EXHIBIT 4.4
DECLARATION OF TRUST
AND
TRUST AGREEMENT
This DECLARATION OF TRUST AND TRUST AGREEMENT, dated as of September
3, 2003 (this "Trust Agreement"), among (i) Popular, Inc., a Puerto Rico
corporation (the "Depositor"); (ii) Bank One Delaware, Inc., as Delaware
Tustee; (iii) Bank One Trust Company, N.A., as Poperty Tustee; and (iv) Jorge
A. Junquera and Richard Barrios, each an individual, as trustees (each of such
trustees in (ii), (iii) and (iv) a "Trustee" and collectively, the "Trustees").
The Depositor and the Trustees hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as
"Popular Capital Trust I" in which name the Trustees, or the Depositor to the
extent provided herein, may engage in the transactions contemplated hereby,
make and execute contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets
over to the Trust the sum of Ten Dollars ($10.00). The Trustees hereby
acknowledge receipt of such amount in trust from the Depositor, which amount
shall constitute the initial trust estate. The Trustees hereby declare that
they will hold the trust estate in trust for the Depositor. It is the intention
of the parties hereto that the Trust created hereby constitute a statutory
trust under Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. Section
3801, et seq. (the "Statutory Trust Act"), and that this document constitute
the governing instrument of the Trust. The Trustees are hereby authorized and
directed to execute and file a certificate of trust with the Delaware Secretary
of State in accordance with the provisions of the Statutory Trust Act.
3. The Depositor and the Trustees will enter into an Amended and
Restated Declaration of Trust and Trust Agreement (herein, the "Amended and
Restated Trust Agreement"), satisfactory to each such party and substantially
in the form included as an exhibit to the 1933 Act Registration Statement (as
defined below), to provide for the contemplated operation of the Trust created
hereby and the issuance of the Preferred Securities (as defined below) and
common securities of the Trust referred to therein. Prior to the execution and
delivery of such Amended and Restated Trust Agreement, the Trustees shall not
have any duty or obligation hereunder or with respect to the trust estate,
except as otherwise required by this Trust Agreement, applicable law or as may
be necessary to obtain prior to such execution and delivery, any licenses,
consents or approvals required by applicable law or otherwise. Notwithstanding
the foregoing, the Trustees may take all actions deemed proper and necessary to
effect the transactions contemplated herein.
4. The Depositor and the Trustees hereby authorize and direct
the Depositor, as the agent of the Trust, (i) to file with the Securities and
Exchange Commission (the "Commission") and execute, in each case on behalf of
the Trust, (a) the Registration Statement on Form S-3 (the "1933 Act
Registration Statement") (including any pre-effective or post- effective
amendments to the 1933 Act Registration Statement) relating to the registration
under the Securities Act of 1933, as amended (the "1933 Act"), of the preferred
securities of the Trust (the "Preferred Securities") and certain other
securities of the Depositor; (b) any preliminary prospectus or prospectus or
supplement thereto relating to the Preferred Securities required to be filed
pursuant to Rule 424 under the 1933 Act; and (c) to the extent deemed advisable
by the Depositor, a Registration Statement on Form 8-A (the "1934 Act
Registration Statement") (including all pre-effective and post-effective
amendments thereto) relating to the registration of the Preferred Securities of
the Trust under the Securities Exchange Act of 1934, as amended; (ii) to the
extent deemed advisable by the Depositor, to file with one or more national
securities exchanges (each, an "Exchange") or the National Association of
Securities Dealers ("NASD") and execute on behalf of the Trust a listing
application or applications and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the Preferred Securities to be listed on any such Exchange
or the NASD's Nasdaq National Market ("NASDAQ"); (iii) to file and execute on
behalf of the Trust such applications, reports, surety bonds, irrevocable
consents, appointments of attorney for service of process and other papers and
documents as shall be necessary or desirable to register the Preferred
Securities under the securities or blue sky laws of such jurisdictions as the
Depositor, on behalf of the Trust, may deem necessary or desirable; and (iv) to
execute on behalf of the Trust one or more underwriting agreements relating to
the Preferred Securities, among the Trust, the Depositor and the underwriter(s)
named therein, substantially in the form included as an exhibit to the 1933 Act
Registration Statement. In the event that any filing referred to in clauses
(i), (ii) and (iii) above is required by the rules and regulations of the
Commission, any Exchange, the NASD or state securities or blue sky laws to be
executed on behalf of the Trust by one or more of the Trustees, each of the
Trustees, in its or his capacity as a Trustee of the Trust, is hereby
authorized and, to the extent so required, directed to join in any such filing
and to execute on behalf of the Trust any and
1
all of the foregoing, it being understood that Bank One Delaware, Inc. in its
capacity as a Trustee of the Trust shall not be required to join in any such
filing or execute on behalf of the Trust any such document unless required by
the rules and regulations of the Commission, the Exchange or state securities
or blue sky laws. In connection with the filings referred to above, the
Depositor and Jorge A. Junquera and Richard Barrios, each as Trustees and not
in their individual capacities, hereby constitute and appoint Richard L.
Carrion, Jorge A. Junquera and Richard Barrios and each of them, as its and
their true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for the Depositor or such Trustee or in the
Depositor's or such Trustees' name, place and stead, in any and all capacities,
to sign any and all amendments (including post-effective amendments) to the
1933 Act Registration Statement and the 1934 Act Registration Statement and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Commission, any Exchange, the NASD and administrators of
the state securities or blue sky laws, granting unto said attorneys-in-fact and
agents full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as the Depositor or such Trustee might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their respective substitute or substitutes, shall do
or cause to be done by virtue hereof.
5. This Trust Agreement may be executed in one or more
counterparts.
6. The number of Trustees initially shall be three (3) and
thereafter the number of Trustees shall be such number as shall be fixed from
time to time by a written instrument signed by the Depositor which may increase
or decrease the number of Trustees; provided, however, that to the extent
required by the Statutory Trust Act, one Trustee shall either be a natural
person who is a resident of the State of Delaware or, if not a natural person,
an entity which has its principal place of business in the State of Delaware
and otherwise meets the requirements of applicable Delaware law. Subject to the
foregoing, the Depositor is entitled to appoint or remove without cause any
Trustee upon thirty (30) days' prior written notice. The Trustees may resign
upon thirty (30) days' prior notice to the Depositor.
7. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to "conflict
of laws" principles).
8. (a) The Trustees and their officers, directors, agents and
servants (collectively, the "Fiduciary Indemnified Persons") shall not be
liable, responsible or accountable in damages or otherwise to the Trust, the
Depositor, the Trustees or any holder of the Preferred Securities (the Trust,
the Depositor and any holder of the Preferred Securities being a "Covered
Person") for any loss, damage or claim incurred by reason of any act or
omission performed or omitted by the Fiduciary Indemnified Persons in good
faith on behalf of the Trust and in a manner the Fiduciary Indemnified Persons
reasonably believed to be within the scope of authority conferred on the
Fiduciary Indemnified Persons by this Trust Agreement or by law, except that
the Fiduciary Indemnified Persons shall be liable for any such loss, damage or
claim incurred by reason of the Fiduciary Indemnified Person's gross negligence
or willful misconduct with respect to such acts or omissions.
(b) The Fiduciary Indemnified Persons shall be fully
protected in relying in good faith upon the records of the Trust and upon such
information, opinions, reports or statements presented to the Trust by any
person as to matters the Fiduciary Indemnified Persons reasonably believe are
within such other person's professional or expert competence and who has been
selected with reasonable care by or on behalf of the Trust, including
information, opinions, reports or statements as to the value and amount of the
assets, liabilities, profits, losses, or any other facts pertinent to the
existence and amount of assets from which distributions to holders of Preferred
Securities might properly be paid.
(c) The Depositor agrees, to the fullest extent
permitted by applicable law, (i) to indemnify and hold harmless each Fiduciary
Indemnified Person from and against any loss, damage, liability, tax, penalty,
expense or claim of any kind or nature whatsoever incurred by the Fiduciary
Indemnified Persons by reason of the creation, operation or termination of the
Trust in a manner the Fiduciary Indemnified Persons reasonably believed to be
within the scope of authority conferred on the Fiduciary Indemnified Persons by
this Trust Agreement, except that no Fiduciary Indemnified Persons shall be
entitled to be indemnified in respect of any loss, damage or claim incurred by
the Fiduciary Indemnified Persons by reason of gross negligence or willful
misconduct with respect to such acts or omissions,(ii) to advance expenses
(including legal fees) incurred by a Fiduciary Indemnified Person in defending
any claim, demand, action, suit or proceeding, from time to time, prior to the
final disposition of such claim, demand, action, suit or proceeding, upon
2
receipt by the Trust of an undertaking by or on behalf of such Fiduciary
Indemnified Persons to repay such amount if it shall be determined that such
Fiduciary Indemnified Person is not entitled to be indemnified as authorized in
the preceding subsection, and (iii) to reimburse the Trustees for all other
reasonable expenses (including reasonable fees and expenses of counsel and
other experts) incurred in connection with this Trust Agreement and the Trust.
(d) The provisions of Section 8 shall survive the
termination of this Trust Agreement or the earlier resignation or removal of
the Fiduciary Indemnified Persons.
9. This Trust Agreement may be dissolved and terminated before
the issuance of the securities of the Trust at the election of the Depositor.
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed as of the day and year first above written.
POPULAR, INC.,
as Depositor
By: /s/ Jorge A. Junquera
------------------------------------
Name: Jorge A. Junquera
Title: Senior Executive Vice President
BANK ONE DELAWARE, INC.,
not in its individual capacity but solely
as Delaware Trustee
By: /s/ Christopher C. Holly
------------------------------------
Name: Christopher C. Holly
Title: Vice President
BANK ONE TRUST COMPANY, N.A.,
not in its individual capacity but solely
as Property Trustee
By: /s/ Christopher C. Holly
------------------------------------
Name: Christopher C. Holly
Title: Vice President
/s/ Jorge A. Junquera
---------------------------------------
Jorge A. Junquera, as Trustee
/s/ Richard Barrios
---------------------------------------
Richard Barrios, as Trustee
3
DECLARATION OF TRUST
AND
TRUST AGREEMENT
This DECLARATION OF TRUST AND TRUST AGREEMENT, dated as of September
3, 2003 (this "Trust Agreement"), among (i) Popular, Inc., a Puerto Rico
corporation (the "Depositor"); (ii) Bank One Delaware, Inc., as Delaware
Tustee; (iii) Bank One Trust Company, N.A., as Poperty Tustee; and (iv) Jorge
A. Junquera and Richard Barrios, each an individual, as trustees (each of such
trustees in (ii), (iii) and (iv) a "Trustee" and collectively, the "Trustees").
The Depositor and the Trustees hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as
"Popular Capital Trust II" in which name the Trustees, or the Depositor to the
extent provided herein, may engage in the transactions contemplated hereby,
make and execute contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets
over to the Trust the sum of Ten Dollars ($10.00). The Trustees hereby
acknowledge receipt of such amount in trust from the Depositor, which amount
shall constitute the initial trust estate. The Trustees hereby declare that
they will hold the trust estate in trust for the Depositor. It is the intention
of the parties hereto that the Trust created hereby constitute a statutory
trust under Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. Section
3801, et seq. (the "Statutory Trust Act"), and that this document constitute
the governing instrument of the Trust. The Trustees are hereby authorized and
directed to execute and file a certificate of trust with the Delaware Secretary
of State in accordance with the provisions of the Statutory Trust Act.
3. The Depositor and the Trustees will enter into an Amended and
Restated Declaration of Trust and Trust Agreement (herein, the "Amended and
Restated Trust Agreement"), satisfactory to each such party and substantially
in the form included as an exhibit to the 1933 Act Registration Statement (as
defined below), to provide for the contemplated operation of the Trust created
hereby and the issuance of the Preferred Securities (as defined below) and
common securities of the Trust referred to therein. Prior to the execution and
delivery of such Amended and Restated Trust Agreement, the Trustees shall not
have any duty or obligation hereunder or with respect to the trust estate,
except as otherwise required by this Trust Agreement, applicable law or as may
be necessary to obtain prior to such execution and delivery, any licenses,
consents or approvals required by applicable law or otherwise. Notwithstanding
the foregoing, the Trustees may take all actions deemed proper and necessary to
effect the transactions contemplated herein.
4. The Depositor and the Trustees hereby authorize and direct
the Depositor, as the agent of the Trust, (i) to file with the Securities and
Exchange Commission (the "Commission") and execute, in each case on behalf of
the Trust, (a) the Registration Statement on Form S-3 (the "1933 Act
Registration Statement") (including any pre-effective or post- effective
amendments to the 1933 Act Registration Statement) relating to the registration
under the Securities Act of 1933, as amended (the "1933 Act"), of the preferred
securities of the Trust (the "Preferred Securities") and certain other
securities of the Depositor; (b) any preliminary prospectus or prospectus or
supplement thereto relating to the Preferred Securities required to be filed
pursuant to Rule 424 under the 1933 Act; and (c) to the extent deemed advisable
by the Depositor, a Registration Statement on Form 8-A (the "1934 Act
Registration Statement") (including all pre-effective and post-effective
amendments thereto) relating to the registration of the Preferred Securities of
the Trust under the Securities Exchange Act of 1934, as amended; (ii) to the
extent deemed advisable by the Depositor, to file with one or more national
securities exchanges (each, an "Exchange") or the National Association of
Securities Dealers ("NASD") and execute on behalf of the Trust a listing
application or applications and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the Preferred Securities to be listed on any such Exchange
or the NASD's Nasdaq National Market ("NASDAQ"); (iii) to file and execute on
behalf of the Trust such applications, reports, surety bonds, irrevocable
consents, appointments of attorney for service of process and other papers and
documents as shall be necessary or desirable to register the Preferred
Securities under the securities or blue sky laws of such jurisdictions as the
Depositor, on behalf of the Trust, may deem necessary or desirable; and (iv) to
execute on behalf of the Trust one or more underwriting agreements relating to
the Preferred Securities, among the Trust, the Depositor and the underwriter(s)
named therein, substantially in the form included as an exhibit to the 1933 Act
Registration Statement. In the event that any filing referred to in clauses
(i), (ii) and (iii) above is required by the rules and regulations of the
Commission, any Exchange, the NASD or state securities or blue sky laws to be
executed on behalf of the Trust by one or more of the Trustees, each of the
Trustees, in its or his capacity as a Trustee of the Trust, is hereby
1
authorized and, to the extent so required, directed to join in any such filing
and to execute on behalf of the Trust any and all of the foregoing, it being
understood that Bank One Delaware, Inc. in its capacity as a Trustee of the
Trust shall not be required to join in any such filing or execute on behalf of
the Trust any such document unless required by the rules and regulations of the
Commission, the Exchange or state securities or blue sky laws. In connection
with the filings referred to above, the Depositor and Jorge A. Junquera and
Richard Barrios, each as Trustees and not in their individual capacities,
hereby constitute and appoint Richard L. Carrion, Jorge A. Junquera and Richard
Barrios and each of them, as its and their true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for the
Depositor or such Trustee or in the Depositor's or such Trustees' name, place
and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to the 1933 Act Registration Statement and the 1934
Act Registration Statement and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Commission, any Exchange, the
NASD and administrators of the state securities or blue sky laws, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as the Depositor or such
Trustee might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents or any of them, or their respective
substitute or substitutes, shall do or cause to be done by virtue hereof.
5. This Trust Agreement may be executed in one or more
counterparts.
6. The number of Trustees initially shall be three (3) and
thereafter the number of Trustees shall be such number as shall be fixed from
time to time by a written instrument signed by the Depositor which may increase
or decrease the number of Trustees; provided, however, that to the extent
required by the Statutory Trust Act, one Trustee shall either be a natural
person who is a resident of the State of Delaware or, if not a natural person,
an entity which has its principal place of business in the State of Delaware
and otherwise meets the requirements of applicable Delaware law. Subject to the
foregoing, the Depositor is entitled to appoint or remove without cause any
Trustee upon thirty (30) days' prior written notice. The Trustees may resign
upon thirty (30) days' prior notice to the Depositor.
7. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to "conflict
of laws" principles).
8. (a) The Trustees and their officers, directors, agents and
servants (collectively, the "Fiduciary Indemnified Persons") shall not be
liable, responsible or accountable in damages or otherwise to the Trust, the
Depositor, the Trustees or any holder of the Preferred Securities (the Trust,
the Depositor and any holder of the Preferred Securities being a "Covered
Person") for any loss, damage or claim incurred by reason of any act or
omission performed or omitted by the Fiduciary Indemnified Persons in good
faith on behalf of the Trust and in a manner the Fiduciary Indemnified Persons
reasonably believed to be within the scope of authority conferred on the
Fiduciary Indemnified Persons by this Trust Agreement or by law, except that
the Fiduciary Indemnified Persons shall be liable for any such loss, damage or
claim incurred by reason of the Fiduciary Indemnified Person's gross negligence
or willful misconduct with respect to such acts or omissions.
(b) The Fiduciary Indemnified Persons shall be fully
protected in relying in good faith upon the records of the Trust and upon such
information, opinions, reports or statements presented to the Trust by any
person as to matters the Fiduciary Indemnified Persons reasonably believe are
within such other person's professional or expert competence and who has been
selected with reasonable care by or on behalf of the Trust, including
information, opinions, reports or statements as to the value and amount of the
assets, liabilities, profits, losses, or any other facts pertinent to the
existence and amount of assets from which distributions to holders of Preferred
Securities might properly be paid.
(c) The Depositor agrees, to the fullest extent
permitted by applicable law, (i) to indemnify and hold harmless each Fiduciary
Indemnified Person from and against any loss, damage, liability, tax, penalty,
expense or claim of any kind or nature whatsoever incurred by the Fiduciary
Indemnified Persons by reason of the creation, operation or termination of the
Trust in a manner the Fiduciary Indemnified Persons reasonably believed to be
within the scope of authority conferred on the Fiduciary Indemnified Persons by
this Trust Agreement, except that no Fiduciary Indemnified Persons shall be
entitled to be indemnified in respect of any loss, damage or claim incurred by
the Fiduciary Indemnified Persons by reason of gross negligence or willful
misconduct with respect to such acts or omissions,(ii) to advance
2
expenses (including legal fees) incurred by a Fiduciary Indemnified Person in
defending any claim, demand, action, suit or proceeding, from time to time,
prior to the final disposition of such claim, demand, action, suit or
proceeding, upon receipt by the Trust of an undertaking by or on behalf of such
Fiduciary Indemnified Persons to repay such amount if it shall be determined
that such Fiduciary Indemnified Person is not entitled to be indemnified as
authorized in the preceding subsection, and (iii) to reimburse the Trustees for
all other reasonable expenses (including reasonable fees and expenses of
counsel and other experts) incurred in connection with this Trust Agreement and
the Trust.
(d) The provisions of Section 8 shall survive the
termination of this Trust Agreement or the earlier resignation or removal of
the Fiduciary Indemnified Persons.
9. This Trust Agreement may be dissolved and terminated before
the issuance of the securities of the Trust at the election of the Depositor.
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed as of the day and year first above written.
POPULAR, INC.,
as Depositor
By: /s/ Jorge A. Junquera
----------------------------------------
Name: Jorge A. Junquera
Title: Senior Executive Vice President
BANK ONE DELAWARE, INC.,
not in its individual capacity but solely
as Delaware Trustee
By: /s/ Christopher C. Holly
----------------------------------------
Name: Christopher C. Holly
Title: Vice President
BANK ONE TRUST COMPANY, N.A.,
not in its individual capacity but solely
as Property Trustee
By: /s/ Christopher C. Holly
----------------------------------------
Name: Christopher C. Holly
Title: Vice President
/s/ Jorge A. Junquera
-------------------------------------------
Jorge A. Junquera, as Trustee
/s/ Richard Barrios
-------------------------------------------
Richard Barrios, as Trustee
3
DECLARATION OF TRUST
AND
TRUST AGREEMENT
This DECLARATION OF TRUST AND TRUST AGREEMENT, dated as of September
3, 2003 (this "Trust Agreement"), among (i) Popular, Inc., a Puerto Rico
corporation (the "Depositor"); (ii) Bank One Delaware, Inc., as Delaware
Tustee; (iii) Bank One Trust Company, N.A., as Poperty Tustee; and (iv) Jorge
A. Junquera and Richard Barrios, each an individual, as trustees (each of such
trustees in (ii), (iii) and (iv) a "Trustee" and collectively, the "Trustees").
The Depositor and the Trustees hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as
"Popular Capital Trust III" in which name the Trustees, or the Depositor to the
extent provided herein, may engage in the transactions contemplated hereby,
make and execute contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets
over to the Trust the sum of Ten Dollars ($10.00). The Trustees hereby
acknowledge receipt of such amount in trust from the Depositor, which amount
shall constitute the initial trust estate. The Trustees hereby declare that
they will hold the trust estate in trust for the Depositor. It is the intention
of the parties hereto that the Trust created hereby constitute a statutory
trust under Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. Section
3801, et seq. (the "Statutory Trust Act"), and that this document constitute
the governing instrument of the Trust. The Trustees are hereby authorized and
directed to execute and file a certificate of trust with the Delaware Secretary
of State in accordance with the provisions of the Statutory Trust Act.
3. The Depositor and the Trustees will enter into an Amended and
Restated Declaration of Trust and Trust Agreement (herein, the "Amended and
Restated Trust Agreement"), satisfactory to each such party and substantially
in the form included as an exhibit to the 1933 Act Registration Statement (as
defined below), to provide for the contemplated operation of the Trust created
hereby and the issuance of the Preferred Securities (as defined below) and
common securities of the Trust referred to therein. Prior to the execution and
delivery of such Amended and Restated Trust Agreement, the Trustees shall not
have any duty or obligation hereunder or with respect to the trust estate,
except as otherwise required by this Trust Agreement, applicable law or as may
be necessary to obtain prior to such execution and delivery, any licenses,
consents or approvals required by applicable law or otherwise. Notwithstanding
the foregoing, the Trustees may take all actions deemed proper and necessary to
effect the transactions contemplated herein.
4. The Depositor and the Trustees hereby authorize and direct
the Depositor, as the agent of the Trust, (i) to file with the Securities and
Exchange Commission (the "Commission") and execute, in each case on behalf of
the Trust, (a) the Registration Statement on Form S-3 (the "1933 Act
Registration Statement") (including any pre-effective or post- effective
amendments to the 1933 Act Registration Statement) relating to the registration
under the Securities Act of 1933, as amended (the "1933 Act"), of the preferred
securities of the Trust (the "Preferred Securities") and certain other
securities of the Depositor; (b) any preliminary prospectus or prospectus or
supplement thereto relating to the Preferred Securities required to be filed
pursuant to Rule 424 under the 1933 Act; and (c) to the extent deemed advisable
by the Depositor, a Registration Statement on Form 8-A (the "1934 Act
Registration Statement") (including all pre-effective and post-effective
amendments thereto) relating to the registration of the Preferred Securities of
the Trust under the Securities Exchange Act of 1934, as amended; (ii) to the
extent deemed advisable by the Depositor, to file with one or more national
securities exchanges (each, an "Exchange") or the National Association of
Securities Dealers ("NASD") and execute on behalf of the Trust a listing
application or applications and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the Preferred Securities to be listed on any such Exchange
or the NASD's Nasdaq National Market ("NASDAQ"); (iii) to file and execute on
behalf of the Trust such applications, reports, surety bonds, irrevocable
consents, appointments of attorney for service of process and other papers and
documents as shall be necessary or desirable to register the Preferred
Securities under the securities or blue sky laws of such jurisdictions as the
Depositor, on behalf of the Trust, may deem necessary or desirable; and (iv) to
execute on behalf of the Trust one or more underwriting agreements relating to
the Preferred Securities, among the Trust, the Depositor and the underwriter(s)
named therein, substantially in the form included as an exhibit to the 1933 Act
Registration Statement. In the event that any filing referred to in clauses
(i), (ii) and (iii) above is required by the rules and regulations of the
Commission, any Exchange, the NASD or state securities or blue sky laws to be
executed on behalf of the Trust by one or more of the Trustees, each of the
Trustees, in its or his capacity as a Trustee of the Trust, is hereby
1
authorized and, to the extent so required, directed to join in any such filing
and to execute on behalf of the Trust any and all of the foregoing, it being
understood that Bank One Delaware, Inc. in its capacity as a Trustee of the
Trust shall not be required to join in any such filing or execute on behalf of
the Trust any such document unless required by the rules and regulations of the
Commission, the Exchange or state securities or blue sky laws. In connection
with the filings referred to above, the Depositor and Jorge A. Junquera and
Richard Barrios, each as Trustees and not in their individual capacities,
hereby constitute and appoint Richard L. Carrion, Jorge A. Junquera and Richard
Barrios and each of them, as its and their true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for the
Depositor or such Trustee or in the Depositor's or such Trustees' name, place
and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to the 1933 Act Registration Statement and the 1934
Act Registration Statement and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Commission, any Exchange, the
NASD and administrators of the state securities or blue sky laws, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as the Depositor or such
Trustee might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents or any of them, or their respective
substitute or substitutes, shall do or cause to be done by virtue hereof.
5. This Trust Agreement may be executed in one or more
counterparts.
6. The number of Trustees initially shall be three (3) and
thereafter the number of Trustees shall be such number as shall be fixed from
time to time by a written instrument signed by the Depositor which may increase
or decrease the number of Trustees; provided, however, that to the extent
required by the Statutory Trust Act, one Trustee shall either be a natural
person who is a resident of the State of Delaware or, if not a natural person,
an entity which has its principal place of business in the State of Delaware
and otherwise meets the requirements of applicable Delaware law. Subject to the
foregoing, the Depositor is entitled to appoint or remove without cause any
Trustee upon thirty (30) days' prior written notice. The Trustees may resign
upon thirty (30) days' prior notice to the Depositor.
7. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to "conflict
of laws" principles).
8. (a) The Trustees and their officers, directors, agents and
servants (collectively, the "Fiduciary Indemnified Persons") shall not be
liable, responsible or accountable in damages or otherwise to the Trust, the
Depositor, the Trustees or any holder of the Preferred Securities (the Trust,
the Depositor and any holder of the Preferred Securities being a "Covered
Person") for any loss, damage or claim incurred by reason of any act or
omission performed or omitted by the Fiduciary Indemnified Persons in good
faith on behalf of the Trust and in a manner the Fiduciary Indemnified Persons
reasonably believed to be within the scope of authority conferred on the
Fiduciary Indemnified Persons by this Trust Agreement or by law, except that
the Fiduciary Indemnified Persons shall be liable for any such loss, damage or
claim incurred by reason of the Fiduciary Indemnified Person's gross negligence
or willful misconduct with respect to such acts or omissions.
(b) The Fiduciary Indemnified Persons shall be fully
protected in relying in good faith upon the records of the Trust and upon such
information, opinions, reports or statements presented to the Trust by any
person as to matters the Fiduciary Indemnified Persons reasonably believe are
within such other person's professional or expert competence and who has been
selected with reasonable care by or on behalf of the Trust, including
information, opinions, reports or statements as to the value and amount of the
assets, liabilities, profits, losses, or any other facts pertinent to the
existence and amount of assets from which distributions to holders of Preferred
Securities might properly be paid.
(c) The Depositor agrees, to the fullest extent
permitted by applicable law, (i) to indemnify and hold harmless each Fiduciary
Indemnified Person from and against any loss, damage, liability, tax, penalty,
expense or claim of any kind or nature whatsoever incurred by the Fiduciary
Indemnified Persons by reason of the creation, operation or termination of the
Trust in a manner the Fiduciary Indemnified Persons reasonably believed to be
within the scope of authority conferred on the Fiduciary Indemnified Persons by
this Trust Agreement, except that no Fiduciary Indemnified Persons shall be
entitled to be indemnified in respect of any loss, damage or claim incurred by
the Fiduciary Indemnified Persons by reason of gross negligence or willful
misconduct with respect to such acts or omissions,(ii) to advance
2
expenses (including legal fees) incurred by a Fiduciary Indemnified Person in
defending any claim, demand, action, suit or proceeding, from time to time,
prior to the final disposition of such claim, demand, action, suit or
proceeding, upon receipt by the Trust of an undertaking by or on behalf of such
Fiduciary Indemnified Persons to repay such amount if it shall be determined
that such Fiduciary Indemnified Person is not entitled to be indemnified as
authorized in the preceding subsection, and (iii) to reimburse the Trustees for
all other reasonable expenses (including reasonable fees and expenses of
counsel and other experts) incurred in connection with this Trust Agreement and
the Trust.
(d) The provisions of Section 8 shall survive the
termination of this Trust Agreement or the earlier resignation or removal of
the Fiduciary Indemnified Persons.
9. This Trust Agreement may be dissolved and terminated before
the issuance of the securities of the Trust at the election of the Depositor.
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed as of the day and year first above written.
POPULAR, INC.,
as Depositor
By: /s/ Jorge A. Junquera
----------------------------------------
Name: Jorge A. Junquera
Title: Senior Executive Vice President
BANK ONE DELAWARE, INC.,
not in its individual capacity but solely
as Delaware Trustee
By: /s/ Christopher C. Holly
----------------------------------------
Name: Christopher C. Holly
Title: Vice President
BANK ONE TRUST COMPANY, N.A.,
not in its individual capacity but solely
as Property Trustee
By: /s/ Christopher C. Holly
----------------------------------------
Name: Christopher C. Holly
Title: Vice President
/s/ Jorge A. Junquera
-------------------------------------------
Jorge A. Junquera, as Trustee
/s/ Richard Barrios
-------------------------------------------
Richard Barrios, as Trustee
3
DECLARATION OF TRUST
AND
TRUST AGREEMENT
This DECLARATION OF TRUST AND TRUST AGREEMENT, dated as of September
3, 2003 (this "Trust Agreement"), among (i) Popular, Inc., a Puerto Rico
corporation (the "Depositor"); (ii) Bank One Delaware, Inc., as Delaware
Tustee; (iii) Bank One Trust Company, N.A., as Poperty Tustee; and (iv) Jorge
A. Junquera and Richard Barrios, each an individual, as trustees (each of such
trustees in (ii), (iii) and (iv) a "Trustee" and collectively, the "Trustees").
The Depositor and the Trustees hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as
"Popular Capital Trust IV" in which name the Trustees, or the Depositor to the
extent provided herein, may engage in the transactions contemplated hereby,
make and execute contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets
over to the Trust the sum of Ten Dollars ($10.00). The Trustees hereby
acknowledge receipt of such amount in trust from the Depositor, which amount
shall constitute the initial trust estate. The Trustees hereby declare that
they will hold the trust estate in trust for the Depositor. It is the intention
of the parties hereto that the Trust created hereby constitute a statutory
trust under Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. Section
3801, et seq. (the "Statutory Trust Act"), and that this document constitute
the governing instrument of the Trust. The Trustees are hereby authorized and
directed to execute and file a certificate of trust with the Delaware Secretary
of State in accordance with the provisions of the Statutory Trust Act.
3. The Depositor and the Trustees will enter into an Amended and
Restated Declaration of Trust and Trust Agreement (herein, the "Amended and
Restated Trust Agreement"), satisfactory to each such party and substantially
in the form included as an exhibit to the 1933 Act Registration Statement (as
defined below), to provide for the contemplated operation of the Trust created
hereby and the issuance of the Preferred Securities (as defined below) and
common securities of the Trust referred to therein. Prior to the execution and
delivery of such Amended and Restated Trust Agreement, the Trustees shall not
have any duty or obligation hereunder or with respect to the trust estate,
except as otherwise required by this Trust Agreement, applicable law or as may
be necessary to obtain prior to such execution and delivery, any licenses,
consents or approvals required by applicable law or otherwise. Notwithstanding
the foregoing, the Trustees may take all actions deemed proper and necessary to
effect the transactions contemplated herein.
4. The Depositor and the Trustees hereby authorize and direct
the Depositor, as the agent of the Trust, (i) to file with the Securities and
Exchange Commission (the "Commission") and execute, in each case on behalf of
the Trust, (a) the Registration Statement on Form S-3 (the "1933 Act
Registration Statement") (including any pre-effective or post- effective
amendments to the 1933 Act Registration Statement) relating to the registration
under the Securities Act of 1933, as amended (the "1933 Act"), of the preferred
securities of the Trust (the "Preferred Securities") and certain other
securities of the Depositor; (b) any preliminary prospectus or prospectus or
supplement thereto relating to the Preferred Securities required to be filed
pursuant to Rule 424 under the 1933 Act; and (c) to the extent deemed advisable
by the Depositor, a Registration Statement on Form 8-A (the "1934 Act
Registration Statement") (including all pre-effective and post-effective
amendments thereto) relating to the registration of the Preferred Securities of
the Trust under the Securities Exchange Act of 1934, as amended; (ii) to the
extent deemed advisable by the Depositor, to file with one or more national
securities exchanges (each, an "Exchange") or the National Association of
Securities Dealers ("NASD") and execute on behalf of the Trust a listing
application or applications and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the Preferred Securities to be listed on any such Exchange
or the NASD's Nasdaq National Market ("NASDAQ"); (iii) to file and execute on
behalf of the Trust such applications, reports, surety bonds, irrevocable
consents, appointments of attorney for service of process and other papers and
documents as shall be necessary or desirable to register the Preferred
Securities under the securities or blue sky laws of such jurisdictions as the
Depositor, on behalf of the Trust, may deem necessary or desirable; and (iv) to
execute on behalf of the Trust one or more underwriting agreements relating to
the Preferred Securities, among the Trust, the Depositor and the underwriter(s)
named therein, substantially in the form included as an exhibit to the 1933 Act
Registration Statement. In the event that any filing referred to in clauses
(i), (ii) and (iii) above is required by the rules and regulations of the
Commission, any Exchange, the NASD or state securities or blue sky laws to be
executed on behalf of the Trust by one or more of the Trustees, each of the
Trustees, in its or his capacity as a Trustee of the Trust, is hereby
1
authorized and, to the extent so required, directed to join in any such filing
and to execute on behalf of the Trust any and all of the foregoing, it being
understood that Bank One Delaware, Inc. in its capacity as a Trustee of the
Trust shall not be required to join in any such filing or execute on behalf of
the Trust any such document unless required by the rules and regulations of the
Commission, the Exchange or state securities or blue sky laws. In connection
with the filings referred to above, the Depositor and Jorge A. Junquera and
Richard Barrios, each as Trustees and not in their individual capacities,
hereby constitute and appoint Richard L. Carrion, Jorge A. Junquera and Richard
Barrios and each of them, as its and their true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for the
Depositor or such Trustee or in the Depositor's or such Trustees' name, place
and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to the 1933 Act Registration Statement and the 1934
Act Registration Statement and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Commission, any Exchange, the
NASD and administrators of the state securities or blue sky laws, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as the Depositor or such
Trustee might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents or any of them, or their respective
substitute or substitutes, shall do or cause to be done by virtue hereof.
5. This Trust Agreement may be executed in one or more
counterparts.
6. The number of Trustees initially shall be three (3) and
thereafter the number of Trustees shall be such number as shall be fixed from
time to time by a written instrument signed by the Depositor which may increase
or decrease the number of Trustees; provided, however, that to the extent
required by the Statutory Trust Act, one Trustee shall either be a natural
person who is a resident of the State of Delaware or, if not a natural person,
an entity which has its principal place of business in the State of Delaware
and otherwise meets the requirements of applicable Delaware law. Subject to the
foregoing, the Depositor is entitled to appoint or remove without cause any
Trustee upon thirty (30) days' prior written notice. The Trustees may resign
upon thirty (30) days' prior notice to the Depositor.
7. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to "conflict
of laws" principles).
8. (a) The Trustees and their officers, directors, agents and
servants (collectively, the "Fiduciary Indemnified Persons") shall not be
liable, responsible or accountable in damages or otherwise to the Trust, the
Depositor, the Trustees or any holder of the Preferred Securities (the Trust,
the Depositor and any holder of the Preferred Securities being a "Covered
Person") for any loss, damage or claim incurred by reason of any act or
omission performed or omitted by the Fiduciary Indemnified Persons in good
faith on behalf of the Trust and in a manner the Fiduciary Indemnified Persons
reasonably believed to be within the scope of authority conferred on the
Fiduciary Indemnified Persons by this Trust Agreement or by law, except that
the Fiduciary Indemnified Persons shall be liable for any such loss, damage or
claim incurred by reason of the Fiduciary Indemnified Person's gross negligence
or willful misconduct with respect to such acts or omissions.
(b) The Fiduciary Indemnified Persons shall be fully
protected in relying in good faith upon the records of the Trust and upon such
information, opinions, reports or statements presented to the Trust by any
person as to matters the Fiduciary Indemnified Persons reasonably believe are
within such other person's professional or expert competence and who has been
selected with reasonable care by or on behalf of the Trust, including
information, opinions, reports or statements as to the value and amount of the
assets, liabilities, profits, losses, or any other facts pertinent to the
existence and amount of assets from which distributions to holders of Preferred
Securities might properly be paid.
(c) The Depositor agrees, to the fullest extent
permitted by applicable law, (i) to indemnify and hold harmless each Fiduciary
Indemnified Person from and against any loss, damage, liability, tax, penalty,
expense or claim of any kind or nature whatsoever incurred by the Fiduciary
Indemnified Persons by reason of the creation, operation or termination of the
Trust in a manner the Fiduciary Indemnified Persons reasonably believed to be
within the scope of authority conferred on the Fiduciary Indemnified Persons by
this Trust Agreement, except that no Fiduciary Indemnified Persons shall be
entitled to be indemnified in respect of any loss, damage or claim incurred by
the Fiduciary Indemnified Persons by reason of gross negligence or willful
misconduct with respect to such acts or omissions,(ii) to advance
2
expenses (including legal fees) incurred by a Fiduciary Indemnified Person in
defending any claim, demand, action, suit or proceeding, from time to time,
prior to the final disposition of such claim, demand, action, suit or
proceeding, upon receipt by the Trust of an undertaking by or on behalf of such
Fiduciary Indemnified Persons to repay such amount if it shall be determined
that such Fiduciary Indemnified Person is not entitled to be indemnified as
authorized in the preceding subsection, and (iii) to reimburse the Trustees for
all other reasonable expenses (including reasonable fees and expenses of
counsel and other experts) incurred in connection with this Trust Agreement and
the Trust.
(d) The provisions of Section 8 shall survive the
termination of this Trust Agreement or the earlier resignation or removal of
the Fiduciary Indemnified Persons.
9. This Trust Agreement may be dissolved and terminated before
the issuance of the securities of the Trust at the election of the Depositor.
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed as of the day and year first above written.
POPULAR, INC.,
as Depositor
By: /s/ Jorge A. Junquera
----------------------------------------
Name: Jorge A. Junquera
Title: Senior Executive Vice President
BANK ONE DELAWARE, INC.,
not in its individual capacity but solely
as Delaware Trustee
By: /s/ Christopher C. Holly
----------------------------------------
Name: Christopher C. Holly
Title: Vice President
BANK ONE TRUST COMPANY, N.A.,
not in its individual capacity but solely
as Property Trustee
By: /s/ Christopher C. Holly
----------------------------------------
Name: Christopher C. Holly
Title: Vice President
/s/ Jorge A. Junquera
-------------------------------------------
Jorge A. Junquera, as Trustee
/s/ Richard Barrios
-------------------------------------------
Richard Barrios, as Trustee
3