Exhibit 4.1
S UPPLEMENTAL I NDENTURE
among
POPULAR NORTH AMERICA,
INC.,
as Issuer
POPULAR, INC.,
as Guarantor
and
THE BANK OF NEW YORK
MELLON
Dated as of August 31,
2009
Supplement to Indenture,
dated as of February 5,
1997
S UPPLEMENTAL I NDENTURE , dated as of August 31, 2009 (this “
Supplemental Indenture ”) among P
OPULAR N ORTH A MERICA , I NC . (f/k/a BanPonce Financial Corp.), a Delaware
corporation (the “ Company ”), having its
principal office at 521 Fellowship Road, Mount Laurel, New Jersey
08054, P OPULAR , I NC .
(f/k/a BanPonce Corporation ) , a Puerto Rico corporation
(the “ Guarantor ”) having its principal place
of business at 209 Munoz Rivera Avenue, San Juan, Puerto Rico
00918, and T HE B ANK OF N EW Y ORK M ELLON (as successor to The First National Bank of
Chicago), as trustee (hereinafter called the “ Trustee
”).
R ECITALS OF THE C OMPANY
The Company, the Guarantor and the
Trustee entered into the Junior Subordinated Indenture, dated as of
February 5, 1997 (the “ Indenture ”),
providing for the issuance of the Company’s 8.327% Junior
Subordinated Deferrable Interest Debentures due 2027 (the “
Debentures ”).
Pursuant to an Agreement of Merger,
dated as of August 31, 2009 (the “ Agreement of
Merger ”), between BanPonce Trust I, a Delaware statutory
trust (the “ Trust ”) and New BanPonce Trust I,
a statutory trust established pursuant to the Delaware Statutory
Trust Act by the entering into that certain Trust Agreement, dated
as of August 28, 2009, and by the execution and filing the
Certificate of Trust, filed on August 28, 2009 (the “
New Trust ”), and a Certificate of Merger filed with
the Secretary of State of the State of Delaware at the Effective
Time (as defined in the Agreement of Merger), the Trust merged with
and into the New Trust at the Effective Time and each Capital
Security issued and outstanding immediately prior to the Effective
Time was converted at the Effective Time into one 8.327% Capital
Security (Liquidation Amount $1,000 per preferred security) of the
New Trust (the “ New Capital Securities ”) and
each Common Security issued and outstanding immediately prior to
the Effective Time was converted at the Effective Time into one
Common Security (Liquidation Amount $1,000 per security) of the New
Trust (the “ New Trust Common Securities ” and,
together with the New Capital Securities, the “ New Trust
Securities ”).
Section 9.1 of the Indenture
provides that the Company, the Guarantor and the Trustee may,
without the consent of any Holder, enter into a supplemental
indenture to cure any ambiguity, to correct or supplement any
provision therein which may be defective or inconsistent with any
other provision therein, or to make any other provisions with
respect to matters or questions arising under the Indenture which
shall not be inconsistent with the provisions of the Indenture or
to make any other changes, provided that such action shall not
adversely affect the interest of the Holders of Securities of any
series in any material respect or, in the case of the Securities of
a series issued to an Issuer Trust and for so long as any of the
corresponding series of Capital Securities issued by such Issuer
Trust shall remain outstanding, the holders of such Capital
Securities.
The Company and the Guarantor
delivered to the Trustee an Opinion of Counsel and an
Officers’ Certificate pursuant to Section 9.3 of the
Indenture to the effect that all conditions precedent provided for
in the Indenture to the Trustee’s execution and delivery of
this Supplemental Indenture have been complied with.
The Company and the Guarantor have
requested that the Trustee execute and deliver this Supplemental
Indenture and satisfy all requirements on the Trustee’s part
necessary to make this Supplemental Indenture a valid instrument in
accordance with its terms and all acts and things necessary have
been done and performed to make this Supplemental Indenture
enforceable in accordance with its terms, and the execution and
delivery of this Supplemental Indenture has been duly authorized in
all respects.
N OW , THEREFORE , THIS S UPPLEMENTAL I NDENTURE WITNESSETH : For and in consideration of the premises, it
is mutually covenanted and agreed, for the equal and proportionate
benefit of all Holders of the Debentures, as follows:
ARTICLE I
D EFINITIONS
Section 1.1. Definitions
For all purposes of this Supplemental Indenture, except as
otherwise expressly provided or unless the context otherwise
requires:
(a) Terms defined in the Indenture
or the New Amended Trust Agreement (as defined herein) have the
same meaning when used in thi
