1
Exhibit 4(h)
================================================================================
POPULAR NORTH AMERICA, INC.,
Issuer
and
POPULAR, INC.,
Guarantor
TO
THE FIRST NATIONAL BANK OF CHICAGO,
Trustee
----------------
THIRD SUPPLEMENTAL INDENTURE
Dated as of August 5, 1999
to Indenture dated as of October 1, 1991
----------------
================================================================================
2
THIRD SUPPLEMENTAL INDENTURE, dated as of August 5, 1999 among Popular
North America, Inc. (formerly BanPonce Financial Corp.), a Delaware corporation
(the "Company"), Popular, Inc. (formerly BanPonce Corporation), a Puerto Rico
corporation (the "Guarantor"), and THE FIRST NATIONAL BANK OF CHICAGO, a
national banking association, as Trustee (the "Trustee").
RECITALS
The Company, the Guarantor and the Trustee, as successor Trustee, are
parties to an Indenture, dated as of October 1, 1991 (the "Original Indenture"),
which provides for the issuance from time to time of unsecured debt securities
of the Company, unconditionally guaranteed as to the payment of principal,
premium (if any) and interest by the Guarantor, and are parties to a First
Supplemental Indenture thereto, dated as of February 28, 1995 and a Second
Supplemental Indenture thereto, dated as of May 8, 1997.
Section 901(5) of the Original Indenture provides that without the consent
of any Holders, the Company and the Guarantor, when authorized by Board
Resolutions, 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 and the Guarantor believe that Section 1013 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 Third Supplemental
Indenture.
The respective Boards of Directors of the Company and the Guarantor have
duly authorized the execution and delivery by the Company and the Guarantor,
respectively, of this Third Supplemental Indenture.
3
NOW, THEREFORE, THIS
THIRD 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, the Guarantor 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 Third Supplemental Indenture shall have the
meanings ascribed to them by the Original Indenture.
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 Third 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 Third 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 Third 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 Third Supplemental Indenture or the Original Indenture.
-2-
4
Section 106. Governing Law.
This Third Supplemental Indenture shall be governed by and construed in
accordance with the laws of the State of New York.
ARTICLE TWO
Amendment of the Original Indenture
Section 201. Amendment of Section 1013.
Section 1013 of the Original Indenture is hereby amended and restated in
its entirety as follows:
"The Company and the Guarantor may omit in any particular instance to
comply with any term, provision or condition set forth in Sections
1006, 1007 and 1009 to 1011, 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 Guarantor 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 Third Supplemental Indenture shall neither (i) apply to
any Security of a series created prior to the execution of this Third
Supplemental Indenture and entitled to the benefit of Section 1013 of the
Original Indenture nor (ii) modify the rights of the Holder of any such Security
with respect to Section 1013 of the Original Indenture.
Section 203. Reaffirmation of Original Indenture.
Each of the Company, the Guarantor and the Trustee hereby confirms,
reaffirms and agrees to the Original Indenture in every particular, as amended
by this Third Supplemental Indenture.
-3-
5
Section 204. Trust Indenture Act.
If any provision of this Third 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 Third Supplemental Indenture, the latter 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
Third Supplemental Indenture as so modified or excluded, as the case may be.
* * *
This Third 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.
-4-
6
IN WITNESS WHEREOF, the parties hereto have caused this Third 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 NORTH AMERICA, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President
By:
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
Attest:
/s/ Xxxxx Xxxxxxxx San Xxxxxx
------------------------------
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 North
America, Inc. and ____________, of legal age, married and resident of
___________, Puerto Rico as __________________ of Popular North America, 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
-5-
7
IN WITNESS WHEREOF, the parties hereto have caused this Third 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 NORTH AMERICA, INC.
By:
--------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
Attest:
/s/ Xxxxx Xxxxxxxx San Xxxxxx
------------------------------
Assistant Secretary
Affidavit No. 1190
Subscribed to before me by Xxxxx x. Xxxxxx, of legal age, married and
resident of Guaynabo, Puerto Rico as Executive Vice President of Popular North
America, 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
-5-
8
POPULAR, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President
By:
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
Attest:
/s/ Xxxxx Xxxxxxxx San Xxxxxx
-----------------------------------
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
-6-
9
POPULAR, INC.
By:
---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
Attest:
/s/ Xxxxx Xxxxxxxx San Xxxxxx
-----------------------------------
Assistant Secretary
Affidavit No. 1191
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
-6-
10
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Trust Officer
Attest:
/s/ Xxxxx X. Xxxxxxxx
------------------------------
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
----------------------------
Notary Public
Xxxx X. Xxxxx
Notary Public, State of New York
Reg. No. 01DA6004466
Qualified in New York County
Commission Expires March 23, 2000
-7-
