EXHIBIT 4.2
FIRST SUPPLEMENTAL INDENTURE
BETWEEN
R&G FINANCIAL CORPORATION
AND
WILMINGTON TRUST COMPANY, AS TRUSTEE
-------------------------------------
Dated as of November 30, 2004
-------------------------------------
TABLE OF CONTENTS
ARTICLE I DEFINITIONS.................................................................................... 1
Section 1.01 Definition of Terms...................................................................... 1
ARTICLE II SECURITIES.................................................................................... 4
Section 2.01 Designation and Principal Amount......................................................... 4
Section 2.02 Forms Generally.......................................................................... 4
Section 2.03 Execution and Authentication............................................................. 4
Section 2.04 Maturity................................................................................. 4
Section 2.05 Global Security.......................................................................... 4
Section 2.06 Interest................................................................................. 5
ARTICLE III REDEMPTION OF SECURITIES..................................................................... 6
Section 3.01 Redemption............................................................................... 6
Section 3.02 Special Event Redemption................................................................. 6
Section 3.03 Optional Redemption by Company........................................................... 7
Section 3.04 Notice of Redemption..................................................................... 7
Section 3.05 Payment of Securities Called for Redemption.............................................. 8
ARTICLE IV EXTENSION OF INTEREST PAYMENT PERIOD.......................................................... 9
Section 4.01 Extension of Interest Payment Period..................................................... 9
Section 4.02 Notice of Extension...................................................................... 10
ARTICLE V MISCELLANEOUS.................................................................................. 10
Section 5.01 Ratification of Indenture................................................................ 10
Section 5.02 Reports by the Trustee................................................................... 10
Section 5.03 Governing Law............................................................................ 11
Section 5.04 Separability............................................................................. 11
Section 5.05 Execution in Counterparts................................................................ 11
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FIRST SUPPLEMENTAL INDENTURE, dated as of November 30, 2004 (the "First
Supplemental Indenture"), between R&G Financial Corporation, a Puerto Rico
corporation (hereinafter sometimes called the "Company"), and Wilmington Trust
Company, a Delaware banking corporation, as trustee (hereinafter sometimes
called the "Trustee"), under the Indenture dated as of November 30, 2004 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 junior subordinated
deferrable interest debentures to be issued from time to time in one or more
series as might be determined by the Company under the Indenture, in a 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 6.62% Junior Subordinated Deferrable Interest Debentures, due December 12,
2034 (the "Securities"), the form and substance of such Securities 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 R&G Capital Trust VI, a Delaware statutory trust
(the "Trust"), propose to issue $125,000,000 aggregate liquidation amount of the
Trust's 6.62% 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 3,866,000
aggregate liquidation amount of its 6.62% Common Securities (the "Common
Securities"), in $128,866,000 aggregate principal amount of the Securities; 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 Securities, 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
Securities by the holders thereof, and for the purpose of setting forth, as
provided in the Indenture, the form and substance of the Securities and the
terms, provisions and conditions thereof, the Company covenants and agrees with
the Trustee as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 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) Administrative Trustee; (ii) Distribution; and (iii) Property Trustee;
(g)the following terms have the meanings given to them in this Section
1.01(g) and, to the extent such meanings conflict with any of the definitions
set forth in the Indenture, this Section 1.01(g) shall control:
"Additional Sums" shall have the meaning set forth in Section 2.06(d).
"Agency Agreement" shall mean the Agency Agreement dated November 26, 2004
among the Company, the Trust and the placement agents named therein.
"Compounded Interest" shall have the meaning set forth in Section 4.01(b).
"Coupon Rate" shall have the meaning set forth in Section 2.06(b).
"Declaration" means the Amended and Restated Declaration of Trust and
Trust Agreement of R&G Capital Trust VI, a Delaware statutory trust, dated as of
November 30, 2004.
"Deferred Interest" shall have the meaning set forth in Section 4.01(b).
"Extended Interest Payment Period" shall have the meaning set forth in
Section 4.01(b).
"Federal Reserve" means the Board of Governors of the Federal Reserve
System.
"Interest Payment Date" shall have the meaning set forth in Section
2.06(b).
"Maturity Date" shall mean December 12, 2034.
"Ministerial Action" shall have the meaning set forth in Section 3.02.
"180-Day Period" shall have the meaning set forth in Section 3.02.
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"R&G Capital Trust" or the "Trust" shall mean R&G Capital Trust VI, a
Delaware statutory trust created for the purpose of issuing its undivided
beneficial interests in connection with the issuance of Securities under the
Indenture and this Supplemental Indenture.
"Redemption Price" as of any given date identified in the table below,
means the price which is expressed as a percentage of the principal amount of
the Securities:
YEAR BEGINNING PERCENTAGE
----------------------------- -----------
On or after December 12, 2009 105%
On or after December 12, 2010 104%
On or after December 12, 2011 103%
On or after December 12, 2012 102%
On or after December 12, 2013 101%
On or after December 12, 2014 100%
plus accrued and unpaid interest on such Securities to the redemption
date.
"Regulatory Capital Event" means that the Company shall have received an
opinion of bank regulatory counsel (who shall not be an employee of the Company)
experienced in such matters to the effect that, as a result of (a) any amendment
to, or change (including any announced prospective change) in, the laws (or any
regulations thereunder) of the United States or any rules, guidelines or
policies of applicable regulatory agencies or (b) any official administrative
pronouncement or judicial decision interpreting or applying such laws or
regulations, which amendment or change is effective or such pronouncement or
decision is announced on or after the date of this First Supplemental Indenture,
the Preferred Securities do not constitute, or within 90 days of the date
thereof, will not constitute, Tier I Capital (or its then equivalent) for
purposes of the capital adequacy guidelines of the Federal Reserve (or any
successor regulatory authority with jurisdiction over bank holding companies),
or any capital adequacy guidelines as then in effect and applicable to the
Company; provided, however, that the distribution of the Securities in
connection with a termination of the Trust by the Company shall not in and of
itself constitute a Regulatory Capital Event, provided further, that for the
avoidance of doubt, the adoption by the Federal Reserve as a final rule of any
of the proposals set forth in its notice of proposed rule making dated May 6,
2004, shall not constitute a Regulatory Capital Event.
"Special Event" means a Tax Event, Investment Company Event or a
Regulatory Capital Event, as the case may be.
"Special Event Redemption Price" shall have the meaning set forth in
Section 3.02.
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"Underwriting Agreement" shall be disregarded and all references in the
Indenture are hereby deemed to refer to the Agency Agreement.
ARTICLE II
SECURITIES
SECTION 2.01 DESIGNATION AND PRINCIPAL AMOUNT.
There is hereby authorized a series of Securities designated as the "6.62%
Junior Subordinated Deferrable Interest Debentures due December 12, 2034," in
aggregate principal amount of $128,866,000.
SECTION 2.02 FORMS GENERALLY.
The Securities and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A hereto, the terms of which are
incorporated in and made a part of this First Supplemental Indenture. The
Securities may have notations, legends or endorsements required by law, stock
exchange rule, agreements to which the Company is subject or usage. Each
Security shall be dated the date of its authentication. The Securities shall be
issued in denominations of $25.00 and integral multiples thereof.
SECTION 2.03 EXECUTION AND AUTHENTICATION.
The Securities shall be executed on behalf of the Company by a duly
authorized Officer and attested by a Secretary or an Assistant Secretary. The
signature of any such person on the Securities may be manual or facsimile. If an
Officer whose signature is on a Security no longer holds that office at the time
the Security is authenticated, the Security shall nevertheless be valid.
A Security shall not be valid until authenticated by the manual signature
of the Trustee. The signature of the Trustee shall be conclusive evidence that
the Security has been authenticated under this Indenture. The form of Trustee's
certificate of authentication to be borne by the Securities shall be
substantially as set forth in Exhibit A hereto.
The Trustee shall, upon a Company Order, authenticate for original issue
up to, and the aggregate principal amount of Securities outstanding at any time
may not exceed $128,866,000 aggregate principal amount of the Securities, except
as provided in Sections 2.06, 2.07, 2.08 of the Indenture and Section 3.05 of
this First Supplemental Indenture.
SECTION 2.04 MATURITY.
The Securities shall mature on the Maturity Date as defined in Section
1.01(g) of this First Supplemental Indenture.
SECTION 2.05 GLOBAL SECURITY.
Section 2.04 of the Indenture shall be disregarded in its entirety and
shall not apply to the Securities.
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SECTION 2.06 INTEREST.
(a) Section 2.05 of the Indenture shall be disregarded in its entirety and
shall not apply to the Securities covered by this First Supplemental Indenture.
All references in the Indenture to Section 2.05 are hereby deemed to apply to
this Section 2.06.
(b) Each Security will bear interest at the rate of 6.62% per annum (the
"Coupon Rate") from the most recent date to which interest has been paid or duly
provided for or, if no interest has been paid or duly provided for, from
November 30, 2004 until the principal thereof becomes due and payable on the
next succeeding Interest Payment Date (as defined below), and at the Coupon Rate
on any overdue principal and (to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest,
compounded monthly payable (subject to the provisions of Article IV hereof)
monthly in arrears on the twelfth day of each month (each, an "Interest Payment
Date") commencing on January 12, 2005, to the Person in whose name such Security
or any predecessor Security is registered, at the close of business on the
regular record date for such interest installment, which shall be the fifteenth
day of the month prior to the Interest Payment Date.
(c) Interest will be computed on the basis of a 360-day year consisting of
twelve 30-day months and, for any period of less than a full calendar month, the
number of days lapsed in such month based upon 30-day months. In the event that
any Interest Payment Date falls on a day that 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 next succeeding Business Day falls in the
next succeeding calendar year, then such payment shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date.
(d) During such time as the Property Trustee is the holder of any
Securities, the Company shall pay any additional amounts on the Securities as
may be necessary in order that the amount of Distributions then due and payable
by the Trust on the outstanding Trust Securities shall not be reduced as a
result of any additional taxes, duties, assessments and other governmental
charges to which the Trust or the Property Trustee has become subject as a
result of a Tax Event ("Additional Sums"). Whenever in the Indenture, this First
Supplemental Indenture or the Securities there is a reference in any context to
the payment of principal of or interest on the Securities, such mention shall be
deemed to include mention of the payments of the Additional Sums provided for in
this paragraph to the extent that, in such context, Additional Sums are, were or
would be payable in respect thereof pursuant to the provisions of this paragraph
and express mention of the payment of Additional Sums (if applicable) in any
provisions hereof shall not be construed as excluding Additional Sums in those
provisions hereof where such express mention is not made; provided, however,
that the deferral of the payment of interest pursuant to Section 4.01 hereof or
the Securities shall not defer the payment of any Additional Sums that may be
due and payable.
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ARTICLE III
REDEMPTION OF SECURITIES
SECTION 3.01 REDEMPTION.
(a) Section 14.01 of the Indenture shall be disregarded in its entirety
and shall not apply to the Securities covered by this First Supplemental
Indenture. All references in the Indenture to Section 14.01 are hereby deemed to
apply to this Section 3.01.
(b) Subject to the Company having received prior approval of the Federal
Reserve through the Federal Reserve Bank of New York or any other designee, if
then required under the applicable capital guidelines, policies or regulations
of the Federal Reserve, the Company may redeem the Securities issued hereunder
on and after the dates set forth in, and in accordance with the terms of, this
Article III.
SECTION 3.02 SPECIAL EVENT REDEMPTION.
(a) Section 14.02 of the Indenture shall be disregarded in its entirety
and shall not apply to the Securities covered by this First Supplemental
Indenture. All references in the Indenture to Section 14.02 are hereby deemed to
apply to this Section 3.02.
(b) Subject to the Company having received the prior approval of the
Federal Reserve through the Federal Reserve Bank of New York or any other
designee, if then required under the applicable capital guidelines, policies or
regulations of the Federal Reserve, if a Special Event has occurred and is
continuing, then, notwithstanding Section 3.03(b) hereof but subject to Section
3.03(c) hereof, the Company shall have the right upon not less than 35 days' nor
more than 60 days' notice to the holders of the Securities to redeem the
Securities, in whole but not in part, for cash within 180 days following the
occurrence of such Special Event (the "180-Day Period") at a redemption price
equal to 100% of the principal amount to be redeemed plus any accrued and unpaid
interest thereon to the date of such redemption (the "Special Event Redemption
Price"), provided that if at the time there is available to the Company the
opportunity to eliminate, within the 180-Day Period, a Tax Event by taking some
ministerial action (a "Ministerial Action"), such as filing a form or making an
election, or pursuing some other similar reasonable measure which has no adverse
effect on the Company, the Trust or the holders of the Trust Securities issued
by the Trust, the Company shall pursue such Ministerial Action in lieu of
redemption, and, provided further, that the Company shall have no right to
redeem the Securities pursuant to this Section 3.02 while it is pursuing any
Ministerial Action pursuant to its obligations hereunder, and, provided further,
that, if it is determined that the taking of a Ministerial Action would not
eliminate the Tax Event within the 180-Day Period, the Company's right to redeem
the Securities pursuant to this Section 3.02 shall be restored and it shall have
no further obligations to pursue the Ministerial Action. The Special Event
Redemption Price shall be paid prior to 12:00 noon, New York time, on the date
of such redemption or such earlier time as the Company determines, provided that
the Company shall deposit with the Trustee an amount sufficient to pay the
Special Event Redemption Price by 10:00 a.m., New York time, on the date such
Special Event Redemption Price is to be paid.
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SECTION 3.03 OPTIONAL REDEMPTION BY COMPANY.
(a) Section 14.03 of the Indenture shall be disregarded in its entirety
and shall not apply to the Securities covered by this First Supplemental
Indenture. All references in the Indenture to Section 14.03 are hereby deemed to
apply to this Section 3.03.
(b) Except as otherwise may be specified in this First Supplemental
Indenture, the Company shall have the right to redeem the Securities, in whole
or in part, from time to time, on or after December 12, 2009, at the Redemption
Price. Any redemption pursuant to this Section 3.03(b) shall be made upon not
less than 35 days' nor more than 60 days' notice to the holder of the
Securities, at the Redemption Price. If the Securities are only partially
redeemed pursuant to this Section 3.03(b), the Securities shall be redeemed pro
rata or by lot or in such other manner as the Trustee shall deem appropriate and
fair in its discretion. The redemption shall be effected prior to 12:00 noon,
New York time, on the date of such redemption or at such earlier time as the
Company determines, provided that the Company shall deposit with the Trustee an
amount sufficient to effectuate the redemption by 10:00 a.m., New York time, on
the date such Redemption Price is to be paid.
(c) The Company shall have the right to redeem Securities at any time and
from time to time in a principal amount equal to the liquidation amount of any
Preferred Securities purchased and beneficially owned by the Company, plus an
additional principal amount of Securities equal to the liquidation amount of
that number of Common Securities that bears the same proportion to the total
number of Common Securities then outstanding as the number of Preferred
Securities to be redeemed bears to the total number of Preferred Securities then
outstanding. Such Securities shall be redeemed pursuant to this Section 3.03(c)
only in exchange for and upon surrender by the Company to the Property Trustee
of the Preferred Securities and a proportionate amount of Common Securities,
whereupon the Property Trustee shall cancel the Preferred Securities and Common
Securities so surrendered and a like amount of Securities shall be extinguished
by the Trustee and shall no longer be deemed Outstanding.
SECTION 3.04 NOTICE OF REDEMPTION.
(a) Section 14.04 of the Indenture shall be disregarded in its entirety
and shall not apply to the Securities covered by this First Supplemental
Indenture. All references in the Indenture to Section 14.04 are hereby deemed to
apply to this Section 3.04.
(b) Except in the case of a redemption pursuant to Section 3.03(c) hereof,
in case the Company shall desire to exercise such right to redeem all or, as the
case may be, a portion of the Securities in accordance with the right reserved
so to do, the Company shall, or shall cause the Trustee to upon receipt of 45
days' written notice from the Company, give notice of such redemption to holders
of the Securities to be redeemed by mailing, first class postage prepaid, a
notice of such redemption not less than 35 days and not more than 60 days before
the date fixed for redemption to such holders at their last addresses as they
shall appear upon the Security Register. Any notice that is mailed in the manner
herein provided shall be conclusively presumed to have been duly given, whether
or not the registered holder receives the notice. In any case, failure duly to
give such notice to the holder of any Security designated for redemption in
whole or in part, or any defect in the notice, shall not affect the validity of
the proceedings for
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the redemption of any other Securities. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in the Indenture or this
First Supplemental Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with any such restriction. Each such
notice of redemption shall specify the date fixed for redemption and the
Redemption Price or Special Event Redemption Price, as applicable, and shall
state that payment of the Redemption Price or Special Event Redemption Price, as
applicable, shall be made upon presentation and surrender of such Securities,
that interest accrued to the date fixed for redemption shall be paid as
specified in said notice and that from and after said date interest shall cease
to accrue. If less than all the Securities are to be redeemed, the notice to the
holders of the Securities shall specify the particular Securities to be
redeemed. If the Securities are to be redeemed in part only, the notice shall
state the portion of the principal amount thereof to be redeemed and shall state
that on and after the redemption date, upon surrender of such Security, a new
Security or Securities in principal amount equal to the unredeemed portion
thereof shall be issued.
(c) Except in the case of redemption pursuant to Section 3.03(c) hereof,
if less than all the Securities are to be redeemed, the Company shall give the
Trustee at least 45 days' notice in advance of the date fixed for redemption as
to the aggregate principal amount of Securities to be redeemed, and thereupon
the Trustee shall select, pro rata or by lot or in such other manner as it shall
deem appropriate and fair in its discretion, the portion or portions (equal to
$25 or any integral multiple thereof) of the Securities to be redeemed and shall
thereafter promptly notify the Company in writing of the number of the
Securities to be redeemed, in whole or in part. The Company may, if and whenever
it shall so elect pursuant to the terms hereof, by delivery of instructions
signed on its behalf by its Chairman, its President or any Vice President, its
Chief Financial Officer or its Treasurer, instruct the Trustee or any paying
agent to call all or any part of the Securities for redemption and to give
notice of redemption in the manner set forth in this Section 3.04, such notice
to be in the name of the Company or its own name as the Trustee or such paying
agent may deem advisable. In any case in which notice of redemption is to be
given by the Trustee or any such paying agent, the Company shall deliver or
cause to be delivered to, or permit to remain with, the Trustee or such paying
agent, as the case may be, such Security Register, transfer books or other
records, or suitable copies or extracts therefrom, sufficient to enable the
Trustee or such paying agent to give any notice by mail that may be required
under the provisions of this Section 3.04.
SECTION 3.05 PAYMENT OF SECURITIES CALLED FOR REDEMPTION.
(a) Section 14.05 of the Indenture shall be disregarded in its entirety
and shall not apply to the Securities covered by this First Supplemental
Indenture. All references in the Indenture to Section 14.05 are hereby deemed to
apply to this Section 3.05.
(b) If the giving of notice of redemption shall have been completed as
above provided, the Securities or portions of Securities to be redeemed
specified in such notice shall become due and payable on the date and at the
place stated in such notice at the Redemption Price or Special Event Redemption
Price, as applicable, and interest on such Securities or portions of Securities
shall cease to accrue on and after the date fixed for redemption, unless the
Company shall default in the payment of such Redemption Price or Special Event
Redemption Price, as applicable, with respect to any such Security or portion
thereof. On presentation and
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surrender of such Securities on or after the date fixed for redemption at the
place of payment specified in the notice, said Securities shall be paid and
redeemed at the Redemption Price or Special Event Redemption Price, as
applicable (but if the date fixed for redemption is an Interest Payment Date,
the interest installment payable on such date shall be payable to the registered
holder at the close of business on the applicable record date pursuant to
Section 3.03 hereof).
(c) Upon presentation of any Security that is to be redeemed in part only,
the Company shall execute and the Trustee shall authenticate and the office or
agency where the Security is presented shall deliver to the holder thereof, at
the expense of the Company, a new Security of authorized denomination in
principal amount equal to the unredeemed portion of the Security so presented.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.01 EXTENSION OF INTEREST PAYMENT PERIOD.
(a) Section 16.01 of the Indenture shall be disregarded in its entirety
and shall not apply to the Securities covered by this First Supplemental
Indenture. All references in the Indenture to Section 16.01 are hereby deemed to
apply to this Section 4.01.
(b) 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 Securities, to defer payments of interest by extending the interest
payment period of such Securities 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 shall end on a date other than an Interest Payment Date
or extend beyond the Maturity Date. 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 4.01, will bear interest
thereon at the Coupon Rate compounded monthly for each month of the Extended
Interest Payment Period ("Compounded Interest"). At the end of the Extended
Interest Payment Period, the Company shall pay all interest accrued and unpaid
on the Securities, including any Compounded Interest (together, "Deferred
Interest") that shall be payable to the holders in whose names the Securities
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 Maturity Date of the Securities. 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.
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SECTION 4.02 NOTICE OF EXTENSION.
(a) Section 16.02 of the Indenture shall be disregarded in its entirety
and shall not apply to the Securities covered by this First Supplemental
Indenture. All references in the Indenture to Section 16.02 are hereby deemed to
apply to this Section 4.02.
(b) 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 Administrative Trustees, the Property Trustee and the
Trustee of its selection of such Extended Interest Payment Period five Business
Days before the earlier of (i) the next succeeding date on which Distributions
on the Trust Securities issued by the Trust are payable, or (ii) the date the
Trust is required to give notice of the record date, or the date such
Distributions are payable, to any national securities exchange or to holders of
the Preferred Securities issued by the Trust, but in any event at least five
Business Days before such record date.
(c) If the Property Trustee is not the only holder of the Securities at
the time the Company selects an Extended Interest Payment Period, the Company
shall give the holders of the Securities notice of its election of such Extended
Interest Payment Period at least five Business Days before the earlier of (i)
the next succeeding Interest Payment Date, or (ii) the date the Company is
required to give notice of the record date or the Interest Payment Date to any
national securities exchange or the holders of the Securities.
(d) The month in which any notice is given pursuant to paragraphs (b) or
(c) of this Section 4.02 shall be counted as one of the 60 months permitted in
the maximum Extended Interest Payment Period permitted under Section 4.01.
ARTICLE V
MISCELLANEOUS
SECTION 5.01 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 5.02 REPORTS BY THE TRUSTEE.
(a) Section 4.04 of the Indenture shall be disregarded in its entirety and
shall not apply to the Securities covered by this First Supplemental Indenture.
All references in the Indenture to Section 4.04 are hereby deemed to apply to
this Section 5.02.
(b) The Trustee shall transmit to Securityholders such reports concerning
the Trustee and its actions under this Indenture as may be required pursuant to
the Trust Indenture Act at the times and in the manner provided pursuant
thereto. If required by Section 313(a) of the Trust Indenture Act, the Trustee
shall, not later than July 15 following the date of this Indenture, commencing
July 15, 2005, deliver to Securityholders a brief report, dated as of such date,
which complies with the provisions of such Section 313(a).
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(c) A copy of each such report shall, at the time of such transmission to
Securityholders, be filed by the Trustee with each stock exchange, if any, upon
which the Securities are listed, with the Commission and with the Company. The
Company will promptly notify the Trustee when the Securities are listed on any
stock exchange or any delisting thereof.
SECTION 5.03 GOVERNING LAW.
This First Supplemental Indenture and each Debenture shall be deemed to be
a contract made under the internal laws of the State of New York, and for all
purposes shall be construed in accordance with the laws of such State without
regard to conflicts of laws principles.
SECTION 5.04 SEPARABILITY.
In case any one or more of the provisions contained in this First
Supplemental Indenture or in the Securities 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 Securities, but this First Supplemental
Indenture and the Securities shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.
SECTION 5.05 EXECUTION IN 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.]
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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.
R&G FINANCIAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Executive Vice President and Chief
Financial Officer
WILMINGTON TRUST COMPANY, AS TRUSTEE
By: /s/ Xxxxxxx X. Xxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Financial Services Officer
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EXHIBIT A
Principal Amount: $128,866,000
No. 1
R&G Capital Trust VI
6.62% JUNIOR SUBORDINATED DEFERRABLE INTEREST
DEBENTURE DUE DECEMBER 12, 2034
R&G Financial Corporation, a Puerto Rico corporation (the "Company"),
which term includes any successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to Wilmington Trust
Company, as Property Trustee for R&G Capital Trust VI or registered assigns, the
principal sum of $128,866,000, on December 12, 2034 (the "Maturity Date") and to
pay interest on the outstanding principal amount hereof from November 30, 2004,
or from the most recent interest payment date (each such date, an "Interest
Payment Date") to which interest has been paid or duly provided for, monthly
(subject to deferral as set forth herein) in arrears on the twelfth day of each
month, commencing January 12, 2005, at the rate of 6.62% per annum until the
principal hereof shall have become due and payable, and on any overdue principal
and (without duplication and to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest at the
same rate per annum compounded monthly. The amount of interest payable on any
Interest Payment Date shall be computed on the basis of a 360-day year of twelve
30-day months and, for any period less than a full calendar month, the number of
days elapsed in such month based upon 30-day months. In the event that any date
on which the principal of or interest on this Security is payable is not a
Business Day, then the payment payable on such date will be made on the next
succeeding Business Day (and without any interest or other payment in respect of
any such delay), except that if such next succeeding Business Day falls in the
next calendar year, then such payment shall be made on the immediately preceding
Business Day, in each case with the same force and effect as if made on such
date. Pursuant to the First Supplemental Indenture (as herein defined), in
certain circumstances the Company will be required to pay Additional Sums and
Compounded Interest (each as defined in the First Supplemental Indenture) with
respect to this Security.
The interest installment so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in the First Supplemental
Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities, as defined in the Indenture (as defined herein)) is
registered at the close of business on the regular record date for such interest
installment, which shall be at the close of business on the fifteenth day of the
month next preceding such Interest Payment Date. Any such interest installment
not punctually paid or duly provided for shall forthwith cease to be payable to
the holders on such regular record date and may 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 to be fixed by the Trustee for the
payment of such defaulted interest, notice whereof shall be given to the holders
of
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Securities not less than 10 days prior to such special record date, or may be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in the Indenture.
The principal of and interest (including Compounded Interest and
Additional Sums, if any) on this Security shall be payable at the office or
agency of the Trustee maintained for that purpose in any coin or currency of the
United States of America that at the time of payment is legal tender for payment
of public and private debts; provided, however, that, payment of interest may be
made at the option of the Company by (i) check mailed to the holder at such
address as shall appear in the Security Register or (ii) by transfer to an
account maintained by the Person entitled thereto, provided that proper written
transfer instructions have been received by the relevant record date.
The indebtedness evidenced by this Security is, to the extent provided in
the Indenture, subordinate and junior in right of payment to the prior payment
in full of all Senior and Subordinated Indebtedness, and this Security is issued
subject to the provisions of the Indenture with respect thereto. Each holder of
this Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his or her behalf to take
such action as may be necessary or appropriate to acknowledge or effectuate the
subordination so provided and (c) appoints the Trustee his or her
attorney-in-fact for any and all such purposes. Each holder hereof, by his or
her acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder of
Senior and Subordinated Indebtedness, whether now outstanding or hereafter
incurred, and waives reliance by each such holder upon said provisions.
This Security shall not be entitled to any benefit under the Indenture
hereinafter referred to, be valid or become obligatory for any purpose until the
Certificate of Authentication hereon shall have been signed by or on behalf of
the Trustee.
The provisions of this Security are continued on the reverse side hereof
and such provisions shall for all purposes have the same effect as though fully
set forth at this place.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed and sealed.
Dated:
R&G FINANCIAL CORPORATION
By: ___________________________________
Name: Xxxxxx X. Xxxxxxxx
Title: Executive Vice President and Chief
Financial Officer
Attest:
By: _______________________
Name:
Title:
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(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned
Indenture.
_______________, as Trustee
By: ____________________ Dated:
Authorized Signatory
This Security is one of the Securities of the Company (herein sometimes
referred to as the "Securities"), specified in the Indenture, all issued or to
be issued under and pursuant to an Indenture, dated as of November 30, 2004 (the
"Indenture"), and the First Supplemental Indenture, dated as of November 30,
2004 (the "First Supplemental Indenture"), in each case, duly executed and
delivered between the Company and Wilmington Trust Company, as Trustee (the
"Trustee"), to which Indenture and First Supplemental Indenture reference is
hereby made for a description of the rights, limitations of rights, obligations,
duties and immunities thereunder of the Trustee, the Company and the holders of
the Securities.
Because of the occurrence and continuation of a Special Event (as defined
in the First Supplemental Indenture), in certain circumstances, this Security
may become due and payable at the principal amount together with any interest
accrued thereon (the "Special Event Redemption Price"). The Special Event
Redemption Price shall be paid prior to 12:00 noon, New York time on the date of
such redemption or at such earlier time as the Company determines. The Company
shall have the right as set forth in the First Supplemental Indenture to redeem
this Security at the option of the Company, in whole or in part at time on or
after December 12, 2009 (an "Optional Redemption"), at the Redemption Price. Any
redemption pursuant to this paragraph shall be made upon not less than 35 days
nor more than 60 days notice. The Redemption Price or Special Event Redemption
Price, as applicable, shall be paid at the time and in the manner provided
therefor in the Indenture. If the Securities are only partially redeemed by the
Company pursuant to an Optional Redemption, the Securities shall be redeemed pro
rata or by lot or by any other method utilized by the Trustee as described in
the Indenture.
In the event of redemption of this Security in part only, a new Security
or Securities for the unredeemed portion hereof shall be issued in the name of
the holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Securities may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
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The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the holders of a majority in aggregate principal amount of
the Securities at the time outstanding, as defined in the Indenture, to execute
supplemental indentures for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of the Indenture or of
modifying in any manner the rights of the holders of the Securities; provided,
however, that no such supplemental indenture shall, without the consent of each
holder of Securities then outstanding and affected thereby, (i) change the
Maturity Date of any Securities, or reduce the principal amount thereof, or
reduce any amount payable on redemption thereof, or reduce the rate or extend
the time of payment of interest thereon (subject to Article IV of the First
Supplemental Indenture), or make the principal of, or interest on, the
Securities payable in any coin or currency other than U.S. dollars, or impair or
affect the right of any holder of Securities to institute suit for the payment
thereof, or (ii) reduce the aforesaid percentage of Securities, the holders of
which are required to consent to any such supplemental indenture. The Indenture
also contains provisions permitting the holders of a majority in aggregate
principal amount of the Securities at the time outstanding affected thereby, on
behalf of all of the holders of the Securities, to waive any past default in the
performance of any of the covenants contained in the Indenture, or established
pursuant to the Indenture, and its consequences, except a default in the payment
of the principal of or interest on any of the Securities or a default in respect
of any covenant or provision under which the Indenture cannot be modified or
amended without the consent of each holder of Securities then outstanding. Any
such consent or waiver by the holder of this Security (unless revoked as
provided in the Indenture) shall be conclusive and binding upon such holder and
upon all future holders and owners of this Security and of any Security issued
in exchange herefor or in place hereof, irrespective of whether or not any
notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture or the First Supplemental Indenture
and no provision of this Security, the Indenture or the First Supplemental
Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of and interest (including Compounded
Interest and Additional Sums, if any) on this Security at the time and place and
at the rate and in the money herein prescribed.
So long as no Event of Default shall have occurred and be continuing, the
Company shall have the right, at any time and from time to time during the term
of the Securities, to defer payments of interest by extending the interest
payment period of such Securities for a period not exceeding 60 consecutive
months, including the first such month during such extension period, and not
extending beyond the Maturity Date of the Securities (an "Extended Interest
Payment Period") or ending on a date other than an Interest Payment Date, at the
end of which period the Company shall pay all interest then accrued and unpaid
(together with interest thereon at the rate specified for the Securities to the
extent that payment of such interest is enforceable under applicable law).
Before the termination of any such Extended Interest Payment Period, the Company
may further defer payments of interest by further extending such Extended
Interest Payment Period, provided that such Extended Interest Payment Period,
together with all such previous and further extensions within such Extended
Interest Payment Period, (i) shall not exceed 60 consecutive months, including
the first month during such Extended Interest Payment Period, (ii) shall not end
on any date other than an Interest Payment Date, and (iii) shall not extend
beyond the Maturity Date of the Securities. Upon the termination of any such
Extended
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Interest Payment Period and the payment of all accrued and unpaid interest and
any additional amounts then due, the Company may commence a new Extended
Interest Payment Period, subject to the foregoing requirements.
The Company has agreed that it will not (i) 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 (which includes common and
preferred stock), (ii) make any payment of principal, interest or premium, if
any, on or repay or repurchase or redeem any debt securities of the Company that
rank pari passu with or junior in right of payment to the Securities or (iii)
make any guarantee payments with respect to any guarantee by the Company of the
debt securities of any Subsidiary of the Company if such guarantee ranks pari
passu or junior in right of payment to the Securities (other than (a) dividends
or distributions in shares of, or options, warrants or rights to subscribe for
or purchase shares of, Common Stock of the Company, (b) any declaration of a
dividend in connection with the implementation of a stockholder's rights plan,
or the issuance of stock under any such plan in the future, or the redemption or
repurchase of any such rights pursuant thereto, (c) payments under the Preferred
Securities Guarantee, (d) the purchase of fractional shares resulting from a
reclassification of the Company's capital stock, (e) the purchase of fractional
interests in shares of the Company's capital stock pursuant to the exchange or
conversion of such capital stock or the security being exchanged or converted
and (f) purchases of Common Stock related to the issuance of Common Stock or
rights under any of the Company's benefit plans for its directors, officers or
employees or any of the Company's dividend reinvestment plans) if at such time
(1) there shall have occurred any event would constitute an Event of Default,
(2) if the Securities are held by the Property Trustee, the Company shall be in
default with respect to its payment obligations under the Preferred Securities
Guarantee or (3) the Company shall have given notice of its election of the
exercise of its right to extend the interest payment period and any such
extension shall be continuing.
Subject to (i) the receipt of any required regulatory approval and (ii)
the receipt by the Company of an opinion of counsel to the effect that such
distribution will not cause the holders of the Preferred Securities to recognize
gain or loss for Federal or Puerto Rico income tax purposes, the Company will
have the right at any time to liquidate R&G Capital Trust VI and cause the
Securities to be distributed to the holders of the Trust Securities in
liquidation of the Trust.
The Indenture contains provisions for satisfaction and discharge of the
entire indebtedness of this Security upon compliance by the Company with certain
conditions set forth in the Indenture.
The Securities are issuable only in registered form without coupons in
denominations of $25.00 and any integral multiple thereof. As provided in the
Indenture and subject to the transfer restrictions limitations as may be
contained herein and therein from time to time, this Security is transferable by
the holder hereof on the Security Register of the Company, upon surrender of
this Security for registration of transfer at the office or agency of the
Company in the City and State of New York accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company or the Trustee duly
executed by the holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Securities of authorized denominations and for the
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same aggregate principal amount and series will be issued to the designated
transferee or transferees. No service charge will be made for any such
registration of transfer, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in relation
thereto.
Prior to due presentment for registration of transfer of this Security,
the Company, the Trustee, any authenticating agent, any paying agent, any
transfer agent and the registrar may deem and treat the holder hereof as the
absolute owner hereof (whether or not this Security shall be overdue and
notwithstanding any notice of ownership or writing hereon made by anyone other
than the Security Registrar) for the purpose of receiving payment of or on
account of the principal hereof and (subject to the Indenture and the First
Supplemental Indenture) interest due hereon and for all other purposes, and
neither the Company nor the Trustee nor any authenticating agent nor any paying
agent nor any transfer agent nor any registrar shall be affected by any notice
to the contrary.
No recourse shall be had for the payment of the principal of or 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 the First Supplemental Indenture,
against any incorporator, stockholder, officer or director, past, present or
future, as such, of the Company or of any predecessor or successor Person,
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.
All terms used in this Security that are defined in the Indenture or the
First Supplemental Indenture shall have the meanings assigned to them in the
Indenture or the First Supplemental Indenture.
THE INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF
LAW PROVISIONS THEREOF.
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