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EXHIBIT (10)(d)
BANPONCE FINANCIAL CORP.
INTEREST CALCULATION AGENCY AGREEMENT
INTEREST CALCULATION AGENCY AGREEMENT between BanPonce Financial Corp.,
a Delaware corporation (the "Issuer"), and The First National Bank of Chicago,
dated as of October 6, 1995.
PRELIMINARY STATEMENT
1. The Issuer proposes to issue and sell its Medium-Term Notes,
Series C (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 (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 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
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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 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
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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 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,
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disbursements and advances incurred or made by the Calculation Agent in
connection with the services rendered 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 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
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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 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
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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 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
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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 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 the Calculation Agent may be
merged, converted or consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Calculation Agent
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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:
To the Issuer:
BanPonce Financial Corp
c/o BanPonce Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
To the Calculation Agent:
The First National Bank of Chicago
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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To the Trustee:
The First National Bank of Chicago
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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 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.
BANPONCE FINANCIAL CORP.
By: _______________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: President
THE FIRST NATIONAL BANK
OF CHICAGO
By: ________________________
Name:
Title:
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