EXHIBIT 4(h)
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POPULAR, NORTH AMERICA INC.,
Issuer
and
POPULAR, INC.
Guarantor
TO
THE FIRST NATIONAL BANK OF CHICAGO,
Trustee
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THIRD SUPPLEMENTAL INDENTURE
Dated as of August 5, 1999
to Indenture dated as of October 1, 1991
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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.
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.
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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.
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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.
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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/ Roberto R. Herencia
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Name: Roberto R. Herencia
Title: Executive Vice President
By:
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Name: Larry B. Kesler
Title: Executive Vice President
Attest:
/s/ Ramon Lloveras
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Assistant Secretary
Affidavit No. ___
Subscribed to before me by Roberto R. Herencia 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 _________, __________ as ________________ of Popular North America,
Inc. and who are personally known to me, in San Juan, Puerto Rico, this 16th day
of August, 1999.
[SEAL] /s/ Lucy Aviles
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Notary Public
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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: Roberto R. Herencia
Title: Executive Vice President
By: /s/ Larry B. Kesler
------------------------------------
Name: Larry B. Kesler
Title: Executive Vice President
Attest:
/s/ Ramon Lloveras
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Assistant Secretary
Affidavit No. 1,191
Subscribed to before me by Larry B. Kesler of legal age,
married and resident of Guaynalo, Puerto Rico, as Executive Vice
President of Popular North America, Inc. personally known to me, in San Juan,
Puerto Rico, this 12th day of August, 1999.
[SEAL] /s/ Estela Martinez
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Notary Public
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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, INC.
By:
------------------------------------
Name: Roberto R. Herencia
Title: Executive Vice President
By: /s/ Larry B. Kesler
------------------------------------
Name: Larry B. Kesler
Title: Executive Vice President
Attest:
/s/ Ramon Lloveras
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Assistant Secretary
Affidavit No. 1,191
Subscribed to before me by Larry B. Kesler of legal age,
married and resident of Guaynabo, Puerto Rico, as Executive Vice President
of Popular Inc. personally known to me, in San Juan, Puerto Rico, this
12th day of August, 1999.
[SEAL] /s/ Estela Martinez
------------------------------------------
Notary Public
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POPULAR, INC.
By: /s/ Roberto R. Herencia
------------------------------------
Name: Roberto R. Herencia
Title: Executive Vice President
By:
------------------------------------
Name: Larry B. Kesler
Title: Executive Vice President
Attest:
/s/ Ramon Lloveras
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Assistant Secretary
Affidavit No. ___
Subscribed to before me by Roberto R. Herencia 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 and who are personally known to me, in
, Puerto Rico, this 16th day of August, 1999.
[SEAL] /s/ Lucy Aviles
------------------------------------
Notary Public
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THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Michael D. Pinzon
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Name: Michael D. Pinzon
Title: Trust Officer
Attest:
/s/ Steve M. Husbands
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Steve M. Husbands
Assistant Vice President
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 5th day of August, 1999, before me personally came
Michael Pinzon, 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/ Mark E. Davis
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Notary Public
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