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EXHIBIT (1)(c)
AMENDMENT NO. 2 TO DISTRIBUTION AGREEMENT
October 6, 1995
WHEREAS, the parties hereto have previously entered into a
Distribution Agreement, dated October 11, 1991, as amended by Amendment No. 1
thereto dated December 2, 1993 and as supplemented on June 16, 1993 and August
1, 1994 (the "Distribution Agreement"), among BanPonce Financial Corp. (the
"Company"), BanPonce Corporation (the "Guarantor") and Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated, CS First Boston Corporation and First Chicago
Capital Markets, Inc. (each, an "Agent and collectively, the "Agents")
relating to the issue and sale by the Company of its Medium-Term Notes; and
WHEREAS, the Company, the Guarantor and each of the Agents wish to
amend the Distribution Agreement (i) to amend the definition of a "Significant
Subsidiary" contained in Section 2(a)(ii) thereof to include subsidiaries that
may be incorporated as banks, (ii) to except from the requirements of Sections
7(b), 7(c) and 7(d) thereof sales by the Guarantor or its subsidiaries of
preferred stock and (iii) to amend the requirements of Section 7(c) thereof to
provide for the delivery of the legal opinions required thereby by Puerto Rico
counsel to the Company and the Guarantor;
NOW, THEREFORE, the Company, the Guarantor and each of the Agents
hereby agree to amend said Distribution Agreement as follows:
1. Section 2(a)(ii) of the Distribution Agreement is hereby amended
to read as follows:
(ii) Subsidiaries. Each subsidiary of the Guarantor or
the Company which is a significant subsidiary as defined in Rule 405
of Regulation C of the 1933 Act Regulations (each, a "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 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
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prospects of the Guarantor and its subsidiaries considered as one
enterprise; and all of the issued and outstanding capital stock of
each such Significant Subsidiary has been duly authorized and validly
issued, 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 as otherwise disclosed in the Prospectus and except for
directors' qualifying shares, is owned by the Company or the
Guarantor, 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 Guarantor and its
subsidiaries considered as one enterprise.
2. Sections 7(b), 7(c) and 7(d) of the Distribution Agreement are
hereby amended to read as follows:
(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
solely for a change in the interest rates of Notes or similar changes
and other than by an amendment or supplement which relates exclusively
to an offering of debt securities other than the Notes or an offering
of preferred stock of the Guarantor or its subsidiaries) or there is
filed with the SEC any document incorporated by reference into the
Prospectus (other than (i) any Current Report on Form 8-K relating
exclusively to the issuance of debt securities or preferred stock
under the Registration Statement or (ii) a document filed pursuant to
Section 14 of the 1934 Act unless requested by the Agents) or (if
required pursuant to the terms of a Terms Agreement) the Company sells
Notes to an Agent pursuant to a Terms Agreement, the Company shall
furnish or cause to be furnished to the Agents (or, in the case of a
sale of Notes to an Agent pursuant to a Terms Agreement, to such
Agent) forthwith certificates dated the date of filing with the SEC of
such supplement or document, 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 such Agent, 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, filing 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
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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
solely for a change in the interest rates of the Notes or similar
changes 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 debt securities other than the Notes or an offering of
preferred stock of the Guarantor or its subsidiaries) or there is
filed with the SEC any document incorporated by reference into the
Prospectus (other than (i) any Current Report on Form 8-K or (ii) a
document filed pursuant to Section 14 of the 1934 Act, in each case,
unless the Agents shall otherwise reasonably request), or (if required
pursuant to the terms of a Terms Agreement) the Company sells Notes to
an Agent pursuant to a Terms Agreement, the Company shall furnish or
cause to be furnished forthwith to the Agents (or, in the case of a
sale of Notes to an Agent pursuant to a Terms Agreement, to such
Agent), with a copy to counsel to the Agents, a written opinion or
opinions of Puerto Rico Counsel to the Company and the Guarantor
satisfactory to the Agents or such Agent, as the case may be, dated
the date of filing with the SEC of such supplement or document, 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
such Agent, as the case may be, of the same tenor as the opinion
referred to in Section 5(a)(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 or such Agent, as the case may be, shall furnish the Agents or
such Agent, as the case may be, with a letter to the effect that the
Agents or such Agent, 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
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amended or supplemented to include additional financial information or
there is filed with the SEC any document incorporated by reference
into the Prospectus which contains additional financial information
(other than a Current Report on Form 8-K filed solely for the purpose
of incorporating a press release relating to the Guarantor's interim
or annual financial statements or results of operations or filed in
connection with the issuance of preferred stock by the Guarantor or
its subsidiaries pursuant to the Registration Statement) or (if
required pursuant to the terms of a Terms Agreement) the Company sells
Notes to an Agent pursuant to a Terms Agreement, the Guarantor shall
cause Price Waterhouse LLP forthwith to furnish the Agents (or, in the
case of a sale of Notes to an Agent pursuant to a Terms Agreement, to
such Agent) with a letter, dated the date of effectiveness of such
amendment, supplement or document with the SEC, or the date of such
sale, as the case may be, in form satisfactory to the Agents or such
Agent, 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, Price Waterhouse LLP may limit the scope of such letter to
the unaudited 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 such Agent, as the case
may be, such letter should cover such other information.
Except as otherwise expressly provided herein, the Distribution
Agreement is in all respects ratified and confirmed, and all the terms,
provisions and conditions thereof shall be and remain in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have cause this Amendment No. 2
to the Distribution Agreement to be executed on their behalf as of the day and
year first above written.
BANPONCE FINANCIAL CORP.
By: /s/ Xxxxx X. Xxxxxx, Xx.
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Name: Xxxxx X. Xxxxxx, Xx.
Title: President
BANPONCE CORPORATION
By: /s/ Xxxxx X. Xxxxxx, Xx.
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Name: Xxxxx X. Xxxxxx, Xx.
Title: Executive Vice President
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Authorized Signatory
CS FIRST BOSTON CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President
FIRST CHICAGO CAPITAL MARKETS, INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Managing Director
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