1
EXHIBIT (4)(f)
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BANPONCE FINANCIAL CORP.,
Issuer
and
BANPONCE CORPORATION,
Guarantor
TO
CITIBANK, N.A.,
Trustee
__________
INDENTURE
Dated as of October 1, 1991
__________
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Banponce Financial Corp.
Certain Sections of this Indenture relating to
Sections 310 through 318, inclusive, of the
Trust Indenture Act of 1939:
Trust Indenture
Act Section Indenture Section
Section 310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 608
610
Section 311(a) . . . . . . . . . . . . . . . . . . . . . . . . . 613
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 613
Section 312(a) . . . . . . . . . . . . . . . . . . . . . . . . . 701
702(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 702(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . 702(c)
Section 313(a) . . . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . 703(b)
Section 314(a) . . . . . . . . . . . . . . . . . . . . . . . . . 704
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . 101
1004
(b) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . 102
Section 315(a) . . . . . . . . . . . . . . . . . . . . . . . . . 601
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 602
(c) . . . . . . . . . . . . . . . . . . . . . . . . . 601
(d) . . . . . . . . . . . . . . . . . . . . . . . . . 601
(e) . . . . . . . . . . . . . . . . . . . . . . . . . 514
Section 316(a) . . . . . . . . . . . . . . . . . . . . . . . . . 101
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . 502
512
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . . . . . . . . . . . . 104(c)
Section 317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 1003
Section 318(a) . . . . . . . . . . . . . . . . . . . . . . . . . 107
___________________
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
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TABLE OF CONTENTS
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PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
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DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions: . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Additional Amounts . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate; control . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . 2
Banco Popular . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . 3
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company Request; Company Order . . . . . . . . . . . . . . . . . . 3
Controlled Subsidiary . . . . . . . . . . . . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . 3
corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . 3
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . 4
Global Security . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Guarantees . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Guarantor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . 4
Material Banking Subsidiary . . . . . . . . . . . . . . . . . . . . 4
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . 5
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . 5
Original Issue Discount Security . . . . . . . . . . . . . . . . . 5
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . . 7
Predecessor Security . . . . . . . . . . . . . . . . . . . . . . . 7
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . 7
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . . 7
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Security Register and Security
Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Special Record Date . . . . . . . . . . . . . . . . . . . . . . . . 7
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Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Subsidiary; voting stock . . . . . . . . . . . . . . . . . . . . . 8
Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . 8
Vice President . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Voting Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 102. Compliance Certificates and Opinions . . . . . . . . . . . . . . . 8
Section 103. Form of Documents Delivered to Trustee . . . . . . . . . . . . . . 9
Section 104. Acts of Holders; Record Dates . . . . . . . . . . . . . . . . . . . 10
Section 105. Notices, Etc., to Trustee, Company
and the Guarantor . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 106. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . . . 13
Section 107. Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . 14
Section 108. Effect of Headings and
Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 109. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . 14
Section 110. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 111. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . 14
Section 112. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 113. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 114. Appointment of Agent for Service . . . . . . . . . . . . . . . . . 15
ARTICLE TWO
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SECURITY FORMS AND GUARANTEES
Section 201. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 202. Form of Face of Security . . . . . . . . . . . . . . . . . . . . . 17
Section 203. Form of Reverse of Security . . . . . . . . . . . . . . . . . . . . 19
Section 204. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 205. Form of Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 206. Form of Legend for
Global Securities . . . . . . . . . . . . . . . . . . . . . . . . 26
ARTICLE THREE
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THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . 26
Section 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 303. Execution, Authentication, Delivery
and Dating . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 304. Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . 31
Section 305. Registration, Registration of Transfer
and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
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Section 306. Mutilated, Destroyed, Lost and Stolen
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 307. Payment of Interest; Interest Rights
Preserved . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . 37
Section 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 310. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . 38
Section 311. Guarantee of Debt Securities . . . . . . . . . . . . . . . . . . . 38
Section 312. Execution of Guarantees . . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE FOUR
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SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . 40
Section 402. Application of Trust Money . . . . . . . . . . . . . . . . . . . . 41
ARTICLE FIVE
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REMEDIES
Section 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 502. Acceleration of Maturity; Rescission
and Annulment . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 503. Collection of Indebtedness and Suits
for Enforcement by Trustee . . . . . . . . . . . . . . . . . . . . 46
Section 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . 47
Section 505. Trustee May Enforce Claims Without
Possession of Securities . . . . . . . . . . . . . . . . . . . . . 47
Section 506. Application of Money Collected . . . . . . . . . . . . . . . . . . 48
Section 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 508. Unconditional Right of Holders to
Receive Principal, Premium and
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 509. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . 49
Section 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . 50
Section 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . 50
Section 512. Control by Holders . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . 51
Section 514. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . 51
Section 515. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . 51
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ARTICLE SIX
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THE TRUSTEE
Section 601. Certain Duties and Responsibilities . . . . . . . . . . . . . . . . 52
Section 602. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 603. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . 52
Section 604. Not Responsible for Recitals or
Issuance of Securities . . . . . . . . . . . . . . . . . . . . . . 54
Section 605. May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 606. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 607. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . 55
Section 608. Disqualification; Conflicting
Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 609. Corporate Trustee Required;
Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 610. Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 611. Acceptance of Appointment by Successor . . . . . . . . . . . . . . 58
Section 612. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . . . . . . . . . . . . . 59
Section 613. Preferential Collection of Claims
Against the Company or the Guarantor . . . . . . . . . . . . . . . 60
Section 614. Appointment of Authenticating Agent . . . . . . . . . . . . . . . . 60
ARTICLE SEVEN
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HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company and the Guarantor to Furnish
Trustee Names and Addresses of Holders . . . . . . . . . . . . . . 62
Section 702. Preservation of Information;
Communications to Holders . . . . . . . . . . . . . . . . . . . . 63
Section 703. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 704. Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . 64
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ARTICLE EIGHT
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CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Company and Guarantor May Consolidate,
Etc., Only on Certain Terms . . . . . . . . . . . . . . . . . . . 64
Section 802. Successor Substituted . . . . . . . . . . . . . . . . . . . . . . . 65
ARTICLE NINE
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SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent
of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 902. Supplemental Indentures with Consent of
Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 903. Execution of Supplemental Indentures . . . . . . . . . . . . . . . 69
Section 904. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . 70
Section 905. Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . 70
Section 906. Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
ARTICLE TEN
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COVENANTS
Section 1001. Payment of Principal, Premium and
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Section 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . 70
Section 1003. Money for Securities Payments to Be
Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Section 1004. Statement by Officers as to Default . . . . . . . . . . . . . . . . 72
Section 1005. Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Section 1006. Maintenance of Properties . . . . . . . . . . . . . . . . . . . . . 73
Section 1007. Payment of Taxes and Other Claims . . . . . . . . . . . . . . . . . 73
Section 1008. Statement by Officers as to the
Default of the Guarantor . . . . . . . . . . . . . . . . . . . . . 74
Section 1009. Existence of the Guarantor . . . . . . . . . . . . . . . . . . . . 74
Section 1010. Limitation Upon Disposition of
Voting Stock of, and Merger and
Sale of Assets of, Banco Popular . . . . . . . . . . . . . . . . . 74
Section 1011. Limitation Upon Creation of Liens
on Voting Stock of Material
Banking Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . 75
Section 1012. Payment of Additional Amounts . . . . . . . . . . . . . . . . . . . 76
Section 1013. Waiver of Certain Covenants . . . . . . . . . . . . . . . . . . . . 77
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ARTICLE ELEVEN
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REDEMPTION OF SECURITIES
Section 1101. Applicability of Article . . . . . . . . . . . . . . . . . . . . . 77
Section 1102. Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . 77
Section 1103. Selection by Trustee of Securities to
Be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Section 1104. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . 78
Section 1105. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . 79
Section 1106. Securities Payable on Redemption Date . . . . . . . . . . . . . . . 79
Section 1107. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . 80
ARTICLE TWELVE
--------------
SINKING FUNDS
Section 1201. Applicability of Article . . . . . . . . . . . . . . . . . . . . . 80
Section 1202. Satisfaction of Sinking Fund Payments
with Securities . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 1203. Redemption of Securities for Sinking
Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
SIGNATURES AND SEALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
ACKNOWLEDGMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
9
INDENTURE, dated as of October 1, 1991 among Banponce
Financial Corp., a corporation duly organized and existing under the laws of
the State of Delaware (herein called the "Company"), having its principal
office at 521 Fellowship Road, Mt. Laurel, New Jersey 08054, Banponce
Corporation, a corporation duly organized and existing under the laws of the
Commonwealth of Puerto Rico (the "Guarantor"), having its principal offices at
209 Munoz Rivera Avenue, Hato Rey, Puerto Rico 00918, and Citibank, N.A., a
national banking association, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY AND THE GUARANTOR
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture
provided.
The Guarantor has duly authorized the execution and delivery
of this Indenture to provide for the issuance of Guarantees with respect to the
Securities.
All things necessary to make this Indenture a valid agreement
of the Company and the Guarantor, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
10
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally accepted
accounting principles in effect; and
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Additional Amounts" has the meaning assigned thereto in
Section 1012.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Banco Popular" means Banco Popular de Puerto Rico and its
successors and assigns.
"Board of Directors" means either the board of directors of
the Company or the Guarantor, as the context requires, or any duly authorized
committee of that board.
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"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company or the Guarantor, as the
case may be, to have been duly adopted by the Board of Directors and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
"Business Day", except as may otherwise be provided herein or
in any security, when used with respect to any Place of Payment or other
location, means each Monday, Tuesday, Wednesday, Thursday and Friday which is
not a day on which banking institutions in that Place of Payment are authorized
or obligated by law or executive order to close.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or, if at any time after the execution of this instrument such Commission
is not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by its Chairman of the Board, its
Vice Chairman of the Board, its President or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Trustee.
"Controlled Subsidiary" means any corporation more than 80
percent of the outstanding Voting Stock of which, except for directors'
qualifying shares, shall at the time be owned directly or indirectly by the
Guarantor.
"Corporate Trust Office" means the principal office of the
Trustee in the Borough of Manhattan, The City of New York, at which at any
particular time its corporate trust business shall be administered.
"corporation" means a corporation, association, company,
joint-stock company or business trust.
"Defaulted Interest" has the meaning specified in Section 307.
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"Depositary" means, with respect to the Securities of any
series issuable or issued in whole or in part in the form of one or more Global
Securities, the Person designated as Depositary by the Company pursuant to
Section 301.
"Event of Default" has the meaning specified in Section 501.
"Global Security" means a Security bearing the legend
prescribed in Section 206 evidencing all or part of a series of Securities,
issued to the Depository for such series or its nominee, and registered in the
name of such Depository or nominee.
"Guarantees" means the guarantees of the Guarantor to be
endorsed on the Securities authenticated and delivered hereunder.
"Guarantor" means Banponce Corporation, a corporation
organized under the laws of the Commonwealth of Puerto Rico and its successors
and assigns.
"Holder" means a Person in whose name a Security is registered
in the Security Register.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument, and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 301.
"interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an instalment of interest on such
Security.
"Material Banking Subsidiary" means any Controlled Subsidiary
of the Guarantor chartered as a banking corporation under United States
Federal, State or Puerto Rico law which is a significant subsidiary of the
Guarantor as defined in 1-02 of Regulation S-X of the Rules and
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Regulations of the Securities and Exchange Commission under the Securities Act
of 1933, as amended.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an instalment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, a Vice Chairman of the Board, the President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Company, or the Guarantor, as the context requires,
and delivered to the Trustee. One of the officers signing an Officers'
Certificate given pursuant to Section 1004 shall be the principal executive,
financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who
may be an employee of or counsel for the Company or the Guarantor, as the case
may be, or other counsel who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"Outstanding", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company or the Guarantor) in trust or
set aside and segregated in trust by the Company (if the Company or
the Guarantor shall act as Paying Agent) for the Holders of such
Securities; provided that, if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this
Indenture or
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provision therefor satisfactory to the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by
a bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (i) the
principal amount of an Original Issue Discount Security that shall be deemed to
be Outstanding shall be the amount of the principal thereof that would be due
and payable as of the date of such determination upon acceleration of the
Maturity thereof pursuant to Section 502, (ii) the principal amount of a
Security denominated in one or more foreign currencies or currency units shall
be the U.S. dollar equivalent, determined in the manner provided as
contemplated by Section 301 on the date of original issuance of such Security,
of the principal amount (or, in the case of an Original Issue Discount
Security, the U.S. dollar equivalent on the date of original issuance of such
Security of the amount determined as provided in (i) above) of such Security,
and (iii) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Securities
which the Trustee knows to be so owned shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Securities and that the pledgee is not the
Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of or any premium or interest on any Securities on behalf of
the Company.
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"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment", when used with respect to the Securities
of any series, means the place or places where the principal of and any premium
and interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for that
purpose as contemplated by Section 301.
"Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or
any instalment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal of such
Security or such instalment of principal or interest is due and payable.
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"Subsidiary" means a corporation more than 50% of the
outstanding voting stock of which is owned, directly or indirectly, by the
Company or the Guarantor, as the context requires or by one or more other
Subsidiaries, or by the Company or the Guarantor, as the context requires and
one or more other Subsidiaries. For the purposes of this definition, "voting
stock" means stock which ordinarily has voting power for the election of
directors, whether at all times or only so long as no senior class of stock has
such voting power by reason of any contingency.
"Taxes" has the meaning specified in Section 1012.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder,
and if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this instrument was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after
such date, "Trust Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Vice President", when used with respect to the Company, the
Guarantor or the Trustee, means any vice president, whether or not designated
by a number or a word or words added before or after the title "vice
president".
"Voting Stock" means, with respect to any Person, Capital
Stock (however designated) having general voting power for the election of a
majority of the members of the board of directors, managers or trustees of such
Person (irrespective of whether or not at the time Capital Stock of any other
class or classes shall have or might have voting power by reason of the
happening of any contingency).
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Company or the
Guarantor to the Trustee to take any action under any provision of this
Indenture, the Company or the Guarantor, as the case may be, shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
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Indenture Act. Each such certificate or opinion shall be given in the form of
an Officers' Certificate, if to be given by an officer of the Company or the
Guarantor, as the case may be, or an Opinion of Counsel, if to be given by
counsel, and shall comply with the requirements of the Trust Indenture Act and
any other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company or the
Guarantor may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such officer
knows, or
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in the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or opinion of counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company or the
Guarantor, as the case may be, stating that the information with respect to
such factual matters is in the possession of the Company or the Guarantor, as
the case may be, unless such counsel knows, or in the exercise of reasonable
care should know, that the certificate or opinion or representations with
respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
Section 104. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company and
the Guarantor. Such instrument or instruments (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for
any purpose of this Indenture and (subject to Section 601) conclusive in favor
of the Trustee, the Company and the Guarantor, if made in the manner provided
in this Section.
Without limiting the generality of the foregoing, a Holder,
including a Depositary that is a Holder of a Global Security, may make, give or
take, by a proxy, or proxies, duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted in this Indenture to be made, given or taken by Holders, and a
Depositary that is a Holder of a Global Security may provide its proxy or
proxies to the beneficial owners of interest in any such Global Security.
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(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) Except as provided in the next paragraph, the Company
may, in the circumstances permitted by the Trust Indenture Act, set any day as
the record date for the purpose of determining the Holders of Outstanding
Securities of any series entitled to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action, or to vote
on any action provided or permitted by this Indenture to be given or taken by
Holders of Registered Securities of such series. With regard to any record
date set pursuant to this paragraph, the Holders of Outstanding Securities of
the relevant series on such record date (or their duly appointed agents), and
only such Persons, shall be entitled to give or take the relevant action,
whether or not such Holders remain Holders after such record date. With regard
to any action that may be given or taken hereunder only by Holders of a
requisite principal amount of appointed agents, and for which a record date is
set pursuant to this paragraph, the Company may, at its option, set an
expiration date after which no such action purported to be given or taken by
any Holder shall be effective hereunder unless given or taken on or prior to
such expiration date by Holders of the requisite principal amount of
Outstanding Securities of such series on such record date (or their duly
appointed agents). On or prior to any expiration date set pursuant to this
paragraph, the Company may, on one or more occasions at its option, extend such
date to any later date. Nothing in this paragraph shall prevent any Holder (or
any duly appointed agent thereof) from giving or taking, after any expiration
date, any action identical to, or, at any time, contrary to or different from,
any action given or taken, or purported to have been given or taken, hereunder
by a Holder on or prior to such date, in which event the Company may set a
record date in respect thereof pursuant to this paragraph.
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Notwithstanding the foregoing, upon receipt by the Trustee,
with respect to Securities of any Series, of (i) any Notice of Default pursuant
to Section 501; (ii) any declaration of acceleration, or any rescission and
annulment of any such declaration pursuant to Section 502; or (iii) any
direction given pursuant to Section 512 (any such notice, declaration,
rescission and annulment, or direction being referred to herein as a
"Direction"), a record date shall automatically and without any other action by
any Person be set for the purpose of determining the Holders of Outstanding
Securities of such series entitled to join in such Direction, which record date
shall be the close of business on the day the Trustee receives such Director.
The Holders of Outstanding Securities of such series on such record date (or
their duly appointed agents), and only such Persons, shall be entitled to join
in such Direction, whether or not such Holders remain Holders after such record
date; provided that, unless such Direction shall have become effective by
virtue of Holders of the requisite principal amount of Outstanding Securities
of such series on such record date (or their duly appointed agents) having
joined therein on or prior to the 90th day after such record date, such
direction shall automatically and without any action by any Person be canceled
and of no further effect. Nothing in this paragraph shall prevent a Holder (or
a duly appointed agent thereof) from giving, before or after the expiration of
such 90-day period, a direction contrary to or different from, or, after the
expiration of such period, identical to, from, or, after the expiration or such
period, identical to, a direction that has been canceled pursuant to the proviso
to the preceding sentence, in which event a new record date in respect thereof
shall be set pursuant to this paragraph.
Without limiting the foregoing, a Holder entitled hereunder to
give or take any action hereunder with regard to any particular Security may do
so with regard to all or any part of the principal amount of such Security or
by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any different part of such principal amount.
(d) The ownership of Securities shall be proved by the
Security Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee, the
Company or the
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Guarantor in reliance thereon, whether or not notation of such action is made
upon such Security.
Section 105. Notices, Etc., to Trustee, Company and the Guarantor.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company or Guarantor
shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at 120 Wall
Street, New York, New York 10043, Attention: Corporate Trust
Administration, or
(2) the Company or Guarantor by the Trustee or by any Holder
shall be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and mailed, first-class
postage prepaid, to the Company or Guarantor, as the case may be,
addressed to it at the address of its principal office specified in
the first paragraph of this instrument or at any other address
previously furnished in writing to the Trustee by the Company or
Guarantor.
Section 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at his address as it appears in the
Security Register, not later than the latest date (if any), and not earlier
than the earliest date (if any), prescribed for the giving of such notice. In
any case where notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to other Holders.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not
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be a condition precedent to the validity of any action taken in reliance upon
such waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall
be deemed to apply to this Indenture as so modified or to be excluded, as the
case may be.
Section 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
and the Guarantor shall bind their respective successors and assigns, whether
so expressed or not.
Section 110. Separability Clause.
In case any provision in this Indenture or in the Securities
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 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, 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 Indenture.
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Section 112. Governing Law.
This Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of New York.
Section 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date
or Stated Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the
Securities (other than a provision of the Securities of any series which
specifically states that such provision shall apply in lieu of this Section))
payment of interest or principal (and premium, if any) need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on the
Interest Payment Date or Redemption Date, or at the Stated Maturity, provided
that no interest shall accrue on the amount so payable for the period from and
after such Interest Payment Date, Redemption Date or Stated Maturity, as the
case may be.
Section 114. Appointment of Agent for Service.
The Guarantor hereby appoints the Senior Vice President of
Banco Popular at the office of Banco Popular located in the City of New York as
the Guarantor's authorized agent (the "Authorized Agent") upon whom service of
process may be served in any action arising out of or based on the Securities,
the Guarantees or this Indenture (including any action based on or arising out
of the United States federal securities laws) that may be instituted in New
York State or United States Federal Courts sitting in The City of New York, by
the Trustee or the Holder of any Security, and the Guarantor hereby expressly
accepts the jurisdiction of any such court in respect of any such action. Such
appointment shall be irrevocable unless and until the appointment of a
successor authorized agent for service of process, and such successor's
acceptance of such appointment, shall have occurred, and the Guarantor and such
Authorized Agent will take any and all actions, including the filing of any and
all documents and instruments, that may be necessary to continue such
appointment or appointments in full force and effect as aforesaid. Service of
process upon an Authorized Agent will be deemed, in every respect, effective
service of process upon the Guarantor. Notwithstanding the foregoing, any
action against the Guarantor arising out of or based on any Security, the
Guarantees or this Indenture may also be instituted by the
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Holder of such Security in any court in the Commonwealth of Puerto Rico, and
the Guarantor hereby expressly accepts the jurisdiction of any such court in
respect of any such action.
ARTICLE TWO
Security Forms and Guarantees
Section 201. Forms Generally.
The Securities of each series shall be in substantially the
form set forth in this Article, or in such other form as shall be established
by or pursuant to a Board Resolution of the Company or in one or more
indentures supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities. If the form of Securities
of any series is established by action taken pursuant to a Board Resolution of
the Company, a copy of an appropriate record of such action shall be certified
by the Secretary or an Assistant Secretary of the Company and delivered to the
Trustee at or prior to the delivery of the Company Order contemplated by
Section 303 for the authentication and delivery of such Securities.
The Guarantees to be endorsed on the Securities of each series
shall be in substantially the form set forth in this Article, or in such other
form as shall be established by or pursuant to a Board Resolution of the
Guarantor or in one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture, and may have such letters, numbers
or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with the rules of any securities exchange
or as may, consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of the Securities. If the form of
the guarantees to be endorsed on the Securities of any series is established by
action taken pursuant to a Board Resolution of the Guarantor, a copy of an
appropriate record of such action shall be certified by the Secretary or an
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Assistant Secretary of the Guarantor and delivered to the Trustee at or prior
to the delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
The definitive Securities shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
Section 202. Form of Face of Security.
[Insert any legend required by the Internal Revenue Code and
the regulations thereunder.]
Banponce Financial Corp.
............................................
No. ......... $ ........
Banponce Financial Corp., a corporation duly organized and
existing under the laws of the state of Delaware (herein called the "Company",
which term includes any successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to ...................
............................, or registered assigns, the principal sum of
..................................... Dollars on ..............................
........................... [if the Security is to bear interest prior to
Maturity, insert -- , and to pay interest thereon from ............. or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on ............ and ............ in each year,
commencing ........., at the rate of ....% per annum, until the principal hereof
is paid or made available for payment. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in
such Indenture, be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be the ....... or .......
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed
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by the Trustee, notice whereof shall be given to Holders of Securities of this
series not less than 10 days prior to such Special Record Date, or be paid at
any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities of this series may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture].
[If the Security is not to bear interest prior to Maturity,
insert -- The principal of this Security shall not bear interest except in the
case of a default in payment of principal upon acceleration, upon redemption or
at Stated Maturity and in such case the overdue principal of this Security
shall bear interest at the rate of ....% per annum (to the extent that the
payment of such interest shall be legally enforceable), which shall accrue from
the date of such default in payment to the date payment of such principal has
been made or duly provided for. Interest on any overdue principal shall be
payable on demand. Any such interest on any overdue principal that is not so
paid on demand shall bear interest at the rate of ......% per annum (to the
extent that the payment of such interest shall be legally enforceable), which
shall accrue from the date of such demand for payment to the date payment of
such interest has been made or duly provided for, and such interest shall also
be payable on demand.]
Payment of the principal of (and premium, if any) and [if
applicable, insert -- any such] interest on this Security will be made at the
office or agency of the Company maintained for that purpose in the Borough of
Manhattan, The City of New York, in such coin or currency of the United States
of America as at the time of payment is legal tender for payment of public and
private debts [if applicable, insert -- ; provided, however, that at the option
of the Company payment of interest may be made by check mailed to the address
of the Person entitled thereto as such address shall appear in the Security
Register].
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be
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entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
Dated:
Banponce Financial Corp.
By.....................
Attest:
...........................
Section 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities
of the Company (herein called the "Securities"), issued and to be issued in
one or more series under an Indenture, dated as of October 1, 1991 (herein
called the "Indenture"), among the Company, Banponce Corporation, as Guarantor,
and, Citibank, N.A., as Trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Securities and of the terms
upon which the Securities are, and are to be, authenticated and delivered.
This Security is one of the series designated on the face hereof[, limited in
aggregate principal amount to $...........].
[If applicable, insert -- The Securities of this series are
subject to redemption upon not less than 30 days' notice by mail, [if
applicable, insert -- (1) on ........... in any year commencing with the year
...... and ending with the year ...... through operation of the sinking fund
for this series at a Redemption Price equal to 100% of the principal amount,
and (2)] at any time [on or after .........., 19..], as a whole or in part, at
the election of the Company, at the following Redemption Prices (expressed as
percentages of the principal amount): If redeemed [on or before
..............., __%, and if redeemed] during the 12-month period beginning
............. of the years indicated,
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Redemption Redemption
Year Price Year Price
- ---- ----- ---- -----
and thereafter at a Redemption Price equal to .....% of the principal amount,
together in the case of any such redemption [if applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.]
[If applicable, insert -- The Securities of this series are
subject to redemption upon not less than 30 days' notice by mail, (1) on
............ in any year commencing with the year .... and ending with the year
.... through operation of the sinking fund for this series at the Redemption
Prices for redemption through operation of the sinking fund (expressed as
percentages of the principal amount) set forth in the table below, and (2) at
any time [on or after ............], as a whole or in part, at the election of
the Company, at the Redemption Prices for redemption otherwise than through
operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below: If redeemed during the 12-month period
beginning ............ of the years indicated,
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Redemption Price
For Redemption Redemption Price For
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
- ---- ----------------- ----------------------
and thereafter at a Redemption Price equal to .....% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[Notwithstanding the foregoing, the Company may not, prior to
............., redeem any Securities of this series as contemplated by [Clause
(2) of] the preceding paragraph as a part of, or in anticipation of, any
refunding operation by the application, directly or indirectly, of moneys
borrowed having an interest cost to the Company (calculated in accordance with
generally accepted financial practice) of less than .....% per annum.]
[The sinking fund for this series provides for the redemption
on ............ in each year beginning with the year ....... and ending with
the year ...... of [not less than $.......... ("mandatory sinking fund") and
not more than] $......... aggregate principal amount of Securities of this
series. Securities of this series acquired or redeemed by the Company
otherwise than through [mandatory] sinking fund payments may be credited
against subsequent [mandatory] sinking fund payments otherwise required to be
made [in the inverse order in which they become due].]
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[If the Security is subject to redemption, insert -- In the
event of redemption of this Security in part only, a new Security or Securities
of this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
[If the Security is not an Original Issue Discount Security,
insert -- If an Event of Default with respect to Securities of this series
shall occur and be continuing, the principal of the Securities of this series
may be declared due and payable in the manner and with the effect provided in
the Indenture.]
[If the Security is an Original Issue Discount Security,
insert -- If an Event of Default with respect to Securities of this series
shall occur and be continuing, an amount of principal of the Securities of this
series may be declared due and payable in the manner and with the effect
provided in the Indenture. Such amount shall be equal to -- insert formula for
determining the amount. Upon payment (i) of the amount of principal so
declared due and payable and (ii) of interest on any overdue principal and
overdue interest (in each case to the extent that the payment of such interest
shall be legally enforceable), all of the Company's obligations in respect of
the payment of the principal of and interest, if any, on the Securities of this
series shall terminate.]
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company, the
Guarantor and the Trustee with the consent of the Holders of not less than a
majority in principal amount of the Securities at the time Outstanding of each
series to be affected. The Indenture also contains provisions permitting the
Holders of specified percentages in principal amount of the Securities of each
series at the time Outstanding, on behalf of the Holders of all Securities of
such series, to waive compliance by the Company and the Guarantor with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of
such consent or waiver is made upon this Security.
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No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and any
premium and interest on this Security at the times, place and rate, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registerable in
the Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in any place where the
principal of and any premium and interest on this Security are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to
the designated transferee or transferees.
The Securities of this series are issuable only in registered
form without coupons in denominations of $1,000 and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series and of like tenor of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
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Section 204. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Citibank, N.A.,
As Trustee
By..............................
Authorized Signatory
Section 205. Form of Guarantee.
Banponce Corporation (the "Guarantor") hereby unconditionally
guarantees to the Holder of this Security duly authenticated and delivered by
the Trustee, the due and punctual payment of the principal, and premium, if
any, of (including any amount in respect of original issue discount), and
interest, if any (together with any additional amounts payable pursuant to the
terms of this Security), on this Security and the due and punctual payment of
the sinking fund payments, if any, and analogous obligations, if any, provided
for pursuant to the terms of this Security, when and as the same shall become
due and payable, whether at Stated Maturity or upon redemption, repayment or
upon declaration of acceleration or otherwise according to the terms of this
Security and of the Indenture. In case of default by the Company in the payment
of any such principal (including any amount in respect of original issue
discount), and any premium or interest (together with any Additional Amounts
payable pursuant to the terms of this Security), sinking fund payment, or
analogous obligation, the Guarantor agrees duly and punctually to pay the same
when and as the same shall become due and payable. The Guarantor hereby agrees
that its obligations hereunder shall be as principal and not merely as surety,
and shall be absolute and unconditional irrespective of any extension of the
time for payment of this Security, any modification of this Security, any
invalidity, irregularity or unenforceability of this Security or the Indenture,
any failure to enforce the same or any waiver, modification, consent or
indulgence granted to the Company with respect thereto by the holder of this
Security or the Trustee, or any other
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circumstances which may otherwise constitute a legal or equitable discharge of
a surety or guarantor. The Guarantor hereby waives diligence, presentment,
demand of payment, filing of claims with a court in the event of merger or
bankruptcy of the Company, any right to require a demand or proceeding first
against the Company, protest or notice with respect to this Security or the
indebtedness evidenced thereby and all demands whatsoever, and covenants that
this guarantee will not be discharged as to this Security except by payment in
full of the principal of (including any amount payable in respect of original
issue discount), and any premium or interest (together with any Additional
Amounts payable pursuant to the terms of this Security), thereon.
The Guarantor irrevocably waives any and all rights to which
it may be entitled, by operation of law or otherwise, upon making any payment
hereunder (i) to be subrogated to the rights of a Holder against the Company
with respect to such payment or otherwise to be reimbursed, indemnified or
exonerated by the Company in respect thereof or (ii) to receive any payment, in
the nature of contribution or for any other reason, from any other obligor with
respect to such payment.
This guarantee shall not be valid or become obligatory for any
purpose with respect to this Security until the certificate of authentication
on this Security shall have been signed by the Trustee.
This guarantee is governed by and construed in accordance with
the laws of the State of New York.
IN WITNESS WHEREOF, Banponce Corporation has caused this
Guarantee to be signed by facsimile by its duly authorized officers and has
caused a facsimile of its corporate seal to be affixed hereunto or imprinted
hereon.
BANPONCE CORPORATION
By _______________________
By _______________________
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Section 206. Form of Legend for Global Securities.
Any Global Security authenticated and delivered hereunder
shall bear a legend in substantially the following form:
"This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the
name of a Depositary or a nominee thereof. This Security may
not be transferred to, or registered or exchanged for
Securities registered in the name of, any Person other than
the Depositary or a nominee thereof and no such transfer may
be registered, except in the limited circumstances described
in the Indenture. Every Security authenticated and delivered
upon registration of transfer of, or in exchange for or in
lieu of, this Security shall be a Global Security subject to
the foregoing, except in such limited circumstances."
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established, with respect to the securities of any series, in or
pursuant to a Board Resolution of the Company and, subject to Section 303, set
forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the
issuance of Securities of such series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any other
series);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration
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of transfer of, or in exchange for, or in lieu of, other Securities of
the series pursuant to Section 304, 305, 306, 906 or 1107 and except
for any Securities which, pursuant to Section 303, are deemed never to
have been authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the
series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest;
(4) the date or dates on which the principal of the
Securities of the series is payable;
(5) the rate or rates at which the Securities of the series
shall bear interest, if any, the date or dates from which such
interest shall accrue, the Interest Payment Dates on which any such
interest shall be payable and the Regular Record Date for any interest
payable on any Interest Payment Date; and the basis upon which
interest shall be calculated, if other than a 360-day year of twelve
30-day months;
(6) the place or places where the principal of and any
premium and interest on Securities of the series shall be payable;
(7) the period or periods within which, the price or prices
at which and the terms and conditions upon which Securities of the
series may be redeemed, in whole or in part, at the option of the
Company;
(8) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the
period or periods within which, the price or prices at which and the
terms and conditions upon which Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation;
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(9) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(10) the currency, currencies or currency units in which
payment of the principal of and any premium and interest on any
Securities of the series shall be payable if other than the currency
of the United States of America and the manner of determining the
equivalent thereof in the currency of the United States of America for
purposes of the definition of "Outstanding" in Section 101;
(11) if the amount of payments of principal of or any premium
or interest on any Securities of the series may be determined with
reference to an index, the manner in which such amounts shall be
determined;
(12) if the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the
Company or a Holder thereof, in one or more currencies or currency
units other than that or those in which the Securities are stated to
be payable, the currency, currencies or currency units in which
payment of the principal of and any premium and interest on Securities
of such series as to which such election is made shall be payable, and
the periods within which and the terms and conditions upon which such
election is to be made;
(13) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502; and
(14) if and as applicable, that the Securities of the series
shall be issuable in whole or in part in the form of one or more
Global Securities and, in such case, the Depositary or Depositaries
for such Global Security or Global Securities and any circumstances
other than those set forth in Section 305 in which any such Global
Security
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may be transferred to, and registered and exchanged for Securities
registered in the name of, a Person other than the Depositary for such
Global Security or a nominee thereof and in which any such transfer
may be registered; and
(15) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as
permitted by Section 901(5)).
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to the Board Resolution referred to above and (subject to Section
303) set forth, or determined in the manner provided, in the Officers'
Certificate referred to above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of the series.
Section 302. Denominations.
The Securities of each series shall be issuable in registered
form without coupons in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such provisions with
respect to the Securities of any series, the Securities of such series shall be
issuable in denominations of $1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by
its Chairman of the Board, its Vice Chairman of the Board, its President or one
of its Vice Presidents, under its corporate seal reproduced thereon attested by
its Secretary or one of its Assistant Secretaries. The signature of any of
these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding
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that such individuals or any of them have ceased to hold such offices prior to
the authentication and delivery of such Securities or did not hold such offices
at the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any Series
executed by the Company, having endorsed thereon Guarantees duly executed by
the Guarantor, to the Trustee for authentication, together with a Company Order
for the authentication and delivery of such Securities, and the Trustee in
accordance with the Company Order shall authenticate and deliver such
Securities. If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Sections 201 and 301, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject to Section
601) shall be fully protected in relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 201, that such
form has been established in conformity with the provisions of this
Indenture;
(b) if the terms of such Securities have been established by
or pursuant to Board Resolution as permitted by Section 301, that such
terms have been established in conformity with the provisions of this
Indenture; and
(c) that such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and
to general equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will
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affect the Trustee's own rights, duties or immunities under the Securities and
this Indenture or otherwise in a manner which is not reasonably acceptable to
the Trustee.
Notwithstanding the provisions of Section 301 and of the
preceding paragraph, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 301 or the Company Order and
Opinion of Counsel otherwise required pursuant to such preceding paragraph at
or prior to the time of authentication of each Security of such series if such
documents are delivered at or prior to the authentication upon original
issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Security a certificate of authentication substantially in the form
provided for herein executed by the Trustee by manual signature, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 309, for all purposes of this Indenture such Security shall
be deemed never to have been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities, having endorsed thereon
Guarantees duly executed by the Guarantor, which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu
of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities
may determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company
will cause definitive Securities of that series,
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having endorsed thereon Guarantees duly executed by the Guarantor, to be
prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series of like
tenor shall be exchangeable for definitive Securities of such series, having
endorsed thereon Guarantees duly executed by the Guarantor, upon surrender of
the temporary Securities of such series at the office or agency of the Company
in a Place of Payment for that series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of any
series the Company shall execute and the Trustee shall authenticate and deliver
in exchange therefor one or more definitive Securities of the same series,
having endorsed thereon Guarantees duly executed by the Guarantor, of any
authorized denominations and of a like aggregate principal amount and tenor.
Until so exchanged the temporary Securities of any series shall in all respects
be entitled to the same benefits under this Indenture as definitive Securities
of such series and tenor.
Section 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such office and
in any other office or agency of the Company in a Place of Payment being herein
sometimes collectively referred to as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Securities and of transfers of Securities. The
Trustee is hereby appointed "Security Registrar" for the purpose of registering
Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of
any series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, having endorsed thereon Guarantees duly executed by the
Guarantor, of any authorized denominations and of a like aggregate principal
amount and tenor and bearing a number not contemporaneously outstanding.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series, having endorsed thereon
Guarantees duly executed by the Guarantor, of any authorized denominations and
of a like aggregate principal amount and tenor, upon surrender of the
Securities to be exchanged at such office or agency.
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Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities (having
Guarantees duly endorsed thereon) which the Holder making the exchange is
entitled to receive.
All Securities and the Guarantees endorsed thereon issued upon
any registration of transfer or exchange of Securities shall be the valid
obligations of the Company and the Guarantor, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Securities and the
Guarantees surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee)
be duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 304, 906 or 1107 not
involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any series during a period beginning at
the opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of that series selected for redemption under Section
1103 and ending at the close of business on the day of such mailing, or (ii) to
register the transfer of or exchange any Security so selected for redemption in
whole or in part, except the unredeemed portion of any Security being redeemed
in part.
Notwithstanding the foregoing and except as otherwise
specified or contemplated by Section 301, no Global Security shall be
exchangeable pursuant to this Section 305 or Sections 304, 906 and 1107 for
Securities registered in the name of, and no transfer of a Global Security of
any series may be registered to, any Person other than the Depositary for such
Security or its nominee, unless (1) such Depositary (A) notifies the Company
that it is unwilling or unable to continue as Depository for such Global
Security or (B) ceases to be a clearing agency
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registered under the Securities Exchange Act of 1934, as amended, (2) the
Company executes and delivers to the Trustee a Company Order that such Global
Security shall be so exchangeable and the transfer thereof so registerable, or
(3) there shall have occurred and be continuing an Event of Default, or an
event which with notice or lapse of time or both would become an Event of
Default, with respect to the Securities evidenced by such Global Security.
Upon the occurrence in respect of any Global Security of any series of any one
or more of the conditions specified in clauses (1), (2) or (3) of the preceding
sentence or such other conditions as may be specified as contemplated by
Section 301 for such series, such Global Security may be exchanged for
Securities registered in the names of, and the transfer of such Global Security
may be registered to, such Persons, (including Persons other than the
Depository with respect to such series and its nominees) as such Depository
shall direct. Notwithstanding any other provision of this Indenture, any
Security authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, any Global Security shall also be a Global
Security and shall bear the legend specified in Section 206 except for any
Security authenticated and delivered in exchange for, or upon registration of
transfer of, a Global Security pursuant to the preceding sentence.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same series (having Guarantees duly
endorsed thereon) and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to save
each of them, the Guarantor and any agent of either of them harmless, then, in
the absence of notice to the Company or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute and the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series (having Guarantees duly endorsed
thereon) and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
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In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series and the related Guarantees
issued pursuant to this Section in lieu of any destroyed, lost or stolen
Security shall constitute an original additional contractual obligation of the
Company and the Guarantor, respectively, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301
with respect to any series of Securities, interest on any Security which is
payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest.
Any interest on any Security of any series which is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the Company, at its election
in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons
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in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be
paid on each Security of such series and the date of the proposed
payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to
be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted
Interest as in this Clause provided. Thereupon the Trustee shall fix
a Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company, shall cause notice
of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid, to
each Holder of Securities of such series at his or her address as it
appears in the Security Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names
the Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following
Clause (2).
(2) The Company may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securi-
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ties exchange on which such Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by
the Company to the Trustee of the proposed payment pursuant to this
Clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
Section 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of
transfer, the Company, the Guarantor, the Trustee and any agent of the Company,
the Guarantor or the Trustee may treat the Person in whose name such Security
is registered as the owner of such Security for the purpose of receiving
payment of principal of and any premium and (subject to Section 307) any
interest on such Security and for all other purposes whatsoever, whether or not
such Security be overdue, and neither the Company, the Trustee nor any agent of
the Company or the Trustee shall be affected by notice to the contrary.
Section 309. Cancellation.
All Securities surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee and shall be promptly cancelled by it. The Company
may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company or the
Guarantor may have acquired in any manner whatsoever, and may deliver to the
Trustee (or to any other Person for delivery to the Trustee) for cancellation
any Securities previously authenticated hereunder which the Company has not
issued and sold, and all Securities so delivered shall be promptly canceled by
the Trustee. No Securities shall be authenticated in lieu of or in exchange
for any Securities canceled as provided in this Section, except as expressly
permitted by this Indenture. All canceled Securities held by the Trustee shall
be destroyed and the Trustee shall, upon request from the Company, deliver a
certificate of destruction to the Company.
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Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301
for Securities of any series, interest on the Securities of each series shall
be computed on the basis of a 360-day year of twelve 30-day months.
Section 311. Guarantee of Debt Securities.
The Guarantor hereby unconditionally guarantees to each holder
of a Security of each series authenticated and delivered by the Trustee, the
due and punctual payment of the principal of (including any amount in respect
of original issue discount), and any premium and interest (together with any
Additional Amounts payable pursuant to the terms of such Security), on such
Security and the due and punctual payment of the sinking fund payments, if any,
and analogous obligations, if any, provided for pursuant to the terms of such
Security, when and as the same shall become due and payable, whether at Stated
Maturity or upon redemption or upon declaration of acceleration or otherwise
according to the terms of such Security and of this Indenture. In case of
default by the Company in the payment of any such principal (including any
amount in respect of original issue discount), interest (together with any
Additional Amounts payable pursuant to the terms of such Security), sinking
fund payment, or analogous obligation, the Guarantor agrees duly and punctually
to pay the same. The Guarantor hereby agrees that its obligations hereunder
shall rank pari passu with all other unsecured and unsubordinated obligations
of the Guarantor, shall be as principal and not merely as surety, and shall be
absolute and unconditional irrespective of any extension of the time for
payment of any such Security, any modification of any such Security, any
invalidity, irregularity or unenforceability of any such Security or this
Indenture, any failure to enforce the same or any waiver, modification, consent
or indulgence granted to the Company with respect thereto by the Holder of such
Security or the Trustee, or any other circumstances which may otherwise
constitute a legal or equitable discharge of a surety or guarantor. The
Guarantor hereby waives diligence, presentment, demand of payment, filing of
claims with a court in the event of merger or bankruptcy of the Company, any
right to require a demand or proceeding first against the Company, protest or
notice with respect to any such Security or the indebtedness evidenced thereby
and all demands whatsoever, and covenants that this guarantee will not be
discharged as to any such Security except by payment in full of the principal
of (including any amount payable in respect of original issue discount), and
any premium and interest (together with any Additional
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Amounts payable pursuant to the terms of such Security), thereon.
The Guarantor irrevocably waives any and all rights to which
it may be entitled, by operation of law or otherwise, upon making any payment
hereunder (i) to be subrogated to the rights of a Holder against the Company
with respect to such payment or otherwise to be reimbursed, indemnified or
exonerated by the Company in respect thereof or (ii) to receive any payment, in
the nature of contribution or for any other reason, from any other obligor with
respect to such payment.
The guarantee set forth in this Section shall not be valid or
become obligatory for any purpose with respect to a Security of any series
until the certificate of authentication on such Security shall have been signed
by the Trustee.
Section 312. Execution of Guarantees.
To evidence its guarantee specified in Section 311 to the
Holders of Securities of any series, the Guarantor hereby agrees to execute the
Guarantees in substantially the form above recited to be endorsed on each
Security of such series authenticated and delivered by the Trustee. Such
Guarantees shall be executed on behalf of the Guarantor by both (a) its
Chairman or its Vice Chairman or its President or any Vice President and (b)
its Treasurer or any Assistant Treasurer or its Secretary or any Assistant
Secretary, under its corporate seal which may, but need not, be attested, prior
to the authentication of the Security on which it is endorsed, and the delivery
of such Security by the Trustee, after the authentication thereof hereunder,
shall constitute due delivery of such Guarantees on behalf of the Guarantor.
The seal of the Guarantor may be in the form of a facsimile thereof and may be
impressed, affixed, imprinted or otherwise reproduced on the Guarantees.
Typographical and other minor errors or defects in any such reproduction of the
seal or any such signature shall not affect the validity or enforceability of
any Guarantee that has been duly authenticated and delivered by the Trustee.
Such signatures may be the manual or facsimile signatures of
such officers and may be imprinted or otherwise reproduced on the Guarantees.
In case any officer of the Guarantor who shall have signed any of the
Guarantees shall cease to be an officer before the Security on which such
Guarantees are endorsed shall have been authenticated and delivered by the
Trustee or disposed of by the Company, such Security nevertheless may be
authenticated and
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delivered or disposed of as though the person who signed such Guarantees had
not ceased to be such officer, and any Guarantees may be signed on behalf of
the Guarantor by such persons as, at the actual date of the execution of such
Guarantees, shall be the proper officers of the Guarantor, although at the date
of such Security or of the execution of this Indenture any such person was not
such an officer.
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of
further effect (except as to any surviving rights of registration of transfer
or exchange of Securities herein expressly provided for), and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 306 and
(ii) Securities for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Company or the
Guarantor and thereafter repaid to the Company or the Guarantor or
discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the
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giving of notice of redemption by the Trustee in the name, and
at the expense, of the Company,
and the Company or the Guarantor, as the case may be, in the case of
(i), (ii) or (iii) above, has deposited or caused to be deposited with
the Trustee as trust funds in trust for the purpose an amount
sufficient to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation,
for principal and any premium and interest to the date of such deposit
(in the case of Securities which have become due and payable) or to
the Stated Maturity or Redemption Date, as the case may be;
(2) the Company or the Guarantor, as the case may be, has
paid or caused to be paid all other sums payable hereunder by the
Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company and the Guarantor to the Trustee
under Section 607, the obligations of the Trustee to any Authenticating Agent
under Section 614 and, if money shall have been deposited with the Trustee
pursuant to subclause (B) of Clause (1) of this Section, the obligations of the
Trustee under Section 402 and the last paragraph of Section 1003 shall survive.
Section 402. Application of Trust Money.
Subject to provisions of the last paragraph of Section 1003,
all money deposited with the Trustee pursuant to Section 401 shall be held in
trust and applied by it, in accordance with the provisions of the Securities
and Guarantees and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal and
any premium and interest for whose payment such money has been deposited with
the Trustee.
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ARTICLE FIVE
Remedies
Section 501. Events of Default.
"Event of Default", wherever used herein with respect to
Securities of any series, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any interest upon any Security
of that series when it becomes due and payable, and continuance of
such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium,
if any, on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company or the Guarantor in this Indenture, the
Securities of such series or the Guarantees endorsed thereon (other
than a covenant or warranty a default in whose performance or whose
breach is elsewhere in this Section specifically dealt with or which
has expressly been included in this Indenture solely for the benefit
of series of Securities other than that series), and continuance of
such default or breach for a period of 60 days after there has been
given, by registered or certified mail, to the Company and the
Guarantor by the Trustee or to the Company, the Guarantor and the
Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of that series a written notice specifying such
default or breach and requiring it to be remedied and stating that
such notice is a "Notice of Default" hereunder; or
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(5) a default under any bond, debenture, note or other
evidence of indebtedness for money borrowed (including a default with
respect to Securities of any series other than that series) or under
any mortgage, indenture or instrument under which there may be issued
or by which there may be secured or evidenced any indebtedness for
money borrowed by the Company, any Material Banking Subsidiary or the
Guarantor in excess of $10,000,000, whether such indebtedness now
exists or shall hereafter be created, which default shall have
resulted in such indebtedness becoming or being declared due and
payable prior to the date on which it would otherwise have become due
and payable, without such acceleration having been rescinded or
annulled within a period of 30 days after there shall have been given,
by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of not less than 25% in
principal amount of the Outstanding Securities of that series a
written notice specifying such default and requiring the Company, the
Guarantor or the Material Banking Subsidiary, as the case may be, to
cause such acceleration to be rescinded or annulled and stating that
such notice is a "Notice of Default" hereunder; provided, however,
that if such default shall be remedied or cured by the Company, the
Material Banking Subsidiary or the Guarantor or waived by the holders
of such indebtedness, then the Event of Default hereunder by reason
thereof shall be deemed likewise to have been thereupon remedied,
cured or waived without any action on the part of the Trustee or any
of the Holders; or
(6) the entry by a court or, in the case of a Material Banking
Subsidiary, a governmental authority having jurisdiction in the
premises of (A) a decree or order for relief in respect of the Company
or any Material Banking Subsidiary in an involuntary case or
proceeding under any applicable Federal, State or Commonwealth of
Puerto Rico bankruptcy, insolvency, reorganization or other similar
law or in respect of the Guarantor in
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any involuntary case or proceeding under any applicable Federal or
Commonwealth of Puerto Rico bankruptcy, insolvency, reorganization or
other similar law or (B) a decree or order adjudging the Company, any
Material Banking Subsidiary or the Guarantor a bankrupt or insolvent,
or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
or any Material Banking Subsidiary, under any applicable Federal,
State or Commonwealth of Puerto Rico law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company, any Material Banking Subsidiary or the
Guarantor or of any substantial part of their respective property, or
ordering the winding up or liquidation of their respective affairs,
and the continuance of any such decree or order for relief or any such
other decree or order unstayed and in effect for a period of 60
consecutive days; or
(7) the commencement by the Company, any Material Banking
Subsidiary or the Guarantor of a voluntary case or proceeding under
any applicable Federal, State, or Commonwealth of Puerto Rico
bankruptcy, insolvency, reorganization or other similar law or of any
other case or proceeding to be adjudicated a bankrupt or insolvent, or
the consent by it to the entry of a decree or order for relief in
respect of the Company, any Material Banking Subsidiary or the
Guarantor in an involuntary case or proceeding under any applicable
Federal, State, or Commonwealth of Puerto Rico bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, or the filing
by it of a petition or answer or consent seeking reorganization or
relief under any applicable Federal, State, or Commonwealth of Puerto
Rico law, or the consent by it to the filing of such petition or to
the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official
of the Company or the Guarantor or of any substantial part of their
respective property, or
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the making by either of them of an assignment for the benefit of
creditors, or the admission by either of them in writing of its
inability to pay its debts generally as they become due, or the taking
of corporate action by the Company, any Material Banking Subsidiary or
the Guarantor in furtherance of any such action; or
(8) any other Event of Default provided with respect to
Securities of that series.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any
series at the time Outstanding occurs and is continuing, then in every such
case the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount (or, if
any of the Securities of that series are Original Issue Discount Securities,
such portion of the principal amount of such Securities as may be specified in
the terms thereof) of all of the Securities of that series to be due and
payable immediately, by a notice in writing to the Company and the Guarantor
(and to the Trustee if given by Holders), and upon any such declaration such
principal amount (or specified amount) shall become immediately due and
payable.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in principal
amount of the Outstanding Securities of that series, by written notice to the
Company, the Guarantor and the Trustee, may rescind and annul such declaration
and its consequences if
(1) the Company or the Guarantor has paid or deposited with
the Trustee a sum sufficient to pay
(A) all overdue interest on all Securities of that
series,
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than
by such declaration of acceleration
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and any interest thereon at the rate or rates prescribed
therefor in such Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel;
and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities of
that series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company and the Guarantor covenant that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company and the Guarantor will, upon demand of the Trustee, pay to it, for
the benefit of the Holders of such Securities, the whole amount then due and
payable on such Securities for principal and any premium and interest and, to
the extent that payment of such interest shall be legally enforceable, interest
on any overdue principal and premium and on any overdue interest, at the rate
or rates prescribed therefor in such Securities, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and
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expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company or
the Guarantor (or any other obligor upon the Securities), its property or its
creditors, the Trustee shall be entitled and empowered, by intervention in such
proceeding or otherwise, to take any and all actions authorized under the Trust
Indenture Act in order to have claims of the Holders and the Trustee allowed in
any such proceeding. In particular, the Trustee shall be authorized to collect
and receive any moneys or other property payable or deliverable on any such
claims and to distribute the same; and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such
judicial proceeding is hereby authorized by each Holder to make such payments
to the Trustee and, in the event that the Trustee shall consent to the making
of such payments directly to the Holders, to pay to the Trustee any amount due
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
No provision of this Indenture shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof or to authorize
the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
Section 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the
Securities or the Guarantees may be prosecuted and enforced by the Trustee
without the possession of any
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of the Securities or the production thereof in any proceeding relating thereto,
and any such proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
or any premium or interest, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607; and
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities in respect
of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal and any
premium and interest, respectively.
Section 507. Limitation on Suits.
No Holder of any Security of any series shall have any right
to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceed-
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ings in respect of such Event of Default in its own name as Trustee
hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of
a majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of and any premium and
(subject to Section 307) any interest on such Security on the Stated Maturity
or Maturities expressed in such Security (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the
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Company, the Guarantor, the Trustee and the Holders shall be restored severally
and respectively to their former positions hereunder and thereafter all rights
and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Securities to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time
to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
Section 512. Control by Holders.
The Holders of a majority in principal amount of the
Outstanding Securities of any series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture, and
(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
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Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of
the Outstanding Securities of any series may on behalf of the Holders of all
the Securities of such series waive any past default hereunder with respect to
such series and its consequences, except a default
(1) in the payment of the principal of or any premium or
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, a court may require any party litigant in
such suit to file an undertaking to pay the costs of such suit, and may assess
costs against any such party litigant, in the manner and to the extent provided
in the Trust Indenture Act; provided that neither this Section nor the Trust
Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the
Company.
Section 515. Waiver of Stay or Extension Laws.
The Company and the Guarantor covenant (to the extent that
they may lawfully do so) that they will not at any time insist upon, or plead,
or in any manner whatsoever claim or take the benefit or advantage of, any stay
or extension law wherever enacted, now or at any time hereafter in force, which
may affect the covenants or the performance of this Indenture; and the Company
and the Guarantor (to the extent that they may lawfully do so) hereby expressly
waive all benefit or advantage of any such law and covenants that they will not
hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and
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permit the execution of every such power as though no such law had been
enacted.
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as
provided by the Trust Indenture Act. Notwithstanding the foregoing, no
provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it. Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
Section 602. Notice of Defaults.
If a default occurs hereunder with respect to Securities of
any series, the Trustee shall give the Holders of Securities of such series
notice of such default as and to the extent provided by the Trust Indenture
Act; provided, however, that in the case of any default of the character
specified in Section 501(4) with respect to Securities of such series, no such
notice to Holders shall be given until at least 30 days after the occurrence
thereof. For the purpose of this Section, the term "default" means any event
which is, or after notice or lapse of time or both would become, an Event of
Default with respect to Securities of such series.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document
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believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) any request or direction of the Company or the Guarantor
mentioned herein shall be sufficiently evidenced by a Company Request
or Company or Guarantor Order and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit,
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and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
Section 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except
the Trustee's certificates of authentication, shall be taken as the statements
of the Company and the Guarantor, and the Trustee or any Authenticating Agent
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities. The Trustee or any Authenticating Agent shall not be accountable
for the use or application by the Company of Securities or the proceeds
thereof.
Section 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company or the Guarantor, in its
individual or any other capacity, may become the owner or pledgee of Securities
and, subject to Sections 608 and 613, may otherwise deal with the Company or
the Guarantor with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
Section 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company.
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Section 607. Compensation and Reimbursement.
Each of the Company and the Guarantor agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
Section 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Indenture.
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
a Person that is eligible pursuant to the Trust Indenture Act to act as such
and has a combined capital and surplus of at least $50,000,000 and its
Corporate Trust Office in the Borough of Manhattan, The City of New York. If
such Person publishes reports of condition
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at least annually, pursuant to law or to the requirements of said supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such Person shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published.
If at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
Section 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 611 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to
the Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the Trustee
and to the Company and the Guarantor.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company and the Guarantor or by any
Holder who has been a bona fide Holder of a Security for at least six
months, or
(2) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the Company
and the Guarantor or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or
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insolvent or a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company and the Guarantor by a Board Resolution
may remove the Trustee with respect to all securities, or (ii) subject to
Section 514, any Holder who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee
with respect to all Securities and the appointment of a successor Trustee or
Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, with respect to the Securities of one or more series, the Company
and the Guarantor, by a Board Resolution, shall promptly appoint a successor
Trustee or Trustees with respect to the Securities of that or those series (it
being understood that any such successor Trustee may be appointed with respect
to the Securities of one or more or all of such series and that at any time
there shall be only one Trustee with respect to the Securities of any
particular series) and shall comply with the applicable requirements of Section
611. If, within one year after such resignation, removal or incapability, or
the occurrence of such vacancy, a successor Trustee with respect to the
Securities of any series shall be appointed by Act of the Holders of a majority
in principal amount of the Outstanding Securities of such series delivered to
the Company, the Guarantor and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 611, become the
successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company and the
Guarantor. If no successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company and the Guarantor or the
Holders and accepted appointment in the manner required by Section 611, any
Holder who has been a bona fide Holder of a Security of such series for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
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(f) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of any
series to all Holders of Securities of such series in the manner provided in
Section 106. Each notice shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its Corporate Trust
Office.
Section 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and the
Guarantor and to the retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on the request of the Company, the Guarantor or
the successor Trustee, such retiring Trustee shall, upon payment of its
charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the
Company, the Guarantor, the retiring Trustee and each successor Trustee with
respect to the Securities of one or more series shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, each successor Trustee
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or those
series as to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to
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provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same
trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company, the Guarantor, or
any successor Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
and the Guarantor shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such rights,
powers and trusts referred to in paragraph (a) and (b) of this Section, as the
case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
Section 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so
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authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
Section 613. Preferential Collection of Claims Against the Company or the
Guarantor.
If and when the Trustee shall be or become a creditor of the
Company or the Guarantor (or any other obligor upon the Securities), the
Trustee shall be subject to the provisions of the Trust Indenture Act regarding
the collection of claims against the Company or the Guarantor (or any such
other obligor).
Section 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with
respect to one or more series of Securities which shall be authorized to act on
behalf of the Trustee to authenticate Securities of such series issued upon
original issue and upon exchange, registration of transfer or partial
redemption thereof or pursuant to Section 306, and Securities so authenticated
shall be entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee hereunder.
Wherever reference is made in this Indenture to the authentication and delivery
of Securities by the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by Federal or State authority. If such Authenticating Agent publishes reports
of condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
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Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating
Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company and the Guarantor.
The Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to the Company
and the Guarantor. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be acceptable to the
Company and shall mail written notice of such appointment by first-class mail,
postage prepaid, to all Holders of Securities of the series with respect to
which such Authenticating Agent will serve, as their names and addresses appear
in the Security Register. Any successor Authenticating Agent upon acceptance
of its appointment hereunder shall become vested with all the rights, powers
and duties of its predecessor hereunder, with like effect as if originally
named as an Authenticating Agent. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for such payments, subject to
the provisions of Section 607.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the
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Trustee's certificate of authentication, an alternative certificate of
authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Citibank, N.A.,
As Trustee
By.........................,
As Authenticating Agent
By.........................
Authorized Officer
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company and the Guarantor to Furnish Trustee Names and
Addresses of Holders.
The Company and the Guarantor will furnish or cause to be
furnished to the Trustee
(a) semi-annually, not later than June 30 and December 30 in
each year, a list, in such form as the Trustee may reasonably require,
of the names and addresses of the Holders as of the preceding June 15
or December 15, as the case may be, and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company or the
Guarantor of any such request, a list of similar form and content as
of a date not more than 15 days prior to the time such list is
furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
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Section 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the
most recent list furnished to the Trustee as provided in Section 701 and the
names and addresses of Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as
provided in Section 701 upon receipt of a new list so furnished.
(b) The rights of the Holders to communicate with other
Holders with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and privileges of the Trustee, shall
be as provided by the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company, the Guarantor and the Trustee that neither the
Company, the Guarantor nor the Trustee nor any agent of either of them shall be
held accountable by reason of any disclosure of information as to names and
addresses of Holders made pursuant to the Trust Indenture Act.
Section 703. Reports by Trustee.
(a) The Trustee shall transmit to Holders 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.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when any Securities are listed on any stock
exchange.
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Section 704. Reports by Company and Guarantor.
The Company and Guarantor shall file with the Trustee and the
Commission, and transmit to Holders, such information, documents and other
reports, and such summaries thereof, as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant to such Act;
provided that any such information, documents or reports required to be filed
with the Commission pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934 shall be filed with the Trustee within 15 days after the same is so
required to be filed with the Commission.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company and Guarantor May Consolidate, Etc., Only Certain
Terms.
Neither the Guarantor nor the Company shall consolidate with
or merge into any other Person or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, and neither the Guarantor
nor the Company shall permit any Person to consolidate with or merge into the
Guarantor or the Company or convey, transfer or lease its properties and assets
substantially as an entirety to the Guarantor or the Company, unless:
(1) in case the Guarantor or the Company shall consolidate
with or merge into another Person or convey, transfer or lease its
properties and assets substantially as an entirety to any Person, the
Person formed by such consolidation or into which the Guarantor or the
Company is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Guarantor
or the Company substantially as an entirety shall by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, (i) in the case of the Guarantor,
expressly guarantee, or (ii) in the case of the Company, expressly
assume the due and punctual payment of the principal of and any
premium and interest on all the Securities and the performance or
observance of every covenant of this Indenture on the
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part of the Guarantor or the Company, as the case may be, to be
performed or observed;
(2) immediately after giving effect to such transaction and
treating any indebtedness which becomes an obligation of the Guarantor
or the Company, as the case may be, or a Subsidiary as a result of
such transaction as having been incurred by the Guarantor or the
Company, as the case may be, or such Subsidiary at the time of such
transaction, no Event of Default, and no event which, after notice or
lapse of time or both, would become an Event of Default, shall have
happened and be continuing;
(3) if, as a result of any such consolidation or merger or
such conveyance, transfer or lease, properties or assets of the
Guarantor or the Company, as the case may be, would become subject to
a mortgage, pledge, lien, security interest or other encumbrance which
would not be permitted by this Indenture, the Guarantor or the
Company, as the case may be, or such successor Person, as the case may
be, shall take such steps as shall be necessary effectively to secure
the Securities equally and ratably with (or prior to) all indebtedness
secured thereby; and
(4) the Guarantor or the Company, as the case may be, has
delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, conveyance,
transfer or lease and, if a supplemental indenture is required in
connection with such transaction, such supplemental indenture comply
with this Article and that all conditions precedent herein provided
for relating to such transaction have been complied with.
Section 802. Successor Substituted.
Upon any consolidation of the Guarantor or the Company, as the
case may be, with, or merger of the Guarantor or the Company, as the case may
be, into, any other Person or any conveyance, transfer or lease of the
properties and assets of the Guarantor or the Company, as the case may be,
substantially as an entirety in accordance with Section 801, the successor
Person formed by such
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consolidation or into which the Guarantor or the Company, as the case may be,
is merged or to which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Guarantor or the Company, as the case may be, under this Indenture with the
same effect as if such successor Person had been named as the Guarantor or the
Company, as the case may be, herein, and thereafter, except in the case of a
lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities.
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Holders.
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
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company or the Guarantor and the assumption by any such successor of
the covenants of the Company or the Guarantor herein, in the
Securities and in the Guarantees; or
(2) to add to the covenants of the Company or the Guarantor
for the benefit of the Holders of all or any series of Securities (and
if such covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being included
solely for the benefit of such series) or to surrender any right or
power herein conferred upon the Company; or
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate
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the issuance of Securities in bearer form, registrable or not
registrable as to principal, and with or without interest coupons, or
to permit or facilitate the issuance of Securities in uncertificated
form; or
(5) to add to, change or eliminate any of the provisions of
this 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; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities or
Guarantees of any series as permitted by Sections 201, 205, 301 and
312; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611(b); or
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such action
pursuant to this clause (9) shall not adversely affect the interests
of the Holders of Securities of any series in any material respect.
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Section 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company, the
Guarantor and the Trustee, the Company, when authorized by a Board Resolution,
and the Trustee may enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders of Securities of such series under this
Indenture; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Security affected
thereby,
(1) change the Stated Maturity of the principal of, or any
instalment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any
premium payable upon the redemption thereof, or reduce the amount of
the principal of an Original Issue Discount Security that would be due
and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502, or change any Place of Payment where, or the
coin or currency in which, any Security or any premium or interest
thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption
Date), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 513
or Section 1013, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived
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without the consent of the Holder of each Outstanding Security
affected thereby, provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to changes in
the references to "the Trustee" and concomitant changes in this
Section and Section 1013, or the deletion of this proviso, in
accordance with the requirements of Sections 611(b) and 901(8), or
(4) modify or effect in any manner adverse to the Holders
the terms and conditions of the obligations of the Guarantor in
respect of the due and punctual payments of principal of, or premium,
if any, interest or sinking fund requirements, if any, on, or
Additional Amounts in respect of, the Securities.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 601) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
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Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Securities theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act.
Section 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company
shall so determine, new Securities of any series so modified as to conform, in
the opinion of the Trustee and the Company, to any such supplemental indenture
may be prepared and executed by the Company and authenticated and delivered by
the Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each
series of Securities that it will duly and punctually pay the principal of and
any premium and interest on the Securities of that series in accordance with
the terms of the Securities and this Indenture.
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Section 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any
series of Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served. The Company will give prompt written notice to
the Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at
the Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in each Place of Payment for Securities of any
series for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location
of any such other office or agency.
Section 1003. Money for Securities Payments to Be Held in Trust.
If the Company or the Guarantor shall at any time act as its
own Paying Agent with respect to any series of Securities, it will, on or
before each due date of the principal of or any premium or interest on any of
the Securities of that series, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay the principal and any
premium and interest so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and will promptly notify
the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities, it will, prior to each due date of the principal of
or any premium or interest on any Securities of that series, deposit with a
Paying Agent a sum sufficient to pay such amount, such sum to be held as
provided by the Trust Indenture Act, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provi-
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sions of this Section, that such Paying Agent will (i) comply with the
provisions of the Trust Indenture Act applicable to it as a Paying Agent and
(ii) during the continuance of any default by the Company (or any other obligor
upon the Securities of that series) in the making of any payment in respect of
the Securities of that series, and upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of or any
premium or interest on any Security of any series and remaining unclaimed for
two years after such principal, premium or interest has become due and payable
shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company
for payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in The City of New York, notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such publication, any unclaimed balance of such money then
remaining will be repaid to the Company.
Section 1004. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after
the end of each fiscal year of the Company ending after the date hereof, an
Officers' Certificate, stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance and
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observance of any of the terms, provisions and conditions of this Indenture
(without regard to any period of grace or requirement of notice provided
hereunder) and, if the Company shall be in default, specifying all such
defaults and the nature and status thereof of which they may have knowledge.
Section 1005. Existence.
Subject to Article Eight, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect its
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise
if the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and that the
loss thereof is not disadvantageous in any material respect to the Holders.
Section 1006. Maintenance of Properties.
The Company and the Guarantor will cause all properties used
or useful in the conduct of its respective business or the business of any
Subsidiary to be maintained and kept in good condition, repair and working
order and supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company or the Guarantor, as the case
may be, may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent the Company or the
Guarantor from discontinuing the operation or maintenance of any of such
properties if such discontinuance is, in the judgment of the Company or the
Guarantor, as the case may be, desirable in the conduct of its business or the
business of any Subsidiary and not disadvantageous in any material respect to
the Holders.
Section 1007. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all taxes, assessments
and governmental charges levied or imposed upon the Company or any Subsidiary
or upon the income, profits or property of the Company or any Subsidiary, and
(2) all lawful claims for labor, materials and supplies which, if unpaid, might
by law become a lien upon the property of the Company or any Subsidiary;
provided, however, that the Company shall not be required to pay or
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discharge or cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith
by appropriate proceedings.
Section 1008. Statement by Officers as to Default of the Guarantor.
The Guarantor will deliver to the Trustee, within 120 days
after the end of each fiscal year of the Guarantor ending after the date
hereof, an Officers' Certificate, stating whether or not to the best of
knowledge of the signers thereof the Guarantor is in default in the performance
and observance of any of the terms, provisions and conditions of this Indenture
(without regard to any period or grace or requirement of notice provided
hereunder) and, if the Guarantor shall be in default, specifying all such
defaults and the nature and status thereof of which they may have knowledge.
Section 1009. Existence of the Guarantor.
Subject to Article Eight, the Guarantor will do or cause to be
done all things necessary to preserve and keep in full force and effect its
existence, rights (charter and statutory) and franchises; provided, however,
that the Guarantor shall not be required to preserve any such right or
franchise if the Board of Directors shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Guarantor
and that the loss thereof is not disadvantageous in any material respect to the
Holders.
Section 1010. Limitation Upon Disposition of Voting Stock of, and Merger and
Sale of Assets of, Banco Popular.
Subject to the provisions of Article Eight, the Guarantor will
not
(1) sell, assign, transfer or otherwise dispose of any
shares of Voting Stock of Banco Popular or permit Banco Popular to
issue, sell, assign, transfer or otherwise dispose of any shares of,
or securities convertible into or options, warrants or rights to
subscribe for, its Voting Stock, unless, after giving effect to any
such transaction, Banco Popular remains a Controlled Subsidiary; or
(2) permit Banco Popular to
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(a) merge or consolidate, unless the surviving
corporation is a Controlled Subsidiary; or
(b) convey, transfer, lease or sell its
properties and assets substantially as an entirety to any
Person, except to a Controlled Subsidiary.
Section 1011. Limitation Upon Creation of Liens on Voting Stock of Material
Banking Subsidiaries.
The Guarantor will not, and it will not permit any Material
Banking Subsidiary at any time directly or indirectly to create, assume, incur
or permit to exist any indebtedness for borrowed money secured by a pledge,
lien or other encumbrance (any pledge, lien or other encumbrance being
hereinafter in this Section referred to as a "lien") on the Voting Stock of any
Material Banking Subsidiary without making effective provisions whereby the
Outstanding Guarantees (and, if the Guarantor so elects, any other indebtedness
ranking on a parity with the Guarantees) shall be secured equally and ratably
with such secured indebtedness so long as such other indebtedness shall be so
secured, provided, however, that the foregoing covenant shall not be applicable
to liens for taxes or assessments or governmental charges or levies not then
due and delinquent of the validity of which is being contested in good faith or
which are less than $10,000,000 in amount, liens created by or resulting from
any litigation or legal proceeding which is currently being contested in good
faith by appropriate proceedings or which involve claims of less than
$10,000,000, or deposits to secure (or in lieu of) surety, stay, appeal or
customs bonds.
If the Guarantor shall hereafter be required to secure the
Guarantees equally and ratably with any other indebtedness pursuant to this
Section, (i) the Guarantor will promptly deliver to the Trustee an Officers'
Certificate stating that the foregoing covenant has been complied with, and an
Opinion of Counsel stating that in the opinion of such counsel the foregoing
covenant has been complied with and that any instruments executed by the
Guarantor or any Subsidiary in the performance of the foregoing covenant comply
with the requirements of the foregoing covenant and (ii) the Trustee is hereby
authorized to enter into an indenture or agreement supplemental hereto and to
take such action, if any, as it may deem advisable to enable it to force the
rights of the holders of the Guarantees so secured.
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Section 1012. Payment of Additional Amounts.
All payments of principal, premium, if any, and interest in
respect of the Guarantees shall be made without set-off, counterclaim, fees,
liabilities or similar deductions, and free and clear of, and without deduction
or withholding for, taxes, levies, imposts, duties, charges or fees of
whatsoever nature now or hereafter imposed, levied, collected, deducted,
withheld or assessed by or on behalf of the Commonwealth of Puerto Rico or any
political subdivision or taxing authority thereof or therein ("Taxes"). If the
Guarantor or any agent thereof is required by law or regulation to make any
deduction or withholding for or on account of Taxes, the Guarantor shall pay
such additional amounts ("Additional Amounts") as shall be necessary in order
that the net amounts received by the Holders of the Securities or any series or
the holders or beneficial owners of any interest therein or rights in respect
thereof after such deduction or withholding shall equal the amount that would
have been receivable thereunder in the absence of such deduction or
withholding, except that no such Additional Amounts shall be payable:
(a) to any Holder of a Security or any interest therein
or rights in respect thereof where such deduction or withholding is
required by reason of such Holder having some connection with the
Commonwealth of Puerto Rico or any political subdivision or taxing
authority thereof or therein other than the mere holding of and
payment in respect of such Security;
(b) in respect of any deduction or withholding that would
not have been required but for the presentation by the Holder of a
Security for payment on a date more than 30 days after the Date of
Maturity or the date on which payment thereof is duly provided for,
whichever occurs later; or
(c) in respect of any deduction or withholding that would
not have been required but for the failure to comply with any
certification, identification or other reporting requirements
concerning the nationality, residence, identity or connection with the
Commonwealth of Puerto Rico, or any political subdivision of taxing
authority thereof or therein, of the Holder of a Security or any
interest therein or rights in respect thereof, if compliance is
required by the Commonwealth of Puerto Rico, or any political
subdivision or taxing authority thereof or therein, as a precondition
to exemption from such deduction or withholding.
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Any reference in the Indenture to principal or interest shall
be deemed also to refer to any Additional Amounts that may be payable under
this Section 1011.
Section 1013. Waiver of Certain Covenants.
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 66-2/3%
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.
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article.
Securities of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with their terms and (except
as otherwise specified as contemplated by Section 301 for Securities of any
series) in accordance with this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution. In case of any redemption at
the election of the Company of less than all the Securities of any series, the
Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date, of the principal amount of Securities of
such series to be redeemed and, if applicable, of the tenor of the Securities
to be redeemed. 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 this Indenture, the Company shall
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furnish the Trustee with an Officers' Certificate evidencing compliance with
such restriction.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be
redeemed (unless all of the Securities of such series and of a specified tenor
are to be redeemed), the particular Securities to be redeemed shall be selected
not more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series not previously called for redemption, by
such method as the Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of portions (equal to the minimum
authorized denomination for Securities of that series or any integral multiple
thereof) of the principal amount of Securities of such series of a denomination
larger than the minimum authorized denomination for Securities of that series.
If less than all of the Securities of such series and of a specified tenor are
to be redeemed, the particular Securities to be redeemed shall be selected not
more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series and specified tenor not previously called
for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Securities which has been
or is to be redeemed.
Section 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, unless a shorter period is specified in the Securities to be
redeemed, to each Holder of Securities to be redeemed, at his address appearing
in the Security Register.
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All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of partial
redemption of any Securities, the principal amounts) of the particular
Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after
said date,
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the
case.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
Section 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with
the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) an
amount of money sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued interest on, all the
Securities which are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Upon surrender
of any such Security for
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redemption in accordance with said notice, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 301, installments of interest whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal and any premium shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities of the same
series and of like tenor with the Guarantee or Guarantee endorsed therein, of
any authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount
provided for by the terms of Securities of any series is herein
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referred to as an "optional sinking fund payment". If provided for by the
terms of Securities of any series, the cash amount of any sinking fund payment
may be subject to reduction as provided in Section 1202. Each sinking fund
payment shall be applied to the redemption of Securities of any series as
provided for by the terms of Securities of such series.
Section 1202. Satisfaction of Sinking Fund Payments
with Securities.
The Company (1) may deliver Outstanding Securities of a series
(other than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed and so delivered either at the
election of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms
of such Securities, in each case in satisfaction of all or any part of any
sinking fund payment with respect to the Securities of such series required to
be made pursuant to the terms of such Securities as provided for by the terms
of such series; provided that such Securities have not been previously so
credited. Such Securities shall be received and credited for such purpose by
the Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date
for any series of Securities, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 1202 and will also deliver to the
Trustee any Securities to be so delivered. Not less than 30 days before each
such sinking fund payment date the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner specified in Section
1103 and cause notice of the redemption thereof to be given in the name of and
at the expense of the Company in the manner provided in Section 1104. Such
notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 1106 and 1107.
_____________________________
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This instrument 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.
IN WITNESS WHEREOF, the parties hereto have caused this
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.
BANPONCE FINANCIAL CORP.
By /s/ David H. Chafey, Jr.
--------------------------------
David H. Chafey, Jr.
Executive Vice President
Attest:
/s/ Ernesto N. Mayoral
- ------------------------
Ernesto N. Mayoral, Esq
Secretary
BANPONCE CORPORATION
By /s/ David H. Chafey, Jr.
--------------------------------
David H. Chafey, Jr.
Executive Vice President
Attest:
/s/ Ernesto N. Mayoral
- ------------------------
Ernesto N. Mayoral, Esq.
Assistant Secretary
CITIBANK, N.A.
By /s/ Robert Eddy
--------------------------------
Robert Eddy
Assistant Vice President
Attest:
/s/ Laura Pushkarsh
- -----------------------
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 11th day of October, 1991, before me personally came
David H. Chafey, Jr., to me known, who, being by me duly sworn, did depose and
say that he is Executive Vice President of BanPonce Financial Corp., one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; 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 signed his name thereto by like
authority.
/s/ James Gallagher
-------------------------------------
JAMES GALLAGHER
Notary Public, State of New York
Qualified in Westchester County
Westchester County Clerk's No. 4949761
Certificate Filed in New York County
Commission Expires April 17, 1993
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 11th day of October, 1991, before me personally came
David H. Chafey, Jr., to me known, who, being by me duly sworn, did depose and
say that he is Executive Vice President of BanPonce Corporation, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; 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 signed his name thereto by like
authority.
/s/ James Gallagher
-------------------------------------
JAMES GALLAGHER
Notary Public, State of New York
Qualified in Westchester County
Westchester County Clerk's No. 4949761
Certificate Filed in New York County
Commission Expires April 17, 1993
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92
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 11th day of October, 1991, before me personally came
Robert Eaddy, to me known, who, being by me duly sworn, did depose and say that
he is Corporate Trust Officer of Citibank, N.A., one of the corporations
described in and which executed the foregoing instrument; that he knows the
seal of said corporation; 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 signed his name thereto by like authority.
/s/ James Gallagher
--------------------------------------
JAMES GALLAGHER
Notary Public, State of New York
Qualified in Westchester County
Westchester County Clerk's No. 4949761
Certificate Filed in New York County
Commission Expires April 17, 1993
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93
BANPONCE FINANCIAL CORP.,
Issuer
and
BANPONCE CORPORATION,
Guarantor
TO
CITIBANK, N.A.,
Trustee
___________
FIRST SUPPLEMENTAL INDENTURE
Dated as of February 28, 1995
To Indenture dated as of October 1, 1991
___________
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94
FIRST SUPPLEMENTAL INDENTURE, dated as of February 28, 1995 between
BanPonce Financial Corp., a Delaware corporation, BanPonce Corporation, a
Puerto Rico corporation (the "Guarantor"), and Citibank, N.A., a national
banking association (the "Company"), as Trustee (the "Trustee").
RECITALS
The Company, the Guarantor and the Trustee, as 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.
Section 901(9) 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 cure any ambiguity, to correct or supplement
any provision in the Original Indenture which may be inconsistent with any
other provision in the Original Indenture, or to make any other provisions with
respect to matters or questions arising under the Original Indenture, provided
that such action shall not adversely affect the interests of the Holders of
Securities of any series in any material respect.
The Company and the Guarantor believe that Section 609 of the
Original Indenture should be amended to substitute the word "a" for the word
"its" in the fourth line of such Section, that paragraph (1) of Section 105 of
the Original Indenture should be amended to provide that notices to the Trustee
shall be addressed to the Trustee at the Corporate Trust Office, and that such
amendments will not adversely affect the Holders of Securities in any material
respect.
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 First Supplemental Indenture.
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95
NOW, THEREFORE, THIS
FIRST SUPPLEMENTAL INDENTURE
WITNESSETH:
For and in consideration of the premises and the 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 the context
otherwise requires, all terms used in this First Supplemental Indenture which
are defined in the Original 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 First 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 First 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 First 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 First Supplemental Indenture or the Original Indenture.
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96
Section 106. Governing Law.
This First 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 609 of the Original Indenture.
Section 609 of the Original Indenture is hereby amended and
restated in its entirety as follows:
"There shall at all times be a Trustee
hereunder which shall be a Person that is eligible
pursuant to the Trust Indenture Act to act as such
and has a combined capital and surplus of at least
$50,000,000 and a Corporate Trust Office in the
Borough of Manhattan, The City of New York. If such
Person publishes reports of condition at least
annually, pursuant to law or to the requirements of
said supervising or examining authority, then for
the purposes of this Section, the combined capital
and surplus of such Person shall be deemed to be its
combined capital and surplus as set forth in its
most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it
shall resign immediately in the manner and with the
effect hereinafter specified in this Article."
Section 202. Amendment of Section 105 of the Original Indenture.
Paragraph (1) of Section 105 of the Original Indenture is hereby
amended and restated in its entirety as follows:
"(1) the Trustee by any Holder or by the Company
shall be sufficient for every purpose hereunder if made,
given, furnished or filed in writing to or with the
Trustee at its Corporate Trust Office, or".
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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 First Supplemental Indenture.
Section 204. Trust Indenture Act.
If any provision of this First 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 First 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 First Supplemental Indenture as so modified or
excluded, as the case may be.
* * *
This First 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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98
IN WITNESS WHEREOF, the parties hereto have caused this First
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.
BANPONCE FINANCIAL CORP.
By: /s/ David H. Chafey, Jr.
David H. Chafey, Jr.
Executive Vice President
By: /s/ Jose Luis Lopez Calderon
Jose Luis Lopez Calderon
Senior Vice President
Attest:
/s/ Brunilda Santos de Alvarez
Brunilda Santos de Alvarez
Assistant Secretary
Affidavit No. 177
Subscribed to before me by David H. Chafey, Jr. of legal age,
married and resident of San Juan, Puerto Rico, as Executive Vice President of
BanPonce Financial Corp. and Jose Luis Lopez Calderon, of legal age, married
and resident of San Juan, Puerto Rico as Senior Vice President of BanPonce
Financial Corp. and who are personally known to me, in San Juan, Puerto Rico,
this 28 day of February, 1995.
[SEAL] /s/ Estela Martinez de Miranda
Notary Public
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BANPONCE CORPORATION
By: /s/ David H. Chafey, Jr.
David H. Chafey, Jr.
Executive Vice President
By: /s/ Jose Luis Lopez Calderon
Jose Luis Lopez Calderon
Senior Vice President
Attest:
/s/ Brunilda Santos de Alvarez
Brunilda Santos de Alvarez
Assistant Secretary
Affidavit No. 176
Subscribed to before me by David H. Chafey, Jr. of legal age,
married and resident of San Juan, Puerto Rico, as Executive Vice President of
BanPonce Corporation and Jose Luis Lopez Calderon, of legal age, married and
resident of San Juan, Puerto Rico as Senior Vice President of BanPonce
Corporation and who are personally known to me, in San Juan, Puerto Rico, this
28 day of February, 1995.
[SEAL] /s/ Estela Martinez de Miranda
Notary Public
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100
CITIBANK, N.A.
By: /s/ F. Mills
Name: F. Mills
Title: Senior Trust Officer
Attest:
/s/ Louis A. Piscitelli
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 1st day of MAR, 1995, before me personally came F. Mills, to
me known, who, being by me duly sworn, did depose and say that she is a
Corporate Trust Officer of Citibank, N.A., the national banking association
described in and which executed the foregoing instrument; that she knows
the seal of said national banking association; that the seal affixed to said
instrument is such seal; that it was so affixed by authority of the Board of
Directors of said national banking association, and that he signed his name
thereto by like authority.
[SEAL] /s/ Peter M. Pavlyshin
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101
POPULAR NORTH AMERICA, INC.
Issuer
and
POPULAR, INC.,
Guarantor
TO
THE FIRST NATIONAL BANK OF CHICAGO,
Trustee
-----------
SECOND SUPPLEMENTAL INDENTURE
Dated as of May 8, 1997
To Indenture dated as of October 1, 1991
-----------
102
SECOND SUPPLEMENTAL INDENTURE, dated as of May 8, 1997 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.
Section 901(9) 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 cure any ambiguity, to correct or
supplement any provision in the Original Indenture which may be inconsistent
with any other provision in the Original Indenture, or to make any other
provisions with respect to matters or questions arising under the Original
Indenture, provided that such action shall not adversely affect the interests
of the Holders of Securities of any series in any material respect.
The Company and the Guarantor believe that the definition of
"Banco Popular" in Section 101 of the Original Indenture should be amended.
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 Second Supplemental Indenture.
NOW, THEREFORE, THIS
SECOND SUPPLEMENTAL INDENTURE
WITNESSETH:
For and in consideration of the premises and the 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:
103
ARTICLE ONE
Definitions and Other Provisions of
General Application
Section 101. Definitions.
Except as otherwise expressly provided or unless the context
otherwise requires, all terms used in this Second Supplemental Indenture which
are defined in the Original 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 Second 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 Second 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 Second 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 Second Supplemental Indenture or the Original
Indenture.
Section 106. Governing Law.
This Second 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
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104
Section 201. Amendment of the definition of "Banco Popular in
Section 101 of the Original Indenture.
The definition of "Banco Popular" in Section 101 of the
Original Indenture is hereby amended and restated in its entirety as follows:
"Banco Popular means Banco Popular de Puerto Rico or any
successor and assign having its principal business operations
in Puerto Rico."
Section 202. 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 Second Supplemental Indenture.
Section 203. Trust Indenture Act.
If any provision of this Second 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 Second 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 Second Supplemental Indenture as so modified or
excluded, as the case may be.
* * *
This Second 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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105
IN WITNESS WHEREOF, the parties hereto have caused this Second
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/ Jorge A. Junquera
-----------------------------------
Jorge A. Junquera
President
By: /s/ Amilcar Jordan
-----------------------------------
Amilcar Jordan
Senior Vice President
Attest:
/s/ Brunilda Santos de Alvarez
- ------------------------------
Brunilda Santos de Alvarez
Assistant Secretary
Affidavit No. 1,675
-----
Subscribed to before me by Jorge A. Junquera of legal age,
married and resident of San Juan, Puerto Rico, as Senior Executive Vice
President of Popular North America, Inc. and Amilcar Jordan, of legal age,
married and resident of San Juan, Puerto Rico as Senior Vice President of
Popular North America, Inc. and who are personally known to me, in San Juan,
Puerto Rico, this 8th day of May, 1997.
[SEAL] /s/ Paulette Lavergne Cuyar
----------------------------------
Notary Public
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POPULAR, INC.
By: /s/ Jorge A. Junquera
------------------------------------
Jorge A. Junquera
Senior Executive Vice President
By: /s/ Amilcar Jordan
------------------------------------
Amilcar Jordan
Senior Vice President
Attest:
/s/ Brunilda Santos de Alvarez
- -------------------------------
Brunilda Santos de Alvarez
Assistant Secretary
Affidavit No. 1,676
-----
Subscribed to before me by Jorge A. Junquera of legal age,
married and resident of San Juan, Puerto Rico, as Senior Executive Vice
President of Popular, Inc. and Amilcar Jordan, of legal age, married and
resident of San Juan, Puerto Rico as Senior Vice President of Popular, Inc. and
who are personally known to me, in San Juan, Puerto Rico, this 8th day of May,
1997.
[SEAL]
/s/ Paulette Lavergne Cuyar
------------------------------------
Notary Public
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THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Melissa Weisman
-------------------------------
Name: Melissa Weisman
Title: Vice President
Attest:
/s/ Steve M. Husbands
- ---------------------
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 8th day of May, 1997, before me personally came Melissa
Weisman, to me known, who, being by me duly sworn, did depose and say that she
is a Vice President of The First National Bank of Chicago, one of the
corporations described in and which executed the foregoing instrument; that 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 she signed her name
thereto by like authority.
/s/ Lisa A. Brack
--------------------------------
Notary Public, State of New York
[SEAL]
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