN "ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH A
VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION
OF THE SECURITIES ACT, OR (6) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT, SUBJECT, IN THE CASE OF CLAUSES (5) OR
(6), TO THE RECEIPT BY SANTANDER BANCORP OF AN OPINION OF COUNSEL OR SUCH OTHER
EVIDENCE ACCEPTABLE TO SANTANDER BANCORP THAT SUCH RESALE, PLEDGE OR TRANSFER IS
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR (7) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT AND THAT (b) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY OF THE
RESALE RESTRICTIONS REFERRED TO IN THE AMENDED AND RESTATED DECLARATION OF TRUST
AND DELIVER TO THE TRANSFEREE (OTHER THAN A QUALIFIED INSTITUTIONAL BUYER) PRIOR
TO THE SALE A COPY OF THE TRANSFER RESTRICTIONS APPLICABLE HERETO (COPIES OF
WHICH MAY BE OBTAINED FROM SANTANDER BANCORP).
THE HOLDER OF THIS SECURITY IS ENTITLED TO THE BENEFITS OF A REGISTRATION
RIGHTS AGREEMENT DATED AS OF FEBRUARY 28, 2006 AND, BY ITS ACCEPTANCE HEREOF,
AGREES TO BE BOUND BY AND TO COMPLY WITH THE PROVISIONS OF SUCH REGISTRATION
RIGHTS AGREEMENT.
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR
AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS MAY BE REQUIRED BY
THE DECLARATION TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS.
15
The following legend applies if this Security is a Global Security: Unless
this certificate is presented by an authorized representative of The Depository
Trust Company, New York, New York ("DTC"), to the Issuer or its agent for
registration of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or in such other name as requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or such
other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
REGISTERED NO. 1 PRINCIPAL AMOUNT: $129,000,000
SANTANDER BANCORP
7.00% JUNIOR SUBORDINATED DEBENTURES, SERIES A
DUE JULY 1, 2036
SANTANDER BANCORP, a corporation duly organized and existing under the laws
of the Commonwealth of Puerto Rico (hereinafter called the "Company," which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to Banco Popular de Puerto Rico, as
Property Trustee of Santander PR Capital Trust I, or registered assigns, the
principal sum of One Hundred Twenty-Nine Million Dollars ($129,000,000) on July
1, 2036. The Company further promises to pay interest on the principal sum from
February 28, 2006 or from the most recent Interest Payment Date to which
interest has been paid or duly provided for semiannually (subject to deferral as
set forth herein) on the first day of each January and July of each year
commencing January 1, 2007 at the rate of 7.00% per annum, together with
Additional Sums, if any, as provided in Section 1007 of the Indenture, until the
principal hereof is paid or made available for payment; provided, however, that
any overdue installment of interest (after giving effect to any Extension Period
permitted by this Security) shall bear Additional Interest at the rate of 7.00%
per annum (to the extent that the payment of such interest shall be legally
enforceable), from the date such installment was due until it is paid or made
available for payment. The amount of interest payable for any period less than a
full semiannual interest period shall be computed on the basis of a 360-day year
of twelve 30-day months and the actual days elapsed in such partial period. The
amount of interest payable for any full semiannual interest period shall be
computed by dividing the applicable rate per annum by two. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in the Indenture, be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, which shall be the 15th
calendar day (whether or not a Business Day, as defined below) of the month next
preceding such Interest Payment Date. If an Interest Payment Date is not a
Business Day, interest on this Security shall be payable on the next day that is
a Business Day, with the same force and effect as if made on such Interest
Payment Date, and without any interest or other payment with respect to the
delay. "Business Day" as used hereinabove is a day other than a Saturday, a
Sunday or any other day on which banking institutions in San Xxxx, Puerto Rico,
Wilmington, Delaware or New York, New York are authorized or required by law,
regulation or executive order to remain closed or are customarily closed.
Any interest not punctually paid or duly provided for will forthwith cease
to be payable to the Holder on such Regular Record Date and may either be paid
to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of this series not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in the Indenture.
So long as no Event of Default has occurred and is continuing, the Company
shall have the right, at any time during the term of this Security, from time to
time to defer the payment of interest on this Security for up to 60 consecutive
monthly interest payment periods with respect to each deferral period (each an
"Extension Period"), during which Extension Period the Company shall have the
right to make a partial payment of interest on any Interest Payment Date, at the
end of which the Company shall pay all interest then accrued and unpaid
including any Additional Interest, as provided below; provided, however, that no
Extension Period shall extend beyond the
16
Maturity of the principal of this Security and no such Extension Period may end
other than at the end of a full monthly interest period; and provided, further,
however, that during any such Extension Period, the Company shall not (i) make
any payment of principal of or interest or premium, if any, on or repay,
repurchase or redeem any debt securities of the Company that rank pari passu in
all respects with or junior in interest to this Security (except for any partial
payments of interest with respect to and permitted under the Securities of this
series), or (ii) declare or pay any dividends or distributions on, or redeem,
purchase, acquire or make a liquidation payment with respect to, any of the
Company's capital stock (other than (a) repurchases, redemptions or other
acquisitions of shares of capital stock of the Company in connection with any
employment contract, benefit plan or other similar arrangement with or for the
benefit of any one or more employees, officers, directors, consultants or
independent contractors, in connection with a dividend reinvestment or
stockholder stock purchase plan or in connection with the issuance of capital
stock of the Company (or securities convertible into or exercisable for such
capital stock) as consideration in an acquisition transaction entered into prior
to the applicable Extension Period, (b) as a result of an exchange, redemption
or conversion of any class or series of the Company's capital stock (or any
capital stock of a subsidiary of the Company) for any other class or series of
the Company's capital stock or of any class or series of the Company's
indebtedness for any class or series of the Company's capital stock, (c) the
purchase of fractional interests in shares of the Company's capital stock
pursuant to the conversion or exchange provisions of such capital stock or the
security being converted or exchanged, (d) any declaration of a dividend in
connection with any Rights Plan, or the issuance of rights, stock or other
property under any Rights Plan, or the redemption or repurchase of rights
pursuant thereto, (e) payments by the Company under the Guarantee Agreement, or
(f) any dividend in the form of stock, warrants, options or other rights where
the dividend stock or the stock issuable upon exercise of such warrants, options
or other rights is the same stock as that on which the dividend is being paid or
ranks pari passu with or junior to such stock). Prior to the termination of any
such Extension Period, the Company may extend such Extension Period and further
defer the payment of interest, provided that no Extension Period shall exceed 60
consecutive monthly interest payment periods, extend beyond the Maturity of the
principal of this Security or end other than at the end of a full monthly
interest period. Upon the termination of any such Extension Period and upon the
payment of all accrued and unpaid interest and any Additional Interest then due
on any Interest Payment Date, the Company may elect to begin a new Extension
Period, subject to the above conditions. No interest or Additional Interest
shall be due and payable during an Extension Period, except at the end thereof,
but each installment of interest that would otherwise have been due and payable
during such Extension Period shall bear Additional Interest (to the extent that
the payment of such interest shall be legally enforceable) at the rate of 7.00%
per annum, compounded monthly and calculated as set forth in the first paragraph
of this Security, from the dates on which amounts would otherwise have been due
and payable until paid or made available for payment. The Company shall give the
Holder of this Security and the Trustee notice of its election to begin any
Extension Period at least one Business Day prior to the next succeeding Interest
Payment Date on which interest on this Security would be payable but for such
deferral or, so long as such Securities are held by or on behalf of Santander PR
Capital Trust I, at least one Business Day prior to the earlier of (i) the next
succeeding date on which Distributions on the Capital Trust Securities of such
Issuer Trust would be payable but for such deferral, and (ii) the date on which
the Property Trustee of such Issuer Trust is required to give notice to holders
of such Capital Trust Securities of the record date or the date such
Distributions are payable.
Payment of interest, including Additional Interest, on this Security will
be made in immediately available funds at the office or agency of the Company
maintained for that purpose in the City of San Xxxx, Puerto Rico, 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; provided, however, that, at the
option of the Company, payment of interest may be paid by check mailed to the
Person entitled thereto at such Person's last address as it appears in the
Security Register or, upon written request of a Holder of $1,000,000 or more in
aggregate principal amount of Securities of this series not less than 15
calendar days prior to the applicable Interest Payment Date, by wire transfer to
such account as may have been designated by such Person. Payment of principal of
and interest, including Additional Interest, on this Security at Maturity will
be made against presentation of this Security at the office or agency of the
Company maintained for that purpose in the City of San Xxxx, Puerto Rico.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature or its duly
authorized agent under the Indenture referred to on the reverse hereof by
17
manual signature, this Security shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
[SIGNATURE PAGE FOLLOWS]
18
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
DATED: February 28, 2006 SANTANDER BANCORP
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Securities of the
series designated therein referred to
in the within-mentioned Indenture.
Banco Popular de Puerto Rico
as Trustee
By:
---------------------------------
Authorized Signature
OR
________________________________, as
Authenticating Agent for the Trustee
By:
---------------------------------
Authorized Signature
19
[REVERSE OF DEBENTURE]
SANTANDER BANCORP
7.00% JUNIOR SUBORDINATED DEBENTURES, SERIES A
DUE JULY 1, 2036
This Security is one of a duly authorized issue of junior subordinated
securities of the Company (herein called the "Securities"), issued and to be
issued in one or more series under an indenture dated as of February 28, 2006,
as amended or supplemented from time to time (herein called the "Indenture"),
between the Company and, as Trustee (herein called the "Trustee," which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Securities, and of the terms
upon which the Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof, limited in
aggregate principal amount to $129,000,000. All terms used in this Security
which are defined in the Indenture shall have the meanings assigned to them in
the Indenture unless otherwise defined in this Security.
Subject to any required prior approval of the Primary Federal Regulator,
the Company may at any time, at its option, on or after July 1, 2011, and
subject to the terms and conditions of Article Eleven of the Indenture, redeem
the Securities of this series in whole at any time or in part from time to time,
at a Redemption Price equal to 100% of the principal amount thereof, together,
in the case of any such redemption, with accrued but unpaid interest, including
any Additional Interest, to but excluding the Redemption Date.
In addition, upon the occurrence and during the continuation of a Tax
Event, an Investment Company Event or a Capital Treatment Event in respect of
Santander PR Capital Trust I, the Company may, at its option, at any time within
90 days of the occurrence and during the continuation of such Tax Event,
Investment Company Event or Capital Treatment Event, as the case may be, subject
to any required prior approval of the Primary Federal Regulator, redeem the
Securities of this series, in whole but not in part, subject to the terms and
conditions of Article Eleven of the Indenture, at a Redemption Price equal to
100% of the principal amount thereof, together, in the case of any such
redemption, with accrued but unpaid interest, including any Additional Interest,
to but excluding the Redemption Date.
The Securities of this series are not subject to repayment at the option of
the Holder hereof. The Securities of this series will not be entitled to any
sinking fund.
The indebtedness evidenced by the Securities of this series is, to the
extent and in the manner set forth in the Indenture, subordinate and subject in
right of payment to the prior payment in full of the principal of and premium,
if any, and interest on all Senior Debt of the Company, and each Holder of the
Securities of this series, by accepting the same, agrees to and shall be bound
by the provisions of the Indenture with respect hereto. The Securities of this
series shall rank on a parity with all Trust Related Securities, including
without limitation, the Guarantee Agreement related to the 7.00% Capital
Securities of Santander PR Capital Trust I.
If an Event of Default, as defined in the Indenture, with respect to
Securities of this series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the manner and with
the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of all series to be affected, acting together. The
Indenture also contains provisions permitting the Holders of a majority in
principal amount of the Securities of all series at the time Outstanding
affected by certain provisions of the Indenture, acting together, on behalf of
the Holders of all Securities of such series, to waive compliance by the Company
with those provisions of
20
the Indenture. Certain past defaults under the Indenture and their consequences
may be waived under the Indenture by the Holders of a majority in principal
amount of the Securities of each series at the time Outstanding, on behalf of
the Holders of all Securities of such series. All of the rights of the Holders
set forth in this paragraph are subject to the rights of the holders of Capital
Trust Securities as set forth in the Indenture. Any such consent or waiver by
the Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
The provisions contained in Section 403 and Article Seventeen of the
Indenture for defeasance of the entire indebtedness on this Security and certain
restrictive covenants and certain Events of Default do not apply to this
Security. The provisions contained in Section 401 of the Indenture for
defeasance of the entire indebtedness on this Security in certain circumstances
shall apply to this Security.
Upon due presentment for registration of transfer of this Security at the
office or agency of the Company in the City of San Xxxx, Puerto Rico, a new
Security or Securities of this series in authorized denominations of $25 or
integral multiples thereof for an equal aggregate principal amount will be
issued to the transferee in exchange herefor, as provided in the Indenture and
subject to the limitations provided therein and to the limitations described
below, without charge except for any tax or other governmental charge imposed in
connection therewith.
If this Security is a Global Security, this Security is exchangeable for
definitive Securities in registered form only if (x) the Depositary notifies the
Company that it is unwilling or unable to continue as Depositary for this
Security 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 within 90 days, (y) the Company in its
sole discretion determines that this Security shall be exchangeable for
definitive Securities in registered form and notifies the Trustee thereof, or
(z) an Event of Default with respect to the Securities represented hereby has
occurred and is continuing. If this Security is exchangeable pursuant to the
preceding sentence, it shall be exchangeable for definitive Securities in
registered form, bearing interest, including Additional Interest, at the same
rate, having the same date of issuance, redemption provisions, Stated Maturity
and other terms and of authorized denominations aggregating a like amount.
If this Security is a Global Security, this Security may not be transferred
except as a whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the Depositary
or by the Depositary or any such nominee to a successor of the Depositary or a
nominee of such successor. Except as provided above, owners of beneficial
interests in this global Security will not be entitled to receive physical
delivery of Securities in definitive form and will not be considered the Holders
hereof for any purpose under the Indenture.
Subject to the rights of holders of Senior Debt of the Company set forth in
this Security and the indenture referred to above, no reference herein to the
Indenture and no provision of this Security or of the Indenture shall alter or
impair the obligation of the Company, which is absolute and unconditional, to
pay the principal of and interest, including any Additional Interest, on this
Security at the times, place and rate, and in the coin or currency, herein
prescribed, except as otherwise provided in this Security and except that in the
event the Company deposits money or Eligible Instruments as provided in Section
401 of the Indenture, such payments will be made only from proceeds of such
money or Eligible Instruments.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest, including Additional Interest, on this Security, or for any claim
based hereon, or otherwise in respect hereof, or based on or in respect of the
Indenture or any indenture supplemental thereto, against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or any successor 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 issuance hereof, expressly waived and released.
21
The Company and, by its acceptance of this Security or a beneficial
interest herein, the Holder of, and any Person that acquires a beneficial
interest in, this Security, agree that for United States federal or Puerto Rico,
state and local tax purposes it is intended that this Security constitute
indebtedness.
22
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common
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.
FOR VALUE RECEIVED, the undersigned hereby sell(s) and transfer(s) unto
Please Insert Social Security or
Other Identifying Number of Assignee
------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please print or type name and address including postal zip code of Assignee)
the within Security of SANTANDER BANCORP and does hereby irrevocably constitute
and appoint __________________ attorney to transfer the said Security on the
books of the Company, 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 instrument in every particular, without
alteration or enlargement or any change whatever.
23
