1
EXHIBIT 10.12.1
FIRST AMENDMENT TO CREDIT AGREEMENT
This First Amendment to Credit Agreement (the "Amendment"), dated as
of the 2nd day of April, 1993, is among BanPonce Corporation, a Puerto Rico
corporation ("BanPonce"), BanPonce Financial Corp., a Delaware corporation
("Financial"), Vehicle Equipment Leasing Company, Inc. ("VELCO"), a Puerto Rico
corporation, (BanPonce, Financial and VELCO are sometimes collectively
referred to herein as the "Companies" and individually as a "Company"),
Barclays Bank PLC, acting through its Miami Agency (the "Lender") and is to
that certain Credit Agreement dated as of May 19, 1992 the ("Credit Agreement")
among the Companies and the Lender. Capitalized terms used herein and not
otherwise defined shall have the meanings given to such terms in the Credit
Agreement.
WHEREAS, pursuant to the Credit Agreement, the Lender has agreed to
provide certain financing to the Companies upon the terms and conditions set
forth in the Credit Agreement;
WHEREAS, the Companies and the Lender have agreed to an amendment of
the terms and provisions of the Credit Agreement in the manner hereinafter set
forth.
NOW, THEREFORE, in consideration of the foregoing premises, the
following provisions and for other good and valuable consideration, the receipt
of which is hereby acknowledged, the parties hereby agree as follows:
1. Amendment to Credit Agreement. Subject to the conditions precedent
described in Section 2 hereby agrees as follows:
1.1 Section 1 of the Credit Agreement is hereby amended to and
to delete the date "May 18, 1992" in the third line thereof and to replace
therefor "April 1, 1994" and to delete the number "$25,000,000" in the sixth
line thereof and to replace therefor the number "$45,000,000".
1.2 Section 3.4 of the Credit Agreement is hereby amended to
delete the fraction "3/8 of 1%" and to substitute it for "7/20 of 1% (.35%)".
This change is effective as of April 2, 1993, as provided in Section 4 of this
Amendment.
2. Representations and Warranties.
2.1 The Companies hereby represent and warrant to the Lender
that each representation and warranty as set forth in the Credit Agreement is
true and correct as if made as of the date of this Amendment.
2
Insofar as each representation and warranty set forth in
the Credit Agreement specifically refers to December 31, 1991, the Companies
hereby represent and warrant to the Lender that each such representation and
warranty is equally true and correct as of December 31, 1992.
2.2 Each of the Companies hereby represent that this Amendment
constitutes a legal, valid and binding obligation of such Company enforceable
against such Company in accordance with its terms.
3. References to and Effect Upon the Credit Agreement. Upon the
effectiveness of this Amendment, each reference in the Credit Agreement to
"this Credit Agreement", "this Agreement", "hereunder", "hereof", "herein", or
words of like import shall mean and be a reference to the Credit Agreement as
amended hereby amended, all of the terms, covenants and conditions of the
Credit Agreement shall remain in full force and effect. As amended and
modified by this Amendment, the Credit Agreement is hereby ratified and
confirmed in all respects. The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a waiver
of any right, power or remedy of any of the Lenders of the Agent, nor
constitute a waiver of any provision of the Credit Agreement, or any other
documents, instruments and agreements executed and/or delivered in connection
therewith.
4. Conditions Precedent. This Amendment shall be deemed effective as of
April 2nd, 1993 (the "Amendment Closing Date") upon the satisfaction of the
following conditions precedent:
(a) The Lender shall have received the following documents in
form and substance satisfactory to the Lender and its legal counsel:
(i) Certified copies of: (A) all necessary legal
authorizations required for the Companies to enter into
this Amendment and to perform in full its obligations
hereunder; (B) articles of incorporation and by-laws of the
Corporation; and (C) evidence of the authority of each
Person authorized to execute this Amendment and any other
documents to be executed and delivered in behalf of the
Companies in connection with this Amendment.
(ii) A written opinion of Brunilda Santos de Alvarez,
legal counsel to each of the Companies, addressed to the
Lender in form and substantially similar to Exhibit 1;
(iii) certified copies of any government authorizations,
consents, approvals and licenses as may be required under
any applicable law and regulations for the Companies to
make and perform its obligations pursuant to this
Amendment, if any;
(iv) two (2) duly executed copies of this Amendment, in
form and substance satisfactory to the Bank and its legal
counsel; and
3
(v) a Note in the form of Exhibit 2 hereto made by the
Companies in favor of the Lender in the principal amount of
$45,000,000;
(vi) the Guarantor's written ratification of the Guaranty
in the form of Exhibit 3 hereto; and
(vii) such other documents and certificates as the Bank or
its legal counsel may reasonably request.
5. Counterparts. This Amendment may be executed by one or more of the
parties to this Amendment in any number of separate counterparts and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument.
6. Paragraph Titles. The paragraph titles contained in this Amendment
are used for convenience only and shall be without substance, meaning or
content of any kind whatsoever and are not a part of this agreement between the
parties hereto.
IN WITNESS WHEREOF, this Amendment has been duly executed and
delivered by proper and duly authorized officers of the respective party as of
the date and year first above written.
BANPONCE CORPORATION
By:
________________________________
Title: Senior Vice President
By:
________________________________
Title: Chairman of the Board
BANPONCE FINANCIAL CORPORATION
By:
________________________________
Title: Senior Vice President
VEHICLE EQUIPMENT LEASING COMPANY, INC.
By:
________________________________
Title: Chairman of the Board
BARCLAYS BANK, PLC, ACTING THROUGH ITS
MIAMI AGENCY
By:
________________________________
Title: _____________________________
4
EXHIBIT 1
April 12, 1993
Barclays Bank PLC (acting through its Miami Agency)
801 Brichell Avenue
Miami, Florida 33131
Gentlemen:
We are counsel for BanPonce Corporation ("BanPonce"), a corporation
organized and existing under the laws of the Commonwealth of Puerto Rico,
BanPonce Financial Corp. ("BPFC"), a corporation organized and existing under
the laws of the State of Delaware and Vehicle Equipment Leasing Company, Inc.
("VELCO"), a corporation organized and existing under the laws of the
Commonwealth of Puerto Rico, (the "Companies") and have represented the
Companies in connection with its execution and delivery of the First Amendment
(the "Amendment") dated as of April 2, 1993, providing for Loans in an
aggregate principal amount not exceeding $45,000,000 at any one time
outstanding and a Note and Ratification of Guaranty (the "Related Documents")
to a certain Credit Agreement (the "Agreement") executed by and between the
Companies and Barclays Bank PLC, (acting through its Miami Agency) (the
"Lender"), dated as of May 19, 1992. All capitalized terms used in this
opinion shall have the meanings attributed to them in the Agreement.
We have examined the Companies' articles of incorporation, by-laws,
resolutions, the Agreement and such other matters of fact and law which we
deemed necessary in order to render this opinion. Based upon the foregoing, it
is our opinion that:
1. The Companies are corporations duly incorporated, validly
existing and in good standing under the laws of their respective jurisdictions
of incorporation and have all requisite authority to conduct their business in
each jurisdiction in which their business is conducted.
2. The execution and delivery of the Amendment and the Related
Documents by BanPonce and BPFC and the performance by the said entities of
their respective obligations have been duly authorized by all necessary
corporate action and proceedings on the part of BanPonce and BPFC and will not:
(a) require any consent of the Companies shareholders;
(b) violate any applicable law, rule, regulation, order,
writ, judgment, injunction, decree or award binding on BanPonce and BPFC or any
subsidiary or the BanPonce and BPFC or any Subsidiary's article or
incorporation of by-laws or any indenture, instrument or agreement binding upon
BanPonce and BPFC or any Subsidiary; or
5
-2-
(c) result in, or require, the creation or imposition of
any lien pursuant to the provisions of any indenture, instrument or agreement
binding upon BanPonce and BPFC or any Subsidiary.
3. The Amendment and Related Documents have been duly executed and
delivered by BanPonce and BPFC and constitute the legal, valid and binding
obligation of BanPonce and BPFC enforceable in accordance with their terms
except to the extent the enforcement thereof may be limited by bankruptcy,
insolvency, fraudulent transfer moratorium and similar laws of general
applicability relating to or affecting the enforcement of creditors' rights and
subject also to the availability of equitable remedies if equitable remedies
are sought.
4. There is no litigation or proceeding against the Companies or any
Subsidiary which, if adversely determined, would materially adversely affect
the business or condition of the Companies or any Subsidiary.
5. No approval, authorization, consent adjudication or order of any
governmental authority, which has not been obtained by the Companies or any
Subsidiary, is required to be obtained by the Companies or any Subsidiary in
connection with the execution and delivery of the Amendment or the Related
Documents, the borrowings under the Amendment or in connection with the
performance by the Companies of their respective Obligation(s) under the
Amendment and Related Documents.
VELCO has informed the Lender that it intends to submit for
consideration and approval at the next meeting of the Board of Directors
scheduled to be held on April 30th, 1993 a resolution approving the borrowings
contemplated in the Amendment and Related Documents at which time the
undersigned shall deliver an opinion as to matters covered in paragraph 2 and 3
of this opinion with regards to VELCO.
The foregoing opinion is limited to the Federal laws of the United
States and the laws of the Commonwealth of Puerto Rico and Delaware's corporate
law with regards to the incorporation and existence of BanPonce Financial Corp.
and I am expressing no opinion as to the effect of the laws of any other
jurisdiction.
Very truly yours,
______________________________
Brunilda Santos de Alvarez
Legal Counsel
6
EXHIBIT 2
FORM OF NOTE
$45,000,000 April 2, 1993
BanPonce Corporation, a Puerto Rico corporation, BanPonce Financial Corp., a
Delaware corporation, and Vehicle Equipment Leasing Company, Inc., a Puerto
Rico corporation (the "Companies"), promises to pay to the order of Barclays
Bank PLC (acting through its Miami Agency) (the "Lender") the principal sum of
US$45,000,000 or the aggregate unpaid principal amount of all Loans made by the
Bank to the Company Pursuant to Section 1 of the Credit Agreement dated as of
May 19, 1992, as amended, among the companies and Barclays Bank PLC, acting
through its Miami Agency (the "Agreement"), whichever is less, in immediately
available funds at the Miami Agency of the Lender, together with interest on
the unpaid principal amount hereof. Interest and principal shall be payable at
the rates and on the dates set forth in the Agreement free and clear of any set
off, counterclaim, deduction or withholding for any reason whatsoever. The
Company shall pay each Loan in full in accordance with the terms and provisions
of the Agreement.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Loan and the date and amount of each principal
payment.
This Note is issued pursuant to the provisions of the Agreement, to
which Agreement, as it may be amended from time to time, reference is hereby
made for the definitions of capitalized terms used herein which are not
otherwise defined and for a statement of the terms and conditions under which
this Note may be prepaid or its maturity date accelerated. This Note is in
substitution for, and represents a continuation of, the indebtedness incurred
under a prior Note issued pursuant to the Agreement. Presentment, demand,
protest and notice, other than as provided in Section 9.1 of the Agreement, are
hereby waived. This Note is governed by the laws of the State of Florida.
This Note was executed and delivered in San Juan, Puerto Rico.
BANPONCE CORPORATION
By:
________________________________
Title: Senior Vice President
By:
_________________________________
Title: Chairman of the Board
7
BANPONCE FINANCIAL CORP.
By: _________________________________
Title: Senior Vice President
VEHICLE EQUIPMENT LEASING COMPANY, INC.
By: _________________________________
Title: Chairman of the Board
8
EXHIBIT 3
FORM OF GUARANTY RATIFICATION
Barclays Bank PLC
801 Brickell Avenue
Miami, Florida 33131
Re: Guaranty of BanPonce Corporation dated as of May 19, 1992
Dear Sirs:
Reference is hereby made to that certain Guaranty dated as of May 19,
1992 (the "Guaranty") made and delivered by BanPonce Corporation, a Puerto Rico
corporation ("BanPonce") to the Lender (as defined in the Guaranty).
Capitalized terms used herein not otherwise defined shall have the meanings
given to such terms in the Guaranty. Pursuant to the Guaranty, BanPonce
guaranteed the obligations of BanPonce Financial Corp., a Delaware Corporation
("Financial") and/or Vehicle Equipment Leasing Company, Inc., a Puerto Rico
corporation ("VELCO") arising under the Credit Agreement.
BanPonce, Financial and VELCO have requested the Lenders to increase
their Commitment (as defined in the Credit Agreement) pursuant to that certain
First Amendment to Credit Agreement dated as of April 2, 1993 (the "Amendment")
among BanPonce, Financial, VELCO, and the Lender. The Lender has agreed to do
so provided BanPonce ratifies that such increase in their Commitment evidenced
by the Amendment is guaranteed by BanPonce pursuant to the Guaranty. Thus,
BanPonce hereby ratifies that the Guaranty remains in full force and effect
with respect to the Credit Agreement as amended by the Amendment and that all
terms, covenants and conditions of the Guaranty shall remain in full force and
effect with respect to the Credit Agreement as amended by the Amendment.
Without limiting the foregoing, the maximum aggregate principal amount extended
under the Credit Agreement for which the undersigned shall be liable under the
Guaranty is hereby increased to US$45,000,000. The execution, delivery and
acceptance of this letter shall not act as a waiver of any right, power or
remedy of the Lender, nor constitutes a waiver of any provision of the
Guaranty, or any other documents, instruments and agreements executed and/or
delivered in connection therewith.
BANPONCE CORPORATION
By: _________________________________
Name: Jose Luis Lopez Calderon
Title: Senior Vice President
By: _________________________________
Name: Alberto M. Paracchini
Title: Chairman of the Board
9
EXHIBIT 10.12.1
SECOND AMENDMENT TO CREDIT AGREEMENT
This Second Amendment to Credit Agreement (the "Amendment"), dated as
of the 2nd day of April, 1993, is among BanPonce Corporation, a Puerto Rico
corporation ("BanPonce"), BanPonce Financial Corp., a Delaware corporation
("Financial"), Vehicle Equipment Leasing Company, Inc. ("VELCO"), a Puerto Rico
corporation, (BanPonce, Financial and VELCO are sometimes collectively referred
to herein as the "Companies" and individually as a "Company"), Barclays Bank
PLC acting through its Miami Agency (the "Lender"), and is to a certain Credit
Agreement dated May 19, 1992 as amended by First Amendment to Credit Agreement
dated as of April 2, 1993 (the "Credit Agreement") among the Companies and the
Lender. Capitalized terms used herein and not otherwise defined shall have the
meanings given to such terms in the Credit Agreement.
WHEREAS, pursuant to the Credit Agreement, the Lender has agreed to
provide certain financing to the Companies upon the terms and conditions set
forth in the Credit Agreement;
WHEREAS, the Companies and the Lender have agreed to an amendment of
the terms and provisions of the Credit Agreement in the manner hereinafter set
forth.
NOW, THEREFORE, in consideration of the foregoing premises, the
following provisions and for other good and valuable consideration, the receipt
of which is hereby acknowledged, the parties hereby agree as follows:
1. Amendment to Credit Agreement.
1.1 Section 2 of the Credit Agreement is hereby amended to include at
the end of the tenth line of the definition of "Indebtedness" the following
language "excluding liabilities of Banco Popular de Puerto Rico which are
defined as deposits pursuant to Section 3(1) of the Federal Deposit Insurance
Act, as amended, 12 U.S.C. Section 1813 (l), and to include at the end of the
definition of "Long-Term Indebtedness" "for purposes of this definition current
liabilities shall mean such Indebtedness with a maturity date of one year or
less."
10
2. Representations and Warranties.
2.1 The Companies hereby represent and warrant to the Lender that
each representation and warranty as set forth in the Credit Agreement is true
and correct as if made as of the date of this Amendment.
2.2 Each of the Companies hereby represent that this Amendment
constitutes a legal, valid and binding obligation of such Company enforceable
against such Company in accordance with its terms.
2.3 No event has occurred and is continuing which constitutes an
Event of Default or would constitute an Event of Default, but for the
requirement that notice be given or time elapse or both.
3. References to and Effect Upon the Credit Agreement. Upon the
effectiveness of this Amendment, each reference in the Credit Agreement to
"this Credit Agreement", "this Agreement", "hereunder", "hereof", "herein", or
words of like import referring to the Credit Agreement, and each reference in
the other Loan Documents to the "Credit Agreement", "thereunder", "thereof", or
words of like import referring to the Credit Agreement shall mean and be a
reference to the Credit Agreement as amended hereby, and each reference in the
other Loan Documents to "the Note", "thereunder", "thereof" or words of like
import referring to the Note, shall mean and be a reference to the Note, as
amended by the Allonge referred to below. All of the terms, covenants and
conditions of the Credit Agreement shall remain in full force and effect. As
amended and modified by this Amendment, the Credit Agreement is hereby ratified
and confirmed in all respects. The execution, delivery and effectiveness of
this Amendment shall not operate as a waiver of any right, power or remedy of
the Lender, nor constitute a waiver of any provision of the Credit Agreement,
or any other documents, instruments and agreements executed and/or delivered in
connection therewith.
4. Counterparts. This Amendment may be executed by one or more of the
parties to this Amendment in any number of separate counterparts and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument.
5. Paragraph Titles. The paragraph titles contained in this Amendment
are used for convenience only and shall be without substance, meaning or
content of any kind whatsoever and are not a part of this agreement between the
parties hereto.
IN WITNESS WHEREOF, this Amendment has been duly executed and
delivered by proper and duly authorized officers of the respective party as of
the date and year first above written.
11
BANPONCE CORPORATION
By: _________________________________
Title: ______________________________
By: _________________________________
Title: ______________________________
BANPONCE FINANCIAL CORPORATION
By: _________________________________
Title: ______________________________
VEHICLE EQUIPMENT LEASING COMPANY, INC.
By: _________________________________
Title: ______________________________
BARCLAYS BANK, PLC, ACTING THROUGH ITS
MIAMI AGENCY
By: _________________________________
Title: ______________________________
12
EXHIBIT 10.12.1
FIRST AMENDMENT TO CREDIT AGREEMENT
This First Amendment to Credit Agreement (the "Amendment"), dated as
of the 8th day of April, 1993, is among BanPonce Corporation, a Puerto Rico
corporation ("BanPonce"), BanPonce Financial Corp., a Delaware corporation
("Financial"), Vehicle Equipment Leasing Company, Inc. ("VELCO"), a Puerto Rico
corporation, (BanPonce, Financial and VELCO are sometimes collectively referred
to herein as the "Companies" and individually as a "Company"), Citibank, N.A.
(the "Lender"), and is to a certain Credit Agreement dated May 22, 1992 the
("Credit Agreement") among the Companies and the Lender. Capitalized terms
used herein and not otherwise defined shall have the meanings given to such
terms in the Credit Agreement.
WHEREAS, pursuant to the Credit Agreement, the Lender has agreed to
provide certain financing to the Companies upon the terms and conditions set
forth in the Credit Agreement;
WHEREAS, the Companies and the Lender have agreed to an amendment of
the terms and provisions of the Credit Agreement in the manner hereinafter set
forth.
NOW, THEREFORE, in consideration of the foregoing premises, the
following provisions and for other good and valuable consideration, the receipt
of which is hereby acknowledged, the parties hereby agree as follows:
1. Amendment to Credit Agreement. Subject to the conditions precedent
described in Section 4, the Lender and each of the Companies hereby agree as
follows:
1.1 Section 1 of the Credit Agreement is hereby amended to delete the
number "$35,000,000" in the eighth line thereof and to replace therefor the
number "$50,000,000".
2. Representations and Warranties.
2.1 The Companies hereby represent and warrant to the Lender that
each representation and warranty as set forth in the Credit Agreement is true
and correct as if made as of the date of this Amendment.
2.2 Each of the Companies hereby represent that this Amendment
constitutes a legal, valid and binding obligation of such Company enforceable
against such Company in accordance with its terms.
13
2.3 No event has occurred and is continuing which constitutes an
Event of Default or would constitute an Event of Default, but for the
requirement that notice be given or time elapse or both.
3. References to and Effect Upon the Credit Agreement. Upon the
effectiveness of this Amendment, each reference in the Credit Agreement to
"this Credit Agreement", "this Agreement", "hereunder", "hereof", "herein", or
words of like import referring to the Credit Agreement, and each reference in
the other Loan Documents to the "Credit Agreement", "thereunder", "thereof", or
words of like import referring to the Credit Agreement shall mean and be a
reference to the Credit Agreement as amended hereby, and each reference in the
other Loan Documents to "the Note", "thereunder", "thereof" or words of like
import referring to the Note, shall mean and be a reference to the Note, as
amended by the Allonge referred to below. All of the terms, covenants and
conditions of the Credit Agreement shall remain in full force and effect. As
amended and modified by this Amendment, the Credit Agreement is hereby ratified
and confirmed in all respects. The execution, delivery and effectiveness of
this Amendment shall not operate as a waiver of any right, power or remedy of
the Lender, nor constitute a waiver of any provision of the Credit Agreement,
or any other documents, instruments and agreements executed and/or delivered in
connection therewith.
4. Conditions Precedent. This Amendment shall be deemed effective as of
April 8th, 1993 (the "Amendment Closing Date") upon the satisfaction of the
following conditions precedent:
(a) The Lender shall have received the following documents in form
and substance satisfactory to the Lender and its legal counsel:
(i) Certified copies of: (A) all necessary legal
authorizations required for each of the Companies to enter into
this Amendment and to perform in full its obligations hereunder;
(B) articles of incorporation and by-laws of each of the
Companies; and (C) evidence of the authority of each Person
authorized to execute this Amendment and any other documents to
be executed and delivered in behalf of each of the Companies in
connection with this Amendment.
(ii) A written opinion of Brunilda Santos de Alvarez, legal
counsel to each of the Companies and the Guarantor, addressed to
the Lender in form and substantially similar to Exhibit 1;
(iii) certified copies of any government authorizations,
consents, approvals and licenses as may be required under any
applicable law and regulations for the Companies to make and
perform its obligations pursuant to this Amendment, if any;
(iv) two (2) duly executed copies of this Amendment, in
form and substance satisfactory to the Bank and its legal
counsel; and
(v) an Allonge in the form of Exhibit 2 hereto made by each
of the Companies in favor of the Lender in the principal amount
of $50,000,000;
14
(vi) the Guarantor's written ratification of
the Guaranty in the form of Exhibit 3 hereto; and
(vii) such other documents and certificates as the Bank or its
legal counsel may reasonably request.
5. Counterparts. This Amendment may be executed by one or more of the
parties to this Amendment in any number of separate counterparts and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument.
6. Paragraph Titles. The paragraph titles contained in this Amendment
are used for convenience only and shall be without substance, meaning or
content of any kind whatsoever and are not a part of this agreement between the
parties hereto.
7. No Novation. This Amendment shall not affect any of the existing
obligations of any of the Companies under the Credit Agreement, and it is not
the intention of the parties that this Amendment constitute a novation of such
obligations.
IN WITNESS WHEREOF, this Amendment has been duly executed and
delivered by proper and duly authorized officers of the respective party as of
the date and year first above written.
BANPONCE CORPORATION
By: ____________________________________
Title: _________________________________
By: ____________________________________
Title: _________________________________
BANPONCE FINANCIAL CORPORATION
By: ____________________________________
Title: _________________________________
15
VEHICLE EQUIPMENT LEASING COMPANY, INC.
By: ____________________________________
Title: __________________________________
CITIBANK, N.A.
By: _____________________________________
Title: __________________________________
Affidavit No. __________
Acknowledged and subscribed to before me by Alberto M. Paracchini, of
legal age, married, banker and resident of San Juan, Puerto Rico, in his
capacity as Chairman of the Board of BanPonce Corporation, BanPonce Financial
Corp. and Vehicle Equipment Leasing Company, Inc. and Jose Luis Lopez Calderon,
of legal age, married, banker and resident of Guaynabo, Puerto Rico, in his
capacity as Senior Vice President of BanPonce Corporation, who are personally
known to me. In San Juan, Puerto Rico, this 8th day of April 1993.
_________________________________________
Notary Public
Affidavit No. ___________
Acknowledged and subscribed to before me by Ricardo James, of legal
age, married, banker and resident of Rio Piedras, Puerto Rico, in his capacity
as Vice President of Citibank, N.A. In San Juan, Puerto Rico, this 8th day of
April 1993.
_________________________________________
Notary Public
16
EXHIBIT 1
April 8, 1993
Citibank, N.A.
252 Ponce de Leon Avenue
8th Floor
Hato Rey, Puerto Rico 00918
Gentlemen:
We are counsel for BanPonce Corporation ("BanPonce"), a corporation
organized and existing under the laws of the Commonwealth of Puerto Rico,
BanPonce Financial Corp. ("BPFC"), a corporation organized and existing under
the laws of the State of Delaware and Vehicle Equipment Leasing Company, Inc.
("VELCO"), a corporation organized and existing under the laws of the
Commonwealth of Puerto Rico, (the "Companies") and have represented the
Companies in connection with its execution and delivery of the First Amendment
(the "Amendment") dated as of April 2, providing for Loans in an aggregate
principal amount not exceeding $50,000,000 at any one time outstanding and an
Allonge and Ratification of Guaranty (collectively, the "Related Documents") to
a certain Credit Agreement (the "Agreement") executed by and between the
Companies and Citibank, N.A. (the "Lender"), dated as of May 22, 1992. All
capitalized terms used in this opinion shall have the meanings attributed to
them in the Agreement.
We have examined the Companies' articles of incorporation, by-laws,
resolutions, the Agreement and such other matters of fact and law which we deem
necessary in order to render this opinion. Based upon the foregoing, it is our
opinion that:
1. The Companies are corporations duly incorporated, validly
existing and in good standing under the laws of their respective jurisdictions
of incorporation and have all requisite authority to conduct their business in
each jurisdiction in which their business is conducted.
2. BanPonce and BPFC have the corporate power and authority and
legal right to execute and deliver the Amendment and the Related Documents to
which each is a party and to perform their respective obligations thereunder.
The execution and delivery of the Amendment and the Related Documents by
BanPonce and BPFC and the performance by the said entities of their respective
obligations have been duly authorized by all necessary corporate action and
proceedings on the part of BanPonce and BPFC and will not:
(a) require any consent of the Companies' shareholders;
(b) violate any applicable law, rule, regulation, order,
writ, judgment, injunction, decree or award binding on BanPonce and BPFC or any
subsidiary or the BanPonce and BPFC or any
17
Subsidiary's articles of incorporation of by-laws or any indenture, instrument
or agreement binding upon BanPonce and BPFC or any Subsidiary; or
(c) result in, or require, the creation or imposition of
any lien pursuant to the provisions of any indenture, instrument or agreement
binding upon BanPonce and BPFC or any Subsidiary.
3. The Amendment and Related Documents have been duly executed and
delivered by BanPonce and BPFC and constitute the legal, valid and binding
obligation of BanPonce and BPFC enforceable against BanPonce and BPFC in
accordance with their terms except to the extent the enforcement thereof may be
limited by bankruptcy, insolvency, fraudulent transfer, moratorium and similar
laws of general applicability relating to or affecting the enforcement of
creditors' rights and subject also to the availability of equitable remedies if
equitable remedies are sought.
4. There is no litigation or proceeding against the Companies or any
Subsidiary which, if adversely determined, would materially adversely affect
the business or condition of the Companies or any Subsidiary.
5. No approval, authorization, consent, adjudication or order of any
governmental authority, which has not been obtained by the Companies or any
Subsidiary, is required to be obtained by the Companies or any Subsidiary in
connection with the execution and delivery of the Amendment or the Related
Documents, the borrowings under the Amendment or in connection with the payment
by the Companies of the Obligations.
VELCO has informed the Lender that it intends to submit for
consideration and approval at the next meeting of the Board of Directors
scheduled to be held on April 30th, 1993 a resolution approving the borrowings
contemplated in the Amendment and Related Documents at which time the
undersigned shall deliver an opinion as to matters covered in paragraph 2 and 3
of this opinion with regards to VELCO.
The foregoing opinion is limited to the Federal laws of the United
States and the laws of the Commonwealth of Puerto Rico and Delaware's corporate
law with regards to the incorporation and existence of BanPonce Financial Corp.
and I am expressing no opinion as to the effect of the laws of any other
jurisdiction.
Very truly yours,
______________________________
Brunilda Santos de Alvarez
Legal Counsel
18
EXHIBIT 2
ALLONGE
The terms of that certain Promissory Note (the "Note") in the maximum
principal amount of $35,000,000 issued by BANPONCE CORPORATION, BANPONCE
FINANCIAL CORPORATION and VEHICLE EQUIPMENT LEASING CORPORATION, INC.
(collectively, the "Borrowers") to the order of CITIBANK, N.A. (the "Lender")
dated May 22, 1992, under Affidavit Number 1,982 before Notary Brunilda Santos
de Alvarez, are hereby amended as of April 8, 1993, as follows:
1. The maximum principal amount of the Note is hereby increased to
FIFTY MILLION DOLLARS ($50,000,000).
2. The first paragraph of the Note is hereby deleted and substituted
by the following paragraph:
"FOR VALUE RECEIVED, the undersigned, BANPONCE
CORPORATION, a Puerto Rico corporation ("BanPonce"), BANPONCE
FINANCIAL CORPORATION, a Delaware corporation ("Financial"), and
VEHICLE EQUIPMENT LEASING CORPORATION, INC., a Puerto Rico
corporation ("Velco"; Velco, BanPonce and Financial each
hereinafter referred to singly as a "Borrower"), each HEREBY
PROMISES TO PAY to the order of CITIBANK, N.A., a national
banking association (the "Lender"), the principal amount of FIFTY
MILLION DOLLARS ($50,000,000) in lawful money of the United
States of America, or, if less, the principal amount of each Loan
(as defined below) made by the Lender to such Borrower pursuant
to the Credit Agreement referred to below (the "Credit
Agreement"). The principal amount of each Loan shall be payable
in full on the last day of the Interest Period (as defined in the
Credit Agreement) for such Loan. The liability of each Borrower
hereunder shall be several and not joint and several (solidaria)
as to each Loan made to such Borrower under this Promissory
Note".
3. It is not the intention of the parties that this Allonge
constitute a novation of the indebtedness evidenced by the Note.
19
4. Except as amended hereby, all terms and conditions of the Note
shall remain in full force and effect.
Executed in San Juan, Puerto Rico as of the 8th day of April, 1993.
BANPONCE CORPORATION BANPONCE FINANCIAL CORPORATION
By:__________________________ By:___________________________
By: _________________________
VEHICLE EQUIPMENT LEASING CORPORATION
By: ___________________________
Affidavit No. _________
Acknowledged and subscribed to before me by Alberto M. Paracchini, of
legal age, married, banker and resident of San Juan, Puerto Rico, in his
capacity as Chairman of the Board of BanPonce Corporation, BanPonce Financial
Corp. and Vehicle Equipment Leasing Company, Inc. and Jose Luis Lopez Calderon,
of legal age, married, banker and resident of Guaynabo, Puerto Rico, in his
capacity as Senior Vice President of BanPonce Corporation, who are personally
known to me. In San Juan, Puerto Rico, this 8th day of April 1993.
_________________________________
Notary Public
AGREED AND ACCEPTED:
CITIBANK, N.A.
By:
20
EXHIBIT 3
FORM OF GUARANTY RATIFICATION
Citibank, N.A.
252 Ponce de Leon Avenue
8th Floor
Hato Rey, PR 00918
Re: Guaranty of BanPonce Corporation dated as of May 22, 1992
Dear Sirs:
Reference is hereby made to that certain Guaranty dated as of May 22,
1992 (the "Guaranty") made and delivered by BanPonce Corporation, a Puerto Rico
corporation ("BanPonce") to the Lender (as defined in the Guaranty).
Capitalized terms used herein not otherwise defined shall have the meanings
given to such terms in the Guaranty. Pursuant to the Guaranty, BanPonce
guaranteed the obligations of BanPonce Financial Corp., a Delaware corporation
("Financial") and/or Vehicle Equipment Leasing Company, Inc., a Puerto Rico
corporation ("VELCO") arising under the Credit Agreement.
BanPonce, Financial and VELCO have requested the Lender to increase
the Aggregate Commitment (as defined in the Credit Agreement) pursuant to that
certain First Amendment to Credit Agreement dated as of April 2, 1993 (the
"Amendment") among BanPonce, Financial, VELCO, and the Lender. The Lender has
agreed to do so provided BanPonce ratifies that such increase in the Aggregate
Commitment evidenced by the Amendment is guaranteed by BanPonce pursuant to the
Guaranty. Thus, BanPonce hereby ratifies that the Guaranty remains in full
force and effect with respect to the Credit Agreement as amended by the
Amendment and, therefore, that the limitation in the amount of the Guaranteed
Debt set forth in the first paragraph of the Guaranty is hereby increased from
$35,000,000 to $50,000,000 (provided, that such limitation shall not apply to
interest or other non-principal amounts which may become due under the Credit
Agreement). All terms, covenants and conditions of the Guaranty shall remain
in full force and effect with respect to the Credit Agreement as amended by the
Amendment.
21
-2-
The execution, delivery and acceptance of this letter shall not act as a waiver
of any right, power or remedy of the Lender, nor constitutes a waiver of any
provision of the Guaranty, or any other documents, instruments and agreements
executed and/or delivered in connection therewith.
BANPONCE CORPORATION
By:________________________________
Name: _____________________________
Title: ____________________________
By:________________________________
Name: _____________________________
Title: ____________________________
Affidavit No. __________
Acknowledged and subscribed to before me by Alberto M. Paracchini, of
legal age, married, banker and resident of San Juan, Puerto Rico, in his
capacity as Chairman of the Board of BanPonce Corporation, BanPonce Financial
Corp. and Vehicle Equipment Leasing Company, Inc. and Jose Luis Lopez Calderon,
of legal age, married, banker and resident of Guaynabo, Puerto Rico, in his
capacity as Senior Vice President of BanPonce Corporation, who are personally
known to me. In San Juan, Puerto Rico, this 8th day of April 1993.
____________________________________
Notary Public
22
EXHIBIT 10.12.1
SECOND AMENDMENT TO CREDIT AGREEMENT
This Second Amendment to Credit Agreement (the "Second Amendment"),
dated as of the 21st day of May, 1993 is among BanPonce Corporation, a Puerto
Rico corporation ("BanPonce"), BanPonce Financial Corp., a Delaware corporation
("Financial"), Vehicle Equipment Leasing Company, Inc. ("VELCO"), a Puerto Rico
corporation, (BanPonce, Financial and VELCO are sometimes collectively referred
to herein as the "Companies" and individually as a "Company"), Citibank, N.A.
(the "Lender"), and is to a certain Credit Agreement dated May 22, 1992 the
("Credit Agreement") among the Companies and the Lender as amended by a First
Amendment to Credit Agreement executed among the Companies and the Lender as of
the 8th day of April 1993 (the "First Amendment"). Capitalized terms used
herein and not otherwise defined shall have the meanings given to such terms in
the Credit Agreement.
WHEREAS, pursuant to the Credit Agreement and the First Amendment, the
Lender has agreed to provide certain financing to the Companies upon the terms
and conditions set forth in the Credit Agreement and the First Amendment;
WHEREAS, the financing facilities made available to the Companies
under the Credit Agreement, as amended by the First Amendment, expire as of May
21, 1993;
WHEREAS, the Lender, after conducting a new credit evaluation of the
Companies, has agreed to renew the financing facilities made under the Credit
Agreement, as amended by the First Amendment, for a separate succesive period
of 364 days expiring on May 20, 1994 under the same terms and conditions set
forth in the Credit Agreement, as amended by the First Amendment;
NOW, THEREFORE, in consideration of the foregoing premises, the
following provisions and for other good and valuable consideration, the receipt
of which is hereby acknowledged, the parties hereby agree as follows:
1. Amendment to Credit Agreement. Subject to the conditions precedent
described in Section 4, the Lender and each of the Companies hereby agree as
follows:
1.1 Section 1 of the Credit Agreement is hereby amended to read as
follows: "Subject to the terms of this Agreement, the Lender agrees to make
loans (the "Loans") to each of the Companies on any Business Day from the date
hereof to and including May 20, 1994 (such date, or the earlier date of
termination of the Aggregate Commitment pursuant to Section 8, being the
"Termination Date"). Each Company may borrow, repay and reborrow Loans from
time to time prior to the Termination Date, provided that the principal amount
of all Loans outstanding shall not exceed $50,000,000 (the "Aggregate
Commitment") at any time for all of the Companies in the aggregate. Each loan
shall be in an amount of not less than $500,000 or an integral
23
multiple thereof, except that a Loan may be equal to the entire unused
Aggregate Commitment. The Loans shall be evidenced by a note (the "Note") duly
executed and delivered by each Company to the order of Lender in the form
attached hereto as Exhibit "A". This Agreement, the Note and the Guaranty
referred to below are herein called the "Loan Documents"."
1.2 Exhibit A of the Credit Agreement is hereby deleted and
substituted by Exhibit 2 hereto.
2. Representations and Warranties.
2.1 The Companies hereby represent and warrant to the Lender that
each representation and warranty as set forth in the Credit Agreement is true
and correct as if made as of the date of this Second Amendment.
2.2 Each of the Companies hereby represent that this Second Amendment
constitutes a legal, valid and binding obligation of such Company enforceable
against such Company in accordance with its terms.
2.3 No event has occurred and is continuing which constitutes an
Event of Default or would constitute an Event of Default, but for the
requirement that notice be given or time elapse or both.
3. References to and Effect Upon the Credit Agreement. Upon the
effectiveness of this Amendment, each reference in the Credit Agreement to
"this Credit Agreement", "this Agreement", "hereunder", "hereof", "herein", or
words of like import referring to the Credit Agreement, and each reference in
the other Loan Documents to the "Credit Agreement", "thereunder", "thereof", or
words of like import referring to the Credit Agreement shall mean and be a
reference to the Credit Agreement as amended by the First Amendment and as
amended hereby, and each reference in the other Loan Documents to "the Note",
"thereunder", "thereof" or words of like import referring to the Note, shall
mean and be a reference to the Note referred to below. All of the terms,
covenants and conditions of the Credit Agreement and the First Amendment shall
remain in full force and effect. As amended and modified by this Second
Amendment, the Credit Agreement and the First Amendment are hereby ratified and
confirmed in all respects. The execution, delivery and effectiveness of this
Amendment shall not operate as a waiver of any right, power or remedy of the
Lender, nor constitute a waiver of any provision of the Credit Agreement and
the First Amendment, or any other documents, instruments and agreements
executed and/or delivered in connection therewith.
4. Conditions Precedent. This Second Amendment shall be deemed effective
as of May 21st, 1993 (the "Second Amendment Closing Date") upon the
satisfaction of the following conditions precedent:
(a) The Lender shall have received the following documents in form
and substance satisfactory to the Lender and its legal counsel:
24
(i) Certified copies of: (A) all necessary legal
authorizations required for each of the Companies to enter into
this Second Amendment and to perform in full its obligations
hereunder; (B) articles of incorporation and by-laws of each of
the Companies; and (C) evidence of the authority of each Person
authorized to execute this Second Amendment and any other
documents to be executed and delivered in behalf of each of the
Companies in connection with this Second Amendment.
(ii) A written opinion of Brunilda Santos de Alvarez, legal
counsel to each of the Companies and the Guarantor, addressed to
the Lender in form and substantially similar to Exhibit 1;
(iii) certified copies of any government authorizations,
consents, approvals and licenses as may be required under any
applicable law and regulations for the Companies to make and
perform its obligations pursuant to this Amendment, if any;
(iv) two (2) duly executed copies of this Second Amendment,
in form and substance satisfactory to the Bank and its legal
counsel; and
(v) a promissory note (the "Note") in the form of Exhibit 2
hereto made by each of the Companies in favor of the Lender in
the principal amount of $50,000,000, dated as of May 21st, 1993
and with a maturity date as of May 20, 1994.
(vi) the Guarantor's written ratification of the Guaranty in
the form of Exhibit 3 hereto; and
(vii) such other documents and certificates as the Bank or its
legal counsel may reasonably request.
5. Counterparts. This Amendment may be executed by one or more of the
parties to this Amendment in any number of separate counterparts and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument.
6. Paragraph Titles. The paragraph titles contained in this Amendment
are used for convenience only and shall be without substance, meaning or
content of any kind whatsoever and are not a part of this agreement between the
parties hereto.
7. No Novation. This Amendment shall not affect any of the existing
obligations of any of the Companies under the Credit Agreement and the First
Amendment, and it is not the intention of the parties that this Amendment
constitute a novation of such obligations.
25
IN WITNESS WHEREOF, this Second Amendment has been duly executed and
delivered by proper and duly authorized officers of the respective party as of
the date and year first above written.
BANPONCE CORPORATION
By:________________________________
Title: ____________________________
By:________________________________
Title: ____________________________
BANPONCE FINANCIAL CORPORATION
By:________________________________
Title: ____________________________
VEHICLE EQUIPMENT LEASING COMPANY, INC.
By:________________________________
Title: ____________________________
CITIBANK, N.A.
By:________________________________
Title: ____________________________
26
Affidavit No. ___________
Acknowledged and subscribed to before me by
__________________________________
Notary Public
Affidavit No. ___________
Acknowledged and subscribed to before me by Ricardo James, of legal
age, married, banker and resident of Rio Piedras, Puerto Rico, in his capacity
as Vice President of Citibank, N.A. In San Juan, Puerto Rico, this ___ day of
June 1993.
__________________________________
Notary Public
27
May __, 1993
Citibank, N.A.
252 Ponce de Leon Avenue
8th Floor
Hato Rey, Puerto Rico 00918
Gentlemen:
We are counsel for BanPonce Corporation ("BanPonce"), a corporation
organized and existing under the laws of the Commonwealth of Puerto Rico,
BanPonce Financial Corp. ("BPFC"), a corporation organized and existing under
the laws of the State of Delaware and Vehicle Equipment Leasing Company, Inc.
("VELCO"), a corporation organized and existing under the laws of the
Commonwealth of Puerto Rico, (the"Companies") and have represented the
Companies in connection with its execution and delivery of the Second Amendment
(the "Second Amendment") dated as of May 21st, 1993 to a certain Credit
Agreement (the "Agreement") executed by and between the Companies and Citibank,
N.A. (the "Lender"), dated as of May 22, 1992 and the Note and Ratification of
Guaranty referred to therein (collectively, the "Related Documents"). All
capitalized terms used in this opinion shall have the meanings attributed to
them in the Agreement, as amended by the First Amendment and the Second
Amendment.
We have examined the Companies' articles of incorporation, by-laws,
resolutions, the Agreement and such other matters of fact and law which we deem
necessary in order to render this opinion. Based upon the foregoing, it is our
opinion that:
1. The Companies are corporations duly incorporated, validly
existing and in good standing under the laws of their respective jurisdictions
of incorporation and have all requisite authority to conduct their business in
each jurisdiction in which their business is conducted.
2. The Companies have the corporate power and authority and legal
right to execute and deliver the Amendment and the Related Documents to which
each is a party and to perform their respective obligations thereunder. The
execution and delivery of the Second Amendment and the Related Documents by the
Companies and the performance by the said entities of their respective
obligations have been duly authorized by all necessary corporate action and
proceedings on the part of the Companies and will not:
(a) require any consent of the Companies' shareholders;
(b) violate any applicable law, rule, regulation, order,
writ, judgment, injunction, decree or award binding on the Companies or any
subsidiary of the Companies or any Subsidiary's articles of incorporation of
by-laws or any indenture, instrument or agreement binding upon the Companies or
any Subsidiary; or
28
(c) result in, or require, the creation or imposition of
any lien pursuant to the provisions of any indenture, instrument or agreement
binding upon the Companies or any Subsidiary.
3. The Second Amendment and Related Documents have been duly
executed and delivered by the Companies and constitute the legal, valid and
binding obligation of the Companies enforceable against the Companies in
accordance with their terms except to the extent the enforcement thereof may be
limited by bankruptcy, insolvency, fraudulent transfer, moratorium and similar
laws of general applicability relating to or affecting the enforcement of
creditors' rights and subject also to the availability of equitable remedies if
equitable remedies are sought.
4. There is no litigation or proceeding against the Companies or any
Subsidiary which, if adversely determined, would materially adversely affect
the business or condition of the Companies or any Subsidiary.
5. No approval, authorization, consent, adjudication or order of any
governmental authority, which has not been obtained by the Companies or any
Subsidiary, is required to be obtained by the Companies or any Subsidiary in
connection with the execution and delivery of the Amendment or the Related
Documents, the borrowings under the Amendment or in connection with the payment
by the Companies of the Obligations.
The foregoing opinion is limited to the Federal laws of the United
States and the laws of the Commonwealth of Puerto Rico and Delaware's corporate
law with regards to the incorporation and existence of BanPonce Financial Corp.
and I am expressing no opinion as to the effect of the laws of any other
jurisdiction.
Very truly yours,
______________________________
Brunilda Santos de Alvarez
Legal Counsel
29
FORM OF GUARANTY RATIFICATION
Citibank, N.A.
252 Ponce de Leon Avenue
8th Floor
Hato Rey, PR 00918
Re: Guaranty of BanPonce Corporation dated as of May 22, 1992
Dear Sirs:
Reference is hereby made to that certain Guaranty dated as of May 22,
1992, as amended on April 8, 1993 (the "Guaranty") made and delivered by
BanPonce Corporation, a Puerto Rico corporation ("BanPonce") to the Lender (as
defined in the Guaranty). Capitalized terms used herein not otherwise defined
shall have the meanings given to such terms in the Guaranty. Pursuant to the
Guaranty, BanPonce guaranteed the obligations of BanPonce Financial Corp., a
Delaware corporation ("Financial") and Vehicle Equipment Leasing Company, Inc.,
a Puerto Rico corporation ("VELCO") arising under the Credit Agreement.
BanPonce, Financial and VELCO and the Lender increased the Aggregate
Commitment (as defined in the Credit Agreement) pursuant to that certain First
Amendment to Credit Agreement dated as of April 8, 1993 to BanPonce, Financial,
VELCO, and BanPonce ratified such increase in the Aggregate Commitment
evidenced by the First Amendment.
BanPonce, BanPonce Financial and VELCO have requested the Lender, and
the Lender has agreed, to renew the credit facility made available to them
under the Credit Agreement, as amended by the First Amendment, for a period of
364 days expiring on May 20, 1994, all pursuant to a Second Amendment to Credit
Agreement dated as of May 21, 1993 (the "Second Amendment"). Thus, BanPonce
hereby ratifies that the Guaranty remains in full force and effect with respect
to the Credit Agreement as amended by the First Amendment and the Second
Amendment (the "Amendments") and the Note issued by BanPonce, BanPonce
Financial and VELCO pursuant to the Second Amendment. All terms, covenants and
conditions of the Guaranty shall remain in full force and effect with respect
to the Credit Agreement as amended by the Amendments.
The execution, delivery and acceptance of this letter shall not act as
a waiver of any right, power or remedy of the Lender, nor constitutes a waiver
of any provision of the Guaranty, or any other documents, instruments and
agreements executed and/or delivered in connection therewith.
30
BANPONCE CORPORATION
By:____________________________________
Name: _________________________________
Title: ________________________________
By:____________________________________
Name: _________________________________
Title: ________________________________
Affidavit Number _______________
Acknowledged and suscribed to before me by David H. Chafey, Jr. of
legal age, married, banker and resident of San Juan, Puerto Rico as Executive
Vice President of BanPonce Corporation and Director of Vehicle Equipment
Leasing Company, Inc. and Jose Luis Lopez Calderon, or legal age, married and
resident of Guaynabo, Puerto Rico, in his capacity as Senior Vice President of
BanPonce Corporation and BanPonce Financial Corp. and to me personally known in
San Juan, Puerto Rico this 14th day of June, 1993.
___________________________________
Notary Public
31
PROMISSORY NOTE
$50,000,000 Dated: May 21, 1993
FOR VALUE RECEIVED, the undersigned, BANPONCE CORPORATION, a Puerto
Rico corporation ("BanPonce"), BANPONCE FINANCIAL CORPORATION, a Delaware
corporation ("Financial"), and VEHICLE EQUIPMENT LEASING COMPANY, INC., a
Puerto Rico corporation ("VELCO"); (BanPonce, Velco and Financial each
hereinafter sometimes referred to singly as a "Borrower"), each HEREBY PROMISES
TO PAY to the order of CITIBANK, N.A., a national banking association (the
"Lender") the principal amount of each Loan (as defined below) made by the
Lender to such Borrower on the last day of the Interest Period (as defined in
the Credit Agreement referred to below) for such Loan. The liability of each
Borrower hereunder shall be several and not joint and several (solidaria) as to
each Loan made to such Borrower under this Promissory Note.
Each Borrower promises to pay interest on the principal amount of each
Loan made to it by the Lender from the date of such Loan until such principal
amount is paid in full, at such interest rates, and payable at such times, as
are specified in the Credit Agreement referred to below.
Both principal and interest payable in lawful money of the United
States of America to the Lender at 252 Ponce de Leon Avenue, Hato Rey, Puerto
Rico (or at such other address as the Lender may designate in writing) in same
day funds. Each Loan made by the Lender to a Borrower, the interest thereon
and the maturity thereof, and all payments made on account of the principal
amount thereof, shall be entered by the Lender in its records and prior to any
transfer hereof, the amount and maturity of any outstanding Loans shall be
endorsed on the grid attached hereto which is a part of this Promissory Note.
This Promissory Note is the Note referred to in, and is entitled to
the benefits of, the Credit Agreement dated as of May 21, 1992 as amended by a
First Amendment dated as of April 8, 1993 and a Second Amendment dated as of
May 21, 1993 (the "Credit Agreement"), between Financial, VELCO, BanPonce
Corporation and the Lender. The Credit Agreement, among other things, (i)
provides for the making of advances (the "Loans") by the Lender to the
Borrowers from time to time in an aggregate amount not to exceed at any time
outstanding in the U.S. dollar amount first above mentioned, the indebtedness
of the Borrowers resulting from each such Loan being evidenced by this
Promissory Note, and (ii) contains provisions for acceleration of the maturity
hereof upon the happening of certain stated events and also for prepayments on
account of principal hereof prior to the maturity hereof upon the terms and
conditions therein specified.
32
BANPONCE CORPORATION
By: _________________________________
Title: ______________________________
By: _________________________________
Title: ______________________________
BANPONCE FINANCIAL CORPORATION
By: _________________________________
Title: ______________________________
VEHICLE EQUIPMENT LEASING COMPANY, INC.
By: _________________________________
Title: ______________________________
Affidavit Number _______________
Acknowledged and suscribed to before me by David H. Chafey, Jr. of
legal age, married, banker and resident of San Juan, Puerto Rico as Executive
Vice President of BanPonce Corporation and Director of Vehicle Equipment
Leasing Company, Inc. and Jose Luis Lopez Calderon, or legal age, married and
resident of Guaynabo, Puerto Rico, in his capacity as Senior Vice President of
BanPonce Corporation and BanPonce Financial Corp. and to me personally known in
San Juan, Puerto Rico this 14th day of June, 1993.
_____________________________________
Notary Public
33
EXHIBIT 10.12.1
FIRST AMENDMENT TO CREDIT AGREEMENT
This First Amendment to Credit Agreement (the "Amendment"), dated as
of the 1st day of April, 1993, is among BanPonce Corporation, a Puerto Rico
corporation ("BanPonce"), BanPonce Financial Corp., a Delaware corporation
("Financial"), Vehicle Equipment Leasing Company, Inc. ("VELCO") (BanPonce,
Financial and VELCO are sometimes collectively referred to herein as the
"Companies" and individually as a "Company"), The First National Bank of
Chicago and Societe Generale (collectively, the "Lenders", and individually,
"Lender"), and The First National Bank of Chicago as agent for the Lenders (the
"Agent") and is to that certain Credit Agreement dated as of May 1, 1992 the
("Credit Agreement") among the Companies, the Lender and the Agent.
Capitalized terms used herein and not otherwise defined shall have the meanings
given to such terms in the Credit Agreement.
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to
provide certain financing to the Companies upon the terms and conditions set
forth in the Credit Agreement;
WHEREAS, the Companies, the Lenders and the Agent have agreed to an
amendment of the terms and provisions of the Credit Agreement in the manner
hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing premises, the
following provisions and for other good and valuable consideration, the receipt
of which is hereby acknowledged, the parties hereby agree as follows:
1. AMENDMENT TO CREDIT AGREEMENT. Subject to the conditions
precedent described in Section 6 hereof, the Credit Agreement is hereby amended
as follows:
1.1 Section 1 of the Loan agreement is hereby amended to delete
the number "$40,000,000" in the sixth line thereof and to replace therefor the
number "$60,000,000" and to delete the date "April 30, 1993" and to replace
therefor March 31, 1994".
1.2 The amount of each Lender's Commitment referred to in
Section 1 of the Agreement is modified to read as set forth opposite each
Lender's signature to this Agreement.
2. REPRESENTATIONS AND WARRANTIES.
2.1 The Companies hereby represent and warrant to each Lender
that each representation and warranty as set forth in the Credit Agreement is
true and correct as if made as of the date of this Amendment.
34
2
2.2 Each of the Companies hereby represents that this Amendment
constitutes a legal, valid and binding obligation of such Company enforceable
against such Company in accordance with its terms.
3. COSTS AND EXPENSES. The Companies jointly and severally shall
reimburse the Agent for all costs and expenses (including time charges of the
Agent's attorneys who may be employees of the Agent) incurred by the Agent in
the negotiation, preparation, execution and delivery of this Amendment and any
other documents prepared in connection herewith.
4. REFERENCES TO AND EFFECT UPON THE CREDIT AGREEMENT. Upon the
effectiveness of this Amendment, each reference in the Credit Agreement to
"this Credit Agreement", "this Agreement", "hereunder", "hereof", "herein", or
words of like import shall mean and be a reference to the Credit Agreement as
amended hereby. Except as specifically hereby amended, all of the terms,
covenants and conditions of the Credit Agreement shall remain in full force and
effect. As amended and modified by this Amendment, the Credit Agreement is
hereby ratified and confirmed in all respects. The execution, delivery and
effectiveness of this Amendment shall not, except as expressly provided herein,
operate as a waiver of any right, power or remedy of the any of the Lenders of
the Agent, nor constitute a waiver of any provision of the Credit Agreement, or
any other documents, instruments and agreements executed and/or delivered in
connection therewith.
5. GOVERNING LAW. This Amendment shall be deemed to have been made
at Chicago, Illinois, U.S.A., and shall be governed by and construed in
accordance with the other remaining terms of the Credit Agreement and the
internal laws of the State of Illinois.
6. CONDITIONS PRECEDENT. This Amendment shall be deemed effective
as of April 1, 1993 (the "Amendment Closing Date") upon the satisfaction of the
following conditions precedent:
(a) The Agent shall have received the following documents
in form and substance satisfactory to the Agent and its legal counsel:
(i) Certified copies of: (A) all necessary legal
authorizations required for the Companies to enter into this Amendment
and to perform in full its obligations hereunder; (B) articles of
incorporation and by-laws of the Companies; and (C) evidence of the
authority of each Person authorized to execute this Amendment and any
other documents to be executed and delivered on behalf of the
Companies in connection with this Amendment, each of which is to be
certified by a duly authorized representative of the Companies within
five (5) days prior to the Amendment Closing Date.
35
3
(ii) A written opinion of Brunilda Santos de Alvarez,
legal counsel to each of the Companies, dated on or within five (5)
days prior to the Amendment Closing Date addressed to the Lenders in
form and substance satisfactory to the Agent;
(iii) certified copies of any government
authorizations, consents, approvals and licenses as may be required
under any applicable law and regulations for the Companies to make and
perform its obligations pursuant to this Amendment;
(iv) Six (6) duly executed copies of this Amendment,
in form and substance satisfactory to the Bank and its legal counsel;
and
(v) a Note in the form of Exhibit 1 hereto made by
each of the Companies in favor of each of the Lenders in the principal
amount of each Lender's Commitment;
(vi) the Guarantor's written ratification of the
Guaranty in the form of Exhibit 2 hereto; and
(vii) such other documents and certificates as the
Bank or its legal counsel may reasonably request.
(b) Each of the Lenders shall have received a closing fee
of $10,000 from BanPonce.
7. COUNTERPARTS. This Amendment may be executed by one or more of
the parties to this Amendment in any number of separate counterparts and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument.
8. PARAGRAPH TITLES. The paragraph titles contained in this
Amendment are used for convenience only and shall be without substance, meaning
or content of any kind whatsoever and are not a part of this agreement between
the parties hereto.
36
4
IN WITNESS WHEREOF, this Amendment has been duly executed and
delivered by proper and duly authorized officers of the respective party as of
the date and year first above written.
BANPONCE CORPORATION
By:______________________________
Title:______________________________
By:______________________________
Title:______________________________
BANPONCE FINANCIAL CORPORATION
By:______________________________
Title:______________________________
THE FIRST NATIONAL BANK OF CHICAGO,
as Agent
By:______________________________
Title:______________________________
THE FIRST NATIONAL BANK OF CHICAGO
By:______________________________
Title:______________________________
37
5
Commitment
$35,000,000
$25,000,000
- - - - - -----------
$60,000,000
38
EXHIBIT 1
FORM OF NOTE
[____________________] ____________________, 1993
____________________, a ____________ corporation (the "Company"),
promises to pay to the order of (the "Lender") the aggregate unpaid principal
amount of all Loans made by the Lender to the Company pursuant to Section 1 of
the Credit Agreement dated as of May 1, 1992, as amended, among BanPonce
Corporation, a Puerto Rico corporation, BanPonce Financial Corp., a Delaware
corporation, Vehicle Equipment Leasing Company, Inc., a Puerto Rico
corporation, The First National Bank of Chicago and Societe Generale, and The
First National Bank of Chicago, as Agent (the "Agreement"), whichever is less,
in immediately available funds at the main office of the Agent in Chicago,
Illinois, together with interest on the unpaid principal amount hereof.
Interest and principal shall be payable at the rates and on the dates set forth
in the Agreement. The Company shall pay each Loan in full in accordance with
the terms and provisions of the Agreement.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Loan and the date and amount of each principal
payment.
This Note is issued pursuant to, and is entitled to the benefits of,
the Agreement, as it may be amended from time to time, to which Agreement
reference is hereby made for a statement of the terms and conditions under
which the Note may be prepaid or its maturity date accelerated. This Note is
in substitution for, and represents a continuation of, the indebtedness
incurred under a prior Note issued pursuant to the Agreement. Capitalized
terms used herein and not otherwise defined herein have the meanings ascribed
to such terms in the Agreement.
This Note is governed by the internal law (and not the law of
conflicts) of the State of Illinois.
By:______________________________
Title:______________________________
39
EXHIBIT 2
FORM OF GUARANTY RATIFICATION
The First National Bank of Chicago,
as Agent for the Lenders
One First National Plaza
Chicago, Illinois 60670
RE: GUARANTY OF BANPONCE CORPORATION
DATED AS OF MAY 1, 1991
Dear Sirs:
Reference is hereby made to that certain Guaranty dated as of May 1,
1992 (the "Guaranty") made and delivered by BanPonce Corporation, a Puerto Rico
corporation ("BanPonce") to the Lenders (as defined in the Guaranty).
Capitalized terms used herein not otherwise defined shall have the meanings
given to such terms in the Guaranty. Pursuant to the Guaranty, BanPonce
guaranteed the obligations of BanPonce Financial Corp., a Delaware corporation
("Financial") and/or Vehicle Equipment Leasing Company, Inc., a Puerto Rico
corporation ("VELCO") arising under the Credit Agreement.
BanPonce, Financial and VELCO have requested the Lenders to increase
the Aggregate Commitment (as defined in the Credit Agreement) pursuant to that
certain First Amendment to Credit Agreement dated as of April 1, 1993 (the
"Amendment") among BanPonce, Financial, VELCO, the Lenders and the Agent. The
Lenders have agreed to do so provided BanPonce ratifies that such increase in
each Lender's Commitment evidenced by the Amendment is guaranteed by BanPonce
pursuant to the Guaranty. Thus, BanPonce hereby ratifies that the Guaranty
remains in full force and effect with respect to the Credit Agreement as
amended by the Amendment and that all terms, covenants and conditions of the
Guaranty shall remain in full force and effect with respect to the Credit
Agreement as amended by the Amendment. The execution, delivery and acceptance
of this letter shall not act as a waiver of any right, power or remedy of the
Lenders or the Agent, nor constitute a waiver of any provision of the Guaranty,
or any other documents, instruments and agreements executed and/or delivered in
connection therewith.
BANPONCE CORPORATION
By:______________________________
Name:______________________________
Title:______________________________
By:______________________________
Name:______________________________
Title:______________________________
40
2
Accepted this ____ day
of April, 1993
THE FIRST NATIONAL BANK OF CHICAGO,
as Agent
By:______________________________
Name:______________________________
Title:______________________________
41
FORM OF GUARANTY RATIFICATION
The First National Bank of Chicago,
as Agent for the Lenders
One First National Plaza
Chicago, Illinois 60670
RE: GUARANTY OF BANPONCE CORPORATION
DATED AS OF MAY 1, 1991
Dear Sirs:
Reference is hereby made to that certain Guaranty dated as of May 1,
1992 (the "Guaranty") made and delivered by BanPonce Corporation, a Puerto Rico
corporation ("BanPonce") to the Lenders (as defined in the Guaranty).
Capitalized terms used herein not otherwise defined shall have the meanings
given to such terms in the Guaranty. Pursuant to the Guaranty, BanPonce
guaranteed the obligations of BanPonce Financial Corp., a Delaware corporation
("Financial") and/or Vehicle Equipment Leasing Company, Inc., a Puerto Rico
corporation ("VELCO") arising under the Credit Agreement.
BanPonce, Financial and VELCO have requested the Lenders to increase
the Aggregate Commitment (as defined in the Credit Agreement) pursuant to that
certain First Amendment to Credit Agreement dated as of April 1, 1993 (the
"Amendment") among BanPonce, Financial, VELCO, the Lenders and the Agent. The
Lenders have agreed to do so provided BanPonce ratifies that such increase in
each Lender's Commitment evidenced by the Amendment is guaranteed by BanPonce
pursuant to the Guaranty. Thus, BanPonce hereby ratifies that the Guaranty
remains in full force and effect with respect to the Credit Agreement as
amended by the Amendment and that all terms, covenants and conditions of the
Guaranty shall remain in full force and effect with respect to the Credit
Agreement as amended by the Amendment. The execution, delivery and acceptance
of this letter shall not act as a waiver of any right, power or remedy of the
Lenders or the Agent, nor constitute a waiver of any provision of the Guaranty,
or any other documents, instruments and agreements executed and/or delivered in
connection therewith.
BANPONCE CORPORATION
By:______________________________
Name:______________________________
Title:______________________________
By:______________________________
Name:______________________________
Title:______________________________
42
2
Accepted this ____ day
of April, 1993
THE FIRST NATIONAL BANK OF CHICAGO,
as Agent
By:______________________________
Name:______________________________
Title:______________________________
43
EXHIBIT 10.12.1
SECOND AMENDMENT TO CREDIT AGREEMENT
This Second Amendment to Credit Agreement (the "Amendment"), dated as
of the 1st day of June, 1993, is among BanPonce Corporation, a Puerto Rico
corporation ("BanPonce"), BanPonce Financial Corp., a Delaware corporation
("Financial"), Vehicle Equipment Leasing Company, Inc. ("VELCO"), a Puerto Rico
corporation, (BanPonce, Financial and VELCO are sometimes collectively referred
to herein as the "Companies" and individually as a "Company"), The First
National Bank of Chicago and Societe Generale (collectively referred as "the
Lenders") and the First National Bank of Chicago acting Agent for the Lenders
and is to a certain Credit Agreement dated May 19, 1992 as amended by First
Amendment to Credit Agreement dated as of April 2, 1993 (the "Credit
Agreement") among the Companies and the Lender, as amended by First Amendment
to credit Agreement executed as of the 2nd day of April, 1993. Capitalized
terms used herein and not otherwise defined shall have the meanings given to
such terms in the Credit Agreement.
WHEREAS, pursuant to the Credit Agreement, the Lender has agreed to
provide certain financing to the Companies upon the terms and conditions set
forth in the Credit Agreement;
WHEREAS, the Companies and the Lender have agreed to an amendment of
the terms and provisions of the Credit Agreement in the manner hereinafter set
forth.
NOW, THEREFORE, in consideration of the foregoing premises, the
following provisions and for other good and valuable consideration, the receipt
of which is hereby acknowledged, the parties hereby agree as follows:
1. Amendment to Credit Agreement.
1.1 Section 2.1 of the Credit Agreement is hereby amended to include
at the end of the tenth line of the definition of "Indebtedness" the following
language "excluding liabilities of Banco Popular de Puerto Rico which are
defined as deposits pursuant to Section 3(1) of the Federal Deposit Insurance
Act, as amended, 12 U.S.C. Section 1813 (1), and to include at the end of the
definition of "Long-Term Indebtedness" "for purposes of this definition current
liabilities shall mean such Indebtedness with a maturity date of one year or
less."
44
2. Representations and Warranties.
2.1 The Companies hereby represent and warrant to the Lender that
each representation and warranty as set forth in the Credit Agreement is true
and correct as if made as of the date of this Amendment.
2.2 Each of the Companies hereby represent that this Amendment
constitutes a legal, valid and binding obligation of such Company enforceable
against such Company in accordance with its terms.
2.3 No event has occurred and is continuing which constitutes an
Event of Default or would constitute an Event of Default, but for the
requirement that notice be given or time elapse or both.
3. References to and Effect Upon the Credit Agreement. Upon the
effectiveness of this Amendment, each reference in the Credit Agreement to
"this Credit Agreement", "this Agreement", "hereunder", "hereof", "herein", or
words of like import referring to the Credit Agreement, and each reference in
the other Loan Documents to the "Credit Agreement", "thereunder", "thereof", or
words of like import referring to the Credit Agreement shall mean and be a
reference to the Credit Agreement as amended hereby. All of the terms,
covenants and conditions of the Credit Agreement shall remain in full force and
effect. As amended and modified by this Amendment, the Credit Agreement is
hereby ratified and confirmed in all respects. The execution, delivery and
effectiveness of this Amendment shall not operate as a waiver of any right,
power or remedy of the Lender, nor constitute a waiver of any provision of the
Credit Agreement, or any other documents, instruments and agreements executed
and/or delivered in connection therewith.
4. Counterparts. This Amendment may be executed by one or more of the
parties to this Amendment in any number of separate counterparts and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument.
5. Paragraph Titles. The paragraph titles contained in this Amendment
are used for convenience only and shall be without substance, meaning or
content of any kind whatsoever and are not a part of this agreement between the
parties hereto.
IN WITNESS WHEREOF, this Amendment has been duly executed and
delivered by proper and duly authorized officers of the respective party as of
the date and year first above written.
45
SOCIETE GENERALE
By: ___________________________________
Title:_________________________________