<PAGE> 1
As filed with the Securities and Exchange Commission dated September 25, 1995
Registration No. 33-61601
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------
PRE-EFFECTIVE AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
-----------------------
BANPONCE CORPORATION
(Exact name of co-registrant as specified in its charter)
-----------------------
PUERTO RICO 66-0416582
(State or other jurisdiction of (IRS employer
incorporation or organization) identification number)
209 Munoz Rivera Avenue 00918
Hato Rey, Puerto Rico (Zip Code)
(Address of principal executive offices)
(809) 765-9800
(Co-registrant's telephone number, including area code)
-----------------------
POPULAR INTERNATIONAL BANK, INC.
(Exact name of co-registrant as specified in its charter)
PUERTO RICO N/A
(State or other jurisdiction of (IRS employer
incorporation or organization) identification number)
209 Munoz Rivera Avenue 00918
Hato Rey, Puerto Rico (Zip Code)
(Address of principal executive offices)
(809) 765-9800
(Co-registrant's telephone number, including area code)
-----------------------
BANPONCE FINANCIAL CORP.
(Exact name of co-registrant as specified in its charter)
DELAWARE 66-0476353
(State or other jurisdiction of (IRS employer
incorporation or organization) identification number)
521 Fellowship Road 08054
Mt. Laurel, New Jersey (Zip Code)
(Address of principal executive office)
(809) 765-9800
(Co-registrant's telephone number, including area code)
DAVID H. CHAFEY, JR.
209 Munoz Rivera Avenue
Hato Rey, Puerto Rico 00918
(809) 765-9800
(Name, address, and telephone number, including area code, of agent for service)
-----------------------
COPIES TO:
DONALD J. TOUMEY, ESQ.
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
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Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this Registration Statement as
determined by the Registrants on the basis of market conditions and other
factors.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, please check the following box.
[x]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
-----------------------
================================================================================
<PAGE> 2
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED SEPTEMBER 25, 1995
PROSPECTUS
DEBT SECURITIES
OF
BANPONCE CORPORATION
OR
POPULAR INTERNATIONAL BANK, INC.
(UNCONDITIONALLY GUARANTEED
BY BANPONCE CORPORATION)
OR
BANPONCE FINANCIAL CORP.
(UNCONDITIONALLY GUARANTEED
BY BANPONCE CORPORATION)
PREFERRED STOCK
OF
BANPONCE CORPORATION
OR
POPULAR INTERNATIONAL BANK, INC.
(UNCONDITIONALLY GUARANTEED
BY BANPONCE CORPORATION)
OR
BANPONCE FINANCIAL CORP.
(UNCONDITIONALLY GUARANTEED
BY BANPONCE CORPORATION)
---------------------
BanPonce Corporation (the "Corporation") intends to issue from time to time
in one or more series its (i) unsecured debt securities, which may be either
senior or subordinated, and (ii) shares of preferred stock. Popular
International Bank, Inc. ("PIB") intends to issue from time to time in one or
more series its (i) unsecured debt securities, which may be either senior or
subordinated, and (ii) shares of preferred stock. BanPonce Financial Corp.
("Financial") intends to issue from time to time in one or more series its (i)
unsecured debt securities, which may be either senior or subordinated, and (ii)
shares of preferred stock. Unsecured debt securities issued by PIB or Financial
will be fully and unconditionally guaranteed as to the payment of principal,
premium, if any, and interest by the Corporation. Shares of preferred stock
issued by PIB or Financial will be fully and unconditionally guaranteed as to
the payment of dividends, redemption price, if any, and liquidation preference,
if any, by the Corporation. The foregoing debt securities and shares of
preferred stock are collectively referred to herein as the "Securities." The
Corporation's guarantees of debt securities or preferred stock issued by PIB or
Financial are collectively referred to herein as the "Guarantees." The
Securities and the Guarantees collectively will be limited to an aggregate
initial offering price not to exceed $1,000,000,000 or, in the case of debt
securities, the equivalent thereof in one or more foreign currencies, including
composite currencies. The Securities offered may be offered, separately or
together, in separate series, in amounts, at prices and on terms to be
determined at the time of sale and to be set forth in a supplement to this
Prospectus (a "Prospectus Supplement").
The subordinated debt securities when issued will be subordinated as
described herein under "Description of Debt Securities and Guarantees." Unless
otherwise indicated in the Prospectus Supplement, payment of the principal of
the subordinated debt securities may be accelerated only in the case of certain
events involving the bankruptcy, insolvency or reorganization of the
Corporation, PIB or Financial, as the case may be. There is no right of
acceleration of payment of subordinated debt securities in the case of a default
in the performance of any covenant of the Corporation, PIB or Financial,
including the payment of principal or interest.
The specific terms of the Securities in respect of which this Prospectus is
being delivered, including (i) in the case of debt securities, the issuer, the
specific designation, aggregate principal amount, denominations, maturity,
premium, if any, rate (which may be fixed or variable) and time of payment of
interest, if any, terms for redemption at the option of the Corporation, PIB,
Financial or the holder, if any, currency or currencies of denomination and
payment, if other than U.S. dollars, the terms, if any, for conversion into
other debt securities or preferred stock and any other terms in connection with
the offering and sale of the debt securities in respect of which this Prospectus
is being delivered, as well as the initial public offering price, and the
principal amounts, if any, to be purchased by underwriters and (ii) in the case
of preferred stock, the issuer, the specific title and stated value, number of
shares or fractional interests therein, any dividend, liquidation, redemption,
voting and other rights, the terms, if any, for conversion into other preferred
stock, the securities exchanges, if any, on which the preferred stock is to be
listed, the initial public offering price, and the number of shares, if any, to
be purchased by the underwriters, will be as set forth in the accompanying
Prospectus Supplement. All or a portion of the debt securities may be issued in
permanent global form.
The Securities may be sold to underwriters for public offering pursuant to
terms of offering fixed at the time of sale. In addition, the Securities may be
sold by the Corporation, PIB or Financial directly or through dealers or agents
designated from time to time, which agents may be affiliates of the Corporation.
The Prospectus Supplement will also set forth with respect to the sale of the
Securities in respect of which this Prospectus is being delivered the names of
the underwriters, dealers or agents, if any, together with the terms of
offering, the compensation of such underwriters and the net proceeds to the
Corporation.
---------------------
THE SECURITIES WILL BE UNSECURED OBLIGATIONS OF THE CORPORATION, PIB OR
FINANCIAL, AS THE CASE MAY BE, AND WILL NOT BE SAVINGS ACCOUNTS, DEPOSITS OR
OTHER OBLIGATIONS OF ANY BANK OR SAVINGS ASSOCIATION AND ARE NOT INSURED BY THE
FEDERAL DEPOSIT INSURANCE CORPORATION, THE BANK INSURANCE FUND OR ANY OTHER
GOVERNMENT AGENCY.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION, THE SECURITIES OFFICE OF THE OFFICE OF THE COMMISSIONER
OF FINANCIAL INSTITUTIONS OF THE COMMONWEALTH OF PUERTO RICO OR ANY
STATE SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE
COMMISSION, SUCH SECURITIES OFFICE, OR ANY STATE SECURITIES
COMMISSION, PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
---------------------
The date of this Prospectus is , 1995
<PAGE> 3
AVAILABLE INFORMATION
The Corporation is subject to the informational requirements of the
Securities Exchange Act of 1934 (the "Exchange Act") and, in accordance
therewith, files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information concerning the Corporation can be inspected and
copied at the Commission's office at 450 Fifth Street, N.W., Washington, D.C.
20549, and the Commission's Regional Offices in New York (7 World Trade Center,
New York, New York 10048) and Chicago (Citicorp Center, 500 West Madison Street,
Chicago, Illinois 60661). Copies of such material can be obtained from the
Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. This Prospectus does not contain
all of the information set forth in the Registration Statement which the
Corporation has filed with the Commission under the Securities Act of 1933 (the
"Act"), to which reference is hereby made.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Corporation hereby incorporates by reference into this Prospectus the
following documents filed by the Corporation with the Commission:
1. The Corporation's Annual Report on Form 10-K for the year ended
December 31, 1994, provided, however, that the information referred to in
Item 402(a)(8) of Regulation S-K promulgated by the Commission shall not be
deemed to be specifically incorporated by reference herein.
2. The Corporation's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1995 and June 30, 1995.
3. The Corporation's Current Reports on Form 8-K, dated March 7, 1995
and April 13, 1995 (as amended by the Corporation's Amendment on Form
8-K/A, dated May 16, 1995).
4. The Corporation's Registration Statement on Form 8-A, dated August
18, 1988, filed pursuant to Section 12(g) of the Exchange Act, pursuant to
which the Corporation registered its Series A Participating Cumulative
Preferred Stock Purchase Rights.
5. The Corporation's Registration Statement on Form 8-A, dated June
17, 1994, as amended by the Corporation's Amendment on Form 8-A/A, dated
June 21, 1994, filed pursuant to Section 12(g) of the Exchange Act,
pursuant to which the Corporation registered its 8.35% Non-Cumulative
Monthly Income Preferred Stock, 1994 Series A.
All documents filed by the Corporation subsequent to the date of this
Prospectus and prior to the termination of the offering of the Securities and
the Guarantees pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
shall be deemed to be incorporated by reference into this Prospectus and to be a
part thereof from the date of filing of such documents. Any statement contained
in a document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Prospectus to
the extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
Any person receiving a copy of this Prospectus, including any beneficial
owner, may obtain without charge, upon oral or written request, a copy of any of
the documents incorporated by reference herein, except for the exhibits to such
documents. Written requests should be mailed to Amilcar Jordan, Senior Vice
President, BanPonce Corporation, P.O. Box 362708, San Juan, Puerto Rico
00936-2708. Telephone requests may be directed to (809) 765-9800.
BANPONCE CORPORATION
The Corporation is a bank holding company registered under the Bank Holding
Company Act of 1956 and incorporated in 1984 under the laws of the Commonwealth
of Puerto Rico ("Puerto Rico"). The
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Corporation is the largest financial institution in Puerto Rico, with
consolidated assets of $14.6 billion, total deposits of $9.6 billion and
stockholders' equity of $1.1 billion as of June 30, 1995. Based on both total
assets and total deposits at December 31, 1994, the Corporation was the 52nd
largest bank holding company in the United States. The Corporation's principal
executive offices are located at 209 Munoz Rivera Avenue, Hato Rey, Puerto Rico
00918 and its telephone number is (809) 765-9800.
The Corporation's principal subsidiary, Banco Popular de Puerto Rico
("Banco Popular" or the "Bank"), was incorporated over 100 years ago in 1893 and
is Puerto Rico's largest bank with total assets of $12.3 billion, deposits of
$9.1 billion and stockholders' equity of $839.8 million at June 30, 1995. The
Bank accounted for 84.1% of the total consolidated assets of the Corporation at
June 30, 1995. A consumer-oriented bank, Banco Popular has the largest retail
franchise in Puerto Rico, operating 212 branches and 312 automated teller
machines. The Bank also has the largest trust operation in Puerto Rico and is a
leader in the mortgage banking business. In addition, it operates the largest
Hispanic bank branch network in the mainland United States with 30 branches in
New York, one branch in Los Angeles and an agency in Chicago. As of June 30,
1995, these branches had a total of approximately $1.4 billion in deposits. The
Bank also operates seven branches in the U.S. Virgin Islands and one branch in
the British Virgin Islands. Banco Popular has three subsidiaries, Popular
Leasing & Rental, Puerto Rico's second largest vehicle leasing and daily rental
company, Popular Consumer Services, Inc., a small-loan company with 27 offices
in Puerto Rico operating under the name of Best Finance and Popular Mortgage,
Inc., a mortgage loan company with three offices in Puerto Rico operating under
the name of Puerto Rico Home Mortgage.
The Corporation has two other principal subsidiaries: Vehicle Equipment
Leasing Company, Inc. ("VELCO") and Financial. VELCO is engaged primarily in the
finance leasing of passenger vehicles and is the largest leasing company in
Puerto Rico. For additional information regarding Financial, see "BanPonce
Financial Corp." Also, BP Capital Markets is, effective April 30, 1995, a direct
subsidiary of BanPonce Corporation and engages in the business of a securities
broker-dealer in Puerto Rico, with institutional brokerage, financial advisory,
and investment and security brokerage operations.
POPULAR INTERNATIONAL BANK INC.
Popular International Bank, Inc. ("PIB") is a wholly owned subsidiary of
the Corporation organized in 1992 under the laws of the Commonwealth of Puerto
Rico and operating as an "international banking entity" under the International
Banking Center Regulatory Act of Puerto Rico (the "IBC Act"). PIB owns all of
the outstanding capital stock of Financial. Summary consolidated financial
statements of PIB are included in the notes to the Corporation's consolidated
financial statements.
BANPONCE FINANCIAL CORP.
BanPonce Financial Corp. ("Financial"), a wholly owned subsidiary of PIB
and an indirect, wholly owned subsidiary of the Corporation, was organized in
1991 under the laws of the State of Delaware.
On March 31, 1994, Financial acquired all of the common stock of Pioneer
Bancorp, Inc., a corporation organized under the laws of Delaware and
headquartered in Chicago, Illinois, and a registered bank holding company under
the Bank Holding Company Act of 1956, as amended (the "BHC Act"), which through
its wholly owned subsidiary River Associates Bancorp, Inc., a Delaware
corporation, owns and operates Pioneer Bank & Trust Company ("Pioneer"), a bank
organized under the laws of the State of Illinois with three branches in that
state. The deposits of Pioneer are insured by the Federal Deposit Insurance
Corporation (the "FDIC"). On August 31, 1994, Pioneer acquired most of the
assets and assumed all of the liabilities of a branch of Banco Popular operating
in Chicago. As of December 31, 1994, the assets of Pioneer were $385.4 million
and its deposits were $325.8 million. Effective January 16, 1995, Banco Popular
converted its branch in Chicago into an agency. See "BanPonce Corporation"
above.
On January 20, 1995, Financial became the direct owner of all the common
stock of Banco Popular, FSB, a new federal savings bank which acquired from the
Resolution Trust Corporation certain assets and all of the deposits of four New
Jersey branches of the former Carteret Federal Savings Bank, a federal savings
bank
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under Resolution Trust Corporation (the "RTC") conservatorship. The deposits of
Banco Popular, FSB are insured by the FDIC. As a result of the acquisition of
Pioneer and of becoming the owner of all shares of Banco Popular, FSB, Financial
and PIB have become registered bank holding companies under the BHC Act and
registered savings and loan holding companies under the Home Owners' Loan Act.
On January 20, 1995, simultaneously with the organization of Banco Popular,
FSB, Financial transferred the control of all the issued and outstanding shares
of its wholly owned subsidiary Equity One, Inc., a Delaware corporation
(formerly Spring Financial Services, Inc.) ("Equity One"), to Banco Popular,
FSB, and Equity One became an operating subsidiary of Banco Popular, FSB. Equity
One is a diversified consumer finance company engaged in the business of
granting personal and mortgage loans and providing dealer financing through 73
offices in 20 states with total assets of $620.5 million as of December 31,
1994. Equity One had initially been acquired by Financial on September 30, 1991,
prior to which time Financial had no significant business operations.
Summary consolidated financial statements of Financial are included in the
notes to the Corporation's consolidated financial statements.
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CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
OF THE CORPORATION
<TABLE>
<CAPTION>
QUARTER
ENDED YEAR ENDED DECEMBER 31,
JUNE 30, --------------------------------
1995 1994 1993 1992 1991 1990
-------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges:
Excluding Interest on Deposits.................................. 2.0 2.6 3.0 2.9 2.1 3.6
Including Interest on Deposits.................................. 1.4 1.5 1.5 1.3 1.2 1.3
Ratio of Earnings to Fixed Charges and Preferred Stock Dividends:
Excluding Interest on Deposits.................................. 1.9 2.5 3.0 2.9 2.0 3.6
Including Interest on Deposits.................................. 1.3 1.5 1.5 1.3 1.2 1.3
</TABLE>
For purposes of computing these consolidated ratios, earnings represent
income (loss) before income taxes, cumulative effect of a change in accounting
principles and equity in undistributed income of unconsolidated subsidiaries and
affiliates, plus fixed charges excluding capitalized interest. Fixed charges
represent all interest expense (ratios are presented both excluding and
including interest on deposits), the portion of net rental expense which is
deemed representative of the interest factor, the amortization of debt issuance
expense and capitalized interest.
USE OF PROCEEDS
The Corporation intends to use the net proceeds from the sale of the
Securities issued by the Corporation for general corporate purposes, including
investments in, or extensions of credit to, its existing and future
subsidiaries, for the acquisition of other banking and financial institutions
and repayment of outstanding borrowings. The Corporation does not at present
have any plans to use the proceeds from any offering for a material acquisition
or to repay outstanding borrowings. All or a substantial portion of the proceeds
from the sale of Securities issued by Financial will be lent by Financial to its
direct or indirect subsidiaries, including Equity One, or used by Financial for
general corporate purposes. The net proceeds from the sale of Securities by PIB
will be lent by PIB to its affiliates or used by PIB for general corporate
purposes. The precise amounts and timing of the application of proceeds will
depend on various factors existing at the time of offering of the Securities,
including the Corporation's subsidiaries' funding requirements and the
availability of other funds. Pending such use, the proceeds may be temporarily
invested in short-term obligations.
CERTAIN REGULATORY MATTERS
GENERAL
Each of the Corporation, PIB and Financial are bank holding companies
subject to supervision and regulation by the Board of Governors of the Federal
Reserve System (the "Federal Reserve Board") under the BHC Act. As a bank
holding company, the Corporation's, PIB's and Financial's activities and those
of their banking and nonbanking subsidiaries are limited to the business of
banking and activities closely related or incidental to banking, and neither the
Corporation, PIB or Financial may directly or indirectly acquire the ownership
or control of more than 5% of any class of voting shares or substantially all of
the assets of any company in the United States, including a bank, without the
prior approval of the Federal Reserve Board. In addition, bank holding companies
are generally prohibited under the BHC Act from engaging in nonbanking
activities, subject to certain exceptions. As a result of the acquisition of
Banco Popular, FSB, the Corporation, PIB and Financial are also subject to the
regulation and supervision of the Office of Thrift Supervision (the "OTS") as
savings and loan holding companies registered under the Home Owners' Loan Act,
as amended.
Banco Popular is considered a foreign bank for purposes of the
International Banking Act of 1978 (the "IBA"). Under the IBA and the BHC Act,
the Corporation and Banco Popular are not permitted to operate a
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branch or agency, or acquire more than 5% of any class of the voting shares or
substantially all the assets of, or control of, an additional bank or bank
holding company that is located outside of their "home state," except that (i)
the Corporation may acquire control of a bank in a state if the laws of that
state explicitly authorize a bank holding company from such bank holding
company's home state to do so and (ii) Banco Popular may continue to operate a
"grandfathered" branch or agency and will be permitted to branch interstate as
described under "-- Recent Banking Legislation" below. Puerto Rico is not
considered a state for purposes of these geographic limitations. Banco Popular
has designated the state of New York as its home state. In addition, some states
have laws prohibiting or restricting foreign banks from acquiring banks located
in such states and treat Puerto Rico's banks and bank holding companies as
foreign banks for such purposes.
Effective January 16, 1995, Banco Popular converted its branch in Chicago
into an agency. See "BanPonce Financial Corp." above.
Banco Popular, Pioneer Bank and Banco Popular, FSB are subject to
supervision and examination by applicable federal and state banking agencies
including, in the case of Banco Popular, the Federal Reserve Board and the
Office of the Commissioner of Financial Institutions of Puerto Rico, in the case
of Pioneer Bank, the FDIC and the Illinois Commissioner of Banks and Trust
Companies, and in the case of Banco Popular, FSB, the OTS and the FDIC. Banco
Popular, Pioneer Bank and Banco Popular, FSB are subject to requirements and
restrictions under federal and state law, including requirements to maintain
reserves against deposits, restrictions on the types and amounts of loans that
may be granted and the interest that may be charged thereon, and limitations on
the types of other investments that may be made and the types of services that
may be offered. Various consumer laws and regulations also affect the operations
of Banco Popular, Pioneer Bank and Banco Popular, FSB. In addition to the impact
of regulation, commercial banks are affected significantly by the actions of the
Federal Reserve Board as it attempts to control the money supply and credit
availability in order to influence the economy.
HOLDING COMPANY STRUCTURE
Banco Popular, Pioneer Bank and Banco Popular, FSB are subject to
restrictions under federal law that limit the transfer of funds between them and
the Corporation, Financial, PIB and the Corporation's other nonbanking
subsidiaries, whether in the form of loans, other extensions of credit,
investments or asset purchases. Such transfers by Banco Popular, Pioneer Bank or
Banco Popular, FSB, respectively, to the Corporation, Financial or PIB, as the
case may be, or to any one nonbanking subsidiary, are limited in amount to 10%
of the transferring institution's capital stock and surplus and, with respect to
the Corporation and all of its nonbanking subsidiaries, to an aggregate of 20%
of the transferring institution's capital stock and surplus. Furthermore, such
loans and extensions of credit are required to be secured in specified amounts.
Under Federal Reserve Board policy, a bank holding company, such as the
Corporation, PIB or Financial, is expected to act as a source of financial
strength to each of its subsidiary banks and to commit resources to support each
such subsidiary bank. This support may be required at times when, absent such
policy, the bank holding company might not otherwise provide such support. In
addition, any capital loans by a bank holding company to any of its subsidiary
banks are subordinate in right of payment to deposits and to certain other
indebtedness of such subsidiary bank. In the event of a bank holding company's
bankruptcy, any commitment by the bank holding company to a federal bank
regulatory agency to maintain the capital of a subsidiary bank will be assumed
by the bankruptcy trustee and entitled to a priority of payment. Banco Popular,
Pioneer Bank and Banco Popular, FSB are currently the only subsidiary depository
institutions of the Corporation, PIB and Financial.
Because the Corporation, PIB and Financial are holding companies, their
right to participate in the assets of any subsidiary upon the latter's
liquidation or reorganization will be subject to the prior claims of the
subsidiary's creditors (including depositors in the case of depository
institution subsidiaries) except to the extent that the Corporation, PIB or
Financial, as the case may be, may itself be a creditor with recognized claims
against the subsidiary.
Under the Federal Deposit Insurance Act (the "FDIA"), a depository
institution (which term includes both banks and savings associations), the
deposits of which are insured by the FDIC, can be held liable for any
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<PAGE> 8
loss incurred by, or reasonably expected to be incurred by, the FDIC after
August 9, 1989 in connection with (i) the default of a commonly controlled
FDIC-insured depository institution or (ii) any assistance provided by the FDIC
to any commonly controlled FDIC-insured depository institution "in danger of
default." "Default" is defined generally as the appointment of a conservator or
a receiver and "in danger of default" is defined generally as the existence of
certain conditions indicating that a default is likely to occur in the absence
of regulatory assistance. Banco Popular, Pioneer Bank and Banco Popular, FSB are
currently the only controlled FDIC-insured depository institutions of the
Corporation. In some circumstances (depending upon the amount of the loss or
anticipated loss suffered by the FDIC), cross-guarantee liability may result in
the ultimate failure or insolvency of one or more insured depository
institutions in a holding company structure. Any obligation or liability owed by
a subsidiary bank to its parent company is subordinated to the subsidiary bank's
cross-guarantee liability with respect to commonly controlled insured depository
institutions.
CAPITAL ADEQUACY
Under the Federal Reserve Board's risk-based capital guidelines for bank
holding companies and member banks, the minimum guidelines for the ratio of
qualifying total capital ("Total capital") to risk-weighted assets (including
certain off-balance sheet items, such as standby letters of credit) is 8%. At
least half of the Total capital is to be comprised of common equity, retained
earnings, minority interests in unconsolidated subsidiaries, noncumulative
perpetual preferred stock and a limited amount of cumulative perpetual preferred
stock, less goodwill and certain other intangible assets discussed below ("Tier
1 capital"). The remainder may consist of a limited amount of subordinated debt,
other preferred stock, certain other instruments and a limited amount of loan
and lease loss reserves ("Tier 2 capital").
The Federal Reserve Board has adopted regulations that require most
intangibles, including core deposit intangibles, to be deducted from Tier 1
Capital. The regulations, however, permit the inclusion of a limited amount of
intangibles related to purchased mortgage servicing rights and purchased credit
card relationships and include a "grandfather" provision permitting the
continued inclusion of certain existing intangibles.
In addition, the Federal Reserve Board has established minimum leverage
ratio guidelines for bank holding companies and member banks. These guidelines
provide for a minimum ratio of Tier 1 capital to total assets, less goodwill and
certain other intangible assets discussed below (the "leverage ratio") of 3% for
bank holding companies and member banks that meet certain specified criteria,
including that they have the highest regulatory rating. All other bank holding
companies and member banks will be required to maintain a leverage ratio of 3%
plus an additional cushion of at least 100 to 200 basis points. The guidelines
also provide that banking organizations experiencing internal growth or making
acquisitions will be expected to maintain strong capital positions substantially
above the minimum supervisory levels, without significant reliance on intangible
assets. Furthermore, the guidelines indicate that the Federal Reserve Board will
continue to consider a "tangible Tier 1 leverage ratio" and other indicia of
capital strength in evaluating proposals for expansion or new activities. The
tangible Tier 1 leverage ratio is the ratio of a banking organization's Tier 1
capital, less all intangibles, to total assets, less all intangibles.
Under the Federal Reserve Board's requirements, the Corporation's and Banco
Popular's capital ratios at June 30, 1995 are set forth below:
<TABLE>
<CAPTION>
CORPORATION BANCO POPULAR
----------- -------------
<S> <C> <C>
Tier 1 capital............................................... 11.58% 10.93%
Total capital................................................ 12.85% 12.20%
Leverage ratio............................................... 7.07% 6.47%
</TABLE>
Pioneer Bank and Banco Popular, FSB are subject to similar capital
requirements adopted by the FDIC and the OTS, respectively.
Failure to meet capital guidelines could subject a bank to a variety of
enforcement remedies, including the termination of deposit insurance by the
FDIC, and to certain restrictions on its business. See "FDICIA" below.
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Bank regulators have in the past indicated their desire to raise capital
requirements applicable to banking organizations beyond current levels. However,
management is unable to predict whether and when higher capital requirements
would be imposed and, if so, at what levels or on what schedule.
FDICIA
Under the Federal Deposit Insurance Corporation Improvement Act of 1991
("FDICIA") federal banking regulators must take prompt corrective action in
respect of depository institutions that do not meet minimum capital
requirements. The FDICIA and regulations thereunder establish five capital
tiers: "well capitalized," "adequately capitalized," "undercapitalized,"
"significantly undercapitalized," and "critically undercapitalized." A
depository institution is deemed well capitalized if it maintains a leverage
ratio of at least 5%, a risk-based Tier 1 capital ratio of at least 6% and a
risk-based Total capital ratio of at least 10% and is not subject to any written
agreement or directive to meet a specific capital level. A depository
institution is deemed adequately capitalized if it is not well capitalized but
maintains a leverage ratio of at least 4% (or at least 3% if given the highest
regulatory rating and not experiencing or anticipating significant growth), a
risk-based Tier 1 capital ratio of at least 4% and a risk-based Total capital
ratio of at least 8%. A depository institution is deemed undercapitalized if it
fails to meet the standards for adequately capitalized institutions (unless it
is deemed significantly or critically undercapitalized). An institution is
deemed significantly undercapitalized if it has a leverage ratio of less than
3%, a risk-based Tier 1 capital ratio of less than 3% or a risk-based Total
capital ratio of less than 6%. An institution is deemed critically
undercapitalized if it has tangible equity equal to 2% or less of total assets.
A depository institution may be deemed to be in a capitalization category that
is lower than is indicated by its actual capital position if it receives a less
than satisfactory examination rating in any one of four categories.
At June 30, 1995, Banco Popular, Banco Popular, FSB and Pioneer Bank were
well capitalized. An institution's capital category, as determined by applying
the prompt corrective action provisions of law, may not constitute an accurate
representation of the overall financial condition or prospects of the
Corporation or its banking subsidiaries, and should be considered in conjunction
with other available information regarding the Corporation's financial condition
and results of operations.
FDICIA generally prohibits a depository institution from making any capital
distribution (including payment of a dividend) or paying any management fee to
its holding company if the depository institution would thereafter be
undercapitalized. Undercapitalized depository institutions are subject to
restrictions on borrowing from the Federal Reserve System. In addition,
undercapitalized depository institutions are subject to growth limitations and
are required to submit capital restoration plans. A depository institution's
holding company must guarantee the capital plan, up to an amount equal to the
lesser of 5% of the depository institution's assets at the time it becomes
undercapitalized or the amount of the capital deficiency when the institution
fails to comply with the plan. The federal banking agencies may not accept a
capital plan without determining, among other things, that the plan is based on
realistic assumptions and is likely to succeed in restoring the depository
institution's capital. If a depository institution fails to submit an acceptable
plan, it is treated as if it is significantly undercapitalized. Significantly
undercapitalized depository institutions may be subject to a number of
requirements and restrictions, including orders to sell sufficient voting stock
to become adequately capitalized, requirements to reduce total assets and
cessation of receipt of deposits from correspondent banks. Critically
undercapitalized depository institutions are subject to appointment of a
receiver or conservator.
The capital-based prompt corrective action provisions of the FDICIA and
their implementing regulations apply to FDIC insured depository institutions
such as the banking subsidiaries of the Corporation, PIB and Financial, but they
are not directly applicable to holding companies, such as the Corporation, PIB
or Financial which control such institutions. However, federal banking agencies
have indicated that, in regulating holding companies, they may take appropriate
action at the holding company level based on their assessment of the
effectiveness of supervisory actions imposed upon subsidiary insured depository
institutions pursuant to such provisions and regulations.
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RECENT BANKING LEGISLATION
The recently enacted Riegle-Neal Interstate Banking and Branching
Efficiency Act of 1994 will permit bank holding companies, with Federal Reserve
Board approval, to acquire banks located in states other than the holding
company's home state without regard to whether the transaction is prohibited
under state law, beginning September 29, 1995. In addition, commencing June 1,
1997, national and state banks with different home states will be permitted to
merge across state lines, with approval of the appropriate federal banking
agency, unless the home state of a participating bank passes legislation prior
to this date expressly prohibiting interstate mergers. States may "opt in" to
permit interstate branching by merger prior to June 1, 1997 and to permit de
novo interstate branching. A foreign bank, like Banco Popular, may branch
interstate by merger or de novo to the same extent as domestic banks in the
foreign bank's home state, which, in the case of Banco Popular, is New York.
Various other legislation, including proposals to overhaul the bank
regulatory system, expand bank and bank holding company powers and limit the
investments that a depository institution may make with insured funds, is from
time to time introduced in Congress. The Corporation, PIB and Financial cannot
determine the ultimate effect that such potential legislation, if enacted, or
implementing regulations, would have upon their financial condition or results
of operations.
DIVIDEND RESTRICTIONS
The principal source of cash flow for the Corporation is dividends from
Banco Popular. Various statutory provisions limit the amount of dividends Banco
Popular can pay to the Corporation without regulatory approval. As a member bank
subject to the regulation of the Federal Reserve Board, Banco Popular must
obtain the approval of the Federal Reserve Board for any dividend if the total
of all dividends declared by the bank in any calendar year would exceed the
total of its net profits, as defined by the Federal Reserve Board, for that
year, combined with its retained net profits for the preceding two years. In
addition, a member bank may not pay a dividend in an amount greater than its
undivided profits then on hand after deducting its losses and bad debts. For
this purpose, bad debts are generally defined to include the principal amount of
loans that are in arrears with respect to interest by six months or more unless
such loans are fully secured and in the process of collection. Moreover, for
purposes of this limitation, a member bank is not permitted to add the balance
in its allowance for loan losses account to its undivided profits then on hand.
A member bank may, however, net the sum of its bad debts as so defined against
the balance in its allowance for loan losses account and deduct from undivided
profits only bad debts as so defined in excess of that account. At June 30,
1995, Banco Popular could have declared a dividend of approximately $133.1
million without the approval of the Federal Reserve Board. Illinois law contains
similar limitations on the amount of dividends that Pioneer Bank can pay. In
addition, OTS regulations limit the amount of capital distributions (whether by
dividend or otherwise) that any savings association may make without prior OTS
approval, based upon the savings association's regulatory capital levels. These
limitations are applicable to Banco Popular, FSB. Also, in connection with the
acquisition by Banco Popular, FSB, from the RTC of four New Jersey branches of
the former Carteret Federal Savings Bank, the RTC provided Banco Popular FSB and
Financial interim financial assistance. See "BanPonce Financial Corp." above.
Pursuant to the terms of such financing, evidenced by a promissory note (which
matures on January 20, 2000 but is prepayable any time before then), Banco
Popular may not, among other things, declare or pay any stock dividends on its
outstanding capital stock (unless such dividends are used exclusively for
payment of principal of or interest on such promissory note) or make any
distributions of its assets until payment in full of such promissory note.
The payment of dividends by Banco Popular, Pioneer Bank or Banco Popular,
FSB, may also be affected by other regulatory requirements and policies, such as
the maintenance of adequate capital. If, in the opinion of the applicable
regulatory authority, a depository institution under its jurisdiction is engaged
in, or is about to engage in, an unsafe or unsound practice (that, depending on
the financial condition of the depository institution, could include the payment
of dividends), such authority may require, after notice and hearing, that such
depository institution cease and desist from such practice. The Federal Reserve
Board has issued a policy statement that provides that insured banks and bank
holding companies should generally pay dividends only
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out of current operating earnings. In addition, all insured depository
institutions are subject to the capital-based limitations required by the
FDICIA. See "FDICIA."
See "Certain Regulatory Matters -- Puerto Rico Regulation" for a
description of certain restrictions on Banco Popular's ability to pay dividends
under Puerto Rico law.
FDIC INSURANCE ASSESSMENTS
Banco Popular, Pioneer Bank and Banco Popular, FSB are subject to FDIC
deposit insurance assessments.
Pursuant to FDICIA, the FDIC has adopted a risk-based assessment system,
under which the assessment rate for an insured depository institution varies
according to the level of risk incurred in its activities. An institution's risk
category is based partly upon whether the institution is well capitalized,
adequately capitalized or less than adequately capitalized. Each insured
depository institution is also assigned to one of the following "supervisory
subgroups": "A," "B" or "C". Group "A" institutions are financially sound
institutions with only a few minor weaknesses; group "B" institutions are
institutions that demonstrate weaknesses that, if not corrected, could result in
significant deterioration; and group "C" institutions are institutions for which
there is a substantial probability that the FDIC will suffer a loss in
connection with the institution unless effective action is taken to correct the
areas of weakness.
On August 8, 1995, the FDIC amended its regulations on insurance
assessments to establish a new assessment rate schedule of 4 to 31 basis points
in replacement of the existing schedule of 23 to 31 basis points for
institutions whose deposits are subject to assessment by the Bank Insurance Fund
("BIF"). The FDIC has maintained the current assessment rate schedule of 23 to
31 basis points for institutions whose deposits are subject to assessment by the
Savings Association Insurance Fund ("SAIF"). The new BIF schedule will become
effective on the first day of the month after the month in which the BIF reaches
its "designated reserve ratio" of 1.25%, which the FDIC has estimated occurred
sometime in the second quarter of 1995. Assessments collected at the previous
assessment schedule that exceed the amount due under the new schedule will be
refunded, with interest, from the effective date of the new schedule. As of June
30, 1995, the Corporation had a BIF deposit assessment base of approximately
$9.0 billion and a SAIF deposit assessment base of approximately $180 million.
Various legislative proposals regarding the future of the BIF and the SAIF have
been reported recently. Several of these proposals include a one-time special
assessment for SAIF deposits and a subsequent comparable and reduced level of
annual premiums for SAIF and BIF deposits. The Corporation does not know when
and if any such proposal or any other related proposal may be adopted.
BROKERED DEPOSITS
FDIC regulations adopted under FDICIA govern the receipt of brokered
deposits. Under these regulations, a bank cannot accept, rollover or renew
brokered deposits (which term is defined also to include any deposit with an
interest rate more than 75 basis points above prevailing rates) unless (i) it is
well capitalized, or (ii) it is adequately capitalized and receives a waiver
from the FDIC. A bank that is adequately capitalized may not pay an interest
rate on any deposits in excess of 75 basis points over certain prevailing market
rates specified by regulation. There are no such restrictions on a bank that is
well capitalized. The Corporation does not believe the brokered deposits
regulation has had or will have a material effect on the funding or liquidity of
Banco Popular, Pioneer Bank or Banco Popular, FSB.
PUERTO RICO REGULATION
General
As a commercial bank organized under the laws of the Commonwealth, Banco
Popular is subject to supervision, examination and regulation by the Office of
the Commissioner of Financial Institutions of the Commonwealth (the "Office of
the Commissioner"), pursuant to the Puerto Rico Banking Act of 1933, as amended
(the "Banking Law").
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Section 27 of the Banking Law requires that at least ten percent (10%) of
the yearly net income of the Bank be credited annually to a reserve fund. This
apportionment shall be done every year until the reserve fund shall be equal to
ten percent (10%) of the total deposits or the total paid-in capital, whichever
is greater. At the end of its most recent fiscal year, Banco Popular had an
adequate reserve fund established.
Section 27 of the Banking Law also provides that when the expenditures of a
bank are greater than the receipts, the excess of the former over the latter
shall be charged against the undistributed profits of the bank, and the balance,
if any, shall be charged against the reserve fund, as a reduction thereof. If
there is no reserve fund sufficient to cover such balance in whole or in part,
the outstanding amount shall be charged against the capital account and no
dividend shall be declared until said capital has been restored to its original
amount and the reserve fund to 20% of the original capital.
Section 16 of the Banking Law requires every bank to maintain a legal
reserve which shall not be less than 20% of its demand liabilities, except
government deposits (federal, state and municipal) which are secured by actual
collateral. However, if a bank becomes a member of the Federal Reserve System,
the 20% legal reserve shall not be effective and the reserve requirements
demanded by the Federal Reserve System shall be applicable. However, pursuant to
an order of the Federal Reserve Board dated November 24, 1982, the Bank has been
exempted from such reserve requirements with respect to deposits payable in
Puerto Rico. As to those deposits, the Section 16 reserve requirements are
applicable.
Section 17 of the Banking Law permits the Bank to make loans to any one
person, firm, partnership or corporation, up to an aggregate amount of fifteen
percent (15%) of the paid-in capital and reserve fund of the Bank. As of June
30, 1995, the legal lending limit for the Bank under this provision was
approximately $85 million. If such loans are secured by collateral worth at
least twenty-five percent (25%) more than the amount of the loan, the aggregate
maximum amount may reach one third of the paid-in capital of the Bank, plus its
reserve fund. There are no restrictions under Section 17 on the amount of loans
that are wholly secured by bonds, securities and other evidences of indebtedness
of the Government of the United States or the Commonwealth, or by current debt
bonds, not in default, of municipalities or instrumentalities of the
Commonwealth.
Section 14 of the Banking Law authorizes the Bank to conduct certain
financial and related activities directly or through subsidiaries, including
finance leasing of personal property, making and servicing mortgage loans and
operating a small-loan company. The Bank engages in these activities through its
wholly owned subsidiaries, Popular Leasing & Rental, Inc., Popular Mortgage,
Inc., and Popular Consumer Services, Inc., respectively, all of which are
organized and operate in Puerto Rico.
The Finance Board, which is a part of the Office of the Commissioner, but
also includes as its members the Secretary of the Treasury, the Secretary of
Commerce, the Secretary of Consumer Affairs, the President of the Planning
Board, and the President of the Government Development Bank for Puerto Rico, has
the authority to regulate the maximum interest rates and finance charges that
may be charged on loans to individuals and unincorporated businesses in the
Commonwealth. The current regulations of the Finance Board provide that the
applicable interest rate on loans to individuals and unincorporated businesses
(including real estate development loans but excluding certain other personal
and commercial loans secured by mortgages on real estate properties) is to be
determined by free competition. The Finance Board also has authority to regulate
the maximum finance charges on retail installment sales contracts, which are
currently set at 21%, and for credit card purchases, which are currently set at
26%. There is no maximum rate set for installment sales contracts involving
motor vehicles, commercial, agricultural and industrial equipment, commercial
electric appliances and insurance premiums.
IBC Act
Under the IBC Act, without the prior approval of the Office of the
Commissioner, PIB may not amend its articles of incorporation or issue
additional shares of capital stock or other securities convertible into
additional shares of capital stock unless such shares are issued directly to the
shareholders of PIB previously identified in the application to organize the
international banking entity, in which case notification to the Office of the
Commissioner must be given within ten business days following the date of the
issue. Pursuant to the IBC
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Act, without the prior approval of the Office of the Commissioner, PIB may not
initiate the sale, encumbrance, assignment, merger or other transfer of shares
if by such transaction a person or persons acting in concert could acquire
direct or indirect control of 10% or more of any class of the Company's stock.
Such authorization must be requested at least 30 days prior to the transaction.
PIB must submit to the Office of the Commissioner a report of its condition
and results of operation on a monthly basis and its annual audited financial
statement at the close of its fiscal year. Under the IBC Act, PIB may not deal
with "domestic persons" as such term is defined in the IBC Act. Also, it may
only engage in those activities authorized in the IBC Act, the regulations
adopted thereunder and its license.
The IBC Act empowers the Office of the Commissioner to revoke or suspend,
after a hearing, the license of an international banking entity if, among other
things, it fails to comply with the IBC Act, regulations issued by the Office of
the Commissioner or the terms of its license, or if the Office of the
Commissioner finds that the business of the international banking entity is
conducted in a manner not consistent with the public interest.
DESCRIPTION OF DEBT SECURITIES AND GUARANTEES
The Corporation's senior debt securities (the "Senior Debt Securities"),
may be issued from time to time in one or more series under an Indenture, dated
as of February 15, 1995 (the "Senior Indenture") between the Corporation and The
First National Bank of Chicago (the successor trustee to Citibank, N.A.), as
trustee (the "Senior Trustee"). The Corporation's subordinated debt securities
(the "Subordinated Debt Securities") may be issued from time to time in one or
more series under an Indenture (the "Subordinated Indenture") between the
Corporation and the trustee named in the applicable Prospectus Supplement, as
trustee (the "Subordinated Trustee").
PIB's senior debt securities (the "PIB Senior Debt Securities") may be
issued from time to time in one or more series under an Indenture (the "PIB
Senior Indenture") among the Corporation, PIB and the trustee named in the
applicable Prospectus Supplement, as trustee (the "PIB Senior Trustee"). PIB's
subordinated debt securities ("PIB Subordinated Debt Securities") may be issued
from time to time in one or more series under an Indenture (the "PIB
Subordinated Indenture") among the Corporation, PIB and the trustee named in the
applicable Prospectus Supplement, as trustee (the "PIB Subordinated Trustee").
Financial's senior debt securities (the "Financial Senior Debt Securities") may
be issued from time to time in one or more series under an Indenture, dated as
of October 1, 1991, as supplemented by the First Supplemental Indenture thereto,
dated as of February 28, 1995 (collectively, the "Financial Senior Indenture"),
among the Corporation, Financial and The First National Bank of Chicago (the
successor trustee to Citibank N.A.), as trustee (the "Financial Senior
Trustee"). Financial's subordinated debt securities (the "Financial Subordinated
Debt Securities") may be issued from time to time in one or more series under an
Indenture (the "Financial Subordinated Indenture") among the Corporation,
Financial and the trustee named in the applicable Prospectus Supplement, as
trustee (the "Financial Subordinated Trustee"). The Senior Debt Securities, the
Subordinated Debt Securities, the PIB Senior Debt Securities, the PIB
Subordinated Debt Securities, the Financial Senior Debt Securities and the
Financial Subordinated Debt Securities are sometimes referred to collectively as
the "Debt Securities." The Senior Indenture, the Subordinated Indenture, the PIB
Senior Indenture, the PIB Subordinated Indenture, the Financial Senior Indenture
and the Financial Subordinated Indenture are sometimes referred to collectively
as the "Indentures," and the Senior Trustee, the Subordinated Trustee, the PIB
Senior Trustee, the PIB Subordinated Trustee, the Financial Senior Trustee and
the Financial Subordinated Trustee are sometimes referred to collectively as the
"Trustees." The statements under this caption are brief summaries of material
provisions contained in the Indentures and are qualified in their entirety by
reference to the Indentures, including the definition therein of certain terms,
copies of which are filed as exhibits to the Registration Statement of which
this Prospectus is a part.
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GENERAL
Each Indenture provides for the issuance of debt securities in one or more
series, and does not limit the principal amount of debt securities which may be
issued thereunder.
Reference is made to the Prospectus Supplement for the following terms of
the Debt Securities being offered hereby: (1) the specific title of the Debt
Securities; (2) whether the Debt Securities are Senior Debt Securities,
Subordinated Debt Securities, PIB Senior Debt Securities, PIB Subordinated Debt
Securities, Financial Senior Debt Securities or Financial Subordinated Debt
Securities; (3) the aggregate principal amount of the Debt Securities; (4) the
percentage of their principal amount at which the Debt Securities will be
issued; (5) the date or dates on which the Debt Securities will mature; (6) the
rate or rates (which may be fixed or variable) per annum or the method for
determining such rate or rates, if any, at which the Debt Securities will bear
interest; (7) the times, if any, at which any such interest will be payable; (8)
any provisions relating to optional or mandatory redemption of the Debt
Securities; (9) the denominations in which the Debt Securities are authorized to
be issued; (10) the extent to which Debt Securities will be issuable in global
form and, if so, the identity of the Depositary for such global Debt Securities;
(11) the currency or units of two or more currencies in which the Debt
Securities are denominated, if other than United States dollars, and the
currency in which interest is payable if other than the currency in which the
Debt Securities are denominated; (12) the place or places at which the
Corporation, PIB or Financial will make payments of principal (and premium, if
any) and interest, if any, and the method of such payment; (13) the Person to
whom any Debt Security of such series will be payable, if other than the Person
in whose name that Debt Security (or one or more Predecessor Debt Securities) is
registered at the close of business on the Regular Record Date for such
interest; (14) whether the Debt Securities may be issued as Original Issue
Discount Securities; (15) whether the amount of payment of principal of or any
premium or interest on any Debt Security may be determined with reference to an
index, formula or other method and the manner in which such amount shall be
determined; (16) any additional covenants and Events of Default and the remedies
with respect thereto not currently set forth in the respective Indenture; and
(17) any other specific terms of Debt Securities.
One or more series of the Debt Securities may be issued as Discount
Securities. A "Discount Security" is a debt security, including any zero-coupon
security, which is issued at a price lower than the amount payable at the Stated
Maturity thereof and which provides that upon redemption or acceleration of the
Maturity thereof an amount less than the amount payable upon the Stated Maturity
thereof and determined in accordance with the terms thereof shall become due and
payable.
Unless otherwise indicated in the applicable Prospectus Supplement, the
covenants contained in the Indentures and the Debt Securities will not afford
holders of the Debt Securities protection in the event of a sudden decline in
credit rating that might result from a recapitalization, restructuring, or other
highly leveraged transaction.
FORM, EXCHANGE, REGISTRATION AND TRANSFER
Debt Securities of a series may be issuable in certificated or global form.
Debt Securities in certificated form may be presented for registration of
transfer (with the form of transfer endorsed thereon duly executed), at the
office of the Security Registrar or at the office of any transfer agent
designated by the Corporation, PIB or Financial, as the case may be, for such
purpose with respect to any series of Debt Securities and referred to in an
applicable Prospectus Supplement, without service charge and upon payment of any
taxes and other governmental charges as described in the relevant Indenture.
Such transfer or exchange will be effected upon the Security Registrar being
satisfied with the documents of title and identity of the Person making the
request. The Security Registrar with respect to the Debt Securities will be
designated in the applicable Prospectus Supplement. If a Prospectus Supplement
refers to any transfer agents (in addition to the Security Registrar) initially
designated by the Corporation, PIB or Financial with respect to any series of
Debt Securities, the Corporation, PIB or Financial, as the case may be, may at
any time rescind the designation of any such transfer agent or approve a change
in the location through which any such transfer agent acts, except that the
Corporation, PIB or Financial, as the case may be, will be required to maintain
a transfer agent in
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each Place of Payment for such series. The Corporation, PIB or Financial, as the
case may be, may at any time designate additional transfer agents with respect
to any series of Debt Securities.
In the event of any redemption in part, the Corporation, PIB or Financial,
as the case may be, shall not be required to (i) issue, register the transfer of
or exchange any Debt Security during a period beginning at the opening of
business 15 days before the mailing of a notice of redemption of Debt Securities
of like tenor and of the series of which such Debt Security is a part and ending
at the close of business on the day of such mailing and (ii) register the
transfer of or exchange any Debt Security so selected for redemption, in whole
or in part, except the unredeemed portion of any Debt Security being redeemed in
part.
PAYMENT AND PAYING AGENT
Unless otherwise indicated in an applicable Prospectus Supplement, payment
of principal of and premium (if any) on any Debt Security will be made only
against surrender to the Paying Agent of such Debt Security. Unless otherwise
indicated in an applicable Prospectus Supplement, principal of and any premium
and interest on the Debt Securities will be payable, subject to any applicable
laws and regulations, at the office of such Paying Agent or Paying Agents as the
Corporation, PIB or Financial, as the case may be, may designate from time to
time, except that at the option of the Corporation, PIB or Financial, as the
case may be, payment of any interest may be made by check mailed to the address
of the person entitled thereto as such address shall appear in the Security
Register with respect to such Debt Securities. Unless otherwise indicated in an
applicable Prospectus Supplement, payment of interest on a Debt Security on any
Interest Payment Date will be made to the Person in whose name such Debt
Security (or Predecessor Debt Security) is registered at the close of business
on the Regular Record Date for such interest.
The Paying Agent for payments with respect to Debt Securities of each
series will be specified in the applicable Prospectus Supplement. The
Corporation, PIB or Financial, as the case may be, may at any time designate
additional Paying Agents or rescind the designation of any Paying Agent or
approve a change in the office through which any Paying Agent acts, except that
the Corporation, PIB or Financial, as the case may be, will be required to
maintain a Paying Agent in each Place of Payment for each series of Debt
Securities.
All moneys paid by the Corporation, PIB or Financial, as the case may be,
to a Paying Agent for the payment of the principal of and any premium or
interest on any Debt Security which remain unclaimed at the end of two years
after such principal, premium or interest shall have become due and payable will
be repaid to the Corporation, PIB or Financial, as the case may be, and the
Holder of such Debt Security will thereafter look only to the Corporation, PIB
or Financial, as the case may be, for payment thereof.
CERTAIN COVENANTS
Each of the Senior Indenture, the PIB Senior Indenture and the Financial
Senior Indenture provides that the Corporation, subject to the provisions
described under "Consolidation, Merger, Sale or Conveyance," will not sell,
assign, transfer, or otherwise dispose of, or permit Banco Popular to issue,
sell, assign, transfer or otherwise dispose of any shares of, or securities
convertible into or options to subscribe for, Voting Stock of Banco Popular
unless Banco Popular remains a Controlled Subsidiary (as defined below) of the
Corporation, and will not permit Banco Popular to merge or consolidate or
convey, transfer, lease or sell its properties substantially as an entirety,
unless the surviving corporation or transferee, as the case may be, is a
Controlled Subsidiary of the Corporation. There is no similar restriction in the
Subordinated Indenture, the PIB Subordinated Indenture or the Financial
Subordinated Indenture.
Each of the Senior Indenture, the PIB Senior Indenture and the Financial
Senior Indenture also provides that the Corporation will not, and it will not
permit any Material Banking Subsidiary (as defined below) at any time directly
or indirectly to, create, assume, incur or permit to exist any indebtedness for
borrowed money secured by a pledge, lien or other encumbrance on the Voting
Stock of any Material Banking Subsidiary without making effective provision
whereby the Debt Securities and the Guarantees (and, if the Corporation so
elects, any other indebtedness ranking on a parity with the Debt Securities and
the Guarantees) shall be secured equally and ratably with such secured
indebtedness so long as such other indebtedness shall be so secured; provided,
however, that the foregoing covenant shall not be applicable to liens for taxes
or
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assessments or governmental charges or levies not then due and delinquent or the
validity of which is being contested in good faith or which are less than
$10,000,000 in amount, liens created by or resulting from any litigation or
legal proceeding which is currently being contested in good faith by appropriate
proceedings or which involve claims of less than $10,000,000, or deposits to
secure (or in lieu of) surety, stay, appeal or customs bonds. There is no
similar restriction in the Subordinated Indenture, the PIB Subordinated
Indenture or the Financial Subordinated Indenture.
For the purpose of the foregoing provisions, "Material Banking Subsidiary"
means any Controlled Subsidiary chartered as a banking corporation under
federal, state or Puerto Rican law that is a significant subsidiary of the
Corporation as defined in Rule 1-02 of Regulation S-X of the Rules and
Regulations of the Commission. "Controlled Subsidiary" means any corporation
more than 80% of the outstanding Voting Stock of which is owned by the
Corporation. As of the date of this Prospectus, Banco Popular is the only
"Material Banking Subsidiary" of the Corporation.
REDEMPTION
General
If the Debt Securities of a series provide for mandatory redemption by the
Corporation, PIB or Financial, as the case may be, or redemption at the election
of the Corporation, PIB or Financial, as the case may be, unless otherwise
provided in the applicable Prospectus Supplement, such redemption shall be on
not less than 30 nor more than 60 days' notice and, in the event of redemption
of Debt Securities of a series of like tenor in part, the Debt Securities to be
redeemed will be selected by the Trustee in such usual manner as it shall deem
fair and appropriate. Notice of such redemption will be mailed to Holders of
Debt Securities of such series to their last addresses as they appear on the
register of the Debt Securities of such series.
For Taxation
Should the Corporation or PIB, on the occasion of the next payment in
respect of any series of the Debt Securities, be obliged to pay any Additional
Amounts as are referenced in "Taxation by the Commonwealth of Puerto Rico"
below, due to a change in law, regulation or interpretation, the Corporation,
PIB or Financial, as the case may be, may, at its option, on the giving of not
less than 30 nor more than 60 days' notice to the Holders of the Debt Securities
of each series, redeem such series of the Debt Securities as a whole at a
redemption price of 100% of the principal amount thereof with the accrued
interest to the date fixed for redemption or such other redemption price as set
forth in the applicable Prospectus Supplement.
Global Securities
The Debt Securities may be issued in whole or in part in the form of one or
more Global Securities that will be deposited with, or on behalf of, a
depositary (the "Depositary") identified in the Prospectus Supplement relating
to such Debt Securities. Unless and until it is exchangeable in whole or in part
for Debt Securities in definitive form, a Global Security may not be transferred
except as a whole by the Depositary for such Global Security to a nominee of
such Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a
successor of such Depositary or a nominee of such successor.
The specific terms of the depositary arrangement, if any, with respect to a
series of Debt Securities will be described in the Prospectus Supplement
relating to such series. The Corporation, PIB and Financial anticipate that the
following provisions will apply to all depositary arrangements.
Ownership of beneficial interests in a Global Security will be limited to
persons that have accounts with the Depositary for such Global Security or its
nominee ("Participant") or persons that may hold interests through Participants.
Such accounts shall be designated by the underwriters or agents with respect to
the Debt Securities underwritten or solicited by them or by the Corporation, PIB
or Financial in the case of Debt Securities offered and sold directly by the
Corporation, PIB or Financial, as the case may be. The Corporation, PIB or
Financial, as the case may be, will obtain confirmation from the Depositary that
upon the issuance of a
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Global Security the Depositary for such Global Security will credit, on its
book-entry registration and transfer system, the Participants' accounts with the
respective principal amounts of the Debt Securities represented by such Global
Security. Ownership of beneficial interests in such Global Security will be
shown on, and the transfer of such ownership interests will be effected only
through, records maintained by the Depositary (with respect to interests of
Participants) and on the records of Participants (with respect to interests of
persons held through Participants). The laws of some states may require that
certain purchasers of securities take physical delivery of such securities in
definitive form. Such limits and such laws may impair the ability to own,
transfer or pledge beneficial interests in a Global Security.
So long as the Depositary for a Global Security, or its nominee, is the
registered owner of such Global Security, such Depositary or such nominee, as
the case may be, will be considered the sole owner or Holder of the Debt
Securities represented by such Global Security for all purposes under the
Indentures. Except as provided below, owners of beneficial interests in a Global
Security will not be entitled to have the Debt Securities represented by such
Global Security registered in their names, will not receive or be entitled to
receive physical delivery of the Debt Securities in definitive form and will not
be considered the owners or Holders thereof under the Indentures. Accordingly,
each person owning a beneficial interest in such a Global Security must rely on
the procedures of the Depositary and, if such person is not a Participant, on
the procedures of the Participant through which such person owns its interests,
to exercise any rights of a Holder under the applicable Indenture. The
Corporation, PIB and Financial understand that under existing industry
practices, in the event that the Corporation, PIB or Financial, as the case may
be, requests any action of Holders or that an owner of a beneficial interest in
such a Global Security desires to give or take any action that a Holder is
entitled to give or take under the applicable Indenture, the Depositary would
authorize the Participants holding the relevant beneficial interests to give or
take such action, and such Participants would authorize beneficial owners owning
through such Participants to give or take such action or would otherwise act
upon the instructions of beneficial owners owning through them.
Payment of principal of, and premium and interest, if any, on Debt
Securities registered in the name of a Depositary or its nominee will be made to
the Depositary or its nominee, as the case may be, as the registered owner of
the Global Security representing such Debt Securities. None of the Corporation,
PIB, Financial, the Trustee, any Paying Agent or any other agent of the
Corporation, PIB, Financial or the Trustee will have any responsibility or
liability for any aspect of the records relating to payments made on account of
beneficial ownership interests in the Global Security for such Debt Securities
or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
The Corporation, PIB or Financial, as the case may be, will obtain
confirmation from the Depositary that upon receipt of any payment of principal
of, or premium or interest on, a Global Security, the Depositary will
immediately credit Participants' accounts with payments in amounts proportionate
to their respective beneficial interests in the principal amount of such Global
Security as shown on the records of the Depositary. Payments by Participants to
owners of beneficial interests in such Global Security held through such
Participants will be the responsibility of such Participants, as is now the case
with securities held for the accounts of customers registered in "street names."
If the Depositary for any Debt Securities represented by a Global Security
notifies the Corporation, PIB or Financial, as the case may be, that it is
unwilling or unable to continue as Depositary or ceases to be a clearing agency
registered under the Exchange Act and a successor Depositary is not appointed by
the Corporation, PIB or Financial, as the case may be, then within ninety days
after receiving such notice or becoming aware that Depositary is no longer so
registered, the Corporation, PIB or Financial, as the case may be, will issue
such Debt Securities in definitive form in exchange for such Global Security. In
addition, if an event of default, or an event which with notice or the lapse of
time or both would become an event of default, with respect to the Debt
Securities of a series has occurred and is continuing or either the Corporation,
PIB or Financial, as the case may be, at any time and in its sole discretion
determines not to have the Debt Securities represented by one or more Global
Securities, the Corporation, PIB or Financial, as the case may be, will issue
Debt Securities in definitive form in exchange for all of the Global Securities
representing such Debt Securities.
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TAXATION BY THE COMMONWEALTH OF PUERTO RICO
All payments of, or in respect of, principal of, and any premium or
interest on, the Debt Securities and all payments pursuant to the Guarantees
will be made without withholding or deduction for, or on account of, any present
or future taxes, duties, assessments or governmental charges of whatever nature
imposed or levied by or on behalf of Puerto Rico or by or with any district,
municipality or other political subdivision thereof or authority therein having
power to tax unless such taxes, duties, assessments or governmental charges are
required by law to be withheld or deducted.
In the event that the Corporation or PIB is required by law to deduct or
withhold any amounts in respect of taxes, duties, assessments or governmental
charges, the Corporation or PIB, as the case may be, will pay such additional
amounts of, or in respect of, principal, premium and interest as will result
(after deduction of the said taxes, duties, assessments or governmental charges)
in the payment to the Holders of the Debt Securities, of the amounts which would
otherwise have been payable in respect to the Debt Securities in the absence of
such deduction or withholding ("Additional Amounts"), except that no such
Additional Amounts shall be payable:
(i) to any Holder of a Debt Security or any interest therein or rights
in respect thereof where such deduction or withholding is required by
reason of such Holder having some connection with Puerto Rico or any
political subdivision or taxing authority thereof or therein other than the
mere holding of and payment in respect of such Debt Security;
(ii) in respect of any deduction or withholding that would not have
been required but for the presentation by the Holder of a Debt Security for
payment on a date more than 30 days after Maturity or the date on which
payment thereof is duly provided for, whichever occurs later; or
(iii) in respect of any deduction or withholding that would not have
been required but for the failure to comply with any certification,
identification or other reporting requirements concerning the nationality,
residence, identity or connection with Puerto Rico, or any political
subdivision or taxing authority thereof or therein, of the Holder of a Debt
Security or any interest therein or rights in respect thereof, if
compliance is required by Puerto Rico, or any political subdivision or
taxing authority thereof or therein, as a precondition to exemption from
such deduction or withholding.
GOVERNING LAW
The Indentures, the Debt Securities and the Guarantees of the Debt
Securities of PIB and Financial will be governed by, and construed in accordance
with, the laws of the State of New York.
TERMS APPLICABLE TO THE SENIOR DEBT SECURITIES OR
SUBORDINATED DEBT SECURITIES
MODIFICATION OF THE SENIOR AND SUBORDINATED INDENTURES
The Senior and Subordinated Indentures contain provisions permitting the
Corporation and the respective Trustees, with the consent of Holders of not less
than a majority in principal amount of the Senior Debt Securities or
Subordinated Debt Securities which are affected by the modification, to modify
the particular Indenture or any supplemental indenture or the rights of the
Holders of the Senior Debt Securities or Subordinated Debt Securities issued
under such Indenture; provided that no such modification may, without the
consent of the Holder of each Outstanding Senior Debt Security or Subordinated
Debt Security affected thereby, (a) change the stated maturity date of the
principal of, or any installment of principal of or interest, if any, on, any
Senior Debt Security or Subordinated Debt Security, (b) reduce the principal
amount of, or premium or rate of interest, if any, on, any Senior Debt Security
or Subordinated Debt Security, (c) reduce the amount of principal of an Original
Issue Discount Security payable upon acceleration of the maturity thereof, (d)
change the place or coin or currency of payment of principal of, or premium or
interest, if any, on, any Senior Debt Security or Subordinated Debt Security,
(e) impair the right to institute suit for the enforcement of any payment on or
with respect to any Senior Debt Security or Subordinated Debt
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Security, (f) reduce the percentage in principal amount of Outstanding Senior
Debt Securities or Subordinated Debt Securities of any series, the consent of
whose Holders is required for modification or amendment of the Indenture or for
waiver of compliance with certain provisions of the Indenture or for waiver of
certain defaults, (g) modify (with certain exceptions) any provision of the
Indenture which requires the consent of the Holder of each Outstanding Senior
Debt Security or Subordinated Debt Security affected thereby or (h) with respect
to the Subordinated Indenture, modify the subordination provisions in a manner
adverse to Holders of Outstanding Subordinated Debt Securities.
SUBORDINATION
Unless otherwise indicated in the applicable Prospectus Supplement, the
following provisions shall apply to the Subordinated Debt Securities.
The payment of the principal of, premium, if any, and interest on the
Subordinated Debt Securities will, to the extent set forth in the Subordinated
Indenture, be subordinated in right of payment to the prior payment in full of
all Senior Indebtedness (as defined below) of the Corporation. In certain events
of insolvency, the payment of the principal of, premium, if any, and interest on
the Subordinated Debt Securities will, to the extent set forth in the
Subordinated Indenture, also be effectively subordinated in right of payment to
the prior payment in full of all Other Financial Obligations (as defined below)
of the Corporation. As of June 30, 1995, $1,031 million aggregate principal
amount of Senior Indebtedness and no Other Financial Obligations of the
Corporation were outstanding. Upon any payment or distribution of assets to
creditors upon any liquidation, dissolution, winding up, reorganization,
assignment for the benefit of creditors, marshalling of assets or any
bankruptcy, insolvency or similar proceedings of the Corporation, the holders of
all Senior Indebtedness of the Corporation will first be entitled to receive
payment in full of all amounts due or to become due thereon before the Holders
of the Subordinated Debt Securities will be entitled to receive any payment in
respect of the principal of, premium, if any, or interest on the Subordinated
Debt Securities. If, upon any such payment or distribution of assets to
creditors, there remain, after giving effect to such subordination provisions in
favor of the holders of Senior Indebtedness of the Corporation, any amounts of
cash, property or securities available for payment or distribution in respect of
Subordinated Debt Securities (as defined in the Subordinated Indenture,
"Corporation Excess Proceeds") and if, at such time, any person entitled to
payment pursuant to the terms of Other Financial Obligations of the Corporation
has not received payment in full of all amounts due or to become due on or in
respect of such Other Financial Obligations of the Corporation, then such
Corporation Excess Proceeds shall first be applied to pay or provide for the
payment in full of such Other Financial Obligations of the Corporation before
any payment or distribution may be made in respect of the Subordinated Debt
Securities. In the event of the acceleration of the maturity of any Subordinated
Debt Securities, the holders of all Senior Indebtedness of the Corporation will
first be entitled to receive payment in full of all amounts due or to become due
thereon before the Holders of the Subordinated Debt Securities will be entitled
to receive any payment of the principal of, premium, if any, or interest on the
Subordinated Debt Securities. Accordingly, in case of such an acceleration, all
Senior Indebtedness of the Corporation would have to be repaid before any
payment could be made in respect of the Subordinated Debt Securities. No
payments on account of principal, premium, if any, or interest in respect of the
Subordinated Debt Securities may be made if there shall have occurred and be
continuing a default in any payment with respect to any Senior Indebtedness of
the Corporation, or an event of default with respect to any Senior Indebtedness
of the Corporation permitting the holders thereof to accelerate the maturity
thereof, or if any judicial proceeding shall be pending with respect to any such
default.
By reason of such subordination, in the event of the insolvency of the
Corporation, creditors of the Corporation who are not holders of Senior
Indebtedness of the Corporation or the Subordinated Debt Securities may recover
less, ratably, than holders of Senior Indebtedness of the Corporation and may
recover more, ratably, than Holders of the Subordinated Debt Securities.
"Senior Indebtedness" of the Corporation is defined in the Subordinated
Indenture to mean the principal of, premium, if any, and interest on (i) all
indebtedness of the Corporation for money borrowed (including indebtedness of
others guaranteed by the Corporation) other than the Subordinated Debt
Securities, whether outstanding on the date of the Subordinated Indenture or
thereafter created, assumed or incurred and (ii) any
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amendments, renewals, extensions, modifications and refundings of any such
indebtedness, unless in either case in the instrument creating or evidencing any
such indebtedness or pursuant to which it is outstanding it is provided that
such indebtedness is not superior in right of payment to the Subordinated Debt
Securities. For the purposes of this definition, "indebtedness for money
borrowed" is defined as (i) any obligation of, or any obligation guaranteed by,
the Corporation for the repayment of borrowed money, whether or not evidenced by
bonds, debentures, notes or other written instruments, (ii) any deferred payment
obligation of, or any such obligation guaranteed by, the Corporation for the
payment of the purchase price of property or assets evidenced by a note or
similar instrument and (iii) any obligation of, or any such obligation
guaranteed by, the Corporation for the payment of rent or other amounts under a
lease of property or assets which obligation is required to be classified and
accounted for as a capitalized lease on the balance sheet of the Corporation
under generally accepted accounting principles.
"Other Financial Obligations" of the Corporation is defined in the
Subordinated Indenture to mean all obligations of the Corporation to make
payment pursuant to the terms of financial instruments, such as (i) securities
contracts and foreign currency exchange contracts, (ii) derivative instruments,
such as swap agreements (including interest rate and currency and foreign
exchange rate swap agreements), cap agreements, floor agreements, collar
agreements, interest rate agreements, foreign exchange agreements, options,
commodity futures contracts, commodity options contracts and (iii) similar
financial instruments; provided that the term Other Financial Obligations shall
not include (x) obligations on account of Senior Indebtedness of the Corporation
and (y) obligations on account of indebtedness for money borrowed ranking pari
passu with or subordinate to the Subordinated Debt Securities.
EVENTS OF DEFAULT
Senior Indenture
An Event of Default with respect to Senior Debt Securities of any series is
defined in the Senior Indenture as being: default for 30 days in payment of any
interest on Senior Debt Securities of such series; default in payment of
principal of, or premium, if any, on any Senior Debt Securities of such series;
default in deposit of any mandatory sinking fund payment required by the Senior
Debt Securities of such series; default for 60 days after notice, in performance
or breach of any other covenant or warranty in the Senior Indenture (except for
a covenant expressly relating to a series of Senior Debt Securities other than
that series of Senior Debt Securities) or in the Senior Debt Securities of such
series; acceleration of the Senior Debt Securities of any other series or any
other indebtedness for borrowed money of the Corporation or any Material Banking
Subsidiary, in each case exceeding $10,000,000 in an aggregate principal amount,
as a result of a default under the terms of the instrument or instruments under
which such indebtedness is issued or secured, unless such acceleration is
annulled within 30 days after written notice as provided in the Indenture,
provided that if such default is remedied or cured by the Corporation or any
Material Banking Subsidiary or waived by holders of such indebtedness, the Event
of Default by reason thereof shall be deemed to have been thereupon remedied,
cured or waived; certain events of bankruptcy, insolvency or reorganization with
respect to the Corporation or any Material Banking Subsidiary; or any other
Event of Default specified in the applicable Prospectus Supplement. In case an
Event of Default with respect to Senior Debt Securities of any series shall
occur and be continuing, the Senior Trustee or the Holders of not less than 25%
in principal amount of the Senior Debt Securities of such series then
outstanding may declare the principal of all such Senior Debt Securities of such
series to be due and payable. The Corporation is required to furnish to the
Senior Trustee annually a statement as to the performance by the Corporation of
its obligations under the Senior Indenture and as to any default in such
performance. Under certain circumstances any declaration of acceleration with
respect to Senior Debt Securities of any series may be rescinded and past
defaults (except a default in the payment of principal of or interest on the
Senior Debt Securities) may be waived by the Holders of a majority in aggregate
principal amount of the Senior Debt Securities of such series then outstanding.
The Senior Indenture provides that the Senior Trustee may withhold notice to the
Holders of Senior Debt Securities of any series of any continuing default
(except in the payment of the principal of (or premium, if any) or interest on
any Senior Debt Securities of such series) if such Senior Trustee considers it
in the interest of Holders of such series of Senior Debt Securities to do so.
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Subordinated Indenture
An Event of Default with respect to the Subordinated Debt Securities of any
series is defined in the Subordinated Indenture as being certain events
involving a bankruptcy, insolvency or reorganization of the Corporation. If an
Event of Default with respect to Subordinated Debt Securities of any series
shall have occurred and be continuing, either the Subordinated Trustee or the
Holders of not less than 25% in aggregate principal amount of the Subordinated
Debt Securities of such series then outstanding may declare the principal of the
Subordinated Debt Securities of such series to be due and payable immediately.
The Corporation is required to furnish to the Subordinated Trustee annually a
statement as to the performance by the Corporation of its obligations under the
Subordinated Indenture and as to any default in such performance. Under certain
circumstances, any declaration of acceleration with respect to Subordinated Debt
Securities of any series may be rescinded and past defaults (except a default in
the payment of principal of or interest on the Subordinated Debt Securities) may
be waived by the Holders of a majority in aggregate principal amount of the
Subordinated Debt Securities of such series then outstanding. The Subordinated
Indenture provides that the Subordinated Trustee may withhold notice to the
Holders of the Subordinated Debt Securities of any series of any continuing
default (except in the payment of the principal of (or premium, if any) or
interest on any Subordinated Debt Securities of such series) if the Subordinated
Trustee considers it in the interest of the Holders of such series of
Subordinated Debt Securities to do so.
The Subordinated Indenture does not provide for any right of acceleration
of the payment of principal of a series of Subordinated Debt Securities upon a
default in the payment of principal or interest or in the performance of any
covenant or agreement in the Subordinated Debt Securities of the particular
series or in the Subordinated Indenture.
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
The Corporation has covenanted in the Senior and Subordinated Indentures
that it will not merge or consolidate with any other corporation or sell,
convey, transfer or lease all or substantially all of its assets to any person,
firm or corporation unless the Corporation is the continuing corporation or the
successor corporation expressly assumes the obligations under any outstanding
Senior Debt Securities and Subordinated Debt Securities and the respective
Senior and Subordinated Indentures and the Corporation or such successor
corporation is not, immediately after such merger, consolidation, sale or
conveyance, in default in the performance of any of the covenants or conditions
of the respective Indenture. The Indentures do not contain any other covenant
which restricts the Corporation's ability to merge or consolidate with any other
corporation, sell, convey, transfer or lease all or substantially all of its
assets to any persons, firm or corporation or otherwise engage in restructuring
transactions.
TERMS APPLICABLE TO THE FINANCIAL SENIOR DEBT SECURITIES OR FINANCIAL
SUBORDINATED DEBT SECURITIES
MODIFICATION OF THE FINANCIAL SENIOR AND FINANCIAL SUBORDINATED INDENTURES
The Financial Senior and Financial Subordinated Indentures contain
provisions permitting the Corporation, Financial and the respective Financial
Trustees, with the consent of Holders of not less than a majority in principal
amount of the Financial Senior Debt Securities or Financial Subordinated Debt
Securities that are affected by the modification, to modify the particular
Indenture or any supplemental indenture or the rights of the Holders of the
Financial Senior Debt Securities or Financial Subordinated Debt Securities
issued under such Indenture, provided that no such modification may, without the
consent of the Holder of each Outstanding Financial Senior Debt Security or
Financial Subordinated Debt Security affected thereby, (a) change the stated
maturity date of the principal of, or any installment of principal of or
interest, if any, on, any Financial Senior Debt Security or Financial
Subordinated Debt Security, (b) reduce the principal amount of, or premium or
rate of interest, if any, on, any Financial Senior Debt Security or Financial
Subordinated Debt Security, (c) reduce the amount of principal of an Original
Issue Discount Financial Senior Debt Security or Financial Subordinated Debt
Security payable upon acceleration of the maturity thereof,
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(d) change the place or coin or currency of payment of principal of, or premium
or interest, if any, on, any Financial Senior Debt Security or Financial
Subordinated Debt Security, (e) impair the right to institute suit for the
enforcement of any payment on or with respect to any Financial Senior Debt
Security or Financial Subordinated Debt Security, (f) modify or affect in any
manner adverse to Holders the terms and conditions of the obligations of the
Guarantor in respect of the due and punctual payment of principal or any premium
and interest, sinking fund payment or Additional Amounts in respect of the
Financial Senior Debt Securities or Financial Subordinated Debt Securities, (g)
reduce the percentage in principal amount of Outstanding Financial Senior Debt
Securities or Financial Subordinated Debt Securities of any series, the consent
of whose Holders is required for modification or amendment of the Indenture or
for waiver of compliance with certain provisions of the Indenture or for waiver
of certain defaults, (h) modify (with certain exceptions) any provision of the
Indenture that requires the consent of the Holder of each Outstanding Financial
Senior Debt Security or Financial Subordinated Debt Security affected thereby or
(i) with respect to the Financial Subordinated Indenture, modify the
subordination provisions in a manner adverse to Holders of Outstanding Financial
Subordinated Debt Securities.
SUBORDINATION
Unless otherwise indicated in the applicable Prospectus Supplement, the
following provisions shall apply to the Financial Subordinated Debt Securities
and the guarantee of them by the Corporation.
The payment of the principal of, premium, if any, and interest on the
Financial Subordinated Debt Securities and the Corporation's Guarantees thereof
(the "Financial Subordinated Guarantees") will, to the extent set forth in the
Financial Subordinated Indenture, be subordinated in right of payment to the
prior payment in full of all Senior Indebtedness (as defined below) of Financial
or the Corporation, as the case may be. In certain events of insolvency, the
payment of the principal of, premium, if any, and interest on the Financial
Subordinated Debt Securities and any payments with respect to the Financial
Subordinated Guarantees will, to the extent set forth in the Financial
Subordinated Indenture, also be effectively subordinated in right of payment to
the prior payment in full of all Other Financial Obligations (as defined below)
of Financial or the Corporation, as the case may be. As of June 30, 1995, $564.2
million aggregate principal amount of Senior Indebtedness and no Other Financial
Obligations of Financial were outstanding. Upon any payment or distribution of
assets to creditors upon any liquidation, dissolution, winding up,
reorganization, assignment for the benefit of creditors, marshalling of assets
or any bankruptcy, insolvency or similar proceedings of Financial or the
Corporation, the holders of all Senior Indebtedness thereof will first be
entitled to receive payment in full of all amounts due or to become due thereon
before the Holders of the Financial Subordinated Debt Securities or the
Financial Subordinated Guarantees will be entitled to receive any payment in
respect of the principal of, premium, if any, or interest on the Financial
Subordinated Debt Securities or the Financial Subordinated Guarantees, as the
case may be. If, upon any such payment or distribution of assets to creditors,
there remain, after giving effect to such subordination provisions in favor of
the holders of Senior Indebtedness of Financial and the Corporation, any amounts
of cash, property or securities available for payment or distribution in respect
of Financial Subordinated Debt Securities or the Financial Subordinated
Guarantees (as defined in the Financial Subordinated Indenture, "Financial
Excess Proceeds") and if, at such time, any person entitled to payment pursuant
to the terms of Other Financial Obligations of Financial or the Corporation has
not received payment in full of all amounts due or to become due on or in
respect of such Other Financial Obligations of Financial or the Corporation,
then such Financial Excess Proceeds shall first be applied to pay or provide for
the payment in full of such Other Financial Obligations of Financial or the
Corporation, as the case may be, before any payment or distribution may be made
in respect of the Financial Subordinated Debt Securities or the Financial
Subordinated Guarantees. In the event of the acceleration of the maturity of any
Financial Subordinated Debt Securities, the holders of all Senior Indebtedness
of Financial or the Corporation, as the case may be, will first be entitled to
receive payment in full of all amounts due or to become due thereon before the
Holders of the Financial Subordinated Debt Securities or the Financial
Subordinated Guarantees will be entitled to receive any payment of the principal
of, premium, if any, or interest on the Financial Subordinated Debt Securities
or the Financial Subordinated Guarantees, as the case may be. Accordingly, in
case of such an acceleration, all Senior Indebtedness of Financial or the
Corporation would have to be repaid before any payment could be made in
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respect of the Financial Subordinated Debt Securities or the Financial
Subordinated Guarantees, as the case may be. No payments on account of
principal, premium, if any, or interest in respect of the Financial Subordinated
Debt Securities or the Financial Subordinated Guarantees may be made if there
shall have occurred and be continuing a default in any payment with respect to
any Senior Indebtedness of Financial or the Corporation, an event of default
with respect to any Senior Indebtedness of Financial or the Corporation
permitting the holders thereof to accelerate the maturity thereof, or if any
judicial proceeding shall be pending with respect to any such default.
By reason of such subordination, in the event of the insolvency of
Financial or the Corporation, creditors of Financial or the Corporation who are
not holders of Senior Indebtedness, the Financial Subordinated Debt Securities
or the Financial Subordinated Guarantees may recover less, ratably, than holders
of Senior Indebtedness of Financial or the Corporation, as the case may be, and
may recover more, ratably, than Holders of the Financial Subordinated Debt
Securities or the Financial Subordinated Guarantees.
"Senior Indebtedness" of Financial is defined in the Financial Subordinated
Indenture to mean the principal of, premium, if any, and interest on (i) all
indebtedness of Financial for money borrowed (including indebtedness of others
guaranteed by Financial) other than the Financial Subordinated Debt Securities,
whether outstanding on the date of the Financial Subordinated Indenture or
thereafter created, assumed or incurred and (ii) any amendments, renewals,
extensions, modifications and refundings of any such indebtedness, unless in
either case in the instrument creating or evidencing any such indebtedness or
pursuant to which it is outstanding it is provided that such indebtedness is not
superior in right of payment to the Financial Subordinated Debt Securities. For
the purposes of this definition, "indebtedness for money borrowed" is defined as
(i) any obligation of, or any obligation guaranteed by, Financial for the
repayment of borrowed money, whether or not evidenced by bonds, debentures,
notes or other written instruments, (ii) any deferred payment obligation of, or
any such obligation guaranteed by, Financial for the payment of the purchase
price of property or assets evidenced by a note or similar instrument, and (iii)
any obligation of, or any such obligation guaranteed by, Financial for the
payment of rent or other amounts under a lease of property or assets which
obligation is required to be classified and accounted for as a capitalized lease
on the balance sheet of Financial under generally accepted accounting
principles.
"Other Financial Obligations" of Financial is defined in the Financial
Subordinated Indenture to mean all obligations of Financial to make payment
pursuant to the terms of financial instruments, such as (i) securities contracts
and foreign currency exchange contracts, (ii) derivative instruments, such as
swap agreements (including interest rate and currency and foreign exchange rate
swap agreements), cap agreements, floor agreements, collar agreements, interest
rate agreements, foreign exchange agreements, options, commodity futures
contracts, commodity options contracts and (iii) similar financial instruments;
provided that the term Other Financial Obligations shall not include (x)
obligations on account of Senior Indebtedness of Financial and (y) obligations
on account of indebtedness for money borrowed ranking pari passu with or
subordinate to the Financial Subordinated Debt Securities.
"Senior Indebtedness" of the Corporation is defined in the Financial
Subordinated Indenture to mean the principal of, premium, if any, and interest
on (i) all indebtedness of the Corporation for money borrowed (including
indebtedness of others guaranteed by the Corporation other than the Financial
Subordinated Guarantees), whether outstanding on the date of the Financial
Subordinated Indenture or thereafter created, assumed or incurred and (ii) any
amendments, renewals, extensions, modifications and refundings of any such
indebtedness, unless in either case in the instrument creating or evidencing any
such indebtedness or pursuant to which it is outstanding it is provided that
such indebtedness is not superior in right of payment to the Financial
Subordinated Guarantees. For the purposes of this definition, "indebtedness for
money borrowed" is defined as (i) any obligation of, or any obligation
guaranteed by, the Corporation for the repayment of borrowed money, whether or
not evidenced by bonds, debentures, notes or other written instruments, (ii) any
deferred payment obligation of, or any such obligation guaranteed by, the
Corporation for the payment of the purchase price of property or assets
evidenced by a note or similar instrument, and (iii) any obligation of, or any
such obligation guaranteed by, the Corporation for the payment of rent or other
amounts under a lease of property or assets which obligation is required to be
classified and accounted for as a capitalized lease on the balance sheet of the
Corporation under generally accepted accounting principles.
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"Other Financial Obligations" of the Corporation is defined in the
Financial Subordinated Indenture to mean all obligations of the Corporation to
make payment pursuant to the terms of financial instruments, such as (i)
securities contracts and foreign currency exchange contracts, (ii) derivative
instruments, such as swap agreements (including interest rate and currency and
foreign exchange rate swap agreements), cap agreements, floor agreements, collar
agreements, interest rate agreements, foreign exchange agreements, options,
commodity futures contracts, commodity options contracts and (iii) similar
financial instruments; provided that the term Other Financial Obligations shall
not include (x) obligations on account of Senior Indebtedness and (y)
obligations on account of indebtedness for money borrowed ranking pari passu
with or subordinate to the Financial Subordinated Guarantees.
EVENTS OF DEFAULT
Financial Senior Indenture
An Event of Default with respect to Financial Senior Debt Securities of any
series is defined in the Financial Senior Indenture as being: default for 30
days in payment of any interest on Financial Senior Debt Securities of such
series; default in payment of principal of (or premium, if any) on any Financial
Senior Debt Securities of such series; default in deposit of any mandatory
sinking fund payment required by the Financial Senior Debt Securities of such
series; default for 60 days, after notice, in performance or breach of any other
covenant or warranty in the Financial Senior Indenture (except for a covenant
expressly relating to a series of Financial Senior Debt Securities other than
that series of Financial Senior Debt Securities) or in the Financial Senior Debt
Securities of such series; acceleration of the Financial Senior Debt Securities
of any other series or any other indebtedness for borrowed money of the
Corporation, Financial or any Material Banking Subsidiary, in each case
exceeding $10,000,000 in an aggregate principal amount, as a result of a default
under the terms of the instrument or instruments under which such indebtedness
is issued or secured, unless such acceleration is annulled within 30 days after
written notice as provided in the Indenture, provided that if such default is
remedied or cured by the Corporation, Financial or any Material Banking
Subsidiary or waived by the holders of such indebtedness, the Event of Default
by reason thereof shall be deemed to have been thereupon remedied, cured or
waived; certain events of bankruptcy, insolvency or reorganization of the
Corporation, any Material Banking Subsidiary or Financial; or any other Event of
Default specified in the applicable Prospectus Supplement. In case an Event of
Default with respect to Financial Senior Debt Securities of any series shall
occur and be continuing, the Financial Senior Trustee or the Holders of not less
than 25% in principal amount of the Financial Senior Debt Securities of such
series then outstanding may declare the principal of all the Financial Senior
Debt Securities of such series to be due and payable. The Corporation and
Financial are required to furnish to the Financial Senior Trustee annually a
statement or statements as to the performance by the Corporation and Financial
of their respective obligations under the Financial Senior Indenture of such
series and as to any default in such performance. Under certain circumstances
any declaration of acceleration with respect to Financial Senior Debt Securities
of any series may be rescinded and past defaults (except a default in the
payment of principal of or interest on the Financial Senior Debt Securities) may
be waived by the Holders of a majority in aggregate principal amount of the
Financial Senior Debt Securities of such series then outstanding. The Financial
Senior Indenture provides that the Financial Senior Trustee may withhold notice
to the Holders of Financial Senior Debt Securities of any series of any
continuing default (except in the payment of the principal of (or premium, if
any) or interest on any Financial Senior Debt Securities of such series) if such
Financial Senior Trustee considers it in the interest of Holders of such series
of Financial Senior Debt Securities to do so.
Financial Subordinated Indenture
An Event of Default with respect to the Financial Subordinated Debt
Securities of any series is defined in the Financial Subordinated Indenture as
being certain events involving a bankruptcy, insolvency or reorganization of the
Corporation or Financial. If an Event of Default with respect to Financial
Subordinated Debt Securities of any series shall have occurred and be
continuing, either the Financial Subordinated Trustee or the Holders of not less
than 25% in aggregate principal amount of the Financial Subordinated Debt
Securities of such series then outstanding may declare the principal of the
Financial Subordinated Debt Securities of
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such series to be due and payable immediately. The Corporation and Financial are
required to furnish to the Financial Subordinated Trustee annually a statement
as to the performance by the Corporation and Financial of their respective
obligations under the Financial Subordinated Indenture and as to any default in
such performance. Under certain circumstances, any declaration of acceleration
with respect to Financial Subordinated Debt Securities of any series may be
rescinded and past defaults (except a default in the payment of principal of or
interest on the Financial Subordinated Debt Securities) may be waived by the
Holders of a majority in aggregate principal amount of the Financial
Subordinated Debt Securities of such series then outstanding. The Financial
Subordinated Indenture provides that the Financial Subordinated Trustee may
withhold notice to the Holders of the Financial Subordinated Debt Securities of
any series of any continuing default (except in the payment of the principal of
(or premium, if any) or interest on any Financial Subordinated Debt Securities
of such series) if the Financial Subordinated Trustee considers it in the
interest of the Holders of such series of Financial Subordinated Debt Securities
to do so.
The Financial Subordinated Indenture does not provide for any right of
acceleration of the payment of principal of a series of Financial Subordinated
Debt Securities upon a default in the payment of principal or interest or in the
performance of any covenant or agreement in the Financial Subordinated Debt
Securities of the particular series, in the Financial Subordinated Indenture or
in the Financial Subordinated Guarantees.
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Each of the Corporation and Financial has covenanted in the Financial
Senior and Financial Subordinated Indentures that it will not merge or
consolidate with any other corporation or sell, convey, transfer or lease all or
substantially all of its assets to any person, firm or corporation unless the
Corporation or Financial, as the case may be, is the continuing corporation or
the successor corporation expressly assumes the obligations under any
outstanding Financial Senior Debt Securities and Financial Subordinated Debt
Securities and the Financial Subordinated Guarantees and the respective
Financial Senior and Financial Subordinated Indentures and the Corporation or
Financial, as the case may be, or such successor corporation is not, immediately
after such merger, consolidation, sale or conveyance, in default in the
performance of any of the covenants or conditions of the respective Indenture.
The Indentures do not contain any other covenant that restricts the
Corporation's or Financial's ability to merge or consolidate with any other
corporation, sell, convey, transfer or lease all or substantially all of its
assets to any person, firm or corporation or otherwise engage in restructuring
transactions.
GUARANTEE
Financial Senior Debt Securities
The Corporation will guarantee the punctual payment of the principal of,
premium, if any, and interest on the Financial Senior Debt Securities, when and
as the same are due and payable. The guarantee is absolute and unconditional,
irrespective of any circumstance that might otherwise constitute a legal or
equitable discharge of a surety or guarantor. To evidence the guarantee, a
Guarantee, executed by the Corporation, will be endorsed on each Financial
Senior Debt Security. Holders of the Financial Senior Debt Securities may
proceed directly against the Corporation in the event of default under the
Financial Senior Debt Securities without first proceeding against Financial. The
Guarantees will rank pari passu with all other unsecured and unsubordinated
obligations of the Corporation.
Financial Subordinated Debt Securities
The Corporation will guarantee, on a subordinated basis, the punctual
payment of the principal of, premium, if any, and interest on the Financial
Subordinated Debt Securities, when and as the same are due and payable. The
guarantee is absolute and unconditional, irrespective of any circumstance that
might otherwise constitute a legal or equitable discharge of a surety or
guarantor. To evidence the guarantee, a Guarantee, executed by the Corporation,
will be endorsed on each Financial Subordinated Debt Security. Holders of the
Financial Subordinated Debt Securities may proceed directly against the
Corporation in the event of default under the Financial Subordinated Debt
Securities without first proceeding against Financial.
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The Financial Subordinated Guarantees will rank pari passu with all other
unsecured and subordinated obligations of the Corporation. See "Subordination."
TERMS APPLICABLE TO THE PIB SENIOR DEBT SECURITIES
OR PIB SUBORDINATED DEBT SECURITIES
MODIFICATION OF THE PIB SENIOR AND PIB SUBORDINATED INDENTURES
The PIB Senior and PIB Subordinated Indentures contain provisions
permitting the Corporation, PIB and the respective PIB Trustees, with the
consent of Holders of not less than a majority in principal amount of the PIB
Senior Debt Securities or PIB Subordinated Debt Securities that are affected by
the modification, to modify the particular Indenture or any supplemental
indenture or the rights of the Holders of the PIB Senior Debt Securities or PIB
Subordinated Debt Securities issued under such Indenture; provided that no such
modification may, without the consent of the Holder of each outstanding PIB
Senior Debt Security or PIB Subordinated Debt Security affected thereby, (a)
change the stated maturity date of the principal of, or any installment of
principal of or interest, if any, on, any PIB Senior Debt Security or PIB
Subordinated Debt Security, (b) reduce the principal amount of, or premium or
rate of interest, if any, on, any PIB Senior Debt Security or PIB Subordinated
Debt Security, (c) reduce the amount of principal of an Original Issue Discount
Security payable upon acceleration of the maturity thereof, (d) change the place
or coin or currency of payment of principal of, or premium or interest, if any,
on, any PIB Senior Debt Security or PIB Subordinated Debt Security, (e) impair
the right to institute suit for the enforcement of any payment on or with
respect to any PIB Senior Debt Security or PIB Subordinated Debt Security, (f)
modify or affect in any manner adverse to Holders the terms and conditions of
the obligations of the Guarantor in respect of the due and punctual payment of
principal or any premium and interest, sinking fund payment or Additional
Amounts in respect of the PIB Senior Debt Securities or PIB Subordinated Debt
Securities, (g) reduce the percentage in principal amount of Outstanding PIB
Senior Debt Securities or PIB Subordinated Debt Securities of any series, the
consent of whose Holders is required for modification or amendment of the
Indenture or for waiver of compliance with certain provisions of the Indenture
or for waiver of certain defaults, (h) modify (with certain exceptions) any
provision of the Indenture that requires the consent of the Holder of each
Outstanding PIB Senior Debt Security or PIB Subordinated Debt Security affected
thereby or (i) with respect to the PIB Subordinated Indenture, modify the
subordination provisions in a manner adverse to Holders of Outstanding PIB
Subordinated Debt Securities.
SUBORDINATION
Unless otherwise indicated in the applicable Prospectus Supplement, the
following provisions shall apply to the PIB Subordinated Debt Securities and the
guarantee of them by the Corporation.
The payment of the principal of, premium, if any, and interest on the PIB
Subordinated Debt Securities and the Corporation's Guarantees thereof (the "PIB
Subordinated Guarantees") will, to the extent set forth in the PIB Subordinated
Indenture, be subordinated in right of payment to the prior payment in full of
all Senior Indebtedness (as defined below) of PIB or the Corporation, as the
case may be. In certain events of insolvency, the payment of the principal of,
premium, if any, and interest on the PIB Subordinated Debt Securities and any
payments with respect to the PIB Subordinated Guarantees will, to the extent set
forth in the PIB Subordinated Indenture, also be effectively subordinated in
right of payment to the prior payment in full of all Other Financial Obligations
(as defined below) of PIB or the Corporation, as the case may be. As of June 30,
1995, no Senior Indebtedness and no Other Financial Obligations of PIB were
outstanding. Upon any payment or distribution of assets to creditors upon any
liquidation, dissolution, winding up, reorganization, assignment for the benefit
of creditors, marshalling of assets or any bankruptcy, insolvency or similar
proceedings of PIB or the Corporation, the holders of all Senior Indebtedness
thereof will first be entitled to receive payment in full of all amounts due or
to become due thereon before the Holders of the PIB Subordinated Debt Securities
or the PIB Subordinated Guarantees will be entitled to receive any payment in
respect of the principal of, premium, if any, or interest on the PIB
Subordinated Debt Securities or the PIB Subordinated Guarantees, as the case may
be. If, upon any such payment or distribution of assets to creditors,
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<PAGE> 27
there remain, after giving effect to such subordination provisions in favor of
the holders of Senior Indebtedness of PIB and the Corporation, any amounts of
cash, property or securities available for payment or distribution in respect of
PIB Subordinated Debt Securities or the PIB Subordinated Guarantees (as defined
in the PIB Subordinated Indenture, "PIB Excess Proceeds") and if, at such time,
any person entitled to payment pursuant to the terms of Other Financial
Obligations of PIB or the Corporation has not received payment in full of all
amounts due or to become due on or in respect of such Other Financial
Obligations of PIB or the Corporation, then such PIB Excess Proceeds shall first
be applied to pay or provide for the payment in full of such Other Financial
Obligations of PIB or the Corporation, as the case may be, before any payment or
distribution may be made in respect of the PIB Subordinated Debt Securities or
the PIB Subordinated Guarantees. In the event of the acceleration of the
maturity of any PIB Subordinated Debt Securities, the holders of all Senior
Indebtedness of PIB or the Corporation, as the case may be, will first be
entitled to receive payment in full of all amounts due or to become due thereon
before the Holders of the PIB Subordinated Debt Securities or the PIB
Subordinated Guarantees will be entitled to receive any payment of the principal
of, premium, if any, or interest on the PIB Subordinated Debt Securities or the
PIB Subordinated Guarantees, as the case may be. Accordingly, in case of such an
acceleration, all Senior Indebtedness of PIB or the Corporation would have to be
repaid before any payment could be made in respect of the PIB Subordinated Debt
Securities or the PIB Subordinated Guarantees, as the case may be. No payments
on account of principal, premium, if any, or interest in respect of the PIB
Subordinated Debt Securities or the PIB Subordinated Guarantees may be made if
there shall have occurred and be continuing a default in any payment with
respect to any Senior Indebtedness of PIB or the Corporation, an event of
default with respect to any Senior Indebtedness of PIB or the Corporation
permitting the holders thereof to accelerate the maturity thereof, or if any
judicial proceeding shall be pending with respect to any such default.
By reason of such subordination, in the event of the insolvency of PIB or
the Corporation, creditors of PIB or the Corporation who are not holders of
Senior Indebtedness, the PIB Subordinated Debt Securities or the PIB
Subordinated Guarantees may recover less, ratably, than holders of Senior
Indebtedness of PIB or the Corporation, as the case may be, and may recover
more, ratably, than Holders of the PIB Subordinated Debt Securities or the PIB
Subordinated Guarantees.
"Senior Indebtedness" of PIB is defined in the PIB Subordinated Indenture
to mean the principal of, premium, if any, and interest on (i) all indebtedness
of PIB for money borrowed (including indebtedness of others guaranteed by PIB)
other than the PIB Subordinated Debt Securities, whether outstanding on the date
of the PIB Subordinated Indenture or thereafter created, assumed or incurred and
(ii) any amendments, renewals, extensions, modifications and refundings of any
such indebtedness, unless in either case in the instrument creating or
evidencing any such indebtedness or pursuant to which it is outstanding it is
provided that such indebtedness is not superior in right of payment to the PIB
Subordinated Debt Securities. For the purposes of this definition, "indebtedness
for money borrowed" is defined as (i) any obligation of, or any obligation
guaranteed by, PIB for the repayment of borrowed money, whether or not evidenced
by bonds, debentures, notes or other written instruments, (ii) any deferred
payment obligation of, or any such obligation guaranteed by, PIB for the payment
of the purchase price of property or assets evidenced by a note or similar
instrument, and (iii) any obligation of, or any such obligation guaranteed by,
PIB for the payment of rent or other amounts under a lease of property or assets
which obligation is required to be classified and accounted for as a capitalized
lease on the balance sheet of PIB under generally accepted accounting
principles.
"Other Financial Obligations" of PIB is defined in the PIB Subordinated
Indenture to mean all obligations of PIB to make payment pursuant to the terms
of financial instruments, such as (i) securities contracts and foreign currency
exchange contracts, (ii) derivative instruments, such as swap agreements
(including interest rate and currency and foreign exchange rate swap
agreements), cap agreements, floor agreements, collar agreements, interest rate
agreements, foreign exchange agreements, options, commodity futures contracts,
commodity options contracts and (iii) similar financial instruments; provided
that the term Other Financial Obligations shall not include (x) obligations on
account of Senior Indebtedness of PIB and (y) obligations on account of
indebtedness for money borrowed ranking pari passu with or subordinate to the
PIB Subordinated Debt Securities.
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"Senior Indebtedness" of the Corporation is defined in the PIB Subordinated
Indenture to mean the principal of, premium, if any, and interest on (i) all
indebtedness of the Corporation for money borrowed (including indebtedness of
others guaranteed by the Corporation other than the PIB Subordinated
Guarantees), whether outstanding on the date of the PIB Subordinated Indenture
or thereafter created, assumed or incurred and (ii) any amendments, renewals,
extensions, modifications and refundings of any such indebtedness, unless in
either case in the instrument creating or evidencing any such indebtedness or
pursuant to which it is outstanding it is provided that such indebtedness is not
superior in right of payment to the PIB Subordinated Guarantees. For the
purposes of this definition, "indebtedness for money borrowed" is defined as (i)
any obligation of, or any obligation guaranteed by, the Corporation for the
repayment of borrowed money, whether or not evidenced by bonds, debentures,
notes or other written instruments, (ii) any deferred payment obligation of, or
any such obligation guaranteed by, the Corporation for the payment of the
purchase price of property or assets evidenced by a note or similar instrument,
and (iii) any obligation of, or any such obligation guaranteed by, the
Corporation for the payment of rent or other amounts under a lease of property
or assets which obligation is required to be classified and accounted for as a
capitalized lease on the balance sheet of the Corporation under generally
accepted accounting principles.
"Other Financial Obligations" of the Corporation is defined in the PIB
Subordinated Indenture to mean all obligations of the Corporation to make
payment pursuant to the terms of financial instruments, such as (i) securities
contracts and foreign currency exchange contracts, (ii) derivative instruments,
such as swap agreements (including interest rate and currency and foreign
exchange rate swap agreements), cap agreements, floor agreements, collar
agreements, interest rate agreements, foreign exchange agreements, options,
commodity futures contracts, commodity options contracts and (iii) similar
financial instruments; provided that the term Other Financial Obligations shall
not include (x) obligations on account of Senior Indebtedness and (y)
obligations on account of indebtedness for money borrowed ranking pari passu
with or subordinate to the PIB Subordinated Guarantees.
EVENTS OF DEFAULT
PIB Senior Indenture
An Event of Default with respect to PIB Senior Debt Securities of any
series is defined in the PIB Senior Indenture as being: default for 30 days in
payment of any interest on PIB Senior Debt Securities of such series; default in
payment of principal of (or premium on, if any) any PIB Senior Debt Securities
of such series; default in deposit of any mandatory sinking fund payment
required by the PIB Senior Debt Securities of such series; default for 60 days,
after notice, in performance or breach of any other covenant or warranty in the
PIB Senior Indenture (except for a covenant expressly relating to a series of
PIB Senior Debt Securities other than that series of PIB Senior Debt Securities)
or in the PIB Senior Debt Securities of such series; acceleration of the PIB
Senior Debt Securities of any other series or any other indebtedness for
borrowed money, of the Corporation, PIB or any Material Banking Subsidiary, in
each case in an aggregate principal amount exceeding $10,000,000, as a result of
a default under the terms of the instrument or instruments under which such
indebtedness is issued or secured, unless such acceleration is annulled within
30 days after written notice as provided in the Indenture, provided that if such
default is remedied or cured by the Corporation, PIB or any Material Banking
Subsidiary or waived by holders of such indebtedness, the Event of Default by
reason thereof shall be deemed to have been thereupon remedied, cured or waived;
certain events of bankruptcy, insolvency or reorganization with respect to the
Corporation, PIB or any Material Banking Subsidiary; or any other Event of
Default specified in the applicable Prospectus Supplement. In case an Event of
Default with respect to PIB Senior Debt Securities of any series shall occur and
be continuing, the PIB Senior Trustee or the Holders of not less than 25% in
principal amount of the PIB Senior Debt Securities of such series then
outstanding may declare the principal of all the PIB Senior Debt Securities of
such series to be due and payable. The Corporation and PIB are required to
furnish to the PIB Senior Trustee annually a statement as to the performance by
the Corporation and PIB of their respective obligations under the PIB Senior
Indenture and as to any default in such performance. Under certain circumstances
any declaration of acceleration with respect to PIB Senior Debt Securities of
any series may be rescinded and past defaults (except a default in the payment
of principal of or interest on the PIB Senior Debt Securities) may be waived by
the Holders of a
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majority in aggregate principal amount of the PIB Senior Debt Securities of such
series then outstanding. The PIB Senior Indenture provides that the PIB Senior
Trustee may withhold notice to the Holders of PIB Senior Debt Securities of any
series of any continuing default (except in the payment of the principal of (or
premium, if any) or interest on any PIB Senior Debt Securities of such series)
if such PIB Senior Trustee considers it in the interest of Holders of such
series of PIB Senior Debt Securities to do so.
PIB Subordinated Indenture
An Event of Default with respect to the PIB Subordinated Debt Securities of
any series is defined in the PIB Subordinated Indenture as being certain events
involving a bankruptcy, insolvency or reorganization of the Corporation or PIB.
If an Event of Default with respect to PIB Subordinated Debt Securities of any
series shall have occurred and be continuing, either the PIB Subordinated
Trustee or the Holders of not less than 25% in aggregate principal amount of the
PIB Subordinated Debt Securities of such series then outstanding may declare the
principal of the PIB Subordinated Debt Securities of such series to be due and
payable immediately. The Corporation and PIB are required to furnish to the PIB
Subordinated Trustee annually a statement as to the performance by the
Corporation and PIB of their respective obligations under the PIB Subordinated
Indenture and as to any default in such performance. Under certain
circumstances, any declaration of acceleration with respect to PIB Subordinated
Debt Securities of any series may be rescinded and past defaults (except a
default in the payment of principal of or interest on the PIB Subordinated Debt
Securities) may be waived by the Holders of a majority in aggregate principal
amount of the PIB Subordinated Debt Securities of such series then outstanding.
The PIB Subordinated Indenture provides that the PIB Subordinated Trustee may
withhold notice to the Holders of the PIB Subordinated Debt Securities of any
series of any continuing default (except in the payment of the principal of (or
premium, if any) or interest on any PIB Subordinated Debt Securities of such
series) if the PIB Subordinated Trustee considers it in the interest of the
Holders of such series of PIB Subordinated Debt Securities to do so.
The PIB Subordinated Indenture does not provide for any right of
acceleration of the payment of principal of a series of PIB Subordinated Debt
Securities upon a default in the payment of principal or interest or in the
performance of any covenant or agreement in the PIB Subordinated Debt Securities
of the particular series, in the PIB Subordinated Indenture or in the PIB
Subordinated Guarantees.
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Each of the Corporation and PIB has covenanted in the PIB Senior and PIB
Subordinated Indentures that it will not merge or consolidate with any other
corporation or sell, convey, transfer or lease all or substantially all of its
assets to any person, firm or corporation unless the Corporation or PIB, as the
case may be, is the continuing corporation or the successor corporation
expressly assumes the obligations under any outstanding PIB Senior Debt
Securities and Subordinated Debt Securities and the PIB Subordinated Guarantees
and the respective PIB Senior and PIB Subordinated Indentures and the
Corporation, or PIB, as the case may be, or such successor corporation is not,
immediately after such merger, consolidation, sale or conveyance, in default in
the performance of any of the covenants or conditions of the respective
Indenture. The Indentures do not contain any other covenant that restricts the
Corporation's or PIB's ability to merge or consolidate with any other
corporation, sell, convey, transfer or lease all or substantially all of its
assets to any persons, firm or corporation or otherwise engage in restructuring
transactions.
GUARANTEE
PIB Senior Debt Securities
The Corporation will guarantee the punctual payment of the principal of,
premium, if any, and interest on the PIB Senior Debt Securities, when and as the
same are due and payable. The guarantee is absolute and unconditional,
irrespective of any circumstance that might otherwise constitute a legal or
equitable discharge of a surety or guarantor. To evidence the guarantee, a
Guarantee, executed by the Corporation, will be endorsed on each PIB Senior Debt
Security. Holders of the PIB Senior Debt Securities may proceed directly against
the Corporation in the event of default under the PIB Senior Debt Securities
without first proceeding
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against PIB. The Guarantees will rank pari passu with all other unsecured and
unsubordinated obligations of the Corporation.
PIB Subordinated Debt Securities
The Corporation will guarantee, on a subordinated basis, the punctual
payment of the principal of, premium, if any, and interest on the PIB
Subordinated Debt Securities, when and as the same are due and payable. The
guarantee is absolute and unconditional, irrespective of any circumstance that
might otherwise constitute a legal or equitable discharge of a surety or
guarantor. To evidence the guarantee, a Guarantee, executed by the Corporation,
will be endorsed on each PIB Subordinated Debt Security. Holders of the PIB
Subordinated Debt Securities may proceed directly against the Corporation in the
event of default under the PIB Subordinated Debt Securities without first
proceeding against PIB. The PIB Subordinated Guarantees will rank pari passu
with all other unsecured and subordinated obligations of the Corporation. See
"Subordination."
DESCRIPTION OF PREFERRED STOCK OF THE CORPORATION
The following summary contains a description of certain general terms of
the Corporation's preferred stock (the "Preferred Stock") to which any
Prospectus Supplement may relate. Certain terms of any series of the Preferred
Stock offered by any Prospectus Supplement will be described in the Prospectus
Supplement relating thereto. If so indicated in the Prospectus Supplement, the
terms of any series may differ from the terms set forth below. The following
summary description of certain provisions of the Preferred Stock is subject to
and qualified in its entirety by reference to the provisions of the
Corporation's Restated Certificate of Incorporation, as amended, the
Certificates of Designation describing the Corporation's 8.35% Non-Cumulative
Monthly Income Preferred Stock, 1994 Series A (the "Series A Preferred Stock")
and the Corporation's Series A Participating Preferred Stock (the "Series A
Participating Preferred Stock"), respectively, and the Certificate of Resolution
(the "Certificate of Resolution") relating to each particular series of the
Preferred Stock, each of which will be filed or incorporated by reference, as
the case may be, as an exhibit to the Registration Statement of which this
Prospectus is a part at or prior to the time of the issuance of such Preferred
Stock.
GENERAL
Under the Corporation's Restated Certificate of Incorporation, the Board of
Directors of the Corporation is authorized, without further stockholder action,
to provide for the issuance of up to 10,000,000 shares of preferred stock (of
which 4,000,000 shares have been designated and issued as Series A Preferred
Stock and 350,000 shares have been authorized and designated but not issued for
the Series A Participating Preferred Stock), without par value, in one or more
series, with such designations of titles; dividend rates; special or relative
rights in the event of a liquidation, distribution or sale of assets or
dissolution or winding up of the Corporation; sinking fund provisions;
redemption or purchase account provisions; conversion provisions; and voting
rights, as shall be set forth as and when established by the Board of Directors
of the Corporation. The shares of any series of Preferred Stock will be, when
issued, fully paid and non-assessable and holders thereof shall have no
preemptive rights in connection therewith.
The liquidation preference of any series of the Preferred Stock is not
necessarily indicative of the price at which shares of such series of Preferred
Stock will actually trade at or after the time of their issuance. The market
price of any series of Preferred Stock can be expected to fluctuate with changes
in market and economic conditions, the financial condition and prospects of the
Corporation and other factors that generally influence the market prices of
securities.
RANK
Any series of Preferred Stock will, with respect to dividend rights and
rights on liquidation, winding up and dissolution, rank (i) senior to all
classes of common stock of the Corporation and to all equity securities issued
by the Corporation the terms of which specifically provide that such equity
securities will rank junior to
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the Preferred Stock (collectively referred to as the "Junior Securities"); (ii)
on a parity with all equity securities issued by the Corporation the terms of
which specifically provide that such equity securities will rank on a parity
with the Preferred Stock (collectively referred to as the "Parity Securities");
and (iii) junior to all equity securities issued by the Corporation the terms of
which specifically provide that such equity securities will rank senior to the
Preferred Stock. As used in any Certificate of Resolution for these purposes,
the term "equity securities" will not include debt securities convertible into
or exchangeable for equity securities.
DIVIDENDS
Holders of each series of Preferred Stock will be entitled to receive,
when, as and if declared by the Board of Directors of the Corporation out of
funds legally available therefor, cash dividends at such rates and on such dates
as are set forth in the Prospectus Supplement relating to such series of
Preferred Stock. Dividends will be payable to holders of record of the Preferred
Stock as they appear on the books of the Corporation on such record dates as
shall be fixed by the Board of Directors. Dividends on any series of Preferred
Stock may be cumulative or non-cumulative. The Corporation's ability to pay
dividends on its Preferred Stock is subject to policies established by the
Federal Reserve Board. See "Certain Regulatory Matters -- Dividend
Restrictions."
No full dividends may be declared or paid or funds set apart for the
payment of dividends on any Parity Securities unless dividends shall have been
paid or set apart for such payment on the Preferred Stock. If full dividends are
not so paid, the Preferred Stock shall share dividends pro rata with the Parity
Securities.
The holders of any series of shares of Preferred Stock at the close of
business on a dividend payment record date will be entitled to receive the
dividend payable on such shares (except that holders of shares called for
redemption on a redemption date occurring between such record date and the
dividend payment date shall not be entitled to receive such dividend on such
dividend payment date but instead will receive accrued and unpaid dividends to
such redemption date) on the corresponding dividend payment date notwithstanding
the conversion thereof or the Corporation's default in payment of the dividend
due. Except as provided above, the Corporation will make no payment or allowance
for unpaid dividends, whether or not in arrears, on converted shares or for
dividends on the shares of preferred stock or issued upon conversion.
CONVERSION
The Prospectus Supplement for any series of Preferred Stock will state the
terms, if any, on which shares of that series are convertible into shares of
another series of preferred stock of the Corporation.
For any series of Preferred Stock which is convertible, the Corporation
shall at all times reserve and keep available, out of the aggregate of its
authorized but unissued preferred stock or preferred stock held in its treasury
or both, for the purpose of effecting the conversion of the shares of such
series of Preferred Stock, the full number of shares of preferred stock then
deliverable upon the conversion of all outstanding shares of such series.
No fractional shares or scrip representing fractional shares of preferred
stock will be issued upon the conversion of shares of any series of convertible
Preferred Stock. Each holder to whom fractional shares would otherwise be issued
will instead be entitled to receive, at the Corporation's election, either (a) a
cash payment equal to the current market price of such holder's fractional
interest or (b) a cash payment equal to such holder's proportionate interest in
the net proceeds (following the deduction of applicable transaction costs) from
the sale promptly by an agent, on behalf of such holders, of shares of preferred
stock representing the aggregate of such fractional shares.
EXCHANGEABILITY
If so determined by the Board of Directors of the Corporation, the holders
of shares of Preferred Stock of any series may be obligated at any time or at
maturity to exchange such shares for preferred stock or debt
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securities of the Corporation. The terms of any such exchange and any such
preferred stock or debt securities will be described in the Prospectus
Supplement relating to such series of Preferred Stock.
REDEMPTION
A series of Preferred Stock may be redeemable at any time, in whole or in
part, at the option of the Corporation or the holder thereof upon terms and at
the redemption prices set forth in the Prospectus Supplement relating to such
series.
In the event of partial redemptions of Preferred Stock, whether by
mandatory or optional redemption, the shares to be redeemed will be determined
by lot or pro rata, as may be determined by the Board of Directors of the
Corporation or by any other method determined to be equitable by the Board of
Directors.
On or after a redemption date, unless the Corporation defaults in the
payment of the redemption price, dividends will cease to accrue on shares of
Preferred Stock called for redemption and all rights of holders of such shares
will terminate except for the right to receive the redemption price.
Under current regulations, bank holding companies may not exercise any
option to redeem shares of preferred stock included as Tier 1 capital, or
exchange such preferred stock for debt securities, without the prior approval of
the Federal Reserve Board. Ordinarily, the Federal Reserve Board would not
permit such a redemption unless (1) the shares are redeemed with the proceeds of
a sale by the bank holding company of common stock or perpetual preferred stock
or (2) the Federal Reserve Board determines that the bank holding company's
condition and circumstances warrant the reduction of a source of permanent
capital.
LIQUIDATION PREFERENCE
Upon any voluntary or involuntary liquidation, dissolution or winding up of
the Corporation, holders of each series of Preferred Stock that ranks senior to
the Junior Securities will be entitled to receive out of assets of the
Corporation available for distribution to shareholders, before any distribution
is made on any Junior Securities, including Common Stock, distributions upon
liquidation in the amount set forth in the Prospectus Supplement relating to
such series of Preferred Stock, plus an amount equal to any declared and unpaid
dividends. If upon any voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, the amounts payable with respect to the Preferred
Stock of any series and any other Parity Securities are not paid in full, the
holders of the Preferred Stock of such series and the Parity Securities will
share ratably in any such distribution of assets of the Corporation in
proportion to the full liquidation preferences to which each is entitled. After
payment of the full amount of the liquidation preference to which they are
entitled, the holders of such series of Preferred Stock will not be entitled to
any further participation in any distribution of assets of the Corporation.
VOTING RIGHTS
Except as indicated in the Prospectus Supplement relating to a particular
series of Preferred Stock, or except as expressly required by applicable law,
the holders of the Preferred Stock will have no voting rights.
Under regulations adopted by the Federal Reserve Board, if the holders of
shares of any series of Preferred Stock of the Corporation become entitled to
vote for the election of directors, such series may then be deemed a "class of
voting securities" and a holder of 25% or more of such series (or a holder of 5%
if it otherwise exercises a "controlling influence" over the Corporation) may
then be subject to regulation as a bank holding company in accordance with the
BHC Act. In addition, at such time as such series is deemed a class of voting
securities, (i) any other bank holding company may be required to obtain the
approval of the Federal Reserve Board to acquire or retain 5% or more of such
series, and (ii) any person other than a bank holding company may be required to
file with the Federal Reserve Board under the Change in Bank Control Act to
acquire or retain 10% or more of such series.
Section 12 of the Banking Law requires the prior approval of the Office of
the Commissioner to obtain control of any bank organized under the Banking Law.
The Banking Law requires that in any transfer of voting and outstanding capital
stock of any bank organized under the laws of Puerto Rico to any person or
entity that,
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upon consummation of the transfer, will become the owner, directly or
indirectly, of more than 5% of the voting and outstanding capital stock of said
bank, the parties to the transfer shall inform the Office of the Commissioner of
the proposed transfer at least 60 days prior to the date such transfer is to be
effected. The Banking Law does not contain any provision allowing for the
extension of such 60-day time period. The transfer requires the approval of the
Office of the Commissioner if it results in a change of control of the bank. For
the purposes of Section 12 of the Banking Law, the term "control" means the
power to, directly or indirectly, direct or influence decisively the
administration or the norms of the bank. The Department of the Treasury
(predecessor to the Office of the Commissioner) made a determination that the
foregoing provisions of the Banking Law are applicable to a change in control of
the Corporation in a letter dated April 9, 1985.
Pursuant to Section 12(d) of the Banking Law, as soon as the Office of the
Commissioner receives notice of a proposed transaction that may result in the
control or in a change of control of a bank, the Office of the Commissioner
shall have the duty to make the necessary investigations. The Office of the
Commissioner shall issue authorization for the transfer of control of the bank
if the results of his investigations are in his judgment satisfactory. The
decision of the Office of the Commissioner is final and unreviewable.
DESCRIPTION OF PREFERRED STOCK OF PIB
The following summary contains a description of certain general terms of
PIB's preferred stock (the "PIB Preferred Stock") to which any Prospectus
Supplement may relate. Certain terms of any series of the Preferred Stock
offered by any Prospectus Supplement will be described in the Prospectus
Supplement relating thereto. If so indicated in the Prospectus Supplement, the
terms of any series may differ from the terms set forth below. The following
summary description of certain provisions of the PIB Preferred Stock is subject
to and qualified in its entirety by reference to the provisions of PIB's
Certificate of Incorporation, as amended, and the Certificate of Amendment
relating to each particular series of the PIB Preferred Stock, each of which
will be filed or incorporated by reference, as the case may be, as an exhibit to
the Registration Statement of which this Prospectus is a part at or prior to the
time of the issuance of such PIB Preferred Stock.
The authorized capital stock of PIB consists of 1,000,000 shares of Common
Stock, par value $5.00 per share, and 25,000,000 shares of preferred stock, par
value $25.00 per share. The preferred stock is issuable in one or more series,
with such terms, and at such times and for such consideration as the Board of
Directors of PIB determines. As of the date of this Prospectus, no shares of
preferred stock of PIB were issued and outstanding. All of the common stock of
PIB is owned by the Corporation.
GENERAL
Under PIB's Certificate of Incorporation, the Board of Directors of the
Corporation is authorized, without further stockholder action, to provide for
the issuance of up to 25,000,000 shares of preferred stock, par value $25.00 per
share, in one or more series, with such designations of titles; dividend rates;
special or relative rights in the event of a liquidation, distribution or sale
of assets or dissolution or winding up of PIB; sinking fund provisions; any
redemption or purchase account provisions; conversion provisions; and voting
rights, as shall be set forth as and when established by the Board of Directors
of PIB. The shares of any series of PIB Preferred Stock will be, when issued,
fully paid and nonassessable and holders thereof shall have no preemptive rights
in connection therewith.
The liquidation preference of any series of the PIB Preferred Stock is not
necessarily indicative of the price at which shares of such series of PIB
Preferred Stock will actually trade at or after the time of their issuance. The
market price of any series of PIB Preferred Stock can be expected to fluctuate
with changes in market and economic conditions, the financial condition and
prospects of the Corporation and PIB and other factors that generally influence
the market prices of securities.
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RANK
Any series of PIB Preferred Stock will, with respect to dividend rights and
rights on liquidation, winding up and dissolution, rank (i) senior to all
classes of common stock of PIB and to all equity securities issued by PIB the
terms of which specifically provide that such equity securities will rank junior
to the PIB Preferred Stock (collectively referred to as the "PIB Junior
Securities"); (ii) on a parity with all equity securities issued by PIB, the
terms of which specifically provide that such equity securities will rank on a
parity with the PIB Preferred Stock (collectively referred to as the "PIB Parity
Securities"); and (iii) junior to all equity securities issued by PIB, the terms
of which specifically provide that such equity securities will rank senior to
the PIB Preferred Stock (collectively referred to as the "PIB Senior
Securities"). As used in any Certificate of Amendment for these purposes, the
term "equity securities" will not include debt securities convertible into or
exchangeable for equity securities.
DIVIDENDS
Holders of each series of PIB Preferred Stock will be entitled to receive,
when, as and if declared by the Board of Directors of PIB out of funds legally
available therefor, cash dividends at such rates and on such dates as are set
forth in the Prospectus Supplement relating to such series of the PIB Preferred
Stock. Dividends will be payable to holders of record of the PIB Preferred Stock
as they appear on the books of PIB on such record dates as shall be fixed by the
Board of Directors. Dividends on any series of PIB Preferred Stock may be
cumulative or non-cumulative. PIB's ability to pay dividends on its Preferred
Stock is subject to policies established by the Federal Reserve Board. See
"Certain Regulatory Matters -- Dividend Restrictions."
No full dividends may be declared or paid or funds set apart for the
payment of dividends on any PIB Parity Securities unless dividends shall have
been paid or set apart for such payment on the PIB Preferred Stock. If full
dividends are not so paid, the PIB Preferred Stock shall share dividends pro
rata with the PIB Parity Securities.
The holders of any series of shares of PIB Preferred Stock at the close of
business on a dividend payment record date will be entitled to receive the
dividend payable on such shares (except that holders of shares called for
redemption on a redemption date occurring between such record date and the
dividend payment date shall not be entitled to receive such dividend on such
dividend payment date but instead will receive accrued and unpaid dividends to
such redemption date) on the corresponding dividend payment date notwithstanding
the conversion thereof or PIB's default in payment of the dividend due. Except
as provided above, PIB will make no payment or allowance for unpaid dividends,
whether or not in arrears, on converted shares or for dividends on the shares of
preferred stock issued upon conversion.
CONVERSION
The Prospectus Supplement for any series of the PIB Preferred Stock will
state the terms, if any, on which shares of that series are convertible into
shares of another series of preferred stock of PIB.
For any series of PIB Preferred Stock which is convertible, PIB shall at
all times reserve and keep available, free from preemptive rights, out of the
aggregate of its authorized but unissued preferred stock or shares of preferred
stock held in its treasury or both, for the purpose of effecting the conversion
of the shares of such series of PIB Preferred Stock, the full number of shares
of preferred stock then deliverable upon the conversion of all outstanding
shares of such series.
No fractional shares or scrip representing fractional shares of preferred
stock will be issued upon the conversion of shares of any series of convertible
PIB Preferred Stock. Each holder to whom fractional shares would otherwise be
issued will instead be entitled to receive, at PIB's election, either (a) a cash
payment equal to the current market price of such holder's fractional interest
or (b) a cash payment equal to such holder's proportionate interest in the net
proceeds (following the deduction of applicable transaction costs) from the sale
promptly by an agent, on behalf of such holders, of shares of preferred stock
representing the aggregate of such fractional shares.
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<PAGE> 35
EXCHANGEABILITY
If so determined by the Board of Directors of PIB, the holders of shares of
PIB Preferred Stock of any series may be obligated at any time or at maturity to
exchange such shares for preferred stock or debt securities of PIB. The terms of
any such exchange and any such preferred stock or debt securities will be
described in the Prospectus Supplement relating to such series of PIB Preferred
Stock.
REDEMPTION
A series of PIB Preferred Stock may be redeemable at any time, in whole or
in part, at the option of PIB or the holder thereof upon terms and at the
redemption prices set forth in the Prospectus Supplement relating to such
series.
In the event of partial redemptions of PIB Preferred Stock, whether by
mandatory or optional redemption, the shares to be redeemed will be determined
by lot or pro rata, as may be determined by the Board of Directors of PIB or by
any other method determined to be equitable by the Board of Directors.
On or after a redemption date, unless PIB defaults in the payment of the
redemption price, dividends will cease to accrue on shares of PIB Preferred
Stock called for redemption and all rights of holders of such shares will
terminate except for the right to receive the redemption price.
Under current regulations, bank holding companies may not exercise any
option to redeem shares of preferred stock included as Tier 1 capital, or
exchange such preferred stock for debt securities, without the prior approval of
the Federal Reserve Board. Ordinarily, the Federal Reserve Board would not
permit such a redemption unless (1) the shares are redeemed with the proceeds of
a sale by the bank holding company of common stock or perpetual preferred stock
or (2) the Federal Reserve Board determines that the bank holding company's
condition and circumstances warrant the reduction of a source of permanent
capital.
LIQUIDATION PREFERENCE
Upon any voluntary or involuntary liquidation, dissolution or winding up of
PIB, holders of each series of PIB Preferred Stock that ranks senior to the PIB
Junior Securities will be entitled to receive out of assets of PIB available for
distribution to shareholders, before any distribution is made on any PIB Junior
Securities, including common stock, distributions upon liquidation in the amount
set forth in the Prospectus Supplement relating to such series of Preferred
Stock, plus an amount equal to any accrued and unpaid dividends. If upon any
voluntary or involuntary liquidation, dissolution or winding up of PIB the
amounts payable with respect to the PIB Preferred Stock of any series and any
other PIB Parity Securities are not paid in full, the holders of the PIB
Preferred Stock of such series and the PIB Parity Securities will share ratably
in any such distribution of assets of PIB in proportion to the full liquidation
preferences to which each is entitled. After payment of the full amount of the
liquidation preference to which they are entitled, the holders of such series of
PIB Preferred Stock will not be entitled to any further participation in any
distribution of assets of PIB.
VOTING RIGHTS
Except as indicated in the Prospectus Supplement relating to a particular
series of PIB Preferred Stock, or except as expressly required by applicable
law, the holders of the PIB Preferred Stock will have no voting rights.
Under regulations adopted by the Federal Reserve Board, if the holders of
shares of any series of PIB Preferred Stock become entitled to vote for the
election of directors, such series may then be deemed a "class of voting
securities" and a holder of 25% or more of such series (or a holder of 5% if it
otherwise exercises a "controlling influence" over PIB) may then be subject to
regulation as a bank holding company in accordance with the BHC Act. In
addition, at such time as such series is deemed a class of voting securities,
(i) any other bank holding company may be required to obtain the approval of the
Federal Reserve Board to acquire or retain 5% or more of such series, and (ii)
any person other than a bank holding company may be required to file with the
Federal Reserve Board under the Change in Bank Control Act to acquire or retain
10% or more of such series.
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GUARANTEE
The Corporation will fully and unconditionally guarantee the punctual
payment of (i) any accrued and unpaid dividends, whether or not declared, on the
PIB Preferred Stock of any series, (ii) the redemption price for any shares of
PIB Preferred Stock called or redemption at the option of PIB or the holder
thereof in accordance with the terms of such series of PIB Preferred Stock,
(iii) the liquidation preference of PIB Preferred Stock and (iv) any additional
amounts with respect to a series of PIB Preferred Stock.
The Guarantee of the PIB Preferred Stock shall constitute an unsecured
obligation of the Corporation and will rank junior to all liabilities of the
Corporation. The Guarantee will rank senior to the Corporation's common stock
and shall have such rank relative to the preferred stock of the Corporation as
shall be specified in the applicable Prospectus Supplement.
DESCRIPTION OF PREFERRED STOCK OF FINANCIAL
The following summary contains a description of certain general terms of
Financial's preferred stock (the "Financial Preferred Stock") to which any
Prospectus Supplement may relate. Certain terms of any series of the Financial
Preferred Stock offered by any Prospectus Supplement will be described in the
Prospectus Supplement relating thereto. If so indicated in the Prospectus
Supplement, the terms of any series may differ from the terms set forth below.
The following summary description of certain provisions of the Financial
Preferred Stock is subject to and qualified in its entirety by reference to the
provisions of Financial's Certificate of Incorporation, as amended, and the
Certificate of Designation relating to each particular series of the Financial
Preferred Stock, each of which will be filed or incorporated by reference, as
the case may be, as an exhibit to the Registration Statement of which this
Prospectus is a part at or prior to the time of the issuance of such Financial
Preferred Stock.
The authorized capital stock of Financial consists of 10,000 shares of
Common Stock, par value $1.00 per share, and 10,000,000 shares of preferred
stock, par value $.01 per share. The preferred stock is issuable in one or more
series, with such terms, and at such times and for such consideration as the
Board of Directors of Financial determines. As of the date of this Prospectus,
no shares of preferred stock of Financial were issued and outstanding. All of
the common stock of Financial is owned by PIB.
GENERAL
Under Financial's Certificate of Incorporation, the Board of Directors of
the Corporation is authorized, without further stockholder action, to provide
for the issuance of up to 10,000,000 shares of preferred stock, par value $.01
per share, in one or more series, with such designations of titles; dividend
rates; special or relative rights in the event of a liquidation, distribution or
sale of assets or dissolution or winding up of Financial; sinking fund
provisions; any redemption or purchase account provisions; conversion
provisions; and voting rights, as shall be set forth as and when established by
the Board of Directors of Financial. The shares of any series of Financial
Preferred Stock will be, when issued, fully paid and nonassessable and holders
thereof shall have no preemptive rights in connection therewith.
The liquidation preference of any series of the Financial Preferred Stock
is not necessarily indicative of the price at which shares of such series of
Financial Preferred Stock will actually trade at or after the time of their
issuance. The market price of any series of Financial Preferred Stock can be
expected to fluctuate with changes in market and economic conditions, the
financial condition and prospects of the Corporation and Financial and other
factors that generally influence the market prices of securities.
RANK
Any series of Financial Preferred Stock will, with respect to dividend
rights and rights on liquidation, winding up and dissolution, rank (i) senior to
all classes of common stock of Financial and to all equity securities issued by
Financial the terms of which specifically provide that such equity securities
will rank junior to the Financial Preferred Stock (collectively referred to as
the "Financial Junior Securities"); (ii) on a
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parity with all equity securities issued by Financial, the terms of which
specifically provide that such equity securities will rank on a parity with the
Financial Preferred Stock (collectively referred to as the "Financial Parity
Securities"); and (iii) junior to all equity securities issued by Financial, the
terms of which specifically provide that such equity securities will rank senior
to the Financial Preferred Stock (collectively referred to as the "Financial
Senior Securities"). As used in any Certificate of Designation for these
purposes, the term "equity securities" will not include debt securities
convertible into or exchangeable for equity securities.
DIVIDENDS
Holders of each series of Financial Preferred Stock will be entitled to
receive, when, as and if declared by the Board of Directors of Financial out of
funds legally available therefor, cash dividends at such rates and on such dates
as are set forth in the Prospectus Supplement relating to such series of the
Financial Preferred Stock. Dividends will be payable to holders of record of the
Financial Preferred Stock as they appear on the books of Financial on such
record dates as shall be fixed by the Board of Directors. Dividends on any
series of Financial Preferred Stock may be cumulative or non cumulative.
Financial's ability to pay dividends on its Preferred Stock is subject to
policies established by the Federal Reserve Board. See "Certain Regulatory
Matters -- Dividend Restrictions."
No full dividends may be declared or paid or funds set apart for the
payment of dividends on any Financial Parity Securities unless dividends shall
have been paid or set apart for such payment on the Financial Preferred Stock.
If full dividends are not so paid, the Financial Preferred Stock shall share
dividends pro rata with the Financial Parity Securities.
The holders of any series of shares of Financial Preferred Stock at the
close of business on a dividend payment record date will be entitled to receive
the dividend payable on such shares (except that holders of shares called for
redemption on a redemption date occurring between such record date and the
dividend payment date shall not be entitled to receive such dividend on such
dividend payment date but instead will receive accrued and unpaid dividends to
such redemption date) on the corresponding dividend payment date notwithstanding
the conversion thereof or Financial's default in payment of the dividend due.
Except as provided above, Financial will make no payment or allowance for unpaid
dividends, whether or not in arrears, on converted shares or for dividends on
the shares of preferred stock issued upon conversion.
CONVERSION
The Prospectus Supplement for any series of the Financial Preferred Stock
will state the terms, if any, on which shares of that series are convertible
into shares of another series of preferred stock of Financial.
For any series of Financial Preferred Stock which is convertible, Financial
shall at all times reserve and keep available, free from preemptive rights, out
of the aggregate of its authorized but unissued preferred stock or shares of
preferred stock held in its treasury or both, for the purpose of effecting the
conversion of the shares of such series of Financial Preferred Stock, the full
number of shares of preferred stock then deliverable upon the conversion of all
outstanding shares of such series.
No fractional shares or scrip representing fractional shares of preferred
stock will be issued upon the conversion of shares of any series of convertible
Financial Preferred Stock. Each holder to whom fractional shares would otherwise
be issued will instead be entitled to receive, at Financial's election, either
(a) a cash payment equal to the current market price of such holder's fractional
interest or (b) a cash payment equal to such holder's proportionate interest in
the net proceeds (following the deduction of applicable transaction costs) from
the sale promptly by an agent, on behalf of such holders, of shares of preferred
stock representing the aggregate of such fractional shares.
EXCHANGEABILITY
If so determined by the Board of Directors of Financial, the holders of
shares of Financial Preferred Stock of any series may be obligated at any time
or at maturity to exchange such shares for preferred stock or debt
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<PAGE> 38
securities of Financial. The terms of any such exchange and any such preferred
stock or debt securities will be described in the Prospectus Supplement relating
to such series of Financial Preferred Stock.
REDEMPTION
A series of Financial Preferred Stock may be redeemable at any time, in
whole or in part, at the option of Financial or the holder thereof upon terms
and at the redemption prices set forth in the Prospectus Supplement relating to
such series.
In the event of partial redemptions of Financial Preferred Stock, whether
by mandatory or optional redemption, the shares to be redeemed will be
determined by lot or pro rata, as may be determined by the Board of Directors of
Financial or by any other method determined to be equitable by the Board of
Directors.
On or after a redemption date, unless Financial defaults in the payment of
the redemption price, dividends will cease to accrue on shares of Financial
Preferred Stock called for redemption and all rights of holders of such shares
will terminate except for the right to receive the redemption price.
Under current regulations, bank holding companies may not exercise any
option to redeem shares of preferred stock included as Tier 1 capital, or
exchange such preferred stock for debt securities, without the prior approval of
the Federal Reserve Board. Ordinarily, the Federal Reserve Board would not
permit such a redemption unless (1) the shares are redeemed with the proceeds of
a sale by the bank holding company of common stock or perpetual preferred stock
or (2) the Federal Reserve Board determines that the bank holding company's
condition and circumstances warrant the reduction of a source of permanent
capital.
LIQUIDATION PREFERENCE
Upon any voluntary or involuntary liquidation, dissolution or winding up of
Financial, holders of each series of Financial Preferred Stock that ranks senior
to the Financial Junior Securities will be entitled to receive out of assets of
Financial available for distribution to shareholders, before any distribution is
made on any Financial Junior Securities, including common stock, distributions
upon liquidation in the amount set forth in the Prospectus Supplement relating
to such series of Preferred Stock, plus an amount equal to any accrued and
unpaid dividends. If upon any voluntary or involuntary liquidation, dissolution
or winding up of Financial the amounts payable with respect to the Financial
Preferred Stock of any series and any other Financial Parity Securities are not
paid in full, the holders of the Financial Preferred Stock of such series and
the Financial Parity Securities will share ratably in any such distribution of
assets of Financial in proportion to the full liquidation preferences to which
each is entitled. After payment of the full amount of the liquidation preference
to which they are entitled, the holders of such series of Financial Preferred
Stock will not be entitled to any further participation in any distribution of
assets of Financial.
VOTING RIGHTS
Except as indicated in the Prospectus Supplement relating to a particular
series of Financial Preferred Stock, or except as expressly required by
applicable law, the holders of the Financial Preferred Stock will have no voting
rights.
Under regulations adopted by the Federal Reserve Board, if the holders of
shares of any series of Financial Preferred Stock become entitled to vote for
the election of directors, such series may then be deemed a "class of voting
securities" and a holder of 25% or more of such series (or a holder of 5% if it
otherwise exercises a "controlling influence" over Financial) may then be
subject to regulation as a bank holding company in accordance with the BHC Act.
In addition, at such time as such series is deemed a class of voting securities,
(i) any other bank holding company may be required to obtain the approval of the
Federal Reserve Board to acquire or retain 5% or more of such series, and (ii)
any person other than a bank holding company may be required to file with the
Federal Reserve Board under the Change in Bank Control Act to acquire or retain
10% or more of such series.
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GUARANTEE
The Corporation will fully and unconditionally guarantee the punctual
payment of (i) any accrued and unpaid dividends, whether or not declared, on the
Financial Preferred Stock of any series, (ii) the redemption price for any
shares of Financial Preferred Stock called for redemption at the option of
Financial or the holder thereof in accordance with the terms of such series of
Financial Preferred Stock, (iii) the liquidation preference of Financial
Preferred Stock and (iv) any additional amounts with respect to a series of
Financial Preferred Stock.
The Guarantee of the Financial Preferred Stock shall constitute an
unsecured obligation of the Corporation and will rank junior to all liabilities
of the Corporation. The Guarantee will rank senior to the Corporation's common
stock and shall have such rank relative to the preferred stock of the
Corporation as shall be specified in the applicable Prospectus Supplement.
VALIDITY OF OFFERED SECURITIES
The validity of the Preferred Stock and the PIB Preferred Stock will be
passed upon for the Corporation and PIB by Brunilda Santos de Alvarez, counsel
to the Corporation. The validity of the Senior Debt Securities, the Subordinated
Debt Securities, the PIB Senior Debt Securities, the PIB Subordinated Debt
Securities and the Guarantees will be passed upon for the Corporation and PIB by
Ms. Alvarez as to matters of the laws of the Commonwealth of Puerto Rico and by
Sullivan & Cromwell as to matters of New York law. The validity of the Financial
Preferred Stock, the Financial Senior Debt Securities and the Financial
Subordinated Debt Securities will be passed upon for Financial by Sullivan &
Cromwell. The validity of the Securities will be passed upon for any
underwriters or agents by counsel named in the Prospectus Supplement.
EXPERTS
The financial statements incorporated in this Prospectus by reference from
the Corporation's Annual Report on Form 10-K for the year ended December 31,
1994 have been so incorporated in reliance on the report of Price Waterhouse,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
PLAN OF DISTRIBUTION
The Corporation, PIB or Financial, as the case may be, may sell Securities
to or through underwriting syndicates represented by managing underwriters, or
through one or more underwriters without a syndicate for public offering and
sale by them, or may sell Securities to investors directly or through agents.
Any such underwriter or agent involved in the offer and sale of the Securities
will be named in the Prospectus Supplement.
Underwriters may offer and sell the Securities at a fixed price or prices,
which may be changed, or from time to time at market prices prevailing at the
time of sale, at prices related to such prevailing market prices or at
negotiated prices. In connection with the sale of the Securities, underwriters
may be deemed to have received compensation from the Corporation, PIB or
Financial, as the case may be, in the form of underwriting discounts or
commissions and may also receive commissions from purchasers of the Securities
for whom they may act as agent. Underwriters may sell the Securities to or
through dealers, and such dealers may receive compensation in the form of
discounts, concessions or commissions from the underwriters and/or commissions
from the purchasers for whom they may act as agent.
Any compensation paid by the Corporation, PIB or Financial, as the case may
be, to underwriters or agents in connection with the offering of the Securities,
and any discounts, concessions or commissions allowed by underwriters to
participating dealers, will be set forth in the Prospectus Supplement.
Underwriters, dealers and agents participating in the distribution of the
Securities may be deemed to be underwriters, and any discounts and commissions
received by them and any profit realized by them on resale of the Securities may
be deemed to be underwriting discounts and commissions under the Securities Act
of 1933. Underwriters,
38
<PAGE> 40
dealers and agents may be entitled, under agreements entered into with
Corporation, PIB or Financial, as the case may be, to indemnification against
certain civil liabilities, including liabilities under the Securities Act of
1933.
All Securities will be a new issue of securities with no established
trading market. Any underwriters to whom Securities are sold by the Corporation,
PIB or Financial, as the case may be, for public offering and sale may make a
market in such Securities, but such underwriters will not be obligated to do so
and may discontinue any market making at any time without notice. No assurance
can be given as to the liquidity of the trading market for any Securities.
Certain of the underwriters and their associates may be customers of,
engage in transactions with, and perform services for, the Corporation or its
subsidiaries in the ordinary course of business.
39
<PAGE> 41
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses in connection with the issuance and
distribution of the securities being registered are:
<TABLE>
<S> <C>
Registration Fee $344,828
Fees and Expenses of Accountants 20,000
Fees and Expenses of Counsel 100,000
Blue Sky Fees and Expenses 22,500
Printing and Engraving Expenses 16,000
Rating Agency Fees 125,000
Trustee's Fees 20,000
Miscellaneous 1,672
Total $650,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
(a) The Corporation and PIB are Puerto Rico corporations.
(i) Article ELEVENTH of the Restated Certificate of Incorporation of
the Corporation provides the following:
(1) The Corporation shall indemnify any person who was or is
a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the
right of the Corporation) by reason of the fact that he is or was a
director, officer, employee or agent of the Corporation, or is or was
serving at the written request of the Corporation as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests
of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner
which he reasonably believed to be in or not opposed to the best
interests of the Corporation and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct was
unlawful.
(2) The Corporation shall indemnify any person who was or is
a party or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the Corporation to
procure a judgment in its favor by reason of the fact that he is or
was a director, officer, employee or agent of the Corporation, or is
or was serving at the written request of the Corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against
expenses (including attorney's fees) actually and reasonably incurred
by him in connection with the defense or settlement of such action or
suit if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the Corporation,
except that no indemnification shall be made in respect of any claim,
issue or matter as to which such person shall have been adjudged to be
liable for negligence or misconduct in the performance of his duty to
the Corporation unless and only to the extent that the court in which
such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which such court shall deem
proper.
(3) To the extent that a director, officer, employee or agent
of the Corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in paragraph 1
or 2 of this Article ELEVENTH, or in
II-1
<PAGE> 42
defense of any claim, issue or matter therein, he shall be indemnified
against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
(4) Any indemnification under paragraph 1 or 2 of this Article
ELEVENTH (unless ordered by a court) shall be made by the Corporation
only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper
in the circumstances because he has met the applicable standard of
conduct set forth therein. Such determination shall be made (a) by the
Board of Directors by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or proceeding, or
(b) if such a quorum is not obtainable, or, even if obtainable, a
quorum of disinterested directors so directs, by independent legal
counsel in a written opinion, or (c) by the stockholders.
(5) Expenses incurred in defending a civil or criminal action,
suit or proceeding may be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding as authorized by
the Board of Directors in the specific case upon receipt of an
undertaking by or on behalf of the director, officer, employee or
agent to repay such amount unless it shall ultimately be determined
that he is entitled to be indemnified by the Corporation as authorized
in this Article ELEVENTH.
(6) The indemnification provided by this Article ELEVENTH
shall not be deemed exclusive of any other rights to which those
seeking indemnification may be entitled under any statute, by-law,
agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office, and shall continue as
to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
(7) By action of its Board of Directors, notwithstanding any
interest of the directors in the action, the Corporation may purchase
and maintain insurance, in such amounts as the Board of Directors
deems appropriate, on behalf of any person who is or was a director,
officer, employee or agent of the Corporation, or is or was serving at
the written request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status
as such, whether or not the Corporation would have the power or would
be required to indemnify him against such liability under the
provisions of this Article ELEVENTH or of the General Corporation Law
of the Commonwealth of Puerto Rico or of any other state of the United
States or foreign country as may be applicable.
(ii) Article ELEVENTH of the Certificate of Incorporation of PIB
provides the following:
(1) PIB shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of PIB) by
reason of the fact that he is or was a director, officer, employee or
agent of PIB, or is or was serving at the written request of PIB as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed
to the best interests of PIB, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner
which he reasonably believed to be in or not opposed to the best
interests of PIB and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was
unlawful.
(2) PIB shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of PIB to procure a judgment in its
favor by reason of the fact that he is or was a director, officer,
employee or agent of PIB, or is or was serving at the written request
of PIB as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or settlement of such
action or suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of PIB,
II-2
<PAGE> 43
except that no indemnification shall be made in respect of any claim,
issue or matter as to which such person shall have been adjudged to be
liable for negligence or misconduct in the performance of his duty to
PIB unless and only to the extent that the court in which such action
or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for
such expenses which such court shall deem proper.
(3) To the extent that a director, officer, employee or agent
of PIB has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in paragraph 1 or 2 of this
Article ELEVENTH, or in defense of any claim, issue or matter therein,
he shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith.
(4) Any indemnification under paragraph 1 or 2 of this Article
ELEVENTH (unless ordered by a court) shall be made by PIB only as
authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper
in the circumstances because he has met the applicable standard of
conduct set forth therein. Such determination shall be made (a) by the
Board of Directors by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or proceeding, or
(b) if such a quorum is not obtainable, or, even if obtainable, a
quorum of disinterested directors so directs, by independent legal
counsel in a written opinion, or (c) by the stockholders.
(5) Expenses incurred in defending a civil or criminal action,
suit or proceeding may be paid by PIB in advance of the final
disposition of such action, suit or proceeding as authorized by the
Board of Directors in the specific case upon receipt of an undertaking
by or on behalf of the director, officer, employee or agent to repay
such amount unless it shall ultimately be determined that he is
entitled to be indemnified by PIB as authorized in this Article
ELEVENTH.
(6) The indemnification provided by this Article ELEVENTH
shall not be deemed exclusive of any other rights to which those
seeking indemnification may be entitled under any statute, by-law,
agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office, and shall continue as
to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
(7) By action of its Board of Directors, notwithstanding any
interest of the directors in the action, PIB may purchase and maintain
insurance, in such amounts as the Board of Directors deems
appropriate, on behalf of any person who is or was a director,
officer, employee or agent of PIB, or is or was serving at the written
request of PIB as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise,
against any liability asserted against him and incurred by him in any
such capacity, or arising out of his status as such, whether or not
PIB would have the power or would be required to indemnify him against
such liability under the provisions of this Article ELEVENTH or of the
General Corporation Law of the Commonwealth of Puerto Rico or of any
other state of the United States or foreign country as may be
applicable.
(b) Financial is a Delaware corporation.
(i) Section 102 of the Delaware General Corporation Law allows a
corporation to eliminate the personal liability of a director to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except in cases where the director breached his duty of
loyalty, failed to act in good faith, engaged in intentional misconduct or
knowing violation of law, authorized the unlawful payment of a dividend or
approved an unlawful stock repurchase or obtained an improper personal benefit.
Section 145 of the Delaware General Corporation Law, as amended, provides that
a corporation may indemnify any person who was or is a party or is threatened
to be a party to any threatened, pending or completed action, suit, or
proceeding, whether civil, criminal, administrative or investigative, other
than an action by or in right of the Corporation, by reason of the fact that he
is or was a director, officer, employee or agent of the corporation or is or
was serving at its request in such capacity in another corporation or business
association against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement, actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful.
II-3
<PAGE> 44
(ii) Section 6.4 of the By-laws of Financial provides the following:
Section 6.4. Indemnification of Directors, Officers and
Employees. The Corporation shall indemnify to the full extent
permitted by law any person made or threatened to be made a party to
any action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that such
person or such person's testator or intestate is or was a director,
officer or employee of the Corporation or serves or served at the
request of the Corporation any other enterprise as a director, officer
or employee. Expenses, including attorneys' fees, incurred by any such
person in defending any such action, suit or proceeding shall be paid
or reimbursed by the Corporation promptly upon receipt by it of an
undertaking of such person to repay such expenses if it shall
ultimately be determined that such person is not entitled to be
indemnified by the Corporation. The rights provided to any person by
this by-law shall be enforceable against the Corporation by such
person who shall be presumed to have relied upon it in serving or
continuing to serve as a director, officer or employee as provided
above. No amendment of this by-law shall impair the rights of any
person arising at any time with respect to events occurring prior to
such amendment. For purposes of this by-law, the term "Corporation"
shall include any predecessor of the Corporation and any constituent
corporation (including any constituent of a constituent) absorbed by
the Corporation in a consolidation or merger; the term "other
enterprise" shall include any corporation, partnership, joint venture,
trust or employee benefit plan; service "at the request of the
Corporation" shall include service as a director, officer or employee
of the Corporation which imposes duties on, or involves services by,
such director, officer or employee with respect to an employee benefit
plan, its participants or beneficiaries; any excise taxes assessed on
a person with respect to an employee benefit plan shall be deemed to
be indemnifiable expenses; and action by a person with respect to an
employee benefit plan which such person reasonably believes to be in
the interest of the participants and beneficiaries of such plan shall
be deemed to be action not opposed to the best interests of the
Corporation.
ITEM 16. EXHIBITS
(1)(a) Form of Underwriting Agreement. (Incorporated by reference
from Registration Statement No. 33-57038)
(4)(a) Restated Certificate of Incorporation of BanPonce Corporation,
as amended (English translation). (Incorporated by reference
from Registration Statement No. 33-54299)
(4)(b) Certificate of Incorporation of Popular International Bank,
Inc. (English translation). (Incorporated by Reference from
Registration Statement No. 33-54299)
(4)(c) Certificate of Incorporation of BanPonce Financial Corp., as
amended.*
(4)(d) Copy of Senior Indenture of BanPonce Corporation, dated as of
February 15, 1995, between BanPonce Corporation and The First
National Bank of Chicago, as trustee. (Incorporated by
reference from the Corporation's Current Report on Form 8-K/A
dated May 16, 1995)
(4)(e) Form of Subordinated Indenture of BanPonce Corporation.
(Incorporated by reference from Registration Statement No.
33-57038)
(4)(f) Copy of Senior Indenture of BanPonce Financial Corp., dated as
of October 1, 1991, as supplemented by the First Supplemental
Indenture thereto, dated as of February 28, 1995, each among
BanPonce Financial Corp., BanPonce Corporation, as Guarantor,
and The First National Bank of Chicago, as trustee.*
(4)(g) Form of Subordinated Indenture of BanPonce Financial Corp.*
(4)(h) Form of Senior Indenture of Popular International Bank, Inc.
(Incorporated by reference from Registration Statement No.
33-57038)
(4)(i) Form of Subordinated Indenture of Popular International Bank,
Inc. (Incorporated by reference from Registration Statement
No. 33-57038)
II-4
<PAGE> 45
(4)(j) Rights Agreement, dated as of August 11, 1988, between
BanPonce Corporation and Chemical Bank (as successor to
Manufacturers Hanover Trust Company). (Incorporated by
reference from Registration Statement No. 33-39028)
(4)(k) Amendment to Rights Agreement, dated as of December 11, 1990,
between BanPonce Corporation and Chemical Bank (as successor
to Manufacturers Hanover Trust Company). (Incorporated by
reference from Registration Statement No. 33-39028)
(5)(a) Opinion of Brunilda Santos de Alvarez, Esq.*
(5)(b) Opinion of Sullivan & Cromwell.*
(12) Computation of Consolidated Ratios of Earnings to Fixed
Charges and Earnings to Fixed Charges and Preferred Stock
Dividends.*
(23)(a) Consent of Independent Auditors.*
(23)(b) Consents of Counsel (included in Exhibit (5)(a) and (b)).*
(24) Powers of attorney. *
(25)(a) Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of The First National Bank of Chicago, as Trustee
under the Senior Indenture of BanPonce Corporation.*
(25)(b) Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of The First National Bank of Chicago, as Trustee
under the Senior Indenture of BanPonce Financial Corp.*
- ---------------
* Previously filed.
ITEM 17. UNDERTAKINGS
The undersigned Co-registrants hereby undertake:
(a)(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high and of
the estimated maximum offering range may be reflected in the
form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration
Statement;
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
by the Co-registrants pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in
the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
II-5
<PAGE> 46
(b) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Corporation's annual report pursuant
to section 13(a) or 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in this Registration Statement shall be deemed to be
a new registration statement relating to the securities offered therein and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
The undersigned Co-registrants hereby undertake to file an application
for the purpose of determining the eligibility of the Subordinated Trustee,
Financial Subordinated Trustee, PIB Senior Trustee and PIB Subordinated Trustee
to act under Subsection (a) of Section 310 of the Trust Indenture Act in
accordance with the rules and regulations prescribed by the Commission under
Section 305(b)(2) of such Act.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Co-registrants pursuant to the provisions referred to in Item 15
of this Registration Statement, or otherwise, the Co-registrants have been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification by the
Co-registrants against such liabilities (other than the payment by the
Co-registrants of expenses incurred or paid by a director, officer or
controlling person of the Co-registrants in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Co-registrants will, unless in the opinion of their counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by them is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
II-6
<PAGE> 47
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
undersigned Co-registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned thereunto duly authorized, in the City of San Juan, Commonwealth of
Puerto Rico, on the 25th day of September, 1995.
BANPONCE CORPORATION
(Co-registrant)
By /s/ David H. Chafey, Jr.
--------------------------------
Name: David H. Chafey, Jr.
Title: Executive Vice President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed on September 25, 1995 by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
* Chairman and President
------------------------------------------------- (Principal Executive Officer)
Richard L. Carrion
* Director
-------------------------------------------------
Alfonso F. Ballester
* Director
-------------------------------------------------
Juan J. Bermudez
* Director
-------------------------------------------------
Francisco J. Carreras
</TABLE>
II-7
<PAGE> 48
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
Director
-------------------------------------------------
Waldemar del Valle
* Director
-------------------------------------------------
Luis E. Dubon, Jr.
Director
-------------------------------------------------
Antonio Luis Ferre
* Director
-------------------------------------------------
Hector R. Gonzalez
* Executive Vice President and
------------------------------------------------- Director
Jorge A. Junquera
* Director
-------------------------------------------------
Franklin A. Mathias
* Director
-------------------------------------------------
Manuel Morales, Jr.
* Director
-------------------------------------------------
Alberto M. Paracchini
* Director
-------------------------------------------------
Francisco Perez, Jr.
* Director
-------------------------------------------------
Francisco M. Rexach, Jr.
* Director
-------------------------------------------------
Felix J. Serralles Nevares
* Director
-------------------------------------------------
Emilio Jose Venegas
Director
-------------------------------------------------
Julio E. Vizcarrondo
/s/ David H. Chafey, Jr. Executive Vice President
------------------------------------------------- (Principal Financial Officer)
David H. Chafey, Jr.
* Senior Vice President
------------------------------------------------- (Principal Accounting Officer)
Amilcar Jordan
*/s/ David H. Chafey, Jr.
-------------------------------------------------
David H. Chafey, Jr.
as attorney-in-fact for
each of the persons
indicated
</TABLE>
II-8
<PAGE> 49
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
undersigned Co-registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned thereunto duly authorized, in the City of San Juan, Commonwealth of
Puerto Rico, on the 25th day of September, 1995.
POPULAR INTERNATIONAL BANK, INC.
(Co-registrant)
By /s/ David H. Chafey, Jr.
-----------------------------
Name: David H. Chafey, Jr.
Title: President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed on September 25, 1995 by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
* Chairman of the Board
-------------------------------------------------
Richard L. Carrion
* Director
-------------------------------------------------
Alfonso F. Ballester
/s/ David H. Chafey, Jr. President and Director
-------------------------------------------------
David H. Chafey, Jr.
Director
-------------------------------------------------
Manuel L. del Valle
</TABLE>
II-9
<PAGE> 50
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
* Executive Vice President and
------------------------------------------------- Director
Jorge A. Junquera
* Senior Vice President and
------------------------------------------------- Treasurer
Amilcar Jordan (Principal Accounting Officer)
*/s/ David H. Chafey, Jr.
- --------------------------------------------------
David H. Chafey, Jr.
as attorney-in-fact for each
of the persons indicated
</TABLE>
II-10
<PAGE> 51
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Undersigned Co-registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned thereunto duly authorized, in the City of San Juan, Commonwealth of
Puerto Rico, on the 25th day of September, 1995.
BANPONCE FINANCIAL CORP.
(Co-registrant)
By /s/ David H. Chafey, Jr.
---------------------------
Name: David H. Chafey, Jr.
Title: President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed on September 25, 1995 by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
* Chairman
-------------------------------------------------
Richard L. Carrion
* Director
-------------------------------------------------
Alfonso F. Ballester
/s/ David H. Chafey, Jr. President and Director
-------------------------------------------------
David H. Chafey, Jr.
</TABLE>
II-11
<PAGE> 52
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
Director
-------------------------------------------------
Manuel L. del Valle
Director
-------------------------------------------------
Thomas J. Fitzpatrick
* Director
-------------------------------------------------
Jorge A. Junquera
* Executive Vice President and
------------------------------------------------- Director
Larry B. Kesler
* Senior Vice President and
------------------------------------------------- Director
Roberto R. Herencia
* Senior Vice President
------------------------------------------------- (Principal Accounting Officer)
Amilcar Jordan
*/s/ David H. Chafey, Jr.
- --------------------------------------------------
David H. Chafey, Jr.
as attorney-in-fact for each
of the persons indicated
</TABLE>
II-12
