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EXHIBIT 10.20
INTEREST CALCULATION AGREEMENT
Between
BANCO POPULAR DE PUERTO RICO
and
THE CHASE MANHATTAN BANK
THIS AGREEMENT is made as of September 24, 1996 between Banco Popular
de Puerto Rico, a banking association chartered under the laws of the
Commonwealth of Puerto Rico (the "Bank") and The Chase Manhattan Bank, as the
interest calculation agent (the "Calculation Agent," which term shall include
any successor thereto).
WHEREAS, the Bank proposes to issue and sell on a continuous basis
floating rate bank notes ("Floating Rate Notes") and fixed rate bank notes
("Fixed Rate Notes") (the Fixed Rate Notes and Floating Rate Notes are
collectively referred to herein as the "Notes") pursuant to the terms and
conditions of a Distribution Agreement, dated September 24, 1996 (the
"Distribution Agreement"), by and among the Bank and the agents named therein
(the "Agents," such term to include any additional agent that may be appointed
by the Bank and described in a written notice to the Agents, the Issuing and
Paying Agent (as defined below) and the Calculation Agent) up to such aggregate
principal amount as may from time to time be authorized by the Bank to be at any
time outstanding;
WHEREAS, the Bank desires to appoint The Chase Manhattan Bank as
Calculation Agent and The Chase Manhattan Bank desires to accept such
appointment, pursuant to the terms and conditions set forth herein; and
WHEREAS, the Bank is entitled to the benefits of the Issuing and Paying
Agency Agreement dated as of September 24, 1996 (the "Issuing and Paying Agency
Agreement"), between the Bank and The Chase Manhattan Bank as Issuing and Paying
Agent (the "Issuing and Paying Agent");
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NOW IT IS HEREBY AGREED THAT:
SECTION 1. Appointment of Calculation Agent. The Bank hereby appoints
The Chase Manhattan Bank as calculation agent with respect to any Floating Rate
Notes to be issued by the Bank under the Issuing and Paying Agency Agreement.
The Calculation Agent hereby accepts its appointment as an independent party for
the purposes of calculating the interest rate of, and the amount of interest
payable on, the Floating Rate Notes, for each interest accrual period, upon the
terms and conditions set forth herein. The calculation of the interest rate
bases for the interest rates applicable to a Floating Rate Note shall be
determined by reference to such interest rate basis or bases specified in the
form of each Floating Rate Note supplied to the Calculation Agent.
SECTION 2. Calculation of Interest Rate Bases. (a) The Calculation
Agent shall calculate the interest rate of, and the amount of interest payable
on, the Floating Rate Notes for each interest accrual period and shall
communicate the same to the Bank and the Issuing and Paying Agent upon the terms
and conditions contained herein. The Bank shall cause the Issuing and Paying
Agent to provide the Calculation Agent with not less than two (2) but not more
than seven (7) Business Days' notice of the Interest Determination Date (as
defined in the applicable Floating Rate Note) with respect to which a particular
Floating Rate Note calculation is to be made by the Calculation Agent, and the
Calculation Agent shall notify the Issuing and Paying Agent of such Floating
Rate Note calculation on or before the applicable Calculation Date (as defined
in the Floating Rate Note) and shall confirm such calculation in writing within
twenty-four (24) hours after so notifying the Issuing and Paying Agent.
(b) In no event shall the interest rate on the Floating Rate Notes be
less than the Minimum Interest Rate, if any, or higher than the Maximum Interest
Rate, if any, designated in the applicable Floating Rate Note and related
pricing supplement (each, a "Pricing Supplement"), and in no event shall the
interest rate on the Floating Rate Notes be higher than the maximum rate
permitted by applicable law.
(c) The Calculation Agent shall calculate the amount of interest
payable on each Floating Rate Note in the manner and at the times set forth in
each such Floating Rate Note.
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(d) The Calculation Agent will, upon the request of any holder of a
Floating Rate Note, provide the interest rate then in effect, and the interest
rate which will become effective as a result of a determination made on the most
recent Interest Determination Date with respect to such Floating Rate Note.
SECTION 3. Status of Calculation Agent. Any acts taken by the
Calculation Agent under this Agreement or in connection with any Floating Rate
Notes, including, specifically, but without limitation, the calculation of any
interest rate for a Floating Rate Note, shall be deemed to have been taken by
the Calculation Agent solely in its capacity as an agent acting on behalf of the
Bank and shall not create or imply any obligation to, or any trust or agency
relationship with, any of the owners or holders of the Floating Rate Notes.
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 Bank, and the Bank shall pay such compensation and shall reimburse the
Calculation Agent for all reasonable expenses, disbursements and advances
(including reasonable legal fees and expenses) incurred or made by the
Calculation Agent pursuant to the services rendered by it under this Agreement
upon receipt of such invoices as the Bank may reasonably require.
SECTION 5. Rights and Liabilities of the Calculation Agent. From time
to time, the Bank will furnish the Calculation Agent with a written list of the
names of officers of the Bank authorized to give instructions and notices on
behalf of the Bank hereunder (each, an "Instructing Representative"). The
Calculation Agent shall be protected and shall incur no liability for, or in
respect of, any action taken or omitted to be taken, or suffered by it in
reliance upon any Floating Rate Note or written instruction, notice, request,
direction, order, certificate, consent, report, affidavit, statement or other
paper, document or communication reasonably believed by it in good faith to be
genuine and to have been approved or signed by the proper party or parties. Any
instruction, notice, request, direction, order, certificate, consent, report,
affidavit, statement or other paper, document or communication from the Bank 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 instruction, notice, request,
direction, order,
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certificate, consent, report, affidavit, statement, or other paper, document,
communication or comment is in writing and signed by an Instructing
Representative. The Calculation Agent may conclusively rely, as to the truth of
the statements expressed therein, upon any order, written instruction, notice,
request, direction, certificate, consent, report, affidavit, statement, or other
paper, document or communication, reasonably believed by it in good faith to be
genuine, from the Bank or given by it and sent, delivered or directed to the
Calculation Agent and conforming to the requirements of this Agreement, and the
Calculation Agent shall be protected in acting upon any such order, written
instruction, notice, request, direction, certificate, consent, report,
affidavit, statement, or other paper, document or communication. The Calculation
Agent may consult with counsel satisfactory to it and the advice of such counsel
or any opinion of counsel shall constitute full and complete authorization and
protection of the Calculation Agent with 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 advice of such counsel. The Calculation Agent shall not be
liable for any error resulting from the use of or reliance on a source or
publication required to be used by any Floating Rate Note, this Agreement or any
other document. Neither the Calculation Agent nor its officers, directors,
employees, agents or attorneys shall be liable to the Bank or any other party
for any act or omission hereunder, or for any error of judgment made in good
faith by it or them except in the case of gross negligence or willful
misconduct. No party shall be liable for any default resulting from force
majeure, which shall be deemed to include any circumstances beyond the
reasonable control of the party affected.
SECTION 6. Duties of Calculation Agent. The Calculation Agent shall be
obligated only to perform such duties as are specifically set forth herein and
no other duties or obligations on the part of the Calculation Agent, in its
capacity as such, shall be implied by this Agreement.
SECTION 7. Termination, Resignation or Removal of the Calculation
Agent. The Calculation Agent may at any time terminate this Agreement by giving
written notice to the Bank and the Issuing and Paying Agent specifying the date
on which the desired resignation shall become effective (the "Effective Date");
provided that such notice shall be given not less than ninety (90) days prior to
the Effective Date unless the Bank otherwise agrees in writing. The Bank may
terminate this
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Agreement at any time by giving written notice to the Calculation Agent and
specifying the Effective Date of such termination. Notwithstanding the
foregoing, no termination by either the Calculation Agent or the Bank shall
become effective prior to the date of the appointment of a successor Calculation
Agent and the acceptance of such appointment by such successor Calculation Agent
as provided in Section 8 hereof. 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 Bank hereunder and to the
reimbursement of all reasonable expenses incurred in connection with the
services rendered by it hereunder, as provided by Section 4 hereof. The
provisions of Sections 5, 9 and 13 hereof shall remain in full force and effect
following termination by either party.
SECTION 8. Appointment of Successor Calculation Agent. In the event of
the termination of this Agreement pursuant to Section 7 hereof, the Bank shall
promptly appoint a successor Calculation Agent whose appointment shall become
effective as of the Effective Date. Any successor Calculation Agent appointed by
the Bank and approved by the Issuing and Paying Agent following termination of
this Agreement pursuant to the provisions of Section 7 hereof, shall execute and
deliver to the original Calculation Agent, the Bank and the Issuing and Paying
Agent an instrument accepting such appointment. Thereupon, such successor
Calculation Agent shall, without any further act, deed or conveyance, become
vested with all the authority, rights, powers, trusts, immunities, duties and
obligations of the Calculation Agent and with like effect as if originally named
as Calculation Agent hereunder, and the original Calculation Agent shall
thereupon be obligated to transfer and deliver such relevant records or copies
thereof maintained by the Calculation Agent in connection with the performance
of its obligations hereunder. Upon the appointment of a successor Calculation
Agent and acceptance by it of such appointment the Calculation Agent so
superseded shall cease to be such Calculation Agent hereunder. In the event of
termination of this Agreement by the Calculation Agent or the Bank pursuant to
Section 7 hereof, if a successor Calculation Agent has not been appointed by the
Bank by the Effective Date of such termination, the Calculation Agent may, at
the expense of the Bank, petition any court of competent jurisdiction for
appointment of a successor Calculation Agent. Any successor Calculation Agent so
appointed by such court shall immediately and without further act be superseded
by any
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successor Calculation Agent appointed as provided above within one year from the
date of the appointment by such court.
SECTION 9. Indemnification. The Bank shall indemnify and hold harmless
the Calculation Agent, its officers, directors, agents or attorneys and
employees from and against all actions, claims, damages, liabilities, losses and
expenses (including reasonable legal and other professional 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 willful misconduct of the Calculation Agent, its officers,
directors or employees. The Calculation Agent shall incur no liability and shall
be indemnified and held harmless by the Bank for any error resulting from use of
or reliance on a source of publication required to be used by the Floating Rate
Notes or this Agreement. The Calculation Agent shall incur no liability and
shall be indemnified and held harmless by the Bank for, or in respect of, any
actions taken, omitted to be taken or suffered to be taken in good faith by the
Calculation Agent in reliance upon (i) an opinion or advice of counsel, or (ii)
a written instruction from the Bank. The provisions of this Section shall
survive the termination of this Agreement.
SECTION 10. Merger, Consolidation or Sale of Business by the
Calculation Agent. Any corporation into which the Calculation Agent may be
merged or consolidated, or any corporation resulting from any merger 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 assets and business and which assumes the obligations
of the Calculation Agent hereunder, shall, to the extent permitted by applicable
law, become the Calculation Agent under this Agreement without the execution or
filing of any paper or any further act by the parties hereto. Notice in writing
of any such merger, consolidation or sale shall be given by the Calculation
Agent to the Bank and to the Issuing and Paying Agent prior to or upon the
effectiveness of such merger, consolidation or sale.
SECTION 11. Notices. Any notice or other communication required to be
given hereunder shall be delivered in person, sent by letter or by telecopy to
the addresses given below or such other address as a party hereto may have
subsequently specified in writing:
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If to the Bank:
Banco Popular de Puerto Rico
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxx, Xxxxxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Telecopy: (787) 754--9290
If to the Calculation Agent or the Issuing and Paying Agent:
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Agency Administration
Telecopy: (212) 946--7682
Any notice hereunder given by letter or telecopy 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 12. Benefit of Agreement. Except as provided herein, this
Agreement is solely for the benefit of the parties hereto and their successors
and assigns and no other person shall acquire or have any rights under or by
virtue hereof. The terms "successors" and "assigns" shall not include any
purchaser of any Floating Rate Notes by reason merely of such purchase.
SECTION 13. Governing Law. This Agreement is to be delivered and
performed in, and shall be construed and enforced in accordance with, and the
rights of the parties shall be governed by, the laws of the State of New York
applicable to agreements to be entered into and to be performed in such state
without regard to conflicts of laws principles.
SECTION 14. Severability. If any provision of this Agreement shall be
held or deemed to be or shall, in fact, be invalid, inoperative or unenforceable
as applied in any particular case in any or all jurisdictions because it
conflicts with any provision of any constitution, statute, rule or public policy
or for any other reason, such circumstances shall not have the effect of
rendering the provision in question invalid, inoperative or unenforceable in any
other case, circumstances or jurisdiction, or of rendering
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any other provision or provisions of this Agreement invalid, inoperative or
unenforceable, to any extent whatsoever.
SECTION 15. Counterparts. This Agreement may be executed by the parties
hereto in any number of counterparts, and by each of the parties hereto in
separate counterparts, each of such counterparts, when so executed and
delivered, shall be deemed to be an original, but all such counterparts shall
together constitute one and the same instrument.
SECTION 16. Amendments. This Agreement may be amended from time to
time by any instrument in writing executed and delivered by each of the parties
hereto.
SECTION 17. Amendment of the Issuing and Paying Agency Agreement.
Anything in the Issuing and Paying Agency Agreement to the contrary
notwithstanding, any amendment or supplement thereto shall not become effective
with respect to this Agreement or the Calculation Agent in its capacity as such
unless and until the Calculation Agent shall have consented in writing to such
amendment or supplement.
SECTION 18. Amendments to Forms of Notes. The Bank shall not, without
first obtaining the prior written consent of the Calculation Agent, make any
change to the Notes if such change would materially and adversely affect the
Calculation Agent's duties and obligations under this Agreement.
SECTION 19. Complete Agreement. This Agreement embodies the entire
understanding between the parties hereto and supersedes all prior agreements and
understandings relating to the subject matter hereof.
SECTION 20. Conflicts with Other Agreements. In any conflict relating
to the rights or obligations of the Calculation Agent in connection with
calculation of interest on the Floating Rate Notes, the terms of this Agreement
shall govern such rights and obligations.
SECTION 21. Ownership of Securities. The Calculation Agent, its
officers, employees and shareholders may become the owners of or acquire any
interest in any Notes, with the same rights that it or they would have if it
were not the Calculation Agent, and may engage or be interested in any financial
or other transaction with the Bank as freely as if it were not the Calculation
Agent.
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SECTION 22. Successors and Assigns. All covenants and agreements
contained in this Agreement by or on behalf of any of the parties hereto shall
bind and inure to the benefit of the respective successors and assigns of the
parties hereto, whether so expressed or not; provided, however, this Section 22
shall not by itself authorize any delegation of duties by the Calculation Agent
or any assignment other than any assignment expressly permitted by the terms of
this Agreement.
SECTION 23. Definitions. Capitalized terms used herein and not
otherwise defined shall have the respective meanings assigned to them in the
Issuing and Paying Agency Agreement.
SECTION 24. Pricing Supplements. The Bank shall promptly
deliver copies of each Pricing Supplement to the Calculation Agent.
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IN WITNESS WHEREOF, this Agreement has been entered into the day and
year first above written.
BANCO POPULAR DE PUERTO RICO
By:
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Name: Xxxx X. Xxxxx
Title: Senior Vice President
By:
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Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President
THE CHASE MANHATTAN BANK,
as Calculation Agent
By:
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Name:
Title:
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IN WITNESS WHEREOF, this Agreement has been entered into the day and
year first above written.
BANCO POPULAR DE PUERTO RICO
By:
-----------------------------
Name:
Title:
By:
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Name:
Title:
THE CHASE MANHATTAN BANK,
as Calculation Agent
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Vice President
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