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EXHIBIT 10.26
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 Merrill Lynch, Pierce, Fenner & Smith
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/ David H. Chafey, Jr.
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Name: David H. Chafey, Jr.
Title: President
BANPONCE CORPORATION
By: /s/ David H. Chafey, Jr.
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Name: David H. Chafey, Jr.
Title: Executive Vice President
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Scott G. Primrose
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Name: Scott G. Primrose
Title: Authorized Signatory
CS FIRST BOSTON CORPORATION
By: /s/ Martha D. Bailey
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Name: Martha D. Bailey
Title: Vice President
FIRST CHICAGO CAPITAL MARKETS, INC.
By: /s/ Linda A. Dawson
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Name: Linda A. Dawson
Title: Managing Director
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