Exhibit 4.2
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 September 16,
2004
S UPPLEMENTAL I NDENTURE , dated as of August 31, 2009 (this “
Supplemental Indenture ”) among P
OPULAR N ORTH A MERICA , I NC . , a
Delaware corporation (the “ Company ”), having
its principal office at 209 Munoz Rivera Avenue, San Juan, Puerto
Rico 00918, P OPULAR , I NC . , a
Puerto Rico corporation (the “ Guarantor ”)
having its principal place of business at 209 Munoz Rivera Avenue,
Hato Rey, Puerto Rico 00918, and T HE B ANK OF N EW Y ORK M ELLON ( as
successor the J.P. Morgan Trust Company, National Association), 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
September 16, 2004 (as amended and/or supplemented from time
to time, the “ Indenture ”), providing for the
issuance of the Company’s 6.564% Junior Subordinated
Debentures due 2034 (the “ Debentures
”).
Pursuant to an Agreement of Merger,
dated as of August 31, 2009 (the “ Agreement of
Merger ”), between Popular North America Capital Trust I,
a Delaware statutory trust (the “ Trust ”) and
New Popular North America Capital 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 6.564% 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(5) 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,
provided that such action shall not adversely affect the interest
of the Holders of Securities in any material respect or, for so
long any of the Capital Securities 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 expr
