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EXHIBIT 10(d)
POPULAR NORTH AMERICA, INC.
INTEREST CALCULATION AGENCY AGREEMENT
INTEREST CALCULATION AGENCY AGREEMENT between Popular North
America, Inc., a Delaware corporation (the "Issuer"), and The First National
Bank of Chicago, dated as of May 23, 1997.
PRELIMINARY STATEMENT
1.The Issuer proposes to issue and sell its Medium-Term Notes,
Series D (the "Notes") from time to time under, and pursuant to, the terms of
an Indenture, dated as of October 1, 1991, as amended by the First Supplemental
Indenture, dated as of February 28, 1995, and by the Second Supplemental
Indenture, dated as of May 8, 1997 (together, the "Indenture," the terms
defined being used herein as defined therein or in the Notes), among the
Issuer, BanPonce Corporation, a Puerto Rico corporation, and The First National
Bank of Chicago, trustee thereunder (acting in such capacity, the "Trustee"),
as Successor Trustee to Citibank, N.A.
2.The Issuer desires to appoint an agent of the Issuer to
calculate the base rates applicable to those Notes
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on which interest is to accrue at a variable or floating rate ("Floating Rate
Notes"), determined by references to LIBOR, the Eleventh District Cost of Funds
Rate, the Commercial Paper Rate, the Treasury Rate, the Certificate of Deposit
Rate, the CMT Rate, the Prime Rate or the Federal Funds Rate (collectively, the
"Base Rates") as are specified and described in the Floating Rate Notes, a copy
of which is attached hereto as Exhibit A.
NOW, THEREFORE, the Issuer and The First National Bank of
Chicago hereby agree as follows:
Section 1. Appointment of Calculation Agent. The Issuer hereby
appoints The First National Bank of Chicago as Calculation Agent (in such
capacity, the "Calculation Agent") of the Issuer with respect to any Floating
Rate Notes to be issued by the Issuer under and pursuant to the terms of the
Indenture, and the Calculation Agent hereby accepts its obligations as set
forth in this Agreement upon the terms and conditions set forth herein.
Section 2. Calculation of Base Rates. Unless otherwise
specified to the Calculation Agent with respect to
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any particular note, the calculation date for each applicable Interest
Determination Date for any Note shall be the earlier of (i) the tenth calendar
day after such Interest Determination Date, or if any such day is not a
Business Day (as defined in the Indenture) the next succeeding Business Day or
(ii) the Business Day preceding the applicable Interest Payment Date or
Maturity, as the case may be. The Calculation Agent shall notify the Issuer and
the Trustee of such Base Rate on such calculation date. If at any time the
Calculation Agent is not also acting as Trustee under the Indenture, the Issuer
shall, upon the issuance of each Floating Rate Note having a different Base
Rate or different Interest Determination Dates than the Base Rate or Interest
Determination Dates for any prior Floating Rate Note, notify such Calculation
Agent of such Interest Determination Dates and Base Rate for such Floating Rate
Note.
Section 3. New Base Rates. If the Issuer proposes to issue
Floating Rate Notes whose interest rate will be determined on a basis or
formula not referred to
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above (a "New Base Rate"), the Issuer shall give a description of such New Base
Rate to the Calculation Agent. The Calculation Agent shall determine if it is
able and willing to calculate the New Base Rate and upon its agreement in
writing to do so the term "Base Rate" shall be deemed to include the New Base
Rate. If the Calculation Agent notifies the Issuer that it is not able or
willing to calculate the New Base Rate, or that it is only willing to do so on
the basis of an increase of its fees not acceptable to the Issuer, the
Calculation Agent shall have no responsibility with respect to such New Base
Rate and the Issuer shall appoint a different calculation agent to determine
the New Base Rate.
Section 4. Fees and Expenses. The Calculation Agent shall be
entitled to such compensation for its services under this Agreement as may be
agreed upon with the Issuer, and the Issuer shall pay such compensation and
shall reimburse the Calculation Agent for all reasonable expenses,
disbursements and advances incurred or made by the Calculation Agent in
connection with the services rendered
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by it under this Agreement, including reasonable legal fees and expenses, upon
receiving an accounting therefor from the Calculation Agent.
Section 5. Right and Liabilities of Calculation Agent. The
Calculation Agent shall incur no liability for, or in respect of, any action
taken, omitted to be taken or suffered by it in reliance upon any Floating Rate
Note, certificate, affidavit, instruction, notice, request, direction, order,
statement or other paper, document or communication reasonably believed by it
to be genuine. Any order, certificate, affidavit, instruction, notice, request,
direction, statement or other communication from the Issuer made or given by it
and sent, delivered or directed to the Calculation Agent under, pursuant to or
as permitted by any provision of this Agreement shall be sufficient for
purposes of this Agreement if such communication is in writing and signed by
any officer of the Issuer. The Calculation Agent may consult with counsel
satisfactory to it and the opinion of such counsel shall constitute full and
complete authorization and protection of the Calculation Agent with
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respect to any action taken, omitted to be taken or suffered by it hereunder in
good faith and in accordance with and in reliance upon the opinion of such
counsel. In acting under this Agreement, the Calculation Agent (in its capacity
as such) does not assume any obligation towards, or any relationship of agency
or trust for or with the holders of the Notes.
Section 6. Right of Calculation Agent to Own Floating Rate
Notes. The Calculation Agent may act as Trustee under the Indenture and it, its
officers, employees and shareholders may become owners of, or acquire any
interests in, Floating Rate Notes, with the same rights as if the Calculation
Agent were not the Calculation Agent, and may engage in, or have an interest
in, any financial or other transaction with the Issuer as if the Calculation
Agent were not the Calculation Agent.
Section 7. Duties of Calculation Agent. The Calculation Agent
shall be obliged only to perform such duties as are specifically set forth
herein and no other
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duties or obligations on the part of the Calculation Agent, in its capacity as
such, shall be implied by this Agreement.
Section 8. Termination, Resignation or Removal of Calculation
Agent. The Calculation Agent may at any time terminate this Agreement by giving
no less than 90 days' written notice to the Issuer unless the Issuer consents
in writing to a shorter time. Upon receipt of notice of termination by the
Calculation Agent, the Issuer agrees promptly to appoint a successor
Calculation Agent. The Issuer may terminate this Agreement at any time by
giving written notice to the Calculation Agent and specifying the date when the
termination shall become effective; provided, however, that not termination by
the Calculation Agent or by the Issuer shall become effective prior to the date
of the appointment by the Issuer, as provided in Section 9 hereof, of a
successor Calculation Agent and the acceptance of such appointment by such
successor Calculation Agent. If an instrument of acceptance by a successor
Calculation Agent shall not have been delivered to the Calculation Agent within
30 days after the giving of such notice of
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resignation, the resigning Calculation Agent may petition any court of
competent jurisdiction for the appointment of a successor Calculation Agent.
Upon termination by either party pursuant to the provisions of this Section,
the Calculation Agent shall be entitled to the payment of any compensation owed
to it by the Issuer hereunder and to the reimbursement of all reasonable
expenses, disbursements and advances incurred or made by the Calculation Agent
in connection with the services rendered by it hereunder, as provided by
Section 4 hereof.
Section 9. Appointment of Successor Calculation Agent. Any
successor Calculation Agent appointed by the Issuer or by a court following
termination of this Agreement pursuant to the provisions of Section 8 hereof
shall execute and deliver to the Calculation Agent and to the Issuer an
instrument accepting such appointment, and thereupon such successor Calculation
Agent shall, without any further act or instrument, become vested with all the
rights, immunities, duties and obligations of the Calculation Agent, with like
effect as if originally named as Calculation Agent
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hereunder, and the Calculation Agent shall thereupon be obligated to transfer
and deliver, and such successor Calculation Agent shall be entitled to receive
and accept, copies of any available records maintained by the Calculation Agent
in connection with performance of its obligations hereunder.
Section 10. Indemnification. The Issuer shall indemnify and
hold harmless the Calculation Agent, its officers and employees from and
against all actions, claims, damages, liabilities, losses and expenses
(including reasonable legal fees and expenses) relating to or arising out of
actions or omissions in any capacity hereunder, except actions, claims,
damages, liabilities, losses and expenses caused by the gross negligence or
wilful misconduct of the Calculation Agent, its officers or employees. This
Section 10 shall survive the payment in full of all obligations under the
Notes, whether by redemption, repayment or otherwise.
Section 11. Merger, Consolidation or Sale of Business by
Calculation Agent. Any corporation into which
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the Calculation Agent may be merged, converted or consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Calculation Agent may be a party, or any corporation to which the Calculation
Agent may sell or otherwise transfer all or substantially all of its corporate
trust business, shall, to the extent permitted by applicable law, become the
Calculation Agent under this Agreement without the execution of any paper or
any further act by the parties hereto.
Section 12. Notices. Any notice or other communication given
hereunder shall be delivered in person, sent by letter, telecopy or telex or
communicated by telephone (subject, in the case of communication by telephone,
to written confirmation dispatched within 24 hours) to the addresses given
below or such other address as the party to receive such notice may have
previously specified:
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To the Issuer:
Popular North America, Inc.
c/o Popular, Inc.
000 Xxxxx Xxxxxx Xxxxxx
Xxxx Xxx, Xxxxxx Xxxx 00000
Attention:Chief Financial Officer
Facsimile:(000) 000-0000
To the Calculation Agent:
The First National Bank of Chicago
000 X. 00xx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention:Corporate Trust Administration
Facsimile:(000) 000-0000
To the Trustee:
The First National Bank of Chicago
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention:Corporate Trust Administration
Facsimile:(000) 000-0000
Any notice hereunder given by letter, telecopy or telex shall be deemed to have
been received when it would have been received in the ordinary course of post
or transmission, as the case may be.
Section 13. Benefit of Agreement. Except as provided herein,
this Agreement is solely for the benefit of
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the parties hereto and their successors and assigns and no other persons shall
acquire or have any rights under or by virtue hereof.
Section 14. Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York.
Section 15. Counterparts. This Agreement may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
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IN WITNESS WHEREOF, this Agreement has been entered into the
day and year first above written.
POPULAR NORTH AMERICA, INC.
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: President
THE FIRST NATIONAL BANK
OF CHICAGO
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President
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