Exhibit 4.3
S UPPLEMENTAL I NDENTURE
among
POPULAR, INC.
and
THE BANK OF NEW YORK
MELLON
Trustee
Dated as of August 31,
2009
Supplement to First Supplemental
Indenture,
dated as of October 31,
2003
S UPPLEMENTAL I NDENTURE , dated as of August 31, 2009 (this “
Supplemental Indenture ”) among P
OPULAR , I NC . , a
Delaware corporation (the “ Company ”), having
its principal office at 209 Munoz Rivera Avenue, San Juan, Puerto
Rico 00918, and T HE B ANK OF N EW Y ORK M ELLON ( as
successor the Bank One Trust Company, N.A.), 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
October 31, 2003, as supplemented by the First Supplemental
Indenture, dated as of October 31, 2003 (as so supplemented,
the “ Indenture ”), providing for the issuance
of the Company’s 6.70% Junior Subordinated Debentures, Series
A due 2033 (the “ Debentures ”).
Pursuant to an Agreement of Merger,
dated as of August 31, 2009 (the “ Agreement of
Merger ”), between Popular Capital Trust I, a Delaware
statutory trust (the “ Trust ”) and New Popular
Capital Trust I, a statutory trust established pursuant to the
Delaware Statutory Trust Act by the entering into that certain
Declaration of Trust and 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 6.70% Capital
Security (Liquidation Amount $25 per preferred security) of the New
Trust (the “ New Preferred 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 $25 per security) of the New
Trust (the “ New Trust Common Securities ” and,
together with the New Preferred Securities, the “ New
Trust Securities ”).
Section 901(8) of the Indenture
provides that the Company, 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
any provision of the Indenture, provided that such other provisions
shall not adversely affect the interests of the Holders of Debt
Securities of any series or any related coupons in any material
respect or, in the case of the Debt Securities of a series issued
to an Issuer Trust and for so long any of the corresponding series
of Capital Trust Securities issued by such Issuer Trust shall
remain outstanding, the holders of such Capital Trust
Securities.
The Company delivered to the Trustee
an Opinion of Counsel and an Officers’ Certificate pursuant
to Section 903 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 has 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 Indentur
