1
EXHIBIT 4(h)
================================================================================
POPULAR NORTH AMERICA, INC.,
Issuer
and
POPULAR, INC.,
Guarantor
TO
THE FIRST NATIONAL BANK OF CHICAGO,
Trustee
----------------
THIRD SUPPLEMENTAL INDENTURE
Dated as of _______ __, ____
to Indenture dated as of October 1, 1991
----------------
================================================================================
2
SECOND SUPPLEMENTAL INDENTURE, dated as of August __, 1999
between Popular, Inc. (formerly BanPonce Corporation), a Puerto Rico corporation
(the "Company") and THE FIRST NATIONAL BANK OF CHICAGO, a national banking
association, as Trustee (the "Trustee").
RECITALS
The Company and the Trustee, as Trustee, are parties to an
Indenture, dated as of February 15, 1995 (the "Original Indenture"), which
provides for the issuance from time to time of unsecured debt securities of the
Company.
Section 901(5) of the Original Indenture provides that without
the consent of any Holders, the Company, when authorized by a Board Resolution,
and the Trustee, at any time and from time to time, may enter into one or more
indentures supplemental to the Original Indenture, in form satisfactory to the
Trustee, to add to, change or eliminate any of the provisions of the Original
Indenture in respect of one or more series of Securities, provided that any such
addition, change or elimination (i) shall neither (A) apply to any Security of
any series created prior to the execution of such supplemental indenture and
entitled to the benefit of such provision nor (B) modify the rights of the
Holder of any such Security with respect to such provision or (ii) shall become
effective only when there is no such Security Outstanding.
The Company believes that Section 1011 of the Original
Indenture should be amended and restated in its entirety, with effect only as to
Securities of any series created after the execution of this Second Supplemental
Indenture.
The Board of Directors of the Company has duly authorized the
execution and delivery by the Company of this Second Supplemental Indenture.
NOW, THEREFORE, THIS
SECOND SUPPLEMENTAL INDENTURE
WITNESSETH:
For and in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Company and the Trustee mutually agree as follows:
3
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions.
Except as otherwise expressly provided or unless context
otherwise requires, all terms used in this Second Supplemental Indenture shall
have the meanings ascribed to them by the Original Indenture, as amended.
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.
-2-
4
ARTICLE TWO
Amendment of the Original Indenture
Section 201. Amendment of Section 1011.
Section 1011 of the Original Indenture is hereby amended and
restated in its entirety as follows:
"The Company may omit in any particular instance to comply
with any term, provision or condition set forth in Sections
1006 to 1009, inclusive, with respect to the Securities of any
series if before the time for such compliance the Holders of
at least a majority in principal amount of the Outstanding
Securities of such series shall, by Act of such Holders,
either waive such compliance in such instance or generally
waive compliance with such term, provision or condition, but
no such waiver shall extend to or affect such term, provision
or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of
the Company and the duties of the Trustee in respect of any
such term, provision or condition shall remain in full force
and effect."
Section 202. Effectiveness of Section 201.
Section 201 of this Second Supplemental Indenture shall
neither (i) apply to any Security of any series created prior to the execution
of this Second Supplemental Indenture and entitled to the benefit of Section
1011 of the Original Indenture nor (ii) modify the rights of the Holder of any
such Security with respect to Section 1011 of the Original Indenture.
Section 203. Reaffirmation of Original Indenture.
Each of the Company and the Trustee hereby confirms, reaffirms
and agrees to the Original Indenture in every particular, as amended by this
Second Supplemental Indenture.
Section 204. 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
-3-
5
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.
-4-
6
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, INC.
By:
--------------------------------------
Jorge A. Junquera
Senior Executive Vice President
By:
--------------------------------------
Amilcar Jordan
Senior Vice President
Attest:
- ----------------------------------
Assistant Secretary
Affidavit No. ___
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 day of August,
1999.
[SEAL]
--------------------------------------
Notary Public
-5-
7
THE FIRST NATIONAL BANK OF CHICAGO
By:
--------------------------------------
Name:
Title:
Attest:
- ------------------
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the _____ day of August, 1999, before me personally came
______________________, to me known, who, being by me duly sworn, did depose and
say that he/she is a _____________ of The First National Bank of Chicago, one of
the corporations described in and which executed the foregoing instrument; that
he/she knows the seal of said national banking association; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation, and that he/she signed
his/her name thereto by like authority.
[SEAL]
--------------------------------------
Notary Public
-6-