EXECUTION COPY
POPULAR, INC.
MEDIUM-TERM NOTES DUE
9 MONTHS OR MORE FROM DATE OF ISSUE
DISTRIBUTION AGREEMENT
June 30, 2004
UBS SECURITIES LLC
000 Xxxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
BANC OF AMERICA SECURITIES LLC
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXXXX, XXXXXXXX & XXXXX, INC.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
POPULAR SECURITIES, INC.
000 Xxxxx Xxxxxx Xxxxxx
Xxxx Xxx, Xxxxxx Xxxx 00000
Ladies and Gentlemen:
Popular, Inc., a Puerto Rico corporation (the "Company"), confirms its
agreement with Credit Suisse First Boston LLC, X.X. Xxxxxx Securities Inc.,
Xxxxx, Xxxxxxxx & Xxxxx, Inc., Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated, Popular Securities, Inc. and UBS Warburg LLC (each,
an "Agent," and collectively, the "Agents", which term shall also include any
Agent acting as principal substituted as hereinafter provided in Section 17
hereof) with respect to the issue and sale by the Company of its Medium-Term
Notes described herein (the "Notes"). The Notes are to be issued pursuant to an
Indenture, dated as of February 5, 1995, as amended and supplemented from time
to time (the "Indenture"), between the Company and X.X. Xxxxxx Trust Company,
National Association (as successor to Bank One, N.A.), as trustee (the
"Trustee").
As of the date hereof, the Company has authorized the issuance and sale
of Notes with an aggregate initial offering price of up to $2,500,000,000 (or
the equivalent thereof in other currencies or currency units) less an amount
equal to the aggregate proceeds from the sale prior to or after the date hereof
of securities other than the Notes registered under the Prospectus, dated
December 29, 2003, relating to debt securities and preferred stock of the
Company, Popular International Bank, Inc. and Popular North America, Inc. to or
through the Agents pursuant to the terms of this Agreement. It is understood,
however, that the Company may from time to time authorize the issuance of
additional Notes and that such additional Notes may be
sold through or to the Agents pursuant to the terms of this Agreement, all as
though the issuance of such Notes were authorized as of the date hereof.
This Agreement provides both for the sale of Notes by the Company
directly to one or more Agents as principal for resale to investors and other
purchasers and for the sale of the Notes by the Company directly to investors
(as may from time to time be agreed to by the Company and the applicable
Agent(s), in which case each applicable Agent will act as an agent of the
Company in soliciting offers for the purchase of Notes.
The Company has filed with the Securities and Exchange Commission (the
"SEC") a registration statement on Form S-3 (Nos. 333-111007, 000-000000-00 and
333-111007-02) for the registration of debt securities, including the Notes,
under the Securities Act of 1933, as amended (the "1933 Act"), and the offering
thereof from time to time in accordance with Rule 415 of the rules and
regulations of the SEC under the 1933 Act (the "1933 Act Regulations"). Such
registration statement has been declared effective by the SEC and the Indenture
has been qualified under the Trust Indenture Act of 1939, as amended (the "1939
Act"), and the Company has filed such post-effective amendments thereto as may
be required prior to the Company's acceptance of any offer for the purchase of
Notes and each such post-effective amendment has been declared effective by the
SEC. Such registration statement (as so amended, if applicable) is referred to
herein as the "Registration Statement"; and the final prospectus and all
applicable amendments or supplements thereto (including the final prospectus
supplement and pricing supplement relating to the offering of Notes), in the
form first furnished to the applicable Agent(s) for use in confirming sales of
Notes, are collectively referred to herein as the "Prospectus"; provided,
however, that all references to the "Registration Statement" and the
"Prospectus" shall also be deemed to include all documents incorporated therein
by reference that are filed pursuant to the Securities Exchange Act of 1934, as
amended (the "1934 Act"), prior to any acceptance by the Company of an offer for
the purchase of Notes; provided further, that if the Company files a
registration statement with the SEC pursuant to Rule 462(b) of the 1933 Act
Regulations (the "Rule 462(b) Registration Statement"), then, after such filing,
all references to the "Registration Statement" shall also be deemed to include
the Rule 462(b) Registration Statement. A "preliminary prospectus" shall be
deemed to refer to any prospectus used before the Registration Statement became
effective and any prospectus furnished by the Company after the registration
statement became effective and before any acceptance by the Company of an offer
for the purchase of Notes which omitted information to be included upon pricing
of such Notes in a form of prospectus filed with the SEC pursuant to Rule 424(b)
of the 1933 Act Regulations. For purposes of this Agreement, all references to
the "Registration Statement," "Prospectus" or "preliminary prospectus" or to any
amendment or supplement thereto shall be deemed to include any copy filed with
the SEC pursuant to its Electronic Data Gathering, Analysis and Retrieval system
("XXXXX").
All references in this Agreement to financial statements and schedules
and other information which is "disclosed," "contained," "included" or "stated"
(or other references of like import) in the Registration Statement, Prospectus
or preliminary prospectus or any amendment or supplement thereto shall be deemed
to include all such financial statements and schedules and other information
incorporated therein by reference at or prior to the acceptance of any
particular offer for the purchase of Notes; and all references in this Agreement
to amendments or supplements to the Registration Statement, Prospectus or
preliminary prospectus shall be deemed
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to include the filing of any document under the 1934 Act incorporated therein by
reference after the acceptance of any particular offer for the purchase of
Notes.
SECTION 1. Appointment as Agents.
(a) Appointment. Subject to the terms and conditions stated herein and
subject to the reservation by the Company of the right to sell Notes directly on
its own behalf, the Company hereby agrees that Notes shall be sold exclusively
to or through the Agents. The Company agrees that it will not appoint any other
agents to act on its behalf, or to assist it, in the placement of the Notes.
Notwithstanding anything to the contrary contained herein, the Company
may authorize any other person, partnership or corporation (an "Additional
Agent") to act as its agent to solicit offers for the purchase of all of the
Notes or a specific tranche of Notes. Unless the Agents otherwise agree, the
appointment of an Additional Agent shall be effected by the Company's addition
of the name and address of the Additional Agent to the signature page of a
counterpart of this Agreement, the execution of such counterpart by the
Additional Agent, and the prompt delivery of executed copies of such counterpart
and any other contractual arrangements between the Company and such Additional
Agent relating thereto to the Agents and their counsel. Thereafter, with respect
to all of the Notes or the specific tranche of Notes, as the case may be, the
term "Agent" or "Agents," as used in this Agreement, shall mean the Agents and
such Additional Agent. Upon its appointment, the Additional Agent shall specify
its requirement for the delivery of certificates, letters and opinions as are
set forth in Section 5 hereof.
(b) Sale of Notes. The Company shall not sell or approve the
solicitation of offers for the purchase of Notes in excess of the amount which
shall be authorized by the Company from time to time or in excess of the
aggregate initial offering price of Notes registered for sale pursuant to the
Registration Statement. The Agents shall have no responsibility for maintaining
records with respect to the aggregate initial offering price of Notes sold, or
of otherwise monitoring the availability of Notes for sale, under the
Registration Statement.
(c) Purchases as Principal; Solicitations as Agent. The Agents shall
not have any obligation to purchase Notes from the Company as principal.
However, absent an agreement between an Agent and the Company that such Agent
shall be acting solely as an agent for the Company, such Agent shall be deemed
to be acting as principal in connection with any offering of Notes by the
Company through such Agent. Accordingly, the Agents, individually or in a
syndicate, may agree from time to time to purchase Notes from the Company as
principal for resale to investors and other purchasers determined by such
Agents. Any purchase of Notes from the Company by an Agent as principal shall be
made in accordance with Section 3(b) hereof. If agreed upon between an Agent and
the Company, such Agent, acting solely as an agent for the Company and not as
principal, shall solicit offers for the purchase of Notes. Such Agent shall make
reasonable efforts to assist the Company in obtaining performance by each
purchaser whose offer for the purchase of Notes has been solicited by it on an
agency basis and accepted by the Company. Such Agent shall have the right, in
its discretion reasonably exercised, to reject any offer for the purchase of
Notes, in whole or in part, and any such rejection shall not be deemed a breach
of its agreement contained herein. Such Agent shall not have any liability to
the Company in the event that any such purchase is not consummated for
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any reason, except in the event that such sale is not consummated due to the
failure of such Agent to perform its obligations hereunder.
(d) Reliance. The Company and the Agents agree that any Notes purchased
from the Company by one or more Agents as principal shall be purchased, and any
Notes the placement of which an Agent arranges as an agent of the Company shall
be placed by such Agent, in reliance on the representations, warranties,
covenants and agreements of the Company contained herein and on the terms and
conditions and in the manner provided herein.
SECTION 2. Representations and Warranties of the Company.
(a) The Company represents and warrants to the Agents as of the date
hereof, as of the date of each acceptance by the Company of an offer for the
purchase of Notes (whether through an Agent as agent or to one or more Agents as
principal), as of the date of each delivery of Notes (whether through an Agent
as agent or to one or more Agents as principal) (the date of each such delivery
to one or more Agents as principal being hereafter referred to as a "Settlement
Date"), and as of any time that the Registration Statement or the Prospectus
shall be amended or supplemented (other than by an amendment or supplement that
relates exclusively to an offering of securities other than the Notes) or there
is filed with the SEC any document incorporated by reference into the Prospectus
(other than any Current Report on Form 8-K relating exclusively to the issuance
of securities other than the Notes under the Registration Statement) (each of
the times referenced above being referred to herein as a "Representation Date")
as follows:
(i) Due Incorporation and Qualification. The Company has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation with
corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectus; the Company
is duly registered as a bank holding company under the Bank Holding
Company Act of 1956, as amended (the "Bank Holding Company Act"); and
the Company is not required to register as a foreign corporation in any
jurisdiction in order to conduct the business presently conducted by
it.
(ii) Subsidiaries. Each subsidiary of the Company which is a
significant subsidiary (each, a "Significant Subsidiary"), as defined
in Rule 1-02 of Regulation S-X promulgated under the 1933 Act, has been
duly incorporated and is validly existing as a corporation or a bank in
good standing under the laws of the jurisdiction of its incorporation,
has corporate power and authority to own, lease and operate its
properties and conduct its business as described in the Prospectus and
is duly qualified as a foreign corporation to transact business and is
in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure to so qualify and be
in good standing would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as
one enterprise; and all of the issued and outstanding shares of capital
stock of each such Significant Subsidiary have been duly authorized and
validly issued, are fully paid and non-assessable (subject to the
provisions of Section 55 of Title 12 of the United States Code in the
case of Significant Subsidiaries which are national banking
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associations) and, except as otherwise disclosed in the Prospectus and
except for directors' qualifying shares, are owned by the Company,
directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity or, if
such is not the case, that any such security interest, mortgage,
pledge, lien, encumbrance, claim or equity, when exercised, enforced or
otherwise asserted, will not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as
one enterprise.
(iii) Registration Statement and Prospectus. The Company meets
the requirements for use of Form S-3 under the 1933 Act; the
Registration Statement (or any Rule 462(b) Registration Statement) has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement (or any Rule 462(b)
Registration Statement) has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the SEC, and any
request on the part of the SEC for additional information has been
complied with; the Indenture has been duly qualified under the 1939
Act; at the respective times that the Registration Statement (including
any Rule 462(b) Registration Statement) and any post-effective
amendment thereto (including the filing of the Company's most recent
Annual Report on Form 10-K with the SEC (the "Annual Report on Form
10-K")) became effective and at each Representation Date, the
Registration Statement (including any Rule 462(b) Registration
Statement but excluding any prospectus supplement with respect to an
offering of securities other than the Notes that is contained therein)
and any amendments thereto complied and will comply in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations and the 1939 Act and the rules and regulations of the SEC
under the 1939 Act (the "1939 Act Regulations") and did not and will
not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; each preliminary prospectus and
prospectus filed as part of the Registration Statement (excluding any
prospectus supplement with respect to an offering of securities other
than the Notes that is contained therein) as originally filed or as
part of any amendment thereto, or filed pursuant to Rule 424 under the
1933 Act, complied when so filed in all material respects with the 1933
Act Regulations; each preliminary prospectus and the Prospectus
delivered to the applicable Agent(s) for use in connection with the
offering of Notes are identical to any electronically transmitted
copies thereof filed with the SEC pursuant to XXXXX, except to the
extent permitted by Regulation S-T; and at the date hereof, at the date
of the Prospectus and each amendment or supplement thereto and at each
Representation Date, neither the Prospectus nor any amendment or
supplement thereto included or will include an untrue statement of a
material fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration
Statement or the Prospectus made in reliance upon and in conformity
with information furnished to the Company in writing by the Agents
expressly for use in the Registration Statement or the Prospectus.
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(iv) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Prospectus, at the time
they were or hereafter are filed with the SEC, complied or when so
filed will comply, as the case may be, in all material respects with
the requirements of the 1934 Act and the rules and regulations
promulgated thereunder (the "1934 Act Regulations"), and, when read
together and with the other information in the Prospectus, did not and
will not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances
under which they were or are made, not misleading.
(v) Independent Registered Public Accounting Firm. The
independent registered public accounting firm that certified the
financial statements and supporting schedules included or incorporated
by reference in the Prospectus are independent public accountants
within the meaning of the 1933 Act and the 1933 Act Regulations.
(vi) Financial Statements. The consolidated financial
statements and any supporting schedules included or incorporated by
reference in the Prospectus present fairly the consolidated financial
position of the Company and its consolidated subsidiaries as of the
dates indicated and the consolidated results of their operations for
the periods specified; except as stated therein, said financial
statements have been prepared in conformity with generally accepted
accounting principles in the United States applied on a consistent
basis during the periods involved; the supporting schedules included or
incorporated by reference in the Prospectus present fairly the
information required to be stated therein; and any pro forma
consolidated financial statements of the Company and its consolidated
subsidiaries and the related notes thereto included in the Prospectus
present fairly the information shown therein, have been prepared in
accordance with the SEC's rules and guidelines with respect to pro
forma financial statements and have been properly compiled on the basis
described therein, and the assumptions used in the preparation thereof
are reasonable and the adjustments used therein are appropriate to give
effect to the transactions and circumstances referred to therein.
(vii) Authorization and Validity of this Agreement, the
Indenture and the Notes. This Agreement has been duly authorized,
executed and delivered by the Company; the Indenture has been duly
authorized, executed and delivered by the Company and constitutes a
valid and legally binding obligation of the Company enforceable in
accordance with its 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; the Notes have been duly and validly
authorized for issuance, offer and sale pursuant to this Agreement and,
when issued, authenticated and delivered pursuant to the provisions of
this Agreement and the Indenture against payment of the consideration
therefor specified in the Prospectus or pursuant to any Terms Agreement
(as defined in Section 3(b)), 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 generally and to general equity principles;
the Notes and the Indenture will be substantially in the form
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heretofore delivered to the Agent and conform in all material respects
to all statements relating thereto contained in the Prospectus; and the
Notes will be entitled to the benefits provided by the Indenture.
(viii) Material Changes or Material Transactions. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as may otherwise be stated therein
or contemplated thereby, there has been no material adverse change in
the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business.
(ix) No Defaults; Regulatory Approvals. Neither the Company
nor any of the Significant Subsidiaries is in violation of its charter
or by-laws or in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which it is a party or by which it or any of them or
their properties may be bound; the execution, delivery and performance
of this Agreement and the Indenture and the consummation of the
transactions contemplated herein, therein and pursuant to any
applicable Terms Agreement have been duly authorized by all necessary
corporate action and will not conflict with or constitute a breach of,
or default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any
of the Significant Subsidiaries pursuant to any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which the
Company or any of its subsidiaries is a party or by which it or any of
them may be bound or to which any of the property or assets of the
Company or any such subsidiary is subject, nor will such action result
in any violation of the provisions of the charter or by-laws of the
Company or any such subsidiary or any law, administrative regulation or
administrative or court order or decree which breach, default,
creation, imposition or violation would, in each case, have a material
adverse effect on the Company and its subsidiaries taken as a whole;
and no consent, approval, authorization, order or decree of any court
or governmental agency or body is required for the consummation by the
Company of the transactions contemplated by this Agreement, except such
as may be required under the 1933 Act or the 1933 Act Regulations
(which have been obtained), the 1939 Act or state securities or Blue
Sky laws.
(x) Legal Proceedings; Contracts. Except as may be set forth
in the Registration Statement, there is no action, suit or proceeding
before or by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Company, threatened
against or affecting, the Company or any of its subsidiaries, which
might result in any material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise, or might materially and adversely affect the consummation
of this Agreement or any Terms Agreement; and there are no contracts or
documents of the Company or any of its subsidiaries which are required
to be filed or incorporated by reference as exhibits to the
Registration Statement by the 1933 Act or by the 1933 Act Regulations
which have not been so filed or incorporated by reference.
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(xi) Regulatory Certificates, Authorities and Permits. The
Company and the Significant Subsidiaries possess adequate certificates,
authorities or permits issued by the appropriate state, federal or
foreign regulatory agencies or bodies necessary to conduct the business
now operated by them except for such certificates, authorities or
permits as are not material to the business, operations, financial
condition or income of the Company or the Significant Subsidiaries; and
neither the Company nor any of the Significant Subsidiaries has
received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling
or finding, would materially adversely affect the conduct of the
business, operations, financial condition or income of the Company and
its subsidiaries considered as one enterprise.
(xii) 1940 Act. The Company is not, and upon the issuance and
sale of the Notes as herein contemplated and the application of the net
proceeds therefrom as described in the Prospectus will not be, an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended (the "1940 Act").
(b) Additional Certifications. Any certificate signed by any officer of
the Company or a Significant Subsidiary and delivered to the Agents or to
counsel for the Agents in connection with an offering of Notes or the sale of
Notes to one or more Agents as principal shall be deemed a representation and
warranty by the Company or such Significant Subsidiary, as the case may be, to
the Agents as to the matters covered thereby on the date of such certificate.
SECTION 3. Solicitations as Agents; Purchases as Principal.
(a) Solicitations as Agents. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein set
forth, when agreed upon by the Company and an Agent, such Agent, as an agent of
the Company, will use its reasonable efforts to solicit offers to purchase the
Notes upon the terms and conditions set forth herein and in the Prospectus.
The Company reserves the right, in its sole discretion, to suspend
solicitation of purchases of the Notes through the Agents, as agents, commencing
at any time for any period of time or permanently. Upon receipt of instructions
from the Company, the Agents will forthwith suspend solicitation of purchases
from the Company until such time as the Company has advised the Agents that such
solicitation may be resumed.
The Company agrees to pay an Agent a commission, in the form of a
discount, equal to the applicable percentage of the principal amount of each
Note sold by the Company as a result of a solicitation made by such Agent as set
forth in Schedule A hereto. The Agents may reallow any portion of the commission
payable pursuant hereto to dealers or purchasers in connection with the offer
and sale of any Notes.
The purchase price, interest rate or formula, maturity date and other
terms of the Notes shall be agreed upon by the Company and the applicable Agent
and set forth in a pricing supplement to the Prospectus to be prepared following
each acceptance by the Company of an offer for the purchase of Notes. Except as
may be otherwise provided in such supplement to the
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Prospectus, the Notes will be issued in denominations of $1,000 and integral
multiples thereof. All Notes sold through an Agent as agent will be sold at 100%
of their principal amount unless otherwise agreed to by the Company and such
Agent.
(b) Purchases as Principal. Each sale of Notes to one or more Agents as
principal shall be made in accordance with the terms contained herein and
(unless the Company and such Agent(s) shall otherwise agree) pursuant to a
separate agreement which will provide for the sale of such Notes to, and the
purchase and reoffering thereof by, such Agent(s). Each such separate agreement
(which may be an oral agreement) between one or more Agents and the Company is
herein referred to as a "Terms Agreement." Unless the context otherwise
requires, each reference contained herein to "this Agreement" shall be deemed to
include any applicable Terms Agreement between the Company and the applicable
Agent(s). Each such Terms Agreement, whether oral or in writing, shall be with
respect to such information (as applicable) as is specified in Exhibit A hereto.
Each Agent's commitment to purchase Notes as principal pursuant to any Terms
Agreement or otherwise shall be deemed to have been made on the basis of the
representations and warranties of the Company herein contained and shall be
subject to the terms and conditions herein set forth. Each Terms Agreement shall
specify the principal amount of Notes to be purchased by each applicable Agent
pursuant thereto, the price to be paid to the Company for such Notes (which, if
not so specified in a Terms Agreement, shall be at a discount equivalent to the
applicable commission set forth in Schedule A hereto), the time and place of
delivery of and payment for such Notes and such other provisions (including
further terms of the Notes) as may be mutually agreed upon. The Agents may
utilize a selling or dealer group in connection with the resale of the Notes
purchased. Unless expressly provided for in the Terms Agreement, no opinions,
letters or certificates shall be delivered by the Company in connection with the
sale of Notes to one or more Agents as principal.
(c) Administrative Procedures. Administrative procedures with respect
to the sale of Notes shall be agreed upon from time to time by the Agent and the
Company (the "Procedures"). The Agents, on the one hand, and the Company on the
other hand, agree to perform the respective duties and obligations specifically
provided to be performed by them in the Procedures.
(d) Restrictions on Distribution in Puerto Rico. The Agents agree that
Popular Securities, Inc. shall have the sole right to solicit offers to purchase
the Notes as agent or to make any sales of the Notes as principal, as the case
may be, in Puerto Rico.
(e) Restrictions on Sales to Discretionary Accounts. Each Agent hereby
agrees to refrain from sales to discretionary accounts under its supervision
except in accordance with procedures to obtain the prior specific written
approval of the customer that have been approved by the NASD in compliance with
NASD Conduct Rule 2720(l).
SECTION 4. Covenants of the Company.
The Company covenants with the Agents as follows:
(a) Notice of Certain Events. The Company will notify the Agents
immediately (i) of the effectiveness of any amendment to the Registration
Statement, (ii) of the filing of any
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supplement to the Prospectus relating to the Notes or any document filed
pursuant to the 1934 Act which will be incorporated by reference in the
Prospectus, (iii) of the receipt of any comments from the SEC with respect to
the Registration Statement or the Prospectus, (iv) of any request by the SEC for
any amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for additional information and (v) of the issuance by the SEC
of any stop order suspending the effectiveness of the Registration Statement or
the initiation of any proceedings for that purpose. The Company will use
reasonable efforts to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof.
(b) Notice of Certain Proposed Filings. Except as otherwise provided in
subsection (1) of this Section 4, the Company will give the Agents notice of its
intention to file or prepare any additional registration statement with respect
to the registration of additional Notes, any amendment to the Registration
Statement or any amendment or supplement to the Prospectus (other than an
amendment or supplement providing information solely with respect to the terms
of Notes (except with respect to the applicable Agent(s)) and other than an
amendment or supplement that relates to an offering of securities other than the
Notes), whether by the filing of documents pursuant to the 1934 Act, the 1933
Act or otherwise, and will furnish the Agents with copies of any such amendment
or supplement or other documents proposed to be filed or prepared a reasonable
time in advance of such proposed filing or preparation, as the case may be,
except for documents required to be filed pursuant to the 1934 Act, which the
Company shall furnish to the Agents immediately after the filing thereof, and
will not file any such amendment or supplement other than a document required to
be filed pursuant to the 1934 Act in a form to which you or your counsel shall
reasonably object.
(c) Copies of the Registration Statement and the Prospectus. The
Company will deliver to the Agents as many signed and conformed copies of the
Registration Statement (as originally filed) and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated by reference in the Prospectus) as the Agents may
reasonably request. The Company will furnish the Agents with as many copies of
the Prospectus (as amended or supplemented) as the Agents shall reasonably
request so long as the Agents are required to deliver a Prospectus in connection
with sales or solicitations of offers to purchase the Notes.
(d) Preparation of Pricing Supplements. The Company will prepare, with
respect to any Notes to be sold through or to the Agents pursuant to this
Agreement, a Pricing Supplement with respect to such Notes in a form previously
approved by the Agents. The Company will deliver such Pricing Supplement to the
applicable Agent(s) no later than 11:00 am, New York City time, on the business
day following the date of the Company's acceptance of the offer for the purchase
of such Notes and will file such Pricing Supplement pursuant to the applicable
clause of Rule 424(b) under the 1933 Act in accordance with the prescribed time
period therein.
(e) Revisions of Prospectus -- Material Changes. Except as otherwise
provided in subsection (1) of this Section, if at any time during the term of
this Agreement any event shall occur or condition exist as a result of which it
is necessary to amend or supplement the Registration Statement or the Prospectus
or any amendment or supplement thereto in order that neither the Registration
Statement or the Prospectus nor any amendment or supplement thereto will include
an untrue statement of a material fact or omit to state any material fact
necessary in
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order to make the statements therein, in the light of the circumstances in which
they were made, not misleading or if it shall be necessary to amend or
supplement the Registration Statement or the Prospectus or any amendment or
supplement thereto in order to comply with the requirements of the 1933 Act or
the 1933 Act Regulations, immediate notice shall be given, and confirmed in
writing, to the Agents to cease the solicitation of offers to purchase the Notes
in the Agents' capacity as agents and to cease sales of any Notes the Agents may
have purchased from the Company as principal, and the Company will promptly
prepare and file with the SEC such amendment or supplement, whether by filing
documents pursuant to the 1934 Act, the 1933 Act or otherwise, as may be
necessary to correct such untrue statement or omission or to make the
Registration Statement and Prospectus or any amendment or supplement thereto
comply with such requirements.
(f) Prospectus Revisions -- Periodic Financial Information. Except as
otherwise provided in subsection (1) of this Section, on or prior to the date on
which there shall be released to the general public interim consolidated
financial statement information related to the Company with respect to each of
the first three quarters of any fiscal year or preliminary financial statement
information with respect to any fiscal year, the Company shall furnish such
information to the Agents, confirmed in writing, and promptly thereafter shall
cause the Registration Statement and the Prospectus to be amended or
supplemented to include or incorporate by reference capsule financial
information with respect to the results of operations of the Company and its
consolidated subsidiaries for such period and corresponding information for the
comparable period of the preceding fiscal year, as well as such other
information and explanations as shall be necessary for an understanding thereof
or as shall be required by the 1933 Act or the 1933 Act Regulations.
(g) Prospectus Revisions -- Audited Financial Information. Except as
otherwise provided in subsection (1) of this Section, on or prior to the date on
which there shall be released to the general public financial information with
respect to the audited consolidated financial statements of the Company for the
preceding fiscal year, the Company shall furnish such information to the Agents,
confirmed in writing, and promptly thereafter shall cause the Registration
Statement and the Prospectus to be amended or supplemented to include or
incorporate by reference such audited consolidated financial statements and the
report or reports, and consent or consents to such inclusion or incorporation by
reference, of the independent registered public accounting firm with respect
thereto, as well as such other information and explanations as shall be
necessary for an understanding of such consolidated financial statements or as
shall be required by the 1933 Act or the 1933 Act Regulations.
(h) Earnings Statements. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally available
to the security holders of the Company as soon as practicable an earnings
statement for the purposes of, and to provide the benefits contemplated by, the
last paragraph of Section 11(a) of the 1933 Act.
(i) Blue Sky Qualifications. The Company will endeavor, in cooperation
with the Agents, to qualify the Notes for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States as
the Agents and the Company shall agree and, unless the Company otherwise
notifies the Agents, will maintain such qualifications in effect for as long as
may be required for the distribution of the Notes; provided, however,
11
that the Company shall not be required to submit to general service of process
in any jurisdiction. The Company will promptly advise the Agents of its receipt
of any notification with respect to the suspension of the qualification of the
Notes for sale in any such state or jurisdiction or the initiating or
threatening of any proceeding for such purpose.
(j) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act, will file promptly
all documents required to be filed with the SEC pursuant to Sections 13(a),
13(c), 14 or 15(d) of the 1934 Act within the time period prescribed by the 1934
Act and the 1934 Act Regulations.
(k) Stand-Off Agreement. If required pursuant to the terms of a Terms
Agreement, between the date of any Terms Agreement and the Settlement Date with
respect to such Terms Agreement, the Company will not, without the consent of
the applicable Agent or Agents, offer or sell, or enter into any agreement to
sell, any debt securities of the Company (other than the Notes that are to be
sold pursuant to such Terms Agreement and commercial paper).
(l) Suspension of Certain Obligations. The Company shall not be
required to comply with the provisions of subsections (b), (e), (f) or (g) of
this Section during any period from the time (i) the Agents shall have suspended
solicitation of purchases of the Notes in their capacity as agent pursuant to a
request from the Company and (ii) the Agents shall not then hold any Notes
purchased from the Company as principal, to the time the Company shall determine
that solicitation of purchases of the Notes should be resumed or shall
subsequently enter into a new Terms Agreement with one or more Agents.
(m) Public Reports. The Company will furnish to the Agents, at the
earliest time the Company makes the same available to others, copies of its
annual report and other financial reports furnished or made available to the
public generally.
SECTION 5. Conditions of Obligations.
The obligations of the Agents to solicit offers to purchase the Notes
as agent of the Company, the obligations of any purchasers of the Notes sold
through an Agent as agent, and any obligation of an Agent to purchase Notes
pursuant to a Terms Agreement or otherwise will be subject to the accuracy of
the representations and warranties on the part of the Company contained herein
and to the accuracy of the statements of the officers of the Company made in any
certificate furnished pursuant to the provisions hereof, to the performance and
observance by the Company of all its covenants and agreements herein contained
and to the following additional conditions precedent:
(a) Legal Opinions. On the date hereof and, if required by any
applicable Terms Agreement, on the Settlement Date with respect to such Terms
Agreement, the Agents shall have received the following legal opinions, dated as
of the date hereof or such Settlement Date, as the case may be, in form and
substance satisfactory to the Agents:
(1) Opinion of Counsel to the Company. The opinion of Xxxxxxxx
& Xxxxxxxx LLP, counsel to the Company, to the effect that:
12
(i) The Company is duly registered as a bank holding
company under the Bank Holding Company Act.
(ii) The Indenture has been duly authorized, executed
and delivered by the Company and duly qualified under the
Trust Indenture Act of 1939 and constitutes a valid and
legally binding obligation of the Company enforceable in
accordance with its 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.
(iii) The series of Notes has been duly authorized
and established in conformity with the Indenture and, when the
terms of a particular Note and of its issuance and sale have
been duly authorized and established by all necessary
corporate action in conformity with the Indenture and such
Note has been duly prepared, executed, authenticated and
issued in accordance with the Indenture and delivered against
payment in accordance with this Agreement, such Note will
constitute a valid and legally binding obligation of the
Company enforceable in accordance with its 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.
(iv) All regulatory consents, authorizations,
approvals and filings required to be obtained or made by the
Company on or prior to the date hereof or such Settlement
Date, as the case may be, under the Federal laws of the United
States and the laws of the State of New York for the issuance,
sale and delivery of the Notes by the Company to or through
the Agents in accordance with this Agreement have been
obtained or made; provided, however, that such counsel need
express no opinion with respect to state securities laws.
(v) This Agreement and, if applicable, such Terms
Agreement have each been duly authorized, executed and
delivered by the Company.
(vi) The execution and delivery by the Company of the
Indenture and this Agreement and, if applicable, such Terms
Agreement do not, and the preparation, execution and issuance
of each particular Note in accordance with the Indenture, the
sale by the Company of such Note in accordance with this
Agreement and, if applicable, such Terms Agreement and the
performance by the Company of its obligations under the
Indenture, this Agreement and, if applicable, such Terms
Agreement and the Notes will not (a) violate the certificate
of incorporation or by-laws of the Company, in each case as in
effect at the date of such opinion, or (b) violate any
existing Federal law of the United States applicable to the
Company; provided, however, that, for the purposes of this
paragraph (vi), such counsel need express no opinion with
respect to the Federal or state securities laws, other
antifraud laws, fraudulent transfer laws, the Employee
Retirement Income Security Act of 1974 and related laws, and
laws that restrict transactions between United States persons
and citizens or residents of certain foreign countries or
specially designated nationals and organizations; provided,
further, that insofar as
13
performance by the Company of its obligations under the
Indenture, this Agreement and, if applicable, such Terms
Agreement, and the Notes is concerned, such counsel need
express no opinion as to bankruptcy, insolvency,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights.
(vii) The Registration Statement is effective under
the 1933 Act and, to the best of such counsel's knowledge, (a)
no stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act and (b) no
proceedings therefor have been initiated or threatened by the
SEC.
(viii) As counsel for the Company, such counsel
reviewed the Registration Statement and the Prospectus, and
any amendment or supplement thereto, participated in
discussions with the Agents' representatives and those of the
Company and its independent registered public accounting firm,
and advised the Company as to the requirements of the 1933 Act
and the applicable 1933 Act Regulations, and on the basis of
the information that such counsel gained in the course of the
performance of the services referred to above, considered in
the light of their understanding of the applicable law
(including the requirements of Form S-3 and the character of
the prospectus contemplated thereby) and the experience they
have gained through their practice under the 1933 Act, they
confirm to the Agents that, in their opinion, each part of the
Registration Statement, when such part became effective, and
the Prospectus, as of the date of the prospectus supplement
or, if applicable, the pricing supplement forming a part
thereof, appeared on their face to be appropriately
responsive, in all material respects relevant to the offering
of the Notes, to the requirements of the 1933 Act, the 1939
Act and the applicable rules and regulations of the SEC
thereunder, and nothing has come to their attention in the
course of such review that has caused them to believe that,
insofar as relevant to the offering of the Notes, any part of
the Registration Statement, when such part became effective,
contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or
that, insofar as relevant to the offering of the Notes, the
Prospectus, as of the date of the prospectus supplement or, if
applicable, the pricing supplement forming a part thereof, or,
if applicable, the applicable Settlement Date, contained any
untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading. Such counsel may say that the
limitations inherent in the independent verification of
factual matters and the character of determinations involved
in the registration process are such, however, that they do
not assume any responsibility for the accuracy, completeness
or fairness of the statements contained in the Registration
Statement or the Prospectus, or any amendment or supplement
thereto, except (i) for those made under the captions
"Description of Debt Securities We May Offer" and "Plan of
Distribution" in the Prospectus, under the captions
"Description of Notes We May Offer" and "Supplemental Plan of
Distribution" in the prospectus supplement forming a part of
the Prospectus and under the captions "Description of the
Notes" and
14
"Underwriting," or similar or comparable captions, in any
pricing supplement forming a part of the Prospectus, insofar
as they relate to provisions therein described, of the Notes,
the Indenture and this Agreement and, if applicable, such
Terms Agreement and (ii) the accuracy of the descriptions of
the Federal laws of the United States contained in the
prospectus supplement forming a part of the Prospectus under
the caption "United States Taxation," and that they do not
express any opinion or belief as to the financial statements
or other financial data contained in the Registration
Statement or the Prospectus, or any amendment or supplement
thereto, or as to the statement of the eligibility of the
Trustee under the Indenture. Such counsel may also say that
their letter is furnished to the Agents by them as counsel for
the Company and is solely for the benefit of the Agents.
Such counsel may base their opinions, as to certain matters, on
certificates of officers of the Company and may rely as to all matters relating
to the laws of the Commonwealth of Puerto Rico upon the opinion of Xxxxxxxx
Xxxxxx xx Xxxxxxx, Esq., delivered pursuant to Section 5(a)(2) hereof.
(2) Opinion of Puerto Rico Counsel to the Company. The opinion
of Xxxxxxxx Xxxxxx xx Xxxxxxx, Esq., Puerto Rico Counsel to the
Company, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the Commonwealth of Puerto Rico.
(ii) The Company has corporate power and authority to
own, lease and operate its properties and to conduct its
business as described in the Registration Statement.
(iii) The Company is not required to register as a
foreign corporation in any jurisdiction in order to conduct
the business presently conducted by it.
(iv) Each Significant Subsidiary has been duly
incorporated and is validly existing as a corporation or a
bank in good standing under the laws of the jurisdiction of
its incorporation, has the corporate or other organizational
power and authority to own, lease and operate its properties
and to conduct its business as described in the Registration
Statement, and, to the best of such counsel's knowledge and
information, is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction
in which it owns or leases substantial properties or in which
such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business,
except where the failure to so qualify and be in good standing
would not have a material adverse effect on the Company and
its subsidiaries taken as a whole; and all of the issued and
outstanding capital stock of each such Significant Subsidiary
has been duly authorized and validly issued and is fully paid
and non-assessable (subject to the provisions of Section 55 of
Title 12 of the United States Code in the case of Significant
Subsidiaries which are national banking associations) and,
except for
15
directors' qualifying shares, is owned, directly or through
such subsidiaries, by the Company free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim
or equity.
(v) This Agreement and, if applicable, such Terms
Agreement, have been duly authorized, executed and delivered
by the Company.
(vi) The Indenture has been duly and validly
authorized, executed and delivered by the Company and
constitutes a valid and legally binding obligation of the
Company enforceable in accordance with its 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.
(vii) All regulatory consents, authorizations,
approvals and filings required to be obtained or made by the
Company on or prior to the date hereof or such Settlement
Date, as the case may be, under the laws of the Commonwealth
of Puerto Rico for the issuance, sale and delivery of the
Notes by the Company to or through the Agents in accordance
with this Agreement have been obtained or made; provided,
however, that such counsel need express no opinion with
respect to state securities laws.
(viii) To the best of such counsel's knowledge,
neither the Company nor any of the Significant Subsidiaries is
in violation of its charter or by-laws or in default in the
performance or observance of any material obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note or lease known to
such counsel to which it or any of them is a party or by which
their properties may be bound; the execution and delivery by
the Company of the Indenture, this Agreement and any Terms
Agreement do not, and the preparation, execution and issuance
of each particular Note in accordance with the Indenture, the
sale by the Company of such Note in accordance with this
Agreement, and the performance by the Company of its
obligations under the Indenture, this Agreement, the Notes and
any Terms Agreement will not (a) violate the certificate of
incorporation or by-laws of the Company as in effect as at the
date of such opinion, (b) violate any existing Federal law of
the United States or any existing law of the Commonwealth of
Puerto Rico applicable to the Company, (c) constitute a breach
of, or a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any Significant
Subsidiaries pursuant to any contract, indenture, mortgage,
loan agreement, note, lease or other instrument known to such
counsel to which the Company or any of the Significant
Subsidiaries is a party or by which any of them may be bound,
or to which any of the property or assets of the Company or
any of the Significant Subsidiaries is subject or (d) violate
any administrative or court decree as applicable to the
Company or having jurisdiction over the Company, which breach,
default, creation, imposition or violation would, in each
case, have a material adverse effect on the Company and its
subsidiaries considered as a whole; provided, however, that,
for purposes of this paragraph
16
(viii), such counsel need express no opinion with respect to
Federal or state securities laws, other antifraud laws,
fraudulent transfer laws, the Employee Retirement Income
Security Act of 1974 and related laws, and laws that restrict
transactions between United States persons and citizens or
residents of certain foreign countries or specially designated
nationals and organizations; provided, further, that insofar
as performance by the Company of its obligations under the
Indenture, this Agreement, any Terms Agreement and the Notes
is concerned, such counsel need express no opinion as to
bankruptcy, insolvency, reorganization, moratorium and similar
laws of general applicability relating to or affecting
creditors' rights.
(ix) To the best of such counsel's knowledge and
information, there are no legal or governmental proceedings
pending or threatened which are required to be disclosed in
the Prospectus, other than those disclosed therein, and all
pending legal or governmental proceedings to which the Company
or any of its subsidiaries is a party or to which any of its
property or assets is subject which are not described in the
Registration Statement, including ordinary routine litigation
incidental to the business of the Company or any such
subsidiary, are, considered in the aggregate, not material.
(x) To the best of such counsel's knowledge, there
are no contracts, indentures, mortgages, loan agreements,
notes, leases or other instruments or documents required to be
described or referred to in the Registration Statement or to
be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as
exhibits thereto; and the descriptions thereof or references
thereto are correct.
(xi) The Registration Statement is effective under
the 1933 Act and, to the best of such counsel's knowledge, no
stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act or proceedings
therefor initiated or threatened by the SEC.
(xii) Each document filed pursuant to the 1934 Act
and incorporated by reference in the Prospectus complied when
filed as to form in all material respects with the 1934 Act
and the 1934 Act Regulations.
(xiii) As counsel to the Company such counsel has
reviewed the Registration Statement and the Prospectus, and
any amendment or supplement thereto, participated in
discussions with representatives of the Agents and those of
the Company and its accountants, and on the basis of the
information that such counsel gained in the course of the
performance of her services, considered in the light of her
understanding of the applicable law, including the
requirements of Form S-3 and the character of the prospectus
contemplated thereby, such counsel confirms that, in her
opinion, each part of the Registration Statement, when such
part became effective, and the Prospectus, as of the date of
the prospectus supplement or, if applicable, the pricing
supplement forming a part thereof, appeared on their face to
be appropriately responsive in all material respects to the
17
requirements of the 1933 Act, the 1939 Act and the applicable
rules and regulations of the SEC thereunder; and that nothing
has come to her attention in the course of her review that has
caused her to believe that any part of the Registration
Statement, when such part became effective, contained any
untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to
make the statements therein not misleading; or that the
Prospectus, on the date of the prospectus supplement or, if
applicable, the pricing supplement forming a part thereof, or
(if such opinion is being delivered in connection with a Terms
Agreement pursuant to Section 3(b) hereof) at the date of any
Terms Agreement and at the Settlement Date with respect
thereto, as the case may be, contained any untrue statement of
a material fact or omitted to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Such
counsel may say that the limitations inherent in the
independent verification of factual matters and the character
of determinations involved in the registration process are
such that she does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained
in the Registration Statement or the Prospectus, or any
amendment or supplement thereto, except for those made under
the captions "Description of Debt Securities We May Offer" and
"Plan of Distribution" in the Prospectus, under the captions
"Description of Notes We May Offer" and "Supplemental Plan of
Distribution" in the prospectus supplement forming a part of
the Prospectus and under the captions "Description of the
Notes" and "Underwriting," or similar or comparable captions,
in any pricing supplement forming a part of the Prospectus,
insofar as they relate to provisions therein described of the
Notes, the Indenture and this Agreement and, if applicable,
such Terms Agreement and under "Item 1 -- Business --
Regulation and Supervision" in the Company's Annual Report on
Form 10-K insofar as they relate to provisions of documents
therein described and that she does not express any opinion or
belief as to the financial statements or other financial data
contained in the Registration Statement or the Prospectus, or
any amendment or supplement thereto, or as to the statement of
eligibility of the Trustee under the Indenture; and that her
letter is furnished as counsel for the Company to the Agents
and is solely for the benefit of the Agents.
Such counsel may base her opinion, as to certain matters, on
certificates of officers of the Company and may rely as to all matters relating
to the laws of the State of New York and the General Corporation Law of the
State of Delaware upon the opinion of Xxxxxxxx & Xxxxxxxx LLP, delivered
pursuant to Section 5(a)(1).
(3) Opinion of Counsel to the Agents. The opinion of Xxxxxx
Xxxxxx Xxxxx & Xxxx LLP, counsel to the Agents, covering the matters
referred to in subparagraph (1) above under the subheadings (ii),
(iii), (v), (vii) and (viii). Xxxxxx Xxxxxx Xxxxx & Xxxx LLP shall
additionally state that no facts have come to their attention that
would cause them to believe that (other than (i) the financial
statements, schedules and other financial data included or incorporated
by reference therein or omitted therefrom and (ii) the statement of
eligibility of the Trustee, as to which such counsel is not requested
to comment) the Registration Statement, at the time it became effective
or, if an amendment
18
to the Registration Statement or an Annual Report on Form 10-K has been
filed by the Company with the SEC subsequent to the effectiveness of
the Registration Statement, then at the time such amendment became
effective or at the time of the most recent such filing, at the date
hereof, or (if such opinion is being delivered in connection with a
Terms Agreement pursuant to Section 3(b) hereof) at the date of any
Terms Agreement, as the case may be, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or
that the Prospectus, as amended or supplemented at the date hereof or
(if such opinion is being delivered in connection with a Terms
Agreement pursuant to Section 3(b) hereof) at the date of any Terms
Agreement or at the Settlement Date with respect thereto, as the case
may be, included or includes, as the case may be, an untrue statement
of a material fact or omitted or omits, as the case may be, to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(b) Officer's Certificates. At the date hereof, and, if required in any
applicable Terms Agreement, on the Settlement Date with respect to such Terms
Agreement, the Agents shall have received certificates of the President or Vice
President of the Company, dated as of the date hereof or such Settlement Date,
as the case may be, to the effect that (i) since the respective dates as of
which information is given in the Registration Statement and the Prospectus or
since the time that any applicable Terms Agreement was entered into, there has
not been any material adverse change in the condition, financial or otherwise,
or in the earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, (ii) the other representations and warranties of
the Company contained in Section 2 hereof are true and correct with the same
force and effect as though expressly made at and as of the date of such
certificate, (iii) the Company has performed or complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior to
the date of such certificate and (iv) no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings for that
purpose have been initiated or threatened by the SEC.
(c) Comfort Letter. On the date hereof and, if required by any
applicable Terms Agreement, the Settlement Date with respect to such Terms
Agreement, the Agents or the applicable Agent(s), as the case may be, shall
receive a letter from PricewaterhouseCoopers LLP, the Company's independent
public accountants, dated as of the date hereof or such Settlement Date, as the
case may be, in form and substance reasonably satisfactory to the Agents or the
applicable Agent(s), as the case may be, containing statements and information
of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in or incorporated by reference in the Registration
Statement and the Prospectus, and confirming that they are independent
accountants within the meaning of the 1933 Act and the 1933 Act Regulations.
(d) Other Documents. On the date hereof and, if counsel to the Agents
is required to deliver its opinion in accordance with any applicable Terms
Agreement, on each Settlement Date with respect to such Terms Agreement, counsel
to the Agents shall have been furnished with such documents as such counsel may
reasonably require for the purpose of enabling such counsel to pass upon the
issuance and sale of Notes as herein contemplated and related proceedings and
19
all proceedings taken by the Company in connection with the issuance and sale of
Notes as herein contemplated shall be satisfactory in form and substance to the
Agents and to counsel to the Agents.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement (or, at the
option of the applicable Agent(s), any applicable Terms Agreement) may be
terminated by the Agents or the applicable Agent(s), as the case may be, by
notice to the Company at any time and any such termination shall be without
liability of any party to any other party, except that the covenant regarding
provision of an earnings statement set forth in Section 4(h) hereof, the
provisions concerning payment of expenses under Section 10 hereof, the indemnity
and contribution agreement set forth in Sections 8 and 9 hereof, the provisions
concerning the representations, warranties and agreements to survive delivery of
Section 11 hereof, the provisions set forth under "Parties" of Section 15 hereof
and the provisions of Sections 14 and 16 hereof shall remain in effect.
SECTION 6. Delivery of and Payment for Notes Sold through the Agents.
Delivery of Notes sold through an Agent as agent shall be made by the
Company to such Agent for the account of any purchaser only against payment
therefor in immediately available funds. In the event that a purchaser shall
fail either to accept delivery of or to make payment for a Note on the date
fixed for settlement, such Agent shall promptly notify the Company and deliver
the Note to the Company, and, if such Agent has theretofore paid the Company for
such Note, the Company will promptly return such funds to such Agent. If such
failure occurred for any reason other than default by such Agent in the
performance of its obligations hereunder, the Company will reimburse such Agent
on an equitable basis for its loss of the use of the funds for the period such
funds were credited to the Company's account.
SECTION 7. Additional Covenants of the Company.
The Company covenants with the Agents as follows:
(a) Reaffirmation of Representations and Warranties. Each acceptance by
it of an offer for the purchase of Notes, and each delivery of Notes to one or
more Agents pursuant to a Terms Agreement, shall be deemed to be an affirmation
that the representations and warranties of the Company contained in this
Agreement and in any certificate theretofore delivered to the Agents pursuant
hereto are true and correct at the time of such acceptance or sale, as the case
may be, and an undertaking that such representations and warranties will be true
and correct at the time of delivery to the purchaser or his agent, or to the
Agents, of the Note or Notes relating to such acceptance or sale, as the case
may be, as though made at and as of each such time (and it is understood that
such representations and warranties shall relate to the Registration Statement
and Prospectus as amended and supplemented to each such time).
(b) Subsequent Delivery of Certificates. Each time that the
Registration Statement or the Prospectus shall be amended or supplemented (other
than by an amendment or supplement providing information solely with respect to
the terms of Notes and other than by an amendment or supplement which relates
exclusively to an offering of securities other than the Notes) and each time
that the Company sells Notes to or through one or more Agents, unless waived by
the
20
Agent(s) participating in such sale, the Company shall furnish or cause to be
furnished to the Agents or the applicable Agent(s), as the case may be,
forthwith certificates dated the date of filing with the SEC of such supplement,
the date of effectiveness of such amendment or the date of such sale, as the
case may be, in form satisfactory to the Agents or the applicable Agent(s), as
the case may be, to the effect that the statements contained in the certificates
referred to in Section 5(b) hereof which were last furnished to the Agents are
true and correct at the time of such amendment, supplement or sale, as the case
may be, as though made at and as of such time (except that such statements shall
be deemed to relate to the Registration Statement and the Prospectus as amended
and supplemented to such time) or, in lieu of such certificates, certificates of
the same tenor as the certificates referred to in said Section 5(b), modified as
necessary to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such certificates.
(c) Subsequent Delivery of Legal Opinions. Each time that the
Registration Statement or the Prospectus shall be amended or supplemented (other
than by an amendment or supplement providing information solely with respect to
the terms of Notes or solely for the inclusion of additional financial
information, and, unless the Agents shall otherwise specify, other than by an
amendment or supplement which relates exclusively to an offering of securities
other than the Notes) and each time that the Company sells Notes to or through
one or more Agents, unless received by the Agent(s) participating in such sale,
the Company shall furnish or cause to be furnished forthwith to the Agents or
the applicable Agent(s), as the case may be, with a copy to counsel to the
Agents, a written opinion or opinions of counsel to the Company satisfactory to
the Agents or the applicable Agent(s), as the case may be, dated the date of
filing with the SEC of such supplement, the date of effectiveness of such
amendment, or the date of such sale, as the case may be, in form and substance
satisfactory to the Agents or the applicable Agent(s), as the case may be, of
the same tenor as the opinions referred to in Section 5(a) (1) and (2) hereof,
but modified, as necessary, to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such opinion;
or, in lieu of such opinion or opinions, counsel last furnishing such opinion to
the Agents shall furnish the Agents or the applicable Agent(s), as the case may
be, with a letter to the effect that the Agents or the applicable Agent(s), as
the case may be, may rely on such last opinion to the same extent as though it
was dated the date of such letter authorizing reliance (except that statements
in such last opinion shall be deemed to relate to the Registration Statement and
the Prospectus as amended and supplemented to the time of delivery of such
letter authorizing reliance).
(d) Subsequent Delivery of Comfort Letters. Each time that the
Registration Statement or the Prospectus shall be amended or supplemented to
include additional financial information and each time that the Company sells
Notes to or through one or more Agents, unless waived by the Agent(s)
participating in such sale, the Company shall cause PricewaterhouseCoopers LLP
forthwith to furnish the Agents or the applicable Agent(s), as the case may be,
with a letter, dated the date of effectiveness of such amendment or supplement,
or the date of such sale, as the case may be, in form and substance reasonably
satisfactory to the Agents or the applicable Agent(s), as the case may be, of
the same tenor as the portions of the letter referred to in Section 5(c) hereof
but modified to relate to the Registration Statement and Prospectus, as amended
and supplemented to the date of such letter: provided, however, that if the
Registration Statement or the Prospectus is amended or supplemented solely to
include financial information as of and for a fiscal quarter,
PricewaterhouseCoopers LLP may limit the scope of such letter to the unaudited
21
financial statements included in such amendment or supplement unless any other
information included therein of an accounting, financial or statistical nature
is of such a nature that, in the reasonable judgment of the Agents or the
applicable Agent(s), as the case may be, such letter should cover such other
information.
SECTION 8. Indemnification.
(a) Indemnification of the Agents. The Company agrees to indemnify and
hold harmless each Agent and each person, if any, who controls such Agent within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as
follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading, or
arising out of any untrue statement or alleged untrue statement of a
material fact included in any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading unless such untrue statement or omission or
alleged untrue statement or omission was made in reliance upon and in
conformity with written information furnished to the Company by the
Agents expressly for use in the Registration Statement or the
Prospectus;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, if such
settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by such Agent),
reasonably incurred in investigating, preparing or defending against
any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under subparagraph (i) or (ii) above.
The indemnity is subject to the conditions that, insofar as it relates
to any untrue statement or omission, or any alleged untrue statement or
omission, made in a preliminary prospectus or the Prospectus but eliminated or
remedied in the Prospectus or in an amended or supplemented Prospectus, as the
case may be, at the time of the sale of the related Note, it shall not inure to
the benefit of an Agent (or to the benefit of any person who controls such
Agent) if a copy of the Prospectus or the Prospectus as amended or supplemented
at the time of the sale of such Note, as the case may be, excluding documents
incorporated therein by reference, was delivered by the Company to such Agent a
reasonable amount of time in advance of the delivery
22
of written confirmations by such Agent to investors but such Agent failed to
deliver such Prospectus or the Prospectus as amended or supplemented, as the
case may be, to the person in question at or prior to the time required by the
1933 Act and the receipt of such Prospectus or the Prospectus as amended or
supplemented, as the case may be, would have constituted a sufficient defense to
the claim asserted by such person.
(b) Indemnification of Company, Directors and Officers. Each Agent
severally agrees to indemnify and hold harmless the Company, its directors, each
of its officers who signed the Registration Statement and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in Section 8(a) hereof, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto) or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Agent expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the Prospectus (or any amendment or supplement thereto).
(c) Actions Against Parties; Notification. Each indemnified party shall
give prompt notice to each indemnifying party of any action commenced against it
in respect of which indemnity may be sought hereunder, but failure to so notify
an indemnifying party shall not relieve such indemnifying party from any
liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 8(a) hereof,
counsel to the indemnified parties shall be selected by the applicable Agent(s)
and, in the case of parties indemnified pursuant to Section 8(b) hereof, counsel
to the indemnified parties shall be selected by the Company. An indemnifying
party may participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not (except with
the consent of each indemnified party) also be counsel to any indemnified party.
In no event shall the indemnifying parties be liable for fees and expenses of
more than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 8 or Section 9 hereof (whether or not the indemnified parties
are actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
23
SECTION 9. Contribution. If the indemnification provided for in Section 8 hereof
is for any reason unavailable to or insufficient to hold harmless an indemnified
party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, on the one
hand, and the applicable Agent(s), on the other hand, from the offering of the
Notes that were the subject of the claim for indemnification or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company, on the one
hand, and the applicable Agent(s), on the other hand, in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the
applicable Agent(s), on the other hand, in connection with the offering of the
Notes that were the subject of the claim for indemnification shall be deemed to
be in the same respective proportions as the total net proceeds from the
offering of such Notes (before deducting expenses) received by the Company and
the total discount or commission received by each applicable Agent, as the case
may be, bears to the aggregate initial offering price of such Notes.
The relative fault of the Company, on the one hand, and the applicable
Agent(s), on the other hand, shall be determined by reference to, among other
things, whether any untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the applicable Agent(s) and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the Agents agree that it would not be just and
equitable if contribution pursuant to this Section 9 were determined by pro rata
allocation (even if the applicable Agent(s) were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 9. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 9 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any applicable untrue or alleged
untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 9, (i) no Agent shall be
required to contribute any amount in excess of the amount by which the total
discount or commission received by such Agent in connection with the offering of
the Notes that were the subject of the claim for indemnification exceeds the
amount of any damages which such Agent has otherwise been required to pay by
reason of any applicable untrue or alleged untrue statement or omission or
alleged omission and (ii) no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. In addition, in connection with an offering of Notes
24
purchased from the Company by two or more Agents as principal, the respective
obligations of such Agents to contribute pursuant to this Section 9 are several,
and not joint, in proportion to the aggregate principal amount of Notes that
each such Agent has agreed to purchase from the Company.
For purposes of this Section, each person, if any, who controls an
Agent within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act shall have the same rights to contribution as such Agent, and each director
of the Company, each officer of the Company who signed the Registration
Statement and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as the Company.
SECTION 10. Payment of Expenses.
The Company shall pay all expenses incident to the performance of its
respective obligations under this Agreement, including:
(i) The preparation and filing of the Registration Statement
and all amendments thereto and the Prospectus and any amendments or
supplements thereto;
(ii) The preparation, filing and reproduction of this
Agreement;
(iii) The preparation, printing, issuance and delivery of the
Notes, including any fees and expenses relating to the use of
book-entry notes;
(iv) The fees and disbursements of the Company's independent
registered public accounting firm and counsel, of the Trustee and its
counsel, and of any calculation agent or exchange rate agent;
(v) If provided in a Terms Agreement, the reasonable fees and
disbursements of counsel to the Agents incurred from time to time in
connection with an issuance of Notes;
(vi) The qualification of the Notes under state securities
laws in accordance with the provisions of Section 4(i) hereof,
including filing fees and the reasonable fees and disbursements of
legal counsel in connection therewith and in connection with the
preparation of any Blue Sky Survey and any Legal Investment Survey;
(vii) The printing and delivery to the Agents in quantities as
hereinabove stated of copies of the Registration Statement and any
amendments thereto, and of the Prospectus and any amendments or
supplements thereto, and the delivery by the Agents of the Prospectus
and any amendments or supplements thereto in connection with
solicitations or confirmations of sales of the Notes;
(viii) The preparation, printing, reproducing and delivery to
the Agents of copies of the Indenture and all supplements and
amendments thereto;
(ix) Any fees charged by rating agencies for the rating of the
Notes;
25
(x) Any advertising and other out-of-pocket expenses of the
Agents incurred with the written approval of the Company;
(xi) The cost of preparing and providing any CUSIP or other
identification numbers for the Notes; and
(xii) The fees and expenses of any Depositary (as defined in
the Indenture) and any nominees thereof in connection with the Notes.
SECTION 11. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company submitted pursuant
hereto or thereto shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Agents or any
controlling person of the Agents, or by or on behalf of the Company, and shall
survive each delivery of and payment for any of the Notes.
SECTION 12. Termination.
(a) Termination of This Agreement. This Agreement (excluding any Terms
Agreement with one or more Agents to purchase Notes from the Company as
principal) may be terminated for any reason, at any time by the Company or by an
Agent, as to itself, upon the giving of prior written notice of such termination
to the other party hereto.
(b) Termination of Terms Agreement to Purchase Notes as Principal. The
applicable Agent(s) may terminate any Terms Agreement with such Agent(s) to
purchase Notes from the Company as principal, immediately upon notice to the
Company, at or at any time prior to the Settlement Date relating thereto, if (i)
there has been, since the date of such Terms Agreement or since the respective
dates as of which information is given in the Prospectus, any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business, (ii)
there has occurred any material adverse change in the financial markets in the
United States or, if such Notes are denominated and/or payable in, or indexed
to, one or more foreign currencies, in the international financial markets, or
any outbreak or escalation of hostilities or other national or international
calamity or crisis, in each case the effect of which is such as to make it, in
the judgment of such Agent(s), impracticable to market such Notes or enforce
contracts for the sale of such Notes, (iii) trading in any securities of the
Company has been suspended or materially limited by the SEC or a national
securities exchange, or if trading generally on the New York Stock Exchange or
the American Stock Exchange or in the Nasdaq National Market has been suspended
or materially limited, or minimum or maximum prices for trading have been fixed,
or maximum ranges for prices for securities have been required, by either of
said exchanges or by such system or by order of the SEC, the NASD or any other
governmental authority, (iv) a general banking moratorium has been declared by
U.S. federal, New York or Puerto Rico authorities or by the relevant authorities
in the country or countries of origin of any non-U.S. currency in which such
Notes are denominated and/or payable or (v) the rating assigned by any
nationally recognized statistical rating organization to the Medium-Term Note
Program or any debt securities (including the
26
Notes) of the Company as of the date of such agreement shall have been lowered
or withdrawn since that date or if any such rating organization shall have
publicly announced that it has under surveillance or review (other than with
positive implications) its rating of the Medium-Term Note Program or any such
debt securities.
(c) General. In the event of any such termination, no party will have
any liability to any other party hereto, except that (i) the Agents shall be
entitled to any commissions earned in accordance with the third paragraph of
Section 3(a) hereof, (ii) if at the time of termination (a) any Agent shall own
any Notes purchased by it from the Company as principal or (b) an offer to
purchase any of the Notes has been accepted by the Company but the time of
delivery to the purchaser or his agent of such Notes relating thereto has not
occurred, the covenants set forth in Sections 4 and 7 hereof shall remain in
effect until such Notes are so resold or delivered, as the case may be, and
(iii) the covenant set forth in Section 4(h) hereof, the provisions of Section
10 hereof, the indemnity and contribution agreements set forth in Sections 8 and
9 hereof, and the provisions of Sections 11, 14, 15 and 16 hereof shall remain
in effect.
SECTION 13. Notices.
Unless otherwise provided herein, all notices required under the terms
and provisions hereof shall be in writing, either delivered by hand, by mail or
by telex, telecopier or telegram, and any such notice shall be effective when
received at the address specified below.
If to the Company:
Popular, Inc.
000 Xxxxx Xxxxxx Xxxxxx
Xxxx Xxx, Xxxxxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxx xx Xxxxxxx, Esq.,
Telecopy No.: (000) 000-0000
If to the Agents:
UBS Securities LLC
000 Xxxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Fixed Income Syndicate
Telephone: (000) 000-0000
Telecopy No.: (000) 000-0000
Banc of America Securities LLC
0 Xxxx 00xx Xxxxxx
XX0-000-0X-00
Xxx Xxxx, Xxx Xxxx 00000
Attention: High Grade Debt Capital Markets
Transaction Management
27
Xxxxx, Xxxxxxxx & Xxxxx, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Fixed Income Syndicate
Telecopy No.: (000) 000-0000
Popular Securities, Inc.
000 Xxxxx Xxxxxx Xxxxxx
Xxxx Xxx, Xxxxxx Xxxx 00000
Attention: Xxx XxXxxxx
Telecopy No.: (000) 000-0000
or at such other address as such parties may designate from time to time by
notice duly given in accordance with the terms of this Section 13.
SECTION 14. Governing Law.
This Agreement and all the rights and obligations of the parties shall
be governed by and construed in accordance with the laws of the State of New
York applicable to agreements made and to be performed in such State. Any suit,
action or proceeding brought by the Company against any Agent in connection with
or arising under this Agreement shall be brought solely in the state or federal
court of appropriate jurisdiction located in the Borough of Manhattan, The City
of New York.
SECTION 15. Parties.
This Agreement shall inure to the benefit of and be binding upon the
Agents, the Company and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their respective
successors and the controlling persons and officers and directors referred to in
Sections 8 and 9 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the parties
hereto and respective successors and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Notes shall be deemed to be a
successor by reason merely of such purchase.
SECTION 16. Consent to Jurisdiction; Appointment of Agent to Accept Service of
Process.
(a) The Company irrevocably consents and agrees, for the benefit of the holders
from time to time of the Notes, the Agents and the other persons referred to in
Section 15 that any legal action, suit or proceeding against it with respect to
its obligations, liabilities or any other matter arising out of or in connection
with the Notes, this Agreement or any Terms Agreement may be brought in the
28
courts of the State of New York located in The City of New York or the courts of
the United States of America located in The City of New York and, until all
amounts due and to become due in respect of all the Notes have been paid, or
until any such legal action, suit or proceeding commenced prior to such payment
has been concluded, hereby irrevocably consents and submits to the non-exclusive
jurisdiction of each such court in personam, generally and unconditionally with
respect to any action, suit or proceeding for itself and in respect of its
properties, assets and revenues.
(b) The Company hereby irrevocably designates, appoints, and empowers
Xxxxx Xxxxx, with offices currently at Banco Popular North America, Legal
Division, 000 Xxxxxxxx, 00xx xxxxx, Xxx Xxxx, Xxx Xxxx 00000, as its designee,
appointee and agent to receive, accept and acknowledge for and on its behalf,
service of any and all legal process, summons, notices and documents that may be
served in any action, suit or proceeding brought against the Company in any such
United States or State court with respect to its obligations, liabilities or any
other matter arising out of or in connection with this Agreement or any Terms
Agreement and that may be made on such designee, appointee and agent in
accordance with legal procedures prescribed for such courts. If for any reason
such designated agent shall cease to be available to act as such, the Company
agrees to designate a new designee, appointee and agent in The City of New York
on the terms and for the purposes of this Section 16 reasonably satisfactory to
the Agents. The Company further hereby irrevocably consents and agrees to the
service of any and all legal process, summons, notices and documents in any such
action, suit or proceeding against it by serving a copy thereof upon the
relevant agent for service of process referred to in this Section 16 (whether or
not the appointment of such agent shall for any reason prove to be ineffective
or such agent shall accept or acknowledge such service) or by mailing copies
thereof to the Company at its address specified in or designated pursuant to
this Agreement. The Company agrees that the failure of any such designee,
appointee and agent to give any notice of such service to it shall not impair or
affect in any way the validity of such service or any judgment rendered in any
action or proceeding based thereon. Nothing herein shall in any way be deemed to
limit the ability of the holders of the Notes, the Agents and the other persons
referred to in Section 15 to serve such legal process, summons, notices and
documents in any other manner permitted by applicable law or to obtain
jurisdiction over the Company or bring actions, suits or proceedings against the
Company in such other jurisdictions, and in such manner, as may be permitted by
applicable law. The Company hereby irrevocably and unconditionally waives, to
the fullest extent permitted by law, any objection that it may now or hereafter
have to the laying of venue of any of the aforesaid actions, suits or
proceedings arising out of or in connection with this Agreement brought in the
United States federal courts located in The City of New York or the courts of
the State of New York located in The City of New York and hereby further
irrevocably and unconditionally waives and agrees not to plead or claim in any
such court that any such action, suit or proceeding brought in any such court
has been brought in an inconvenient forum.
(c) The provisions of this Section 16 shall survive any termination of
this Agreement, in whole or in part.
29
SECTION 17. Default by One or More of the Agents Acting as Principal. If one or
more of the Agents acting as principal shall fail at any Settlement Date to
purchase the Notes that it or they are obligated to purchase under this
Agreement (the "Defaulted Notes"), the non-defaulting Agent(s) acting as
principal shall have the right, within 24 hours thereafter, to make arrangements
for one or more of the non-defaulting Agents acting as principal, or any other
underwriters, to purchase all, but not less than all, of the Defaulted Notes in
such amounts as may be agreed upon and upon the terms herein set forth; if,
however, the non-defaulting Agents acting as principal shall not have completed
such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Notes does not exceed 10% of the
aggregate principal amount of the Notes to be purchased hereunder, each of the
non-defaulting Agents acting as principal shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Agents acting as principal, or
(b) if the number of Defaulted Notes exceeds 10% of the aggregate
principal amount of the Notes to be purchased hereunder, this Agreement shall
terminate without liability on the part of any non-defaulting Agents acting as
principal.
No action taken pursuant to this Section shall relieve any defaulting
Agents acting as principal from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement, either the non-defaulting Agent(s) acting as principal or the
Company shall have the right to postpone the Settlement Date for a period not
exceeding seven days in order to effect any required changes in the Registration
Statement or Prospectus or in any other documents or arrangements.
SECTION 18. Effect of Headings.
The Section headings herein are for convenience only and shall not
affect the construction hereof.
SECTION 19. Counterparts.
This Agreement may be executed in one or more counterparts and, if
executed in more than one counterpart, the executed counterparts hereof shall
constitute a single instrument.
30
If the foregoing is in accordance with the Agents' understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument along with all counterparts will become a binding agreement among the
Agents and the Company in accordance with its terms.
Very truly yours,
POPULAR, INC.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Chief Financial Officer
31
Accepted:
UBS SECURITIES LLC
By: /s/ Xxxxxx Xxxxx
----------------------------
Name: Xxxxxx Xxxxx
Title: Executive Director
By: /s/ Xxxxxx Xxxxx
----------------------------
Name: Xxxxxx Xxxxx
Title: Director
BANC OF AMERICA SECURITIES LLC
By: /s/ Xxxx Xxxxx
----------------------------
Name: Xxxx Xxxxx
Title: Principal
XXXXX, XXXXXXXX & XXXXX, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx XXX
----------------------------
Name: Xxxxxxx X. Xxxxxxxx XXX
Title: Managing Director
POPULAR SECURITIES, INC.
By: /s/ Xxxxxxx X. XxXxxxx
----------------------------
Name: Xxxxxxx X. XxXxxxx
Title: President & Chief Executive Officer
32
EXHIBIT A
SCHEDULE A
As compensation for the services of the Agents hereunder, the Company
shall pay the applicable Agent, on a discount basis, a commission for the sale
of each Note equal to the principal amount of such Note multiplied by the
appropriate percentage set forth below:
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
--------------- ----------------
From 9 months to less than 1 year.......................................... .125%
From 1 year to less than 18 months......................................... .150
From 18 months to less than 2 years........................................ .200
From 2 years to less than 3 years.......................................... .250
From 3 years to less than 4 years.......................................... .350
From 4 years to less than 5 years.......................................... .450
From 5 years to less than 6 years.......................................... .500
From 6 years to less than 7 years.......................................... .550
From 7 years to less than 10 years......................................... .600
From 10 years to less than 15 years........................................ .625
From 15 years to less than 20 years........................................ .700
From 20 years to 30 years.................................................. .750
Greater than 30 years...................................................... *
---------------------
* As agreed to by the Company and the applicable Agent at the time of sale.
EXECUTION COPY
EXHIBIT A
PRICING TERMS
Principal Amount: $_______
(or principal amount of foreign or composite currency)
Interest Rate or Formula:
If Fixed Rate Note,
Interest Rate:
Regular Record Dates:
Interest Payment Dates:
If Floating Rate Note,
Interest Rate Basis:
Index Maturity:
Spread and/or Spread Multiplier, if any:
Initial Interest Rate, if any:
Maximum Rate, if any:
Minimum Rate, if any:
Interest Reset Dates:
Interest Determination Dates:
Interest Payment Dates:
Calculation Agent:
Redemption Provisions:
Redemption Commencement Date, if any:
Repayment Provisions:
Repayment Date(s), if any:
Original Issue Date:
Stated Maturity Date:
Specified Currency:
Exchange Rate Agent:
Denomination:
Purchase Price: ___%, plus accrued interest, if any, from ___________
Price to Public: ___%, plus accrued interest, if any, from __________
Issue Price:
Settlement Date and Time:
Additional/Other Terms:
Also, in connection with the purchase of Notes from the Company by one or more
Agents as principal, agreement as to whether the following will be required:
Officers' Certificates pursuant to Section 7(b) of the Distribution
Agreement.
Legal Opinions pursuant to Section 7(c) of the Distribution Agreement.
Comfort Letter pursuant to Section 7(d) of the Distribution Agreement.
A-1
