--------------------------------------------------------------------------------
AMENDED AND RESTATED
AGENCY AGREEMENT
relating to
BANKAMERICA CORPORATION
and
NATIONSBANK, X.X.
X.X. $8,500,000,000
Euro Medium-Term Note Program
among
BANKAMERICA CORPORATION
and
NATIONSBANK, N.A.
as Issuers
and
THE CHASE MANHATTAN BANK, London Branch
as Issuing and Principal Paying Agent
and
CHASE MANHATTAN BANK LUXEMBOURG S.A.
as Paying Agent
Dated as of November 16, 1998
--------------------------------------------------------------------------------
INDEX
Clause Page
------ ----
1. Definitions and Interpretation............................................1
2. Appointments of Agent, Paying Agents and Calculation Agents...............2
3. Issue of Temporary Global Notes...........................................4
4. Determination of Exchange Date, Issue of Permanent Global Notes
or Definitive Notes and Determination of Restricted Period...............4
5. Issue of Definitive Notes.................................................6
6. Terms of Issue............................................................6
7. Payments..................................................................7
8. Determinations and Notifications in Respect of Notes and
Interest Determination....................................................8
9. Notice of any Withholding or Deduction...................................11
10. Duties of the Agent in Connection with Early Redemption..................11
11. Receipt and Publication of Notices; Receipt of Certificates..............12
12. Cancellation of Notes, Receipts, Coupons and Talons......................12
13. Issue of Replacement Notes, Receipts, Coupons and Talons.................13
14. Copies of Documents Available for Inspection.............................14
15. Meetings of Noteholders..................................................15
16. Repayment by the Agent...................................................15
17. Conditions of Appointment................................................15
18. Communication Between the Parties........................................16
19. Changes in Agent and Paying Agents.......................................16
20. Merger and Consolidation.................................................18
21. Notification of Changes to Paying Agents.................................18
22. Change of Specified Office...............................................18
23. Notices..................................................................18
24. Taxes and Stamp Duties...................................................19
25. Commissions, Fees and Expenses...........................................20
26. Indemnity................................................................20
27. Reporting................................................................20
28. Governing Law............................................................21
29. Amendments...............................................................21
30. Descriptive Headings.....................................................22
Schedule 1 - Form of Temporary Global Note
Schedule 2 - Form of Permanent Global Note
Schedule 3 - Form of Definitive Note, Coupon, Receipt and Talon
Schedule 4 - Terms and Conditions
Schedule 5 - Form of Certificate to be Presented by Euroclear or Cedel Bank
Schedule 6 - Form of Certificate of Beneficial Owner
Schedule 7 - Provision for Meetings of Noteholders
Schedule 8 - Form of Put Notice
Schedule 9 - Form of Calculation Agency Agreement
i
THIS AMENDED AND RESTATED AGREEMENT dated as of November 16, 1998 among:
(i) BankAmerica Corporation, a Delaware corporation, and the successor in
interest to NationsBank Corporation (the "Corporation") and
NationsBank, N.A. (the "Bank"; the Bank and the Corporation are each
an "Issuer" and collectively, "Issuers");
(ii) The Chase Manhattan Bank, London Branch (the "Agent" and the "Issuing
and Principal Paying Agent"); and
(iii) Chase Manhattan Bank Luxembourg S.A. (the "Paying Agent").
WHEREAS, the Corporation, the Agent and the Paying Agent wish to update the
arrangements originally agreed among them pursuant to that certain Agency
Agreement dated November 8, 1995, as amended and restated to the date hereof,
including the amendment and restatement dated May 12, 1998 which added the Bank
as an additional Issuer of euro medium-term notes (the "Original Agency
Agreement").
WHEREAS, the Issuers propose to issue up to U.S. $6,500,000,000 with
respect to the Corporation and $2,000,000,000 with respect to the Bank (or its
equivalent in other currencies) in aggregate principal amount of Euro
Medium-Term Notes (the "Notes") outstanding at any one time as provided in an
Amended and Restated Program Agreement of even date among the Issuers, the
Arrangers and the Dealers named therein (the "Program Agreement") and as
described in an Offering Circular of even date (the "Offering Circular");
WHEREAS, Notes will be issued in the denominations specified in the
relevant Pricing Supplement issued in connection with each Series and each
Tranche of Notes;
WHEREAS, beneficial interests in each Tranche of Notes will initially be
represented by a Temporary Global Note, exchangeable, as provided in such
Temporary Global Note, for beneficial interests in a Permanent Global Note and,
only under limited circumstances, beneficial interests in a Global Note may be
exchangeable for Definitive Notes, in each case in accordance with the terms of
the Global Notes; and
NOW, THEREFORE, it is agreed as follows:
1. Definitions and Interpretation
(1) Terms and expressions defined in the Program Agreement or the Notes or
used in the applicable Pricing Supplement shall have the same meanings in this
Agreement, except where the context requires otherwise.
(2) Without prejudice to the foregoing in this Agreement:
"outstanding" means, in relation to the Notes, all the Notes issued other
than (a) those which have been redeemed in accordance with the Terms and
Conditions, (b) those in respect of which the date for redemption in accordance
with the Terms and Conditions has occurred and the redemption moneys (including
all interest accrued on such Notes to the date for such redemption and any
interest or other amounts payable under the Terms and Conditions after such
date) have been duly paid to the Agent as provided in this Agreement and remain
available for payment against presentation and surrender of Notes and/or
Receipts and/or Coupons, as the case may be, (c) those which have become void
under Condition 7, (d) those which have been purchased and canceled as provided
in Condition 5 (or as provided in the Global Notes), (e) those mutilated or
defaced Notes which have been surrendered in exchange for replacement Notes
pursuant to Condition 9, (f) (for purposes only of determining how many Notes
are outstanding and without prejudice to their status for any other purpose)
those Notes alleged to have been lost, stolen or destroyed and in respect of
which replacement Notes have been issued pursuant to Condition 9, (g) any
Temporary Global Note to the extent that it shall have been exchanged for a
1
Permanent Global Note, in each case pursuant to their respective provisions;
provided that for the purposes of (i) ascertaining the right to attend and vote
at any meeting of the Noteholders and (ii) the determination of how many Notes
are outstanding for the purposes of Schedule 7, those Notes which are
beneficially held by, or are held on behalf of, an Issuer or any of its
affiliates shall (unless and until ceasing to be so held) be deemed not to
remain outstanding;
"Paying Agents" means the Issuing and Principal Paying Agent and the Paying
Agent referred to above and such other Paying Agent or Agents as may be
appointed from time to time hereunder; and
(3) The term "Notes" as used in this Agreement shall include the Permanent
Global Note, the Definitive Notes and the Coupons and, as the case may be, the
Temporary Global Note. The term "Global Note" as used in this Agreement shall
include both the Temporary Global Note and the Permanent Global Note, each of
which is a "Global Note." The term "Noteholders" as used in this Agreement shall
mean the several persons who are for the time being the holders of the Notes,
which expression shall, while the Notes are represented by a Global Note, mean
(other than with respect to the payment of principal and interest on the Notes,
the right to which shall be vested as against the relevant Issuer solely in the
bearer of such Global Note in accordance with and subject to its terms) the
persons for the time being shown in the records of Euroclear (as defined below)
or Cedel Bank (as defined below)(other than Cedel Bank, if Cedel Bank shall be
an accountholder of Euroclear, and Euroclear, if Euroclear shall be an
accountholder of Cedel Bank) as the Noteholders of particular principal amounts
of Notes (in which regard any certificate or other document issued by Euroclear
or Cedel Bank as to the principal amount of Notes standing to the credit of the
account of any person shall be conclusive and binding for all purposes).
(4) For purposes of this Agreement, the Notes of each Series shall form a
separate series of Notes and the provisions of this Agreement shall apply
mutatis mutandis separately and independently to the Notes of each Series and in
such provisions the expressions "Notes", "Noteholders", "Receipts",
"Receiptholders", "Coupons", "Couponholders", "Talons" and "Talonholders" shall
be construed accordingly.
(5) All references in this Agreement to principal and/or interest or both
in respect of the Notes or to any moneys payable by an Issuer under this
Agreement shall have the meaning set out in Condition 4.
(6) All references in this Agreement to the "relevant currency" shall be
construed as references to the currency in which the relevant Notes and/or
Coupons are denominated (or payable in the case of Dual Currency Notes).
(7) In this Agreement, Clause headings are inserted for convenience and
ease of reference only and shall not affect the interpretation of this
Agreement. All references in this Agreement to the provisions of any statute
shall be deemed to be references to that statute as from time to time modified,
extended, amended or re-enacted or to any statutory instrument, order or
regulation made thereunder or under such re-enactment.
(8) All references in this Agreement to an agreement, instrument or other
document (including, without limitation, this Agreement, the Program Agreement,
the Notes and any Terms and Conditions appertaining thereto) shall be construed
as a reference to that agreement, instrument or document as the same may be
amended, modified, varied or supplemented from time to time.
(9) Any references herein to Euroclear and/or Cedel Bank shall, whenever
the context permits, be deemed to include a reference to any additional or
alternative clearance system approved by the Issuers and the Agent.
2. Appointments of Agent, Paying Agents and Calculation Agents
(1) The Issuers hereby appoint The Chase Manhattan Bank, London Branch, as
Agent, and The Chase Manhattan Bank, London Branch, hereby accepts such
appointment as Agent of the Issuers, upon the terms and subject to the
conditions set out below, for the purposes of:
2
(a) completing, authenticating and delivering Global Notes and (if
required) authenticating and delivering Definitive Notes;
(b) exchanging Temporary Global Notes for Permanent Global Notes or
Definitive Notes, as the case may be, in accordance with the terms of such
Temporary Global Notes;
(c) under limited circumstances, exchanging Permanent Global Notes for
Definitive Notes in accordance with the terms of such Permanent Global
Notes;
(d) paying sums due on Global Notes and Definitive Notes, Receipts and
Coupons;
(e) determining the end of the Restricted Period applicable to each
Tranche;
(f) unless otherwise specified in the applicable Pricing Supplement,
determining the interest and/or other amounts payable in respect of the
Notes in accordance with the Terms and Conditions;
(g) arranging on behalf of the Issuers for notices to be communicated
to the Noteholders;
(h) preparing and sending monthly reports to the Ministry of Finance
of Japan (the "MoF"), the German Central Bank and the Bank of England and,
subject to confirmation from the relevant Issuer for the need for such
further reporting, ensuring that all necessary action is taken to comply
with any reporting requirements of any competent authority of any relevant
currency as may be in force from time to time with respect to the Notes to
be issued under the Program;
(i) subject to the Procedures Memorandum, submitting to the Stock
Exchange such number of copies of each Pricing Supplement which relates to
Notes which are to be listed as it may reasonably require;
(j) receiving notice from Euroclear and/or Cedel Bank relating to the
certificates of non-U.S. beneficial ownership of the Notes; and
(k) performing all other obligations and duties imposed upon it by the
Terms and Conditions and this Agreement.
(2) The relevant Issuer may, in its discretion, appoint one or more agents
outside the United States and its possessions (each a "Paying Agent") for the
payment (subject to applicable laws and regulations) of the principal of and any
interest and Additional Amounts, if any, (as defined in Section 6 of the Terms
and Conditions) on the Notes. Each Issuer hereby appoints Chase Manhattan Bank
Luxembourg S.A., at its office in Luxembourg at 0 xxx Xxxxxxx, X-0000
Xxxxxxxxxx-Xxxxx, as its Paying Agent in Luxembourg. Each Paying Agent shall
have the powers and authority granted to and conferred upon it herein and in the
Notes, and such further powers and authority, acceptable to it, to act on behalf
of the relevant Issuer as such Issuer may hereafter grant to or confer upon it
in writing. As used herein, "paying agencies" shall mean paying agencies
maintained by a Paying Agent on behalf of an Issuer as provided elsewhere
herein.
(3) The Issuers will appoint an agent to make certain calculations with
respect to the Notes (the "Calculation Agent") pursuant to the Terms and
Conditions.
3
3. Issue of Temporary Global Notes
(1) Subject to sub-clause (2), following receipt of a notification from an
Issuer in respect of an issue of Notes (such notification being by receipt of a
confirmation (a "Confirmation"), substantially in the applicable form set out in
the Procedures Memorandum) the Agent will take the steps required of the Agent
in the Procedures Memorandum. For this purpose the Agent is hereby authorized on
behalf of such Issuer:
(a) to prepare a Temporary Global Note in accordance with such
Confirmation by attaching a copy of the applicable Pricing Supplement to a
copy of the relevant master Temporary Global Note;
(b) to authenticate (or cause to be authenticated) such Temporary
Global Note;
(c) to deliver such Temporary Global Note to the specified common
depositary of Euroclear and/or Cedel Bank in accordance with the
Confirmation against receipt from the common depositary of confirmation
that such common depositary is holding the Temporary Global Note in safe
custody for the account of Euroclear and/or Cedel Bank and to instruct
Euroclear or Cedel Bank or both of them (as the case may be) unless
otherwise agreed in writing between the Agent and the relevant Issuer (i)
in the case of an issue of Notes on a non-syndicated basis, to credit the
Notes represented by such Temporary Global Note to the Agent's distribution
account, and (ii) in the case of Notes issued on a syndicated basis, to
hold the Notes represented by such Temporary Global Note to the relevant
Issuer's order; and
(d) to ensure that the Notes of each Tranche are assigned a Common
Code and ISIN by Euroclear and Cedel Bank which are different from the
Common Code and ISIN assigned to Notes of any other Tranche of the same
Series until 40 days after the completion of the distribution of the Notes
of such Tranche as notified by the Agent to the relevant Dealer.
(2) The Agent shall only be required to perform its obligations under
sub-clause (1) if it holds:
(a) master Temporary Global Notes, duly executed by a person or
persons authorized to execute the same on behalf of the relevant Issuer,
which may be used by the Agent for the purpose of preparing Temporary
Global Notes in accordance with paragraph (a) of that sub-clause; and
(b) master Permanent Global Notes, duly executed by a person or
persons authorized to execute the same on behalf of the relevant Issuer,
which may be used by the Agent for the purpose of preparing Permanent
Global Notes in accordance with Clause 4 below.
(3) The Agent will provide Euroclear and/or Cedel Bank with the
notifications, instructions or other information to be given by the Agent to
Euroclear and/or Cedel Bank in accordance with the standard procedures of
Euroclear and/or Cedel Bank.
4. Determination of Exchange Date, Issue of Permanent Global Notes or
Definitive Notes and Determination of Restricted Period
(1) (a) The Agent shall determine the Exchange Date for each Temporary
Global Note in accordance with the terms thereof. Forthwith upon
determining the Exchange Date in respect of any Tranche the Agent shall
notify such determination to the relevant Issuer, the relevant Dealer,
Euroclear and Cedel Bank.
(b) The Agent shall deliver, upon notice from Euroclear or Cedel Bank,
a Permanent Global Note or Definitive Notes, as the case may be, in
accordance with the terms of
4
the Temporary Global Note. Upon any such exchange of a portion of a
Temporary Global Note for an interest in a Permanent Global Note the Agent
is hereby authorized on behalf of the relevant Issuer:
(i) for the first Tranche of any Series of Notes, to prepare and
complete a Permanent Global Note in accordance with the terms of the
Temporary Global Note applicable to such Tranche by attaching a copy
of the applicable Pricing Supplement to a copy of the relevant master
Permanent Global Note;
(ii) for the first Tranche of any Series of Notes, to
authenticate such Permanent Global Note;
(iii) for the first Tranche of any Series of Notes, to deliver
such Permanent Global Note to the common depositary which is holding
the Temporary Global Note applicable to such Tranche for the time
being on behalf of Euroclear and/or Cedel Bank either in exchange for
such Temporary Global Note or, in the case of a partial exchange, on
entering details of such partial exchange of the Temporary Global Note
in the relevant spaces in Schedule 2 of both the Temporary Global Note
and the Permanent Global Note, and in either case against receipt from
the common depositary of confirmation that such common depositary is
holding the Permanent Global Note in safe custody for the account of
Euroclear and/or Cedel Bank; and
(iv) in any other case, to attach a copy of the applicable
Pricing Supplement to the Permanent Global Note applicable to the
relevant Series and enter details of any exchange in whole or part as
aforesaid.
(2) (a) For a Tranche in respect of which there is only one Dealer, the
Agent will determine the end of the Restricted Period in respect of such
Tranche as being the fortieth day following the date certified by the
relevant Dealer to the Agent as being the date as of which distribution of
the Notes of that Tranche was completed.
(b) For a Tranche in respect of which there is more than one Dealer
but is not issued on a syndicated basis, the Agent will determine the end
of the Restricted Period in respect of such Tranche as being the 40th day
following the latest of the dates certified by all the relevant Dealers to
the Agent as being the respective dates as of which distribution of the
Notes of that Tranche purchased by each such dealer was completed.
(c) For a Tranche issued on a syndicated basis, the Agent will
determine the end of the Restricted Period in respect of such Tranche as
being the 40th day following the date certified by the Lead Manager to the
Agent as being the date as of which distribution of the Notes of that
Tranche was completed.
(d) Forthwith upon determining the end of the Restricted Period in
respect of any Tranche, the Agent shall notify such determination to the
relevant Issuer and the relevant Dealer or the Lead Manager in the case of
a syndicated issue.
5. Issue of Definitive Notes
(1) Interests in a Global Note will be exchangeable for Definitive Notes
with Coupons attached only if: (i) an Event of Default (as defined in the Terms
and Conditions) occurs and is continuing, or (ii) the relevant Issuer is
notified that either Euroclear or Cedel Bank has been closed for business for a
continuous period of 14 days (other than by reason of holiday, statutory or
otherwise) after the original issuance of the Notes or has announced an
intention permanently to cease business or has in fact done so and no
alternative clearance system approved by the Noteholders is available, or (iii)
the relevant Issuer, after notice to the Agent, determines
5
to issue Notes in definitive form. Upon the occurrence of these events, the
Agent shall deliver the relevant Definitive Note(s) in accordance with the terms
of the relevant Global Note.
For this purpose the Agent is hereby authorized on behalf of the relevant
Issuer:
(a) to authenticate such Definitive Note(s) in accordance with the
provisions of this Agreement; and
(b) to deliver such Definitive Note(s) to or to the order of Euroclear
and/or Cedel Bank in exchange for such Global Note.
The Agent shall notify the relevant Issuer forthwith upon receipt of a request
for issue of (a) Definitive Note(s) in accordance with the provisions of a
Global Note and this Agreement (and the aggregate principal amount of such
Temporary Global Note or Permanent Global Note, as the case may be, to be
exchanged in connection therewith).
(2) The relevant Issuer undertakes to deliver to the Agent sufficient
numbers of executed Definitive Notes with, if applicable, Receipts, Coupons and
Talons attached to enable the Agent to comply with its obligations under this
Clause 5.
6. Terms of Issue
(1) The Agent shall cause all Temporary Global Notes, Permanent Global
Notes and Definitive Notes delivered to and held by it under this Agreement to
be maintained in safe custody and shall ensure that such Notes are issued only
in accordance with the provisions of this Agreement and the relevant Global Note
and Terms and Conditions.
(2) Subject to the procedures set out in the Procedures Memorandum, for the
purposes of Clause 3(1) the Agent is entitled to treat a telephone, telex or
facsimile communication from a person purporting to be (and who the Agent
believes in good faith to be) the authorized representative of the relevant
Issuer named in the lists referred to in, or notified pursuant to, Clause 17(7)
as sufficient instructions and authority of such Issuer for the Agent to act in
accordance with Clause 3(l).
(3) In the event that a person who has signed on behalf of the relevant
Issuer any Note not yet issued but held by the Agent in accordance with Clause
3(1) ceases to be authorized as described in Clause 17(7), the Agent shall
(unless such Issuer gives notice to the Agent that Notes signed by that person
do not constitute valid and binding obligations of such Issuer or otherwise
until replacements have been provided to the Agent) continue to have authority
to issue any such Notes, and the relevant Issuer hereby warrants to the Agent
that such Notes shall, unless notified as aforesaid, be valid and binding
obligations of such Issuer. Promptly upon such person ceasing to be authorized,
the relevant Issuer shall provide the Agent with replacement Notes and upon
receipt of such replacement Notes the Agent shall cancel and destroy the Notes
held by it which are signed by such person and shall provide to the relevant
Issuer a confirmation of destruction in respect thereof specifying the Notes so
canceled and destroyed.
(4) If the Agent pays an amount (the "Advance") to an Issuer on the basis
that a payment (the "Payment") has been, or will be, received from a Dealer and
if the Payment is not received by the Agent on the date the Agent pays such
Issuer, the Agent shall notify such Issuer by tested telex or facsimile that the
Payment has not been received and such Issuer shall repay to the Agent the
Advance and shall pay interest on the Advance (or the unreimbursed portion
thereof) from (and including) the date such Advance is made to (but excluding)
the earlier of repayment of the Advance and receipt by the Agent of the Payment
(at a rate quoted at that time by the Agent as its cost of funding the Advance).
(5) Except in the case of issues where the Agent does not act as receiving
bank for the relevant Issuer in respect of the purchase price of the Notes being
issued, if on the relevant Issue Date a Dealer
6
does not pay the full purchase price due from it in respect of any Note (the
"Defaulted Note") and, as a result, the Defaulted Note remains in the Agent's
distribution account with Euroclear and/or Cedel Bank) after such Issue Date,
the Agent will continue to hold the Defaulted Note to the order of the relevant
Issuer. The Agent shall notify the relevant Issuer forthwith of the failure of
the Dealer to pay the full purchase price due from it in respect of any
Defaulted Note and, subsequently, shall notify such Issuer forthwith upon
receipt from the Dealer of the full purchase price in respect of such Defaulted
Note.
7. Payments
(1) The Agent shall advise the relevant Issuer, no later than ten Business
Days (as defined below) immediately preceding the date on which any payment is
to be made to the Agent pursuant to this sub-clause (1) of the payment amount,
value date and payment instructions and the relevant Issuer will before 10:00
a.m. New York time on each date on which any payment in respect of any Notes
issued by it becomes due, transfer to an account specified by the Agent such
amount in the relevant currency as shall be sufficient for the purposes of such
payment in funds settled through such payment system as the Agent and the
relevant Issuer may agree.
(2) The relevant Issuer will ensure that no later than 4:00 p.m. (London
time) on the second Business Day (as defined below) immediately preceding the
date on which any payment is to be made to the Agent pursuant to sub-clause (1),
the Agent shall receive from the paying bank of the relevant Issuer an
irrevocable confirmation in the form of a SWIFT message or tested telex that
such payment shall be made. For the purposes of this Clause 7 "Business Day"
means a day which is both:
(a) a day (other than a Saturday or a Sunday) on which commercial
banks and foreign exchange markets settle payments in London and in
Charlotte, North Carolina; and
(b) in relation to a payment to be made in a Specified Currency, a day
on which commercial banks and foreign exchange markets settle payments in
the principal financial center of the country of the relevant Specified
Currency (if other than London).
(3) The Agent shall ensure that payments of both principal and interest in
respect of any Temporary Global Note will be made only to the extent that
certification of non-U.S. beneficial ownership as required by U.S. securities
laws and U.S. Treasury regulations (in the form set out in the Temporary Global
Note) has been received from Euroclear and/or Cedel Bank in accordance with the
terms thereof.
(4) Subject to the receipt by the Agent of the payment confirmation as
provided in sub-clause (2) above, the Agent or the relevant Paying Agent shall
pay or cause to be paid all amounts due in respect of the Notes on behalf of the
relevant Issuer in the manner provided in the Terms and Conditions. If any
payment provided for in sub-clause (l) is made late but otherwise in accordance
with the provisions of this Agreement, the Agent and each Paying Agent shall
nevertheless make payments in respect of the Notes as aforesaid following
receipt by it of such payment.
(5) If for any reason the Agent considers in its sole discretion that the
amounts to be received by the Agent pursuant to sub-clause (1) will be, or the
amounts actually received by it pursuant thereto are, insufficient to satisfy
all claims in respect of all payments then falling due in respect of the Notes,
neither the Agent nor any Paying Agent shall be obliged to pay any such claims
until the Agent has received the full amount of all such payments. Should the
Agent or any Paying Agent elect not to make payment of amounts falling due in
respect of the Notes as aforesaid, it shall advise the relevant Issuer of any
such decision as soon as practicable by telephone with confirmation by telefax.
(6) Without prejudice to sub-clauses (4) and (5), if the Agent pays any
amounts to the holders of Notes, Receipts or Coupons or to any Paying Agent at a
time when it has not received payment in full in respect of the relevant Notes
in accordance with sub-clause (1) (the excess of the amounts so paid over the
amounts so received being the "Shortfall"), the relevant Issuer will, in
addition to paying amounts due under
7
sub-clause (l), pay to the Agent on demand interest (at a rate which represents
the Agent's cost of funding the Shortfall) on the Shortfall (or the unreimbursed
portion thereof) until the receipt in full by the Agent of the Shortfall.
(7) The Agent shall on demand promptly reimburse each Paying Agent for
payments in respect of Notes properly made by such Paying Agent in accordance
with this Agreement and the Terms and Conditions unless the Agent has notified
the Paying Agent, prior to the opening of business in the location of the office
of the Paying Agent through which payment in respect of the Notes can be made
prior to the day on which such Agent has to give payment instructions in respect
of the due date of a payment in respect of the Notes, that the Agent does not
expect to receive sufficient funds to make payment of all amounts falling due in
respect of such Notes.
(8) If the Agent pays out on or after the due date therefor, or becomes
liable to pay out, funds on the assumption that the corresponding payment by the
relevant Issuer has been or will be made and such payment has in fact not been
so made by such Issuer, then such Issuer shall on demand reimburse the Agent for
the relevant amount, and pay interest to the Agent on such amount from the date
on which it is paid out to the date of reimbursement at a rate per annum equal
to the cost to the Agent of funding the amount paid out, as certified by the
Agent and expressed as a rate per annum. For the avoidance of doubt, the
provisions of the Terms and Conditions as to subordination shall not apply to
the relevant Issuer's obligations under this sub-clause 8.
(9) While any Notes are represented by a Global Note or Global Notes, all
payments due in respect of such Notes shall be made to, or to the order of, the
holder of the Global Note or Global Notes, subject to and in accordance with the
provisions of the Global Note or Global Notes. On the occasion of any such
payment the Paying Agent to which any Global Note was presented for the purpose
of making such payment shall cause the appropriate Schedule to the relevant
Global Note to be annotated so as to evidence the amounts and dates of such
payments of principal and/or interest as applicable.
(10) If the amount of principal and/or interest then due for payment is not
paid in full (otherwise than by reason of a deduction required by law to be made
therefrom), the Paying Agent to which a Note is presented for the purpose of
making such payment shall make a record of such shortfall on the Note and such
record shall, in the absence of manifest error, be prima facie evidence that the
payment in question has not to that extent been made.
8. Determinations and Notifications in Respect of Notes and Interest
Determination
(a) Determinations and Notifications
(1) The Agent shall make all such determinations and calculations
(howsoever described) as it is required to do under the Terms and Conditions,
all subject to and in accordance with the Terms and Conditions, provided that
certain calculations with respect to the Notes, and associated publication or
notification, shall be made by the Calculation Agent in accordance with the
Terms and Conditions.
(2) The Agent or the Calculation Agent, as the case may be, shall not be
responsible to the relevant Issuer or to any third party (except in the event of
negligence, default or bad faith of the Agent or the Calculation Agent) as a
result of the Agent or the Calculation Agent having acted in good faith on any
quotation given by any Reference Bank which subsequently may be found to be
incorrect.
(3) The Agent or the Calculation Agent, as the case may be, shall promptly
notify (and confirm in writing to) the relevant Issuer, the other Paying Agents
and (in respect of a Series of Notes listed on a Stock Exchange) the relevant
Stock Exchange of, inter alia, each Rate of Interest, Interest Amount and
Interest Payment Date and all other amounts, rates and dates which it is obliged
to determine or calculate under the Terms and Conditions as soon as practicable
after the determination thereof (and in any event no later than the tenth
8
Business Day as defined in Clause 7(2) immediately preceding the date on which
payment is to be made to the Agent pursuant to Clause 7(l)) and of any
subsequent amendment thereto pursuant to the Terms and Conditions.
(4) The Agent or the Calculation Agent, as the case may be, shall use its
best efforts to cause each Rate of Interest, Interest Amount and Interest
Payment Date and all other amounts, rates and dates which it is obliged to
determine or calculate under the Terms and Conditions to be published as
required in accordance with the Terms and Conditions as soon as possible after
their determination or calculation.
(5) If the Agent or the Calculation Agent, as the case may be, does not at
any material time for any reason determine and/or calculate and/or publish the
Rate of Interest, Interest Amount and/or Interest Payment Date in respect of any
Interest Period or any other amount, rate or date as provided in this Clause 8,
it shall forthwith notify the relevant Issuer and the Paying Agents of such
fact.
(6) Determinations with regard to Notes (including, without limitation,
Indexed Notes and Dual Currency Notes) shall be made by the Calculation Agent
specified in the applicable Pricing Supplement in the manner specified in the
applicable Pricing Supplement. Unless otherwise agreed between the relevant
Issuer and the relevant Dealer, such determinations shall be made on the basis
of a Calculation Agency Agreement substantially in the form of Schedule 9 to
this Agreement.
(7) For the purposes of monitoring the aggregate principal amount of Notes
issued under the Program, the Agent shall determine the U.S. dollar equivalent
of the principal amount of each issue of Notes denominated in another currency,
each issue of Dual Currency Notes, each Issue of Partly Paid Notes and each
issue of Indexed Notes as follows:
(A) the U.S. dollar equivalent of Notes denominated in a currency
other than U.S. Dollars shall be determined as of the Agreement Date for
such Notes on the basis of the spot rate for the sale of the U.S. dollar
against the purchase of the relevant currency quoted by a foreign exchange
dealer selected by the relevant Issuer on the relevant day of calculation;
(B) the U.S. dollar equivalent of Dual Currency Notes and Indexed
Notes shall be calculated in the manner specified above by reference to the
original nominal amount of such Notes; and
(C) the U.S. dollar equivalent of Zero Coupon Notes and other Notes
issued at a discount shall be calculated in the manner specified above by
reference to the net proceeds received by the relevant Issuer for the
relevant issue; and
(D) the U.S. Dollar equivalent of Partly Paid Notes shall be
determined in the manner specified above by reference to the original
principal amount of such Notes regardless of the amount paid on the Notes.
(b) Interest Determination, Screen Rate Determination including Fallback
Provisions
(1) Where screen rate determination ("Screen Rate Determination") is
specified in the applicable Pricing Supplement as the manner in which the Rate
of Interest is to be determined, the Rate of Interest for each Interest Period
will, subject as provided below, be either:
(A) the offered quotation (if there is only one quotation on the
relevant screen page (the "Relevant Screen Page")); or
(B) the arithmetic mean (rounded if necessary to the fifth decimal
place, with 0.000005 being rounded upwards) of the offered quotations,
9
(expressed as a percentage rate per annum), for the reference rate ("Reference
Rate") which appears or appear, as the case may be, on the Relevant Screen Page
at approximately 11:00 a.m. (London time) on the interest determination date
("Interest Determination Date") in question plus or minus (as indicated in the
applicable Pricing Supplement) the Margin (if any), all as determined by the
Calculation Agent. If five or more such offered quotations are available on the
Relevant Screen Page, the highest (or, if there is more than one such highest
quotation, one only of such quotations) and the lowest (or, if there is more
than one such lowest quotation, one only of such quotations) shall be
disregarded by the Calculation Agent for the purpose of determining the
arithmetic mean (rounded as provided above) of such offered quotations.
(2) If the Relevant Screen Page is not available or if, in the case of
sub-clause(b)(1)(A) above, no such offered quotation appears or, in the case of
sub-clause (b)(1)(B) above, fewer than three such offered quotations appear, in
each case as at the time specified in the preceding paragraph, the Calculation
Agent shall at its sole discretion request the principal London office of each
of the Reference Banks (defined below) to provide the Calculation Agent with its
offered quotation (expressed as a percentage rate per annum) for deposits in the
Specified Currency for the relevant Interest Period to leading banks in the
London inter-bank market at approximately 11:00 a.m. (London time) on the
Interest Determination Date in question. If two or more of the Reference Banks
provide the Calculation Agent with such offered quotations, the Rate of Interest
for such Interest Period shall be the arithmetic mean (rounded if necessary to
the fifth decimal place with 0.000005 being rounded upwards) of such offered
quotations plus or minus (as appropriate) the Margin (if any), all as determined
by the Calculation Agent.
(3) If on any Interest Determination Date one only or none of the Reference
Banks provides the Calculation Agent with such offered quotations as provided in
the preceding paragraph, the Rate of Interest for the relevant Interest Period
shall be the rate per annum which the Calculation Agent determines as being the
arithmetic mean (rounded if necessary to the fifth decimal place, with 0.000005
being rounded upwards) of the rates, as communicated to (and at the request of)
the Calculation Agent by the Reference Banks or any two or more of them, at
which such banks offered, at approximately 11:00 a.m. (London time) on the
relevant Interest Determination Date, deposits in the Specified Currency for the
relevant Interest Period by leading banks in the London inter-bank market plus
or minus (as appropriate) the Margin (if any). If fewer than two of the
Reference Banks provide the Calculation Agent with such offered quotations, the
Rate of Interest shall be the offered quotation for deposits in the Specified
Currency for the relevant Interest Period, or the arithmetic mean (rounded as
provided above) of the offered quotations for deposits in the Specified Currency
for the relevant Interest Period, at which, at approximately 11:00 a.m. (London
time) on the relevant Interest Determination Date, any one or more banks informs
the Calculation Agent it is quoting to leading banks in the London inter-bank
market plus or minus (as appropriate) the Margin (if any), provided that, if the
Rate of Interest cannot be determined in accordance with the foregoing
provisions of this paragraph, the Rate of Interest shall be determined as at the
last preceding Interest Determination Date (though substituting, where a
different Margin is to be applied to the relevant Interest Period from that
which applied to the last preceding Interest Period, the Margin relating to the
relevant Interest Period, in place of the Margin relating to that last preceding
Interest Period).
(4) If the Reference Rate from time to time in respect of Floating Rate
Notes is specified in the applicable Pricing Supplement as being other than the
London inter-bank offered rate, the Rate of Interest in respect of such Notes
will be determined as provided in the applicable Pricing Supplement.
In this Clause 8, the expression "Reference Banks" means, in the case of
sub-clause (b)(1)(A) above, those banks whose offered rates were used to
determine such quotation when such quotation last appeared on the Relevant
Screen Page and in the case of sub-clause (b)(1)(B) above, those banks whose
offered quotations last appeared on the Relevant Screen Page when no fewer than
three such offered quotations appeared.
9. Notice of any Withholding or Deduction
If the relevant Issuer is, in respect of any payment, compelled to withhold
or deduct any amount for or on account of taxes, duties, assessments or
governmental charges as specifically contemplated under the Terms and
Conditions, the relevant Issuer shall give notice thereof to the Agent as soon
as it becomes aware of the
10
requirement to make such withholding or deduction and shall give to the Agent
such information as it shall require to enable it to comply with such
requirement.
10. Duties of the Agent in Connection with Early Redemption
(1) If the relevant Issuer decides to redeem any outstanding Notes (in
whole or in part) for the time being outstanding prior to their Maturity Date or
the Interest Payment Date falling in the Redemption Month (as the case may be)
in accordance with the Terms and Conditions, such Issuer shall give notice of
such decision to the Agent not less than seven London Business Days before the
date on which such Issuer will give notice to the Noteholders in accordance with
the Terms and Conditions of such redemption in order to enable the Agent to
undertake its obligations herein and in the Terms and Conditions.
(2) If only some of the Notes of like tenor and of the same Series are to
be redeemed on such date, the Agent shall make the required drawing in
accordance with the Terms and Conditions but shall give the relevant Issuer
reasonable notice of the time and place proposed for such drawing. Where partial
redemptions are to be effected when there are Definitive Notes outstanding, the
Issuing and Principal Paying Agent will select by lot the Notes to be redeemed
from the outstanding Notes in compliance with all applicable laws and stock
exchange requirements and deemed by the Agent to be appropriate and fair; and
where partial redemptions are to be effected when there are no Definitive Notes
outstanding, the rights of Noteholders will be governed by the standard
provisions of Euroclear and Cedel Bank. Notice of any partial redemption and,
when there are Definitive Notes outstanding, of the serial numbers of the Notes
so drawn, will be given by the Agent to the Noteholders in accordance with the
terms of the Notes and this Agreement.
(3) The Agent shall publish the notice on behalf of and at the expense of
the relevant Issuer required in connection with any such redemption and shall at
the same time also publish a separate list of the serial numbers of any Notes
previously drawn and not presented for redemption. Such notice shall specify the
date fixed for redemption, the redemption amount, the manner in which redemption
will be effected and, in the case of a partial redemption, the serial numbers of
the Notes to be redeemed. Such notice will be published in accordance with the
Terms and Conditions. The Agent will also notify the other Paying Agents of any
date fixed for redemption of any Notes.
(4) Immediately prior to the date on which any notice of redemption is to
be given to the Noteholders, the relevant Issuer shall deliver to the Agent a
certificate stating that such Issuer is entitled to effect such redemption and
setting forth in reasonable detail a statement of facts showing that all
conditions precedent to such redemption have occurred or been satisfied and
shall comply with all notice requirements provided for in the Terms and
Conditions.
(5) Each Paying Agent will keep a stock of notices (each a "Put Notice") in
the form set out in Schedule 8 and will make such notices available on demand to
holders of Notes, the Terms and Conditions of which provide for redemption at
the option of Noteholders. Upon receipt of any Note deposited in the exercise of
such option in accordance with the Terms and Conditions, the Paying Agent with
which such Note is deposited shall hold such Note (together with any Coupons, if
any, relating to it and deposited with it) on behalf of the depositing
Noteholder (but shall not, save as provided below, release it) until the due
date for redemption of the relevant Note consequent upon the exercise of such
option, when, subject as provided below, it shall present such Note (and any
such Coupons, if any) to itself for payment of the amount due thereon together
with any interest due on such date in accordance with the Terms and Conditions
and shall pay such moneys in accordance with the directions of the Noteholder
contained in the Put Notice. If, prior to such due date for its redemption, such
Note becomes immediately due and payable or if upon due presentation payment of
such redemption moneys is improperly withheld or refused, the Paying Agent
concerned shall post such Note (together with any such Coupons, if any) by
uninsured post to, and at the risk of, the relevant Noteholder unless the
Noteholder has otherwise requested and paid the costs of such insurance to the
relevant Paying Agent at the time of depositing the Notes at such address as may
have been given by the Noteholder in the Put Notice. At the end of each period
for the exercise of such option, each Paying Agent shall promptly notify the
Agent of the principal amount of the
11
Notes in respect of which such option has been exercised with it together with
their serial numbers and the Agent shall promptly notify such details to the
relevant Issuer.
11. Receipt and Publication of Notices; Receipt of Certificates
(1) Upon the receipt by the Agent of a demand or notice from any Noteholder
in accordance with the Terms and Conditions the Agent shall forward a copy
thereof to the relevant Issuer.
(2) On behalf of and at the request and expense of the relevant Issuer, the
Agent shall cause to be published all notices required to be given by such
Issuer to the Noteholders in accordance with the Terms and Conditions.
(3) The Agent shall have no responsibility to obtain the certificate of the
relevant Issuer delivered by such Issuer to the Agent pursuant to Condition 8 if
such a certificate is required to be issued, nor shall the Agent have any
responsibility to notify the relevant Issuer that the Agent has not obtained
such a certificate from such Issuer if such a certificate is required to be
issued.
12. Cancellation of Notes, Receipts, Coupons and Talons
(1) All Notes which are redeemed, all Receipts or Coupons which are paid
and all Talons which are exchanged shall be delivered outside the United States
to the Agent, and shall be canceled by the Agent. In addition, all Notes which
are purchased by or on behalf of the relevant Issuer or any of its subsidiaries
and are surrendered to the Agent for cancellation, together (in the case of
Notes in definitive form) with all unmatured Receipts, Coupons or Talons (if
any) attached thereto or surrendered therewith, shall be canceled by the Agent.
(2) The relevant Issuer shall have the right to request that the Agent
provide, without limitation, the following information:
(a) the aggregate principal amount of Notes which have been redeemed
and the aggregate amount paid in respect thereof;
(b) the number of Notes canceled together (in the case of Definitive
Notes, if any) with details of all unmatured Receipts, Coupons or Talons
(if any) attached thereto or delivered therewith;
(c) the aggregate amount paid in respect of interest on the Notes;
(d) the total number by maturity date of Receipts, Coupons and Talons
so canceled; and
(e) (in the case of Definitive Notes, if any) the serial numbers of
such Notes,
shall be given to the relevant Issuer by the Agent as soon as reasonably
practicable and in any event within three months after the date of such
repayment or, as the case may be, payment or exchange.
(3) The Agent shall destroy all canceled Notes, Receipts, Coupons and
Talons.
(4) The Agent shall keep a full and complete record of all Notes, Receipts,
Coupons and Talons (other than serial numbers of Coupons, except those which
have been replaced pursuant to Condition 9) and of all replacement Notes,
Receipts, Coupons or Talons issued in substitution for mutilated, defaced,
destroyed, lost or stolen Notes, Receipts, Coupons or Talons. The Agent shall at
all reasonable times make such record available to the relevant Issuer and any
persons authorized by it for inspection and for the taking of copies thereof or
extracts therefrom.
12
(5) All records and certificates made or given pursuant to this Clause 12
and Clause 13 shall make a distinction between Notes, Receipts, Coupons and
Talons of each Series.
13. Issue of Replacement Notes, Receipts, Coupons and Talons
(1) The Issuers will cause a sufficient quantity of additional forms of
Notes, Receipts, Coupons and Talons to be available, upon request to the Agent
in Luxembourg (in such capacity, the "Replacement Agent") at its specified
office for the purpose of issuing replacement Notes, Receipts, Coupons and
Talons as provided below.
(2) The Replacement Agent will, subject to and in accordance with the Terms
and Conditions and the following provisions of this Clause 13, authenticate and
cause to be delivered any replacement Notes, Receipts, Coupons and Talons which
the relevant Issuer may determine to issue in place of Notes, Receipts, Coupons
and Talons which have been lost, stolen, mutilated, defaced or destroyed.
(3) In the case of a mutilated or defaced Note, the Replacement Agent shall
ensure that (unless otherwise covered by such indemnity as the relevant Issuer
may reasonably require) any replacement Note will only have attached to it
Receipts, Coupons and Talons corresponding to those (if any) attached to the
mutilated or defaced Note which is presented for replacement.
(4) The Replacement Agent shall not issue any replacement Note, Receipt,
Coupon or Talon unless and until the applicant therefor shall have:
(a) paid such reasonable costs and expenses as may be incurred in
connection therewith, including any tax or other governmental charge that
may be imposed in relation thereto;
(b) furnished it with such evidence and indemnity as the relevant
Issuer may reasonably require; and
(c) in the case of any mutilated or defaced Note, Receipt, Coupon or
Talon, surrendered it to the Replacement Agent.
(5) The Replacement Agent shall cancel any mutilated or defaced Notes,
Receipts, Coupons and Talons in respect of which replacement Notes, Receipts,
Coupons and Talons have been issued pursuant to this Clause 13 and shall furnish
the relevant Issuer with a certificate stating the serial numbers of the Notes,
Receipts, Coupons and Talons so canceled and, unless otherwise instructed by
such Issuer in writing, shall destroy such canceled Notes, Receipts, Coupons and
Talons and furnish such Issuer with a destruction certificate stating the serial
number of the Notes (in the case of Definitive Notes) and the number by maturity
date of Receipts, Coupons and Talons so destroyed.
(6) The Replacement Agent shall, on issuing any replacement Note, Receipt,
Coupon or Talon, forthwith inform the relevant Issuer, the Agent and the other
Paying Agents of the serial number of such replacement Note, Receipt, Coupon or
Talon issued and (if known) of the serial number of the Note, Receipt, Coupon or
Talon in place of which such replacement Note, Receipt, Coupon or Talon has been
issued. Whenever replacement Receipts, Coupons or Talons are issued pursuant to
the provisions of this Clause 13, the Replacement Agent shall also notify the
Agent and the other Paying Agents of the maturity dates of the lost, stolen,
mutilated, defaced or destroyed Receipts, Coupons or Talons and of the
replacement Receipts, Coupons or Talons issued.
(7) The Agent shall keep a full and complete record of all replacement
Notes, Receipts, Coupons and Talons issued and shall make such record available
at all reasonable times to the relevant Issuer and any persons authorized by it
for inspection and for the taking of copies thereof or extracts therefrom.
13
(8) Whenever any Note, Receipt, Coupon or Talon for which a replacement
Note, Receipt, Coupon or Talon has been issued and in respect of which the
serial number is known is presented to the Agent or any of the Paying Agents for
payment, the Agent or, as the case may be, the relevant Paying Agent shall
immediately send notice thereof to the relevant Issuer and the other Paying
Agents and shall not make payment in respect thereto, until instructed by such
Issuer.
14. Copies of Documents Available for Inspection
The Agent and the Paying Agents shall hold available for inspection copies
of:
(i) the organizational documents of the Issuers;
(ii) the latest available audited consolidated financial statements of
BankAmerica Corporation and its consolidated subsidiaries, including the
Bank, beginning with such financial statements for the fiscal years ended
December 31, 1995, December 31, 1996 and December 31, 1997 and the publicly
available portions of the Call Reports with respect to the Bank;
(iii) the Program Agreement and this Agreement;
(iv) the Offering Circular; and
(v) any future offering circulars, information memoranda and
supplements (except that a Pricing Supplement relating to any unlisted Note
will only be available for inspection by a holder of such Note and such
holder must produce evidence satisfactory to the Paying Agent as to
ownership) to the Offering Circular and any other documents incorporated
therein by reference and in the case of a syndicated issue of listed Notes,
the syndication agreement (or equivalent document).
For this purpose, the Issuers shall furnish the Agent and the Paying Agents
with sufficient copies of each of such documents.
15. Meetings of Noteholders
(1) The provisions of Schedule 7 hereto shall apply to meetings of the
Noteholders and shall have effect in the same manner as if set out in this
Agreement.
(2) Without prejudice to sub-clause (l), each of the Agent and the Paying
Agents on the request of any Noteholder shall issue voting certificates and
block voting instructions in accordance with Schedule 7 and shall forthwith give
notice to the relevant Issuer in writing of any revocation or amendment of a
block voting instruction. Each of the Agent and the Paying Agents will keep a
full and complete record of all voting certificates and block voting
instructions issued by it and will, not less than 24 hours before the time
appointed for holding a meeting or adjourned meeting, deposit at such place as
the Agent shall designate or approve, full particulars of all voting
certificates and block voting instructions issued by it in respect of such
meeting or adjourned meeting.
16. Repayment by the Agent
Upon the relevant Issuer being discharged from its obligation to make
payments in respect of any Notes pursuant to the relevant Terms and Conditions,
and provided that there is no outstanding, bona fide and proper claim in respect
of any such payments, the Agent shall forthwith on written demand pay to the
relevant Issuer sums equivalent to any amounts paid to it by such Issuer for the
purposes of such payments.
17. Conditions of Appointment
14
(1) The Agent shall be entitled to deal with money paid to it by an Issuer
for the purpose of this Agreement in the same manner as other money paid to a
banker by its customers except:
(a) that it shall not exercise any right of set-off, lien or similar
claim in respect thereof;
(b) as provided in sub-clause (2) below; and
(c) that it shall not be liable to account to the relevant Issuer for
any interest thereon.
(2) In acting hereunder and in connection with the Notes, the Agent and the
Paying Agents shall act solely as agents of the Issuers and will not thereby
assume any obligations towards or relationship of agency or trust for or with
any of the owners or holders of the Notes, Receipts, Coupons or Talons.
(3) The Agent and the Paying Agents hereby undertake to the Issuers to
perform such obligations and duties, and shall be obliged to perform such duties
and only such duties as are herein, in the Terms and Conditions and in the
Procedures Memorandum specifically set forth and no implied duties or
obligations shall be read into this Agreement or the Notes against the Agent and
the Paying Agents, other than the duty to act honestly and in good faith.
(4) The Agent may consult with legal and other professional advisers and
the opinion of such advisers shall be full and complete protection in respect of
any action taken, omitted or suffered hereunder in good faith and in accordance
with the opinion of such advisers.
(5) Each of the Agent and the Paying Agents shall be protected and shall
incur no liability for or in respect of any action taken, omitted or suffered in
reliance upon any instruction, request or order from the relevant Issuer or any
notice, resolution, direction, consent, certificate, affidavit, statement,
cable, telex or other paper or document which it reasonably believes to be
genuine and to have been delivered, signed or sent by the proper party or
parties or upon written instructions from the relevant Issuer.
(6) Any of the Agent and the Paying Agents and their officers, directors
and employees may become the owner of, or acquire any interest in any Notes,
Receipts, Coupons or Talons with the same rights that it or he would have if the
Agent or the relevant Paying Agent, as the case may be, concerned were not
appointed hereunder, and may engage or be interested in any financial or other
transactions with the relevant Issuer and may act on, or as depositary, trustee
or agent for, any committee or body of Noteholders or Couponholders or in
connection with any other obligations of the relevant Issuer as freely as if the
Agent or the relevant Paying Agent, as the case may be, were not appointed
hereunder.
(7) The relevant Issuer shall provide the Agent with a certified copy of
the list of persons authorized to execute documents and take action on its
behalf in connection with this Agreement and shall notify the Agent immediately
in writing if any of such persons ceases to be so authorized or if any
additional person becomes so authorized together, in the case of an additional
authorized person, with evidence satisfactory to the Agent that such person has
been so authorized, provided, however, that the Agent shall not incur any
liability for any losses, claims or damages resulting from the relevant Issuer's
failure to provide such notification to the Agent.
18. Communication Between the Parties
A copy of all communications relating to the subject matter of this
Agreement between any Issuer and the Noteholders, Receiptholders or
Couponholders and any of the Paying Agents shall be sent to the Agent by the
relevant Paying Agent.
19. Changes in Agent and Paying Agents
15
(1) The Issuers agree that, for so long as any Note is outstanding, or
until moneys for the payment of all amounts in respect of all outstanding Notes
have been made available to the Agent or have been returned to the relevant
Issuer as provided herein:
(a) so long as any Notes are listed on any Stock Exchange, there will
at all times be a Paying Agent with a specified office in such place as may
be required by the rules and regulations of the relevant Stock Exchange;
and
(b) there will at all times be a Paying Agent with a specified office
in a city in continental Europe; and
(c) there will at all times be an Agent.
In addition, the Issuers shall appoint a Paying Agent having a specified
office in New York City in the circumstances described in the final paragraph of
Condition 4(b). Any variation, termination, appointment or change shall only
take effect (other than in the case of insolvency (as provided in sub-clause
(5)), when it shall be of immediate effect) after not less than 30 nor more than
45 days' prior notice thereof shall have been given to the Noteholders in
accordance with the Terms and Conditions.
(2) The Agent may (subject as provided in sub-clause (4)) at any time
resign as Agent by giving at least 90 days' written notice to the Issuers of
such intention on its part, specifying the date on which its desired resignation
shall become effective, provided that such date shall never be less than three
months after the receipt of such notice by the Issuers unless the Issuers agree
to accept less notice.
(3) The Agent may (subject as provided in sub-clause (4)) be removed at any
time on at least 45 days' notice by the filing with it of an instrument in
writing signed on behalf of each Issuer specifying such removal and the date
when it shall become effective.
(4) Any resignation under sub-clause (2) or removal under sub-clause (3)
shall only take effect upon the appointment by the Issuers as hereinafter
provided, of a successor Agent and (other than in cases of insolvency of the
Agent) on the expiration of the notice to be given under Clause 21. The Issuers
agree with the Agent that if, by the day falling ten days before the expiration
of any notice under sub-clause (2), the Issuers have not appointed a successor
Agent, then the Agent shall be entitled, on behalf of the Issuers, to appoint as
a successor Agent in its place a reputable financial institution of good
standing as it may reasonably determine to be capable of performing the duties
of the Agent hereunder.
(5) In case at any time the Agent resigns, or is removed, or becomes
incapable of acting or is adjudged bankrupt or insolvent, or files a voluntary
petition in bankruptcy or makes an assignment for the benefit of its creditors
or consents to the appointment of an administrator, liquidator or administrative
or other receiver of all or a substantial part of its property, or admits in
writing its inability to pay or meet its debts as they mature or suspends
payment thereof, or if any order of any court is entered approving any petition
filed by or against it under the provisions of any applicable bankruptcy or
insolvency law or if a receiver of it or of all or a substantial part of its
property is appointed or any officer takes charge or control of it or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, a successor Agent, which shall be a reputable financial institution
of good standing, may be appointed by the Issuers by an instrument in writing
filed with the successor Agent. Upon the appointment as aforesaid of a successor
Agent and acceptance by the latter of such appointment and (other than in case
of insolvency of the Agent) upon expiry of the notice to be given under Clause
21 the Agent so superseded shall cease to be the Agent hereunder.
(6) Subject to sub-clause (l):
(A) the Issuers may, after prior consultation (other than in the case
of insolvency of any Paying Agent) with the Agent, terminate the
appointment of any of the Paying Agents at any time; and/or
16
(B) the Issuers may in respect of the Program or the relevant Issuer
may in respect of any Series of Notes, if so required by the relevant Stock
Exchange or regulatory body, appoint one or more further Paying Agents by
giving to the Agent, and to the relevant Paying Agent, at least 45 days'
notice in writing to that effect.
(7) Subject to sub-clause (l), all or any of the Paying Agents may resign
their respective appointments hereunder at any time by giving the Issuers and
the Agent at least 45 days' written notice to that effect.
(8) Upon its resignation or removal becoming effective the Agent or the
relevant Paying Agent:
(a) shall, in the case of the Agent, forthwith transfer all moneys
held by it hereunder and the records referred to in Clause 12(4) to the
successor Agent hereunder; and
(b) shall be entitled to the payment by the Issuers of its
commissions, fees and expenses for the services theretofore rendered
hereunder in accordance with the terms of Clause 25.
(9) Upon its appointment becoming effective, a successor Agent and any new
Paying Agent shall, without further act, deed or conveyance, become vested with
all the authority, rights, powers, trusts, immunities, duties and obligations of
its predecessor or, as the case may be, a Paying Agent with like effect as if
originally named as Agent or (as the case may be) a Paying Agent hereunder.
20. Merger and Consolidation
Any corporation into which the Agent or any Paying Agent may be merged or
converted, or any corporation with which the Agent or any of the Paying Agents
may be consolidated or any corporation resulting from any merger, conversion or
consolidation to which the Agent or any of the Paying Agents shall be a party,
or any corporation to which the Agent or any of the Paying Agents shall sell or
otherwise transfer all or substantially all the assets of the Agent or any
Paying Agent shall, on the date when such merger, conversion, consolidation or
transfer becomes effective and to the extent permitted by any applicable laws,
become the successor Agent or, as the case may be, Paying Agent under this
Agreement without the execution or filing of any paper or any further act on the
part of the parties hereto, unless otherwise required by the Issuers, and after
the said effective date all references in this Agreement to the Agent or, as the
case may be, such Paying Agent shall be deemed to be references to such
corporation. Written notice of any such merger, conversion, consolidation or
transfer shall forthwith be given to the Issuers by the relevant Agent or Paying
Agent.
21. Notification of Changes to Paying Agents
Following receipt of notice of resignation from the Agent or any Paying
Agent and forthwith upon appointing a successor Agent or, as the case may be,
further or other Paying Agents or on giving notice to terminate the appointment
of any Agent or, as the case may be, Paying Agent, the Agent (on behalf of and
at the expense of the Issuers) shall give or cause to be given not more than 60
days' nor less than 30 days' notice thereof to the Noteholders in accordance
with the Terms and Conditions.
22. Change of Specified Office
If the Agent or any Paying Agent determines to change its specified office
it shall give to the Issuers and (if applicable) the Agent written notice of
such determination giving the address of the new specified office which shall be
in the same city and stating the date on which such change is to take effect,
which shall not be less than 45 days thereafter. The Agent (on behalf and at the
expense of the Issuers) shall within 15 days of receipt of such notice (unless
the appointment of the Agent or the relevant Paying Agent, as the case may be,
is to
17
terminate pursuant to Clause 19 on or prior to the date of such change) give or
cause to be given not more than 45 days' nor less than 30 days' notice thereof
to the Noteholders in accordance with the Terms and Conditions.
23. Notices
All notices hereunder shall be deemed to have been given when deposited in
the mail as first class mail, registered or certified, return receipt requested,
postage prepaid, addressed to any party hereto as follows:
Address
-------
The Corporation: BankAmerica Corporation
000 Xxxxx Xxxxx Xxxxxx
XX 1007-23-1
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attn: Xxxx X. Xxxx
Senior Vice President
Telecopy: (000)000-0000
with a copy to:
BankAmerica Corporation
000 Xxxxx Xxxxx Xxxxxx
Legal Department
NC 1007-20-1
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attn: Xxxx X. Xxxxxxx, Esq.
General Counsel
Telecopy: (000)000-0000
The Bank: NationsBank, N.A.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxx
Senior Vice President
Telecopy: (000) 000-0000
The Agent: The Chase Manhattan Bank, London Branch
Trinity Tower
9 Xxxxxx Xxxx Street
Xxxxxx X0 0XX
Xxxxxx Xxxxxxx
Attn: Manager, Corporate Trust Operations
Telecopy: 00-0000-000000
The Paying Agent: Chase Manhattan Bank Luxembourg S.A.
0 xxx Xxxxxxx
X-0000 Xxxxxxxxxx - Xxxxx
Attn: Manager, Corporate Trust Operations
Telecopy: 000-000000-000
or at any other address of which any of the foregoing shall have notified the
others in writing.
18
(a) if delivered in person to the relevant address specified in the
signature pages hereof and if so delivered, shall be deemed to have been
delivered at the time of receipt; or
(b) if sent by facsimile or telex to the relevant number specified on
the signature pages hereof and, if so sent, shall be deemed to have been
delivered immediately after transmission provided such transmission is
confirmed by the answerback of the recipient (in the case of telex) or when
an acknowledgment of receipt is received (in the case of facsimile).
Where a communication is received after business hours it shall be deemed
to be received and become effective on the next business day. Every
communication shall be irrevocable save in respect of any manifest error
therein.
24. Taxes and Stamp Duties
The Issuers agree to pay any and all stamp and other documentary taxes or
duties which may be payable in connection with the execution, delivery,
performance and enforcement of this Agreement.
25. Commissions, Fees and Expenses
(1) The Issuers undertake to pay in respect of the services of the Agent
and the Paying Agents under this Agreement such fees and expenses as may be
agreed between them from time to time, the initial such fees being set out in a
letter of even date herewith from the Agent to, and countersigned by, the
Issuers.
(2) The Issuers will promptly pay on demand all out-of-pocket expenses
(including legal, advertising, facsimile, telex and postage expenses) properly
incurred by the Agent and the Paying Agents in connection with their services
hereunder, including without limitation the expenses contemplated in Clause 24.
26. Indemnity
(1) The relevant Issuer (or Issuers, as the case may be) undertake to
indemnify and hold harmless each of the Agent and the Paying Agents against all
losses, liabilities, costs (including, without limitation, legal fees and
expenses), expenses, claims, actions or demands which the Agent or any Paying
Agent, as the case may be, may reasonably incur or which may be made against the
Agent or any Paying Agent, as a result of or in connection with the appointment
or the exercise of or performance of the powers, discretions, authorities and
duties of the Agent or any Paying Agent under this Agreement except such as may
result from its own gross negligence, bad faith or failure to comply with its
obligations hereunder or that of its officers, employees or agents.
(2) Each of the Agent and the Paying Agents shall severally indemnify and
hold harmless the relevant Issuer (or Issuers, as the case may be) against any
loss, liability, costs (including, without limitation, legal fees and expenses),
expense, claim, action or demand which it may reasonably incur or which may be
made against it as a result of such Agent's or Paying Agent's own negligence,
bad faith or material failure to comply with its obligations under this
Agreement or that of its officers, employees or agents.
(3) If, under any applicable law and whether pursuant to a judgment being
made or registered or in the liquidation, insolvency or analogous process of any
party hereto or for any other reason, any payment under or in connection with
this Agreement is made or fails to be satisfied in a currency (the "Other
Currency") other than that in which the relevant payment is expressed to be due
(the "Required Currency") under this Agreement, then, to the extent that the
payment (when converted into the Required Currency at the rate of exchange on
the date of payment or, if it is not practicable for the payee to purchase the
Required Currency with the Other Currency on the date of payment, at the rate of
exchange as soon thereafter as it is practicable for it to do so or, in the case
of a liquidation, insolvency or analogous process, at the rate of exchange on
the latest date permitted by applicable law for the determination of liabilities
in such liquidation, insolvency or analogous process) actually received by the
payee falls short of the amount due under the terms of this Agreement, the payor
19
shall, as a separate and independent obligation, indemnify and hold harmless the
payee against the amount of such shortfall. For the purpose of this Clause 26,
"rate of exchange" means the rate at which the payee is able on the relevant
date to purchase the Required Currency with the Other Currency and shall take
into account any premium and other costs of exchange.
27. Reporting
(1) The Agent shall upon receipt of a written request therefor from an
Issuer and after the payment of any further remuneration agreed between such
Issuers and the Agent (on behalf of such Issuers and on the basis of the
information and documentation the Agent had in its possession) use all
reasonable efforts to submit such reports or information as may be required from
time to time by any applicable law, regulation or guideline promulgated by (i)
any relevant United States governmental regulatory authority in respect of the
issue and purchase of Notes or (ii) any other relevant governmental regulatory
authority in respect of the issue and purchase of Notes denominated in the
applicable currency of such governmental regulatory authority.
(2) The Agent will notify the MoF of such details relating to Yen Notes and
provide such other information about the Program to the MoF as may be required.
(3) The Agent will notify the German Bundesbank at the end of each month
about the amounts, dates of issue and other terms of all DM-denominated Notes
issued during the month in question and provide such other information about the
Program to the German Bundesbank as may be required.
(4) The Agent will notify the Bank of England of such details relating to
Sterling Notes and provide such other information about the Program to the Bank
of England as may be required.
28. Governing Law
(1) This Agreement, the Notes, and any Receipts, Coupons or Talons
appertaining thereto shall be governed by and construed in accordance with the
laws of the State of New York, United States of America, without regard to
principles of conflicts of laws.
(2) The Issuers and the Agent each hereby irrevocably submit to the
non-exclusive jurisdiction of any United States Federal court sitting in New
York City, the Borough of Manhattan over any suit, action or proceeding arising
out of or related to this Agreement, any Note, Receipt, Coupon or Talon, as the
case may be (together, the "Proceedings"). The Issuers and the Agent each
irrevocably waive, to the fullest extent permitted by law, any objection which
it may have to the laying of the venue of the Proceedings brought in such a
court and any claim that the Proceedings have been brought in an inconvenient
forum. The Issuers and the Agent each agree that final judgment in the
Proceedings brought in such a court shall be conclusive and binding upon the
Issuers or the Agent, as the case may be, and may be enforced in any court of
the jurisdiction to which the relevant Issuer (or Issuers, as the case may be)
or the Agent is subject by a suit upon such judgment, provided that the service
of process is effected upon such Issuers and the Agent in the manner specified
in subsection (C) below or as otherwise permitted by law.
(3) As long as any of the Notes, Receipts, Coupons or Talons remains
outstanding, the relevant Issuer shall at all times either maintain an office or
have an authorized agent in New York City upon whom process may be served in the
Proceedings. Service of process upon either it at its offices or upon such agent
with written notice of such service mailed or delivered to the relevant Issuer
shall, to the fullest extent permitted by law, be deemed in every respect
effective service of process upon such Issuer in the Proceedings. Each Issuer
hereby appoints CT Corporation System located at 0000 Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 as its agent for such purposes, and covenants and agrees that service
of process in the Proceedings may be made upon it at its office or at the
specified offices of such agent (or such other addresses or at the offices of
any other authorized agents which the relevant Issuer may designate by written
notice to the Agent) and prior to any termination of such agencies for any
reason, it will so appoint a successor thereto as agent hereunder.
20
29. Amendments
Without the consent of the Noteholders, Receiptholders or Couponholders,
the Agent and the Issuers may agree to modifications of or amendments to this
Agreement, the Notes, the Receipts or the Coupons for any of the following
purposes:
(i) to evidence the succession of another corporation to an Issuer and the
assumption by any such successor of the covenants of such Issuer in
this Agreement, the Notes, Receipts or Coupons;
(ii) to add to the covenants of an Issuer for the benefit of the
Noteholders, the Receiptholders or the Couponholders, or to surrender
any right or power herein conferred upon such Issuer;
(iii) to relax or eliminate the restrictions on payment of principal and
interest in respect of the Notes, Receipts or Coupons in the United
States, provided that such payment is permitted by United States tax
laws and regulations then in effect and provided that no adverse tax
consequences would result to the Noteholders, the Receiptholders or
the Couponholders;
(iv) to cure any ambiguity, to correct or supplement any defective
provision herein or any provision which may be inconsistent with any
other provision herein;
(v) to make any other provisions with respect to matters or questions
arising under the Notes, the Receipts, the Coupons or this Agreement,
provided such action pursuant to this sub-clause (v) shall not
adversely affect the interests of the Noteholders, the Receiptholders
or the Couponholders; and
(vi) permit further issuances of Notes in accordance with the terms of the
Program Agreement.
Any such modification or amendment shall be binding on the Noteholders, the
Receiptholders and the Couponholders and any such modification or amendment
shall be notified to the Noteholders, the Receiptholders or the Couponholders in
accordance with Condition 12 as soon as practicable thereafter.
30. Descriptive Headings
The descriptive headings in this Agreement are for convenience of reference
only and shall not define or limit the provisions hereof.
31. Counterparts
This Agreement may be executed in any number of counterparts, all of which
shall constitute one and the same instrument. Any party may enter into this
Agreement by signing such a counterpart.
21
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their respective corporate names by their respective officers
thereunder duly authorized as of the date and year first above written.
BANKAMERICA CORPORATION
as Issuer
By /s/ Xxxx X. Xxxx
------------------------------------
Name:
Title:
NATIONSBANK, N.A.
as Issuer
By /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
LONDON BRANCH
as Agent and
Principal Paying Agent
By /s/ Xxxx Xxxxx
------------------------------------
Name:
Title:
CHASE MANHATTAN BANK LUXEMBOURG S.A.
as Paying Agent
By /s/ Xxxxx Xxxxx
------------------------------------
Name:
Title:
22
