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EXHIBIT(1)(a)
UNDERWRITING AGREEMENT
__________, ____
BanPonce Corporation,
000 Xxxxx Xxxxxx,
Xxxx Xxx, Xxxxxx Xxxx 00000.
Dear Sirs:
___________________________, as underwriter (the "Manager"),
understands that BanPonce Corporation, a corporation organized under the laws
of the Commonwealth of Puerto Rico (the "Corporation"), proposes to issue and
sell $____________ aggregate principal amount of its __________________________
______________ (the "Securities"). The terms of the Securities are set forth
in the Registration Statement and Basic Prospectus referred to in the provisions
incorporated herein by reference, as supplemented by a Prospectus Supplement
dated ________________. The Securities will be issued pursuant to an Indenture,
dated as of _________________ (the "Indenture"), between the Corporation and
__________________________________, as trustee (the "Trustee").
All the provisions contained in the document entitled BanPonce
Corporation Debt Securities Underwriting Agreement Standard Provisions (1995),
a copy of which you have previously received, are herein incorporated by
reference in their entirety and shall be deemed to be a part of this Agreement
to the same extent as if such provisions had been set forth in full herein.
Subject to the terms and conditions set forth herein or
incorporated by reference herein, the Corporation hereby agrees to sell and we
hereby agree to purchase, in the amounts set forth in Schedule 1 hereto, the
Securities at _______ of their principal amount plus accrued interest from
_________________ to the date of payment and delivery.
We will pay for such Securities in immediately available funds
upon delivery thereof at the offices of _______________________________________
at _________. (New York time) on _________________ or at such other time as
shall be designated by our mutual agreement.
Please confirm your agreement by having an authorized officer
sign a copy of this Agreement in the
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space set forth below and by returning the signed copy to us.
Very truly yours,
___________________________
By: _______________________
Name:
Title:
Accepted:
BANPONCE CORPORATION
By: _____________________
Name:
Title:
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SCHEDULE 1
Aggregate Amount of Securities
Underwriter to be Purchased
----------- ---------------
___________________________ $___________
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BANPONCE CORPORATION
Debt Securities
Underwriting Agreement
Standard Provisions
(1995)
_________________________
From time to time, BANPONCE CORPORATION, a corporation
organized under the laws of the Commonwealth of Puerto Rico (the
"Corporation"), may enter into one or more underwriting agreements that provide
for the sale of designated securities to one or more underwriters named therein
(the "Underwriters"), severally where applicable. The standard provisions set
forth herein may be incorporated by reference in any such underwriting
agreement (an "Underwriting Agreement"). The Underwriting Agreement, including
the provisions incorporated therein by reference, is herein referred to as this
Agreement. Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined.
I.
The Corporation has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
33-61601), including a prospectus relating to, among other securities, the
Securities and has filed with, or mailed for filing to, the Commission, a
prospectus supplement specifically relating to the issue of the Securities
pursuant to Rule 424 under the Securities Act of 1933 (the "Act"). The term
"Registration Statement" means such registration statement as amended to the
date of the Underwriting Agreement. The term "Basic Prospectus" means the
prospectus included in the Registration Statement. The term "Prospectus" means
the Basic Prospectus together with the prospectus supplement specifically
relating to the Securities, as filed with, or mailed for filing to, the
Commission pursuant to Rule 424. The term "preliminary prospectus" means a
preliminary prospectus supplement specifically relating to the Securities
together with the Basic Prospectus. As used herein, the terms "Registration
Statement," "Basic Prospectus," "Prospectus" and
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"preliminary prospectus" shall include in each case the material, if any,
incorporated by reference therein.
The term "Underwriters' Securities" means the Securities to be
purchased by the Underwriters herein.
II.
The Corporation is advised by the Manager that the
Underwriters propose to make a public offering of their respective portions of
the Underwriters' Securities as soon after this Agreement is entered into as in
the Manager's judgment is advisable. The terms of the public offering of the
Underwriters' Securities are set forth in the Prospectus.
III.
Payment for the Underwriters' Securities shall be made by
certified or official bank check or checks payable to the order of the
Corporation in New York Clearing House funds or in such other manner and such
other funds as may be mutually agreed upon by the Corporation and the Manager
and set forth in the Underwriting Agreement, at the time and place set forth in
the Underwriting Agreement, upon delivery to the Manager for the respective
accounts of the several Underwriters of the Underwriters' Securities registered
in such names and in such denominations as the Manager shall request in writing
not less than two full business days prior to the date of delivery. The time
and date of such payment and delivery with respect to the Underwriters'
Securities are herein referred to as the "Closing Date."
IV.
The several obligations of the Underwriters hereunder are
subject to the following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceedings for such
purpose shall be pending before or threatened by the Commission; and
there shall not have been, since the date of this Agreement or since
the respective dates as of which information is given in the
Registration Statement, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or
business prospects of the Corporation and its subsidiaries considered
as one
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enterprise, whether or not arising in the ordinary course of business;
and the Manager shall have received, on the Closing Date, a
certificate, dated the Closing Date and signed by an executive officer
of the Corporation, to the foregoing effect and also to the effect
that the representations and warranties of the Corporation in this
Agreement are true and correct in all material respects as of the
Closing Date. The officer making such certificate may rely upon the
best of his knowledge as to proceedings pending or threatened and
whether a stop order suspending the effectiveness of the Registration
Statement is in effect.
(b) The Manager shall have received on the Closing Date
an opinion of Puerto Rican counsel for the Corporation, dated the
Closing Date, to the effect set forth in Exhibit A, an opinion of New
York counsel for the Corporation, dated the Closing Date, to the
effect set forth in Exhibit B and, if applicable, an opinion of tax
counsel for the Corporation, dated the Closing Date, covering such
matters as may be mutually agreed upon by such tax counsel and the
Manager and set forth in the Underwriting Agreement.
(c) The Manager shall have received on the Closing Date
from counsel for the Underwriters such opinion or opinions, dated the
Closing Date, with respect to the incorporation of the Corporation,
the validity of the Securities, the Registration Statement, the
Prospectus, and other related matters as the Manager may require, and
the Corporation shall furnish to such counsel such documents as they
may reasonably request for the purposes of enabling them to pass upon
such matters.
(d) The Manager shall have received on the Closing Date a
letter dated the Closing Date in form and substance satisfactory to
the Manager, from the independent accountants to the Corporation
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 into the Registration Statement and the
Prospectus, and confirming that they are independent accountants
within the meaning of the Act and the Securities Exchange Act of 1934
(the "Exchange Act") and the respective applicable published rules and
regulations thereunder.
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V.
In further consideration of the agreements of the Underwriters
contained in this Agreement, the Corporation covenants as follows:
(a) To furnish the Manager, without charge, a certified
copy of the Registration Statement including exhibits and materials,
if any, incorporated by reference therein and, during the period
mentioned in paragraph (c) below, as many copies of the Prospectus,
any documents incorporated by reference therein and any supplements
and amendments thereto as the Manager may reasonably request. The
terms "supplement" and "amendment" or "amend" as used in the Agreement
shall include all documents filed by the Corporation with the
Commission subsequent to the date of the Basic Prospectus, pursuant to
the Exchange Act, which are deemed to be incorporated by reference in
the Prospectus.
(b) Before amending or supplementing the Registration
Statement or the Prospectus with respect to the Securities to furnish
the Manager with a copy of each such proposed amendment or supplement.
(c) If at any time after the public offering of the
Securities, in the opinion of counsel for the Underwriters the
Prospectus is required by law to be delivered, any event shall occur
as a result of which it is necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or if it
is necessary to amend or supplement the Prospectus to comply with law,
forthwith to prepare and furnish, at its own expense, to the
Underwriters, either amendments or supplements to the Prospectus so
that the statements in the Prospectus as so amended or supplemented
will not, in the light of the circumstances under which they were
made, be misleading or so that the Prospectus will comply with law, as
the case may be.
(d) To endeavor to qualify the Securities for offer and
sale under the securities or Blue Sky laws of such jurisdictions as
the Manager shall reasonably request and to pay all reasonable
expenses (including fees and disbursements of counsel) in connection
with such qualification, the determination of the eligibility of the
Securities for investment under the laws of such jurisdictions as the
Manager may reasonably desig-
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nate, the printing of any memoranda concerning the aforesaid
qualification or eligibility and the rating of the Securities by
securities rating services.
(e) To make generally available to the Corporation's
security holders as soon as practicable, but not later than sixteen
months, after the date of each Underwriting Agreement an earnings
statement covering a period of at least twelve months beginning after
the later of (i) the effective date of the Registration Statement,
(ii) the effective date of the most recent post-effective amendment to
the Registration Statement to become effective prior to the date of
such Underwriting Agreement and (iii) the date of the Corporation's
most recent Annual Report on Form 10-K filed with the Commission prior
to the date of such Underwriting Agreement, which shall satisfy the
provisions of Section 11(a) of the Act.
(f) During the period beginning on the date of the
Underwriting Agreement and continuing to and including the earlier of
the Closing Date or the removal by the Manager of trading restrictions
on the Securities, not to offer, sell, contract to sell or otherwise
dispose of (other than upon exercise of warrants therefor, or on
conversion of convertible securities, in each case outstanding at the
date of the Underwriting Agreement or in an offering made exclusively
outside the United States) any debt securities of the Corporation
substantially similar to the Securities without the prior written
consent of the Manager.
VI.
The Corporation represents and warrants to each Underwriter as
follows:
(a) The Corporation has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the Commonwealth of Puerto Rico with corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectus; the Corporation 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 Corporation is not
required to register as a foreign corporation in any jurisdiction in
order to conduct the business presently conducted by it.
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(b) Each subsidiary of the Corporation which is a
significant subsidiary as defined in Rule 405 of Regulation C of the
rules and regulations under the Act (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 is 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
Corporation 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 Corporation, 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
Corporation and its subsidiaries considered as one enterprise.
(c) At the time the Registration Statement became
effective, the Registration Statement complied, and as of the Closing
Date will comply, in all material respects with the requirements of
the Act and the rules and regulations thereunder and the Trust
Indenture Act of 1939 (the "Trust Indenture Act") and the rules and
regulations thereunder. The Registration Statement, at the time it
became effective, did not, and as of the Closing Date 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; and the Prospectus, as of the date
hereof does not, and as of the Closing
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Date will not, contain an untrue statement of a material fact or 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 Prospectus made in
reliance upon and in conformity with information furnished to the
Corporation in writing by the Underwriters expressly for use in the
Registration Statement or Prospectus.
(d) The documents incorporated or deemed to be
incorporated by reference in the Prospectus, at the time they were
filed with the Commission, complied in all material respects with the
requirements of the Exchange Act and the rules and regulations
thereunder, and, when read together and with the other information in
the Prospectus, 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 in order to make the statements therein, in the
light of the circumstances under which they were or are made, not
misleading.
(e) The accountants who certified the financial
statements and supporting schedules included or incorporated by
reference in the Prospectus are independent public accountants within
the meaning of the Act and the rules and regulations thereunder.
(f) The consolidated financial statements and any
supporting schedules included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the
consolidated financial position of the Corporation 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; and the supporting schedules included in the Registration
Statement present fairly the information required to be stated
therein.
(g) This Agreement has been duly authorized, executed and
delivered by the Corporation; the Indenture has been duly authorized
and is a valid and binding obligation of the Corporation enforceable
in
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accordance with its terms subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other similar laws
of general applicability relating to or affecting creditors' rights
and to general equity principles; the Securities 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, will
constitute valid and legally binding obligations of the Corporation
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or other
laws relating to or affecting creditors' rights generally and to
general equity principles; the Securities and the Indenture will be
substantially in the form heretofore delivered to the Underwriters and
conform in all material respects to all statements relating thereto
contained in the Prospectus; and the Securities will be entitled to
the benefits provided by the Indenture.
(h) 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
Corporation and its subsidiaries considered as one enterprise, whether
or not arising in the ordinary course of business.
(i) Neither the Corporation nor any of the Significant
Subsidiaries is in violation of its charter 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 transaction contemplated herein
and therein 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 Corporation
or any of the Significant Subsidiaries pursuant to any contract,
indenture, mortgage, loan agreement, note, lease or other instrument
to which the
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Corporation 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 Corporation 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 Corporation or any such subsidiary or any law,
administrative regulation or administrative or court order or decree
which breach, default, imposition or violation would, in each case,
have a material adverse effect on the corporation 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 Corporation of the transactions contemplated by
this Agreement, except such as have already been obtained or as may be
required under the Act or the rules and regulations thereunder (which
have been obtained), the Trust Indenture Act or state securities or
Blue Sky laws.
(j) 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 Corporation, threatened against
or affecting, the Corporation 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 Corporation and its subsidiaries considered as one enterprise,
or might materially and adversely affect the consummation of this
Agreement; and there are no contracts or documents of the Corporation
or any of its subsidiaries which are required to be filed or
incorporated by reference as exhibits to the Registration Statement by
the Act or by the rules and regulations thereunder which have not been
so filed or incorporated by reference.
(k) The Corporation 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 Corporation
or the Significant Subsidiaries; and neither the Corporation nor any
of the Significant Subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such certificate,
authority or
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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 Corporation and its subsidiaries considered as one
enterprise.
The Corporation agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls such Underwriter within the
meaning of either Section 15 of the Act or Section 20 of the Exchange Act, from
and against any and all losses, claims, damages and liabilities caused by any
untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement, any preliminary prospectus or the Prospectus (if
used within the period set forth in paragraph (c) of Article V hereof and as
amended or supplemented if the Corporation shall have furnished any amendments
or supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information furnished in
writing to the Corporation by an Underwriter expressly for use therein;
provided that the foregoing indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting any such losses, claims, damages or liabilities purchased
Securities, or any person controlling such Underwriter, if a copy of the
Prospectus (as then amended or supplemented if the Corporation shall have
furnished any amendments or supplements thereto) was not sent or given by or on
behalf of such Underwriter to such person, if required by law so to have been
delivered, at or prior to the written confirmation of the sale of the
Securities to such person, and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such loss, claim,
damage or liability.
Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Corporation, its directors and its officers who
sign the Registration Statement and any person controlling the Corporation to
the same extent as the foregoing indemnity from the Corporation to each
Underwriter, but only with reference to information furnished in writing by
such Underwriter through the Manager expressly for use in the Registration
Statement, any preliminary prospectus or the Prospectus and any amendments or
supplements thereto.
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In case any proceeding (including any governmental
investigation) shall be threatened or instituted involving any person in
respect of which indemnity may be sought pursuant to either of the two
preceding paragraphs, such person (the "indemnified party") shall promptly
notify the person against whom such indemnity may be sought (the "indemnifying
party") in writing and the indemnifying party, upon request of the indemnified
party, shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the reasonable fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but fees and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the indemnifying party and the indemnified party
shall have mutually agreed to retention of such counsel or (ii) the named
parties to any such proceeding (including impleaded parties) include both the
indemnifying party and the indemnified party and representation of both parties
by the same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the indemnifying party shall
not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one
separate firm for all such indemnified parties. In the case of parties
indemnified pursuant to the second preceding paragraph, such separate firm
shall be designated in writing by the Manager. In the case of parties
indemnified pursuant to the immediately preceding paragraph, such separate firm
shall be designated in writing by the Corporation. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action. The indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
If the indemnification provided for in this Article VI is
unavailable to an indemnified party under the second or third paragraphs hereof
or insufficient in respect of any losses, claims, damages or liabilities
referred to
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therein, then each indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Corporation on the one hand and the Underwriters on the other from the offering
of the Securities or (ii) if the allocation provided by clause (i) above 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 Corporation on the one hand and of the Underwriters on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Corporation on the one
hand and the Underwriters on the other in connection with the offering of the
Securities shall be deemed to be in the same proportion as the total net
proceeds (before deducting expenses) from the offering of such Securities
received by the Corporation bear to the total underwriting discounts and
commissions received by the Underwriters in respect thereof. The relative
fault of the Corporation on the one hand and of the Underwriters on the other
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Corporation or
by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statements or omissions.
The Corporation and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Article VI were
determined by pro rata allocation or by any other method of allocation which
does not take account of the considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any reasonable legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this
Article VI, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total public offering price of the Securities
purchased by such Underwriter exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or
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alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute pursuant to this Article VI are
several, in proportion to the respective principal amounts of Securities
purchased by each of such Underwriters, and not joint.
The indemnity and contribution agreements contained in this
Article VI and the representations and warranties of the Corporation in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by any
Underwriter or on behalf of any Underwriter or any person controlling any
Underwriter or by or on behalf of the Corporation, its directors or officers or
any person controlling the Corporation and (iii) acceptance of and payment for
any of the Securities.
VII.
This Agreement shall be subject to termination in the absolute
discretion of the Manager, by notice given to the Corporation, if prior to the
Closing Date, (i) there has been, since the date of this Agreement or since
the respective dates as of which information is given in the Registration
Statement, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Corporation and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, (ii) trading in securities
generally on the New York Stock Exchange, Inc. shall have been suspended or
materially limited, (iii) a general moratorium on commercial banking activities
in New York shall have been declared by either Federal, New York State or
Puerto Rico authorities, (iv) there shall have occurred any material outbreak
or escalation of hostilities or other calamity or crisis the effect of which on
the financial markets of the United States is such as to make it, in the
judgment of the Manager, impracticable to market the Securities, or (v) the
rating assigned by any nationally recognized securities rating agency to any
debt securities of the Corporation as of the date of this Agreement shall have
been lowered since that date or if any such rating agency shall have publicly
announced since the time of this Agreement that it has placed any debt
securities of the Corporation on what is commonly termed a "watch list" for
possible downgrading.
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VIII.
If on the Closing Date any one or more of the Underwriters
shall fail or refuse to purchase Securities which it or they have agreed to
purchase hereunder and the aggregate principal amount of Securities which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
is not more than one-tenth of the aggregate principal amount of Securities to
be purchased on such date, the other Underwriters shall be obligated severally
in the proportions which the number of Securities set forth opposite their
names in the Underwriting Agreement bears to the aggregate principal amount of
Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Manager may specify, to
purchase the Securities which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase on such date. If on the Closing Date
any Underwriter or Underwriters shall fail or refuse to purchase Securities and
the aggregate principal amount of Securities with respect to which such default
occurs is more than one-tenth of the aggregate principal amount of Securities
to be purchased on such date, and arrangements satisfactory to the Manager and
the Corporation for the purchase of such Securities are not made within 36
hours after such default, this Agreement shall thereupon terminate without
liability on the part of any non-defaulting Underwriter or of the Corporation.
In any such case either the Manager or the Corporation shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement and in the
Prospectus or in any other documents or arrangements may be effected. Any
action taken under this paragraph shall not relieve any defaulting Underwriter
from liability in respect of any default of such Underwriter under this
Agreement.
IX.
If this Agreement shall be terminated by the Underwriters or
any of them, because of any failure or refusal on the part of the Corporation
to comply with the terms or to fulfill any of the conditions of this Agreement,
or if for any reason the Corporation shall be unable to perform its obligations
under this Agreement, the Corporation will reimburse the Underwriters or such
Underwriters as have so terminated this Agreement, with respect to themselves,
severally, for all reasonable out-of-pocket expenses (including the fees and
disbursements of
-14-
18
their counsel) reasonably incurred by such Underwriters in connection with the
Securities.
This Agreement may be signed in any number of counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
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19
Exhibit A
(i) The Corporation has been duly incorporated and is
validly existing as a corporation in good standing under the laws of Puerto
Rico.
(ii) The Corporation has corporate power and authority
to own, lease and operate its properties and conduct its business as described
in the Registration Statement.
(iii) The Corporation 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 corporate
power and authority to own, lease and operate its properties and 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 Corporation 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
directors' qualifying shares, is owned, directly or through such subsidiaries,
by the Corporation free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity.
(v) The Underwriting Agreement has been duly
authorized, executed and delivered by the Corporation.
(vi) The Indenture has been duly authorized, executed
and delivered by the Corporation and constitutes a valid and legally binding
obligation of the Corporation 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.
20
(vii) The Securities have been duly authorized,
executed, authenticated, issued and delivered and constitute valid and legally
binding obligations of the Corporation 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 and to general equity principles.
(viii) All regulatory consents, authorizations, approvals
and filings required to be obtained or made by the Corporation under the
federal laws of the United States and the General Corporation Law of the
Commonwealth of Puerto Rico for the issuance, sale and delivery of the
Securities by the Corporation to or through the Managers have been obtained or
made; provided, however, that, for purposes of this paragraph (viii), such
counsel need express no opinion with respect to state securities laws.
(ix) To the best of such counsel's knowledge, neither
the Corporation nor any of the Significant Subsidiaries is in violation of its
charter 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.
(x) The issuance of the Securities in accordance with
the Indenture does not, and the sale by the Corporation of the Securities to
the Underwriters pursuant to the Underwriting Agreement and the performance by
the Corporation of its obligations under the Indenture, the Underwriting
Agreement and the Securities will not, (a) violate the articles of
incorporation or by-laws of the Corporation, or (b) violate any existing
Federal law of the United States or any law of the Commonwealth of Puerto Rico
or any administrative regulation or administrative or court decree applicable
to the Corporation, or (c) conflict with or 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 Corporation, pursuant to any
contract, indenture, mortgage, loan agreement, note, lease or other instrument
known to such counsel to which the Corporation is a party or by which it may be
bound, or to which any of the property or assets of the Corporation is subject,
which breach, default, imposition or violation would, in each case, have a
material adverse effect on the Corporation and its subsidiaries taken as a
whole; provided, however, that, for purposes of this paragraph (x), such
counsel need express no opinion with
A-2
21
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; provided, further, that
insofar as performance by the Corporation of its obligations under the
Indenture, the Underwriting Agreement and the Securities are 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 or general equity principles.
(xi) 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 or the
Prospectus Supplement, other than those disclosed therein, and all pending
legal or governmental proceedings to which the Corporation 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 Corporation or any such
subsidiary, are, considered in the aggregate, not material.
(xii) 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 in all material respects.
(xiii) The Registration Statement is effective under the
Act and, to the best of such counsel's knowledge, (i) no stop order suspending
the effectiveness of the Registration Statement has been issued under the Act
and (ii) no proceedings therefor have been initiated or threatened by the
Commission.
(xiv) At the time the Registration Statement became
effective, the Registration Statement (other than the financial statements,
schedules and other financial data included or incorporated by reference
therein as to which no opinion need be rendered by such counsel) complied as to
form in all material respects with the requirements of the Act, the Trust
Indenture Act and the regulations under each of those acts.
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22
(xv) Each document filed pursuant to the Exchange Act
and incorporated by reference in the Prospectus complied when filed as to form
in all material respects with the Exchange Act and the rules and regulations
thereunder.
(xvi) Such counsel confirms that, in her opinion,
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 (within the meaning of the Act) or at the Closing Date, as the
case may be, contains or contained any untrue statement of a material fact or
omits 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 forming part thereof, or
at the Closing Date, contains or contained any untrue statement of a material
fact or omits 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 except for
those made under the captions "Certain Regulatory Matters", ["Description of
Preferred Stock"] ["Description of Debt Securities and Guarantees"],
"Underwriting" and "Plan of Distribution" and the appropriate sections in any
Prospectus Supplement describing the securities offered thereby, 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 and the Prospectus, as to the
statement of the eligibility and qualification of the Trustee under the
Indenture; and that her letter is furnished as counsel for the Corporation to
the Underwriters and is solely for the benefit of the Underwriters.
Such counsel may base her opinions, as to certain
questions of fact, on certificates of officers of the Corporation and may rely
as to all matters relating to the laws of the State of New York upon the
opinion of Xxxxxxxx & Xxxxxxxx.
A-4
23
Exhibit B
(i) The Corporation is duly registered as a bank
holding company under the Bank Holding Company Act of 1956.
[(ii) The Indenture has been duly authorized, executed
and delivered by the Corporation and duly qualified under the Trust Indenture
Act of 1939 and constitutes a valid and legally binding obligation of the
Corporation 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 Securities have been duly authorized,
executed, authenticated, issued and delivered and constitute valid and legally
binding obligations of the Corporation 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 and to general equity principles.]
(iv) All regulatory consents, authorizations, approvals
and filings required to be obtained or made by the Corporation 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 Securities by the Corporation to or through
the Managers have been obtained or made.
(v) The Underwriting Agreement has been duly
authorized, executed and delivered by the Corporation.
(vi) The issuance of the Securities in accordance with
the Indenture and the sale of the Securities by the Corporation to the
Underwriters pursuant to the Underwriting Agreement do not, and the performance
by the Corporation of its obligations under the Indenture, the Underwriting
Agreement and the Securities will not, violate any existing federal law of the
United States applicable to the Corporation; provided, however, that, for the
purposes of this paragraph (vi), 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; provided, further, that
insofar as performance by the Corporation of its obligations under the
Indenture, the Underwriting Agreement and the Securities is concerned, such
counsel need express no opinion as to bankruptcy,
24
insolvency, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights.
(vii) The Registration Statement is effective under the
Act and, to the best of such counsel's knowledge, (i) no stop order suspending
the effectiveness of the Registration Statement has been issued under the Act
and (ii) no proceedings therefor have been initiated or threatened by the
Commission.
(viii) As counsel to the Corporation such counsel has
reviewed the Registration Statement and the Prospectus, participated in
discussions with representatives of the Managers and those of the Corporation
and its accountants, and advised the Corporation as to the requirements of the
Act and the applicable rules and regulations thereunder, and on the basis of
the information that such counsel gained in the course of the performance of
their services 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 Act, such counsel confirm that, in their opinion, each part
of the Registration Statement, when such part became effective, and the Basic
Prospectus, as supplemented by the Prospectus Supplement, as of the date of the
Prospectus Supplement, appeared on their face to be appropriately responsive,
in all material respects [relevant to the offering of the Securities], to the
requirements of the Act, [the Trust Indenture Act,] and the applicable rules
and regulations of the Commission thereunder; and that nothing that came to
their attention in the course of their review that has caused them to believe
that[, insofar as relevant to the offering of the Securities,] 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 Basic Prospectus, as supplemented by the Prospectus Supplement, as of
the date of the Prospectus Supplement, 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. Also, that nothing has come to their attention in the
course of the procedures described in the [second] sentence of this paragraph
that has caused them to believe that the Basic Prospectus, as supplemented by
the Prospectus Supplement, as of the date and time of delivery of this letter,
contained any untrue statement of a material fact or omitted to state any
material fact necessary in
B-2
25
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 they do not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement, the Basic Prospectus or the Prospectus
Supplement except (i) for those made under the captions ["Description of
Securities and Guarantees"], ["Description of Preferred Stock"],
["Underwriting"] and ["Plan of Distribution"] and the appropriate sections in
any Prospectus Supplement describing the securities offered thereby, insofar as
they relate to provisions of documents therein described, and (ii) the accuracy
of the descriptions of the Federal laws of the United States contained in the
Registration Statement, the Basic Prospectus and the Prospectus Supplement
under the captions "Certain Regulatory Matters" and "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, the
Basic Prospectus, the Prospectus Supplement [as to the statement of the
eligibility and qualification of the Trustee under the Indenture under which
the Securities are being issued]; and that their letter is furnished as counsel
for the Corporation to the Underwriters and is solely for the benefit of the
Underwriters.
Such counsel may base their opinions, as to certain questions
of fact, on certificates of officers of the Corporation 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.
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