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EXHIBIT 4(E)
TRUST AGREEMENT, dated as of January 15, 1997, by and between BanPonce
Financial Corp., a Delaware corporation, as "Depositor", BanPonce Corporation,
a Puerto Rico corporation, as "Guarantor", and Javier F. Ubarri, Alberto
Paracchini and First Chicago Delaware Inc., as "Trustees".
The Depositor, the Guarantor and the Trustees hereby agree as follows:
Section 1. The Trust. The trust created hereby shall be known as
BanPonce Trust II (the "Trust"), in which name the Trustees, or the Depositor
to the extent provided herein, may conduct the business of the Trust, make and
execute contracts, and sue and be sued.
Section 2. The Trust Estate. The Depositor hereby assigns,
transfers, conveys and sets over to the Trust the sum of $10. The Trustees
hereby acknowledge receipt of such amount in trust from the Depositor, which
amount shall constitute the initial trust estate. The Trustees hereby declare
that they will hold the trust estate in trust for the Depositor. It is the
intention of the parties hereto that the Trust created hereby constitute a
business trust under Chapter 38 of Title 12 of the Delaware Code, 12 Del. C.
Section 3801 et seq. (the "Business Trust Act"), and that this document
constituteS the governing instrument of the Trust. The Trustees are hereby
authorized and directed to execute and file a certificate of trust with the
Delaware Secretary of State in accordance with the provisions of the Business
Trust Act.
Section 3. Amended and Restated Trust Agreement. The Depositor, the
Guarantor, the Trustees and certain other parties will enter into an amended
and restated Trust Agreement, satisfactory to each such party and substantially
in the form to be included as an exhibit to the 1933 Act Registration Statement
(as defined below), to provide for the contemplated operation of the Trust
created hereby and the issuance of the Preferred Securities (as defined below)
and common securities of the Trust to be referred to therein. Prior to the
execution and delivery of such amended and restated Trust Agreement, the
Trustees shall not have any duty or obligation hereunder or with respect to the
trust estate, except as otherwise required by applicable law or as may be
necessary to obtain prior to such execution and delivery and licenses, consents
or approvals required by applicable law or otherwise.
Section 4. Certain Authorizations. The Depositor, the Guarantor and
the Trustees hereby authorize and direct the Depositor, as the sponsor of the
Trust, (i) to file with the Securities and Exchange Commission (the
"Commission") and execute, in each case on behalf of the Trust (a) the
Registration Statement on Form S-3 (the "1933 Act Registration Statement"),
including any pre-effective or post-effective amendments to such 1933 Act
Registration Statement (including the prospectus and the exhibits contained
therein), relating to the registration under the Securities Act of 1933, as
amended, of the preferred securities of the Trust (the "Preferred Securities")
and certain other securities of the Depositor and (b) a Registration Statement
on Form 8-A (the "1934 Act Registration Statement") (including all
pre-effective and post-effective amendments thereto) relating to the
registration of the Preferred Securities of the Trust under Section 12 of the
Securities Exchange Act of 1934, as amended; (ii) to file with one or more
national securities exchanges (each, an "Exchange") or the National Association
of Securities Dealers ("NASD") and execute on behalf of the Trust a listing
application or applications and all other applications, statements,
certificates, agreements and other instruments
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as shall be necessary or desirable to cause the Preferred Securities to be
listed on any such Exchange or the NASD's Nasdaq National Market ("NASDAQ");
(iii) to file and execute on behalf of the Trust such applications,
reports, surety bonds, irrevocable consents, appointments of attorney for
service of process and other papers and documents as the Depositor on behalf of
the Trust, may deem necessary or desirable to register the Preferred Securities
under the securities or "Blue Sky" laws; and (iv) to execute on behalf of the
Trust such Underwriting Agreements with one or more underwriters relating to
the offering of the Preferred Securities as the Depositor, on behalf of the
Trust, may deem necessary or desirable. In the event that any filing referred
to in clauses (i), (ii) or (iii) above is required by the rules and regulations
of the Commission, any Exchange, the NASD or state securities or "Blue Sky"
laws, to be executed on behalf of the Trust by a Trustee, the Depositor, the
Guarantor and any Trustee are hereby authorized to join in any such filing and
to execute on behalf of the Trust any and all of the foregoing; it being
understood that First Chicago Delaware Inc., in its capacity as a Trustee of
the Trust, shall not be required to join in any such filing or execute on
behalf of the Trust any such document unless required by any such law, rule or
regulation.
Section 5. Counterparts. This Trust Agreement may be executed in one
or more counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument.
Section 6. Trustees. The number of Trustees initially shall be three
(3) and thereafter the number of Trustees shall be such number as shall be
fixed from time to time by a written instrument signed by the Depositor, which
may increase or decrease the number of Trustees; provided, however, that to the
extent required by the Business Trust Act, one Trustee shall either be a
natural person who is a resident of the State of Delaware or, if not a natural
person, an entity which has its principal place of business in the State of
Delaware and otherwise meets the requirements of applicable Delaware law.
Subject to the foregoing, the Depositor is entitled to appoint or remove
without cause any Trustee at any time. Any Trustee may resign upon thirty
days' prior notice to the Depositor; provided, however, such notice shall not
be required if it is waived by the Depositor.
Section 7. Limitation Applicable to First Chicago Delaware Inc. First
Chicago Delaware Inc., in its capacity as a Trustee, shall not have any of the
powers or duties of the Trustees set forth herein, except as expressly required
by the Business Trust Act, and shall be a Trustee of the Trust for the sole
purpose of satisfying the requirements of Section 3807 of the Business Trust
Act.
Section 8. Governing Law. This Trust Agreement shall be governed by,
and construed in accordance with, the laws of the State of Delaware (without
regard to conflicts of law principles).
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IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed as of the day and year first above written.
BANPONCE FINANCIAL CORP.
as Depositor
By:/s/ David Chafey
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Name: David H. Chafey, Jr.
Title: Senior Executive
Vice President and Director
BANPONCE CORPORATION
as Guarantor
By:/s/ David Chafey
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Name: David H. Chafey, Jr.
Title: Senior Executive
Vice President
/s/ Javier F. Ubarri
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Javier F. Ubarri, as Trustee
/s/ Alberto J. Paracchini
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Alberto Paracchini, as Trustee
FIRST CHICAGO DELAWARE INC.
as Trustee
By: /s/ Steven M. Wagner
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Name: Steven M. Wagner
Title: Vice President
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