Execution Copy
POPULAR NORTH AMERICA, INC.
INTEREST CALCULATION AGENCY AGREEMENT
INTEREST CALCULATION AGENCY AGREEMENT between Popular North America,
Inc., a Delaware corporation (the "Issuer"), and ▇.▇. ▇▇▇▇▇▇ Trust Company,
National Association, dated as of June 23, 2004.
PRELIMINARY STATEMENT
1. The Issuer proposes to issue and sell its Medium-Term Notes,
Series F (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, by the Second Supplemental Indenture,
dated as of May 8, 1997 and by the Third Supplemental Indenture, dated as of
August 5, 1999 (together, the "Indenture," the terms defined being used herein
as defined therein or in the Notes), among the Issuer, Popular, Inc., a Puerto
Rico corporation, and ▇.▇. ▇▇▇▇▇▇ Trust Company, National Association (successor
in interest to Bank One, N.A.), as 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 11th 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 ▇.▇. ▇▇▇▇▇▇ Trust Company, National
Association hereby agree as follows:
Section 1. Appointment of Calculation Agent. The Issuer hereby appoints
▇.▇. ▇▇▇▇▇▇ Trust Company, National Association 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 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
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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 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
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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 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
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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 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 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
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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 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.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
To the Calculation Agent:
▇.▇. ▇▇▇▇▇▇ Trust Company, National Association
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇/▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
To the Trustee:
▇.▇. ▇▇▇▇▇▇ Trust Company, N.A.
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇/▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Insitutional Trust Services/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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.
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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.
IN WITNESS WHEREOF, this Agreement has been entered into the day and
year first above written.
POPULAR NORTH AMERICA, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
▇.▇. ▇▇▇▇▇▇ TRUST COMPANY,
NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
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