DATED AS OF NOVEMBER 15, 1996
BANKAMERICA CORPORATION
as Issuer
-and-
FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION
as Agent
-------------------------------------
SECOND AMENDED AND RESTATED AGENCY AGREEMENT
in respect of a
EURO MEDIUM-TERM NOTE PROGRAMME
-------------------------------------
TABLE OF CONTENTS
Clause Page
------ ----
1. Definitions and interpretation.......................................................2
2. Appointment of Agent and Paying Agents...............................................5
3. Issue of Temporary Global Notes......................................................6
4. Issue of Permanent Global Notes......................................................7
5. Issue of Definitive Notes............................................................8
6. Exchanges............................................................................8
7. Terms of Issue.......................................................................9
8. Payments............................................................................11
9. Determinations and notifications in respect of Notes................................12
10. Notice of any withholding or deduction..............................................15
11. Duties of the Agent in connection with early redemption.............................16
12. Publication of notices..............................................................16
13. Cancellation of Notes, Receipts, Coupons and Talons.................................16
14. Exchange; Issue of new and replacement Notes, Receipts, Coupons and Talons..........18
15. Copies of this Agreement and each Pricing Supplement available for inspection.......20
16. Commissions and expenses............................................................20
17. Indemnity...........................................................................20
18. Repayment by the Agent..............................................................21
19. Conditions of appointment...........................................................21
20. Communication between the parties...................................................22
21. Changes in Agent and Paying Agents..................................................22
22. Merger and consolidation............................................................24
23. Notifications.......................................................................25
24. Change of specified office..........................................................25
25. Notices.............................................................................25
26. Taxes and stamp duties..............................................................26
27. Currency indemnity..................................................................26
28. Amendments; Meetings of Holders.....................................................26
29. Calculation Agency Agreement........................................................29
30. Descriptive Headings................................................................29
31. Governing Law.......................................................................29
32. Counterparts........................................................................30
APPENDIX A
Terms and Conditions.......................................................................A-1
APPENDIX B
Forms of Global and Definitive Notes, Coupons,
Receipts and Talons........................................................................B-1
APPENDIX C
Form of Calculation Agency Agreement.......................................................C-1
APPENDIX D
Form of Operating & Administrative Procedures
Memorandum.................................................................................D-1
APPENDIX E
Form of the Notes..........................................................................E-1
SECOND AMENDED AND RESTATED AGENCY AGREEMENT
in respect of a
EURO MEDIUM-TERM NOTE PROGRAMME
THIS SECOND AMENDED AND RESTATED AGREEMENT is made as of November 15, 1996
BETWEEN:
(1) BankAmerica Corporation of San Francisco, California, U.S.A.
(the "Company"); and
(2) First Trust of New York, National Association ("First
Trust"), of New York, U.S.A. (the "Agent," which expression shall include Union
Bank of Switzerland, London Branch, in its capacity as First Trust's agent with
respect to First Trust's obligations as issuing and principal paying agent under
this Agreement, and any successor agent appointed in accordance with Clause 21),
and it amends and restates the Amended and Restated Agency Agreement dated as of
November 16, 1994 (the "Prior Agency Agreement").
WHEREAS:
(A) The Company has entered into a Second Amended and Restated
Programme Agreement (the "Programme Agreement") dated November 15, 1996 with
Bank of America International Limited, BA Asia Limited, Xxxxxxx Xxxxx
International, Xxxxxx Brothers International (Europe), Xxxxxxx Xxxxx
International, PaineWebber International (U.K.) Ltd., and Salomon Brothers
International Limited (the "Dealers") pursuant to which the Company may issue
notes (the "Notes") in an aggregate principal amount of up to
U.S.$10,000,000,000 (or its equivalent in other currencies or currency units)
outstanding at any time;
(B) Clause 28(1) of the Prior Agency Agreement provides that such
Agreement may be amended by the Company and the Agent, without the consent of
the holder of any Note, Receipt or Coupon, to make any further modifications of
the terms of such Agreement necessary or desirable to allow for the issuance of
any additional Notes (which modifications shall not be materially adverse to
holders of outstanding Notes);
(C) The Company desires and has requested the Agent pursuant to
Clause 28(1) of the Prior Agency Agreement to join with it in the execution and
delivery of this Agreement in order to amend and restate the Prior Agency
Agreement as set forth herein solely with respect to Notes issued on or after
the date hereof; and
(D) The Notes to be issued on or after the date hereof will be
issued subject to, and with the benefit of, this Agreement.
IT IS HEREBY AGREED as follows:
1. Definitions and interpretation
(1) The following expressions shall have the following meanings:
"Cedel Bank" means Cedel Bank, societe anonyme;
"Conditions" means, in respect of any Series of Notes, the terms
and conditions of the Notes of such Series, such terms and conditions being in
the form or substantially in the form set out in Appendix A hereto or in such
other form, having regard to the terms of the relevant Series, as may be agreed
between the Company, the Agent and the relevant Purchaser or Purchasers from
time to time;
"Dealer" means Bank of America International Limited, BA Asia
Limited, Xxxxxxx Xxxxx International, Xxxxxx Brothers International (Europe),
Xxxxxxx Xxxxx International, PaineWebber International (U.K.) Ltd. and Salomon
Brothers International Limited, and includes any other entities appointed as
dealers from time to time pursuant to the Programme Agreement, and excludes any
entity whose appointment has been terminated pursuant to the Programme
Agreement;
"Definitive Note" means a Note in definitive form substantially
in the form set out in Part 3 of Appendix B hereto (or in such other form as may
be agreed between the Company, the Agent and the relevant Purchaser or
Purchasers) issued or to be issued by the Company pursuant to this Agreement in
exchange for the whole, but not for a part, of a Permanent Global Note;
"Dual Currency Notes" means Notes in respect of which principal
and/or interest is payable in one or more Specified Currencies other than the
Specified Currency in which they are denominated.
"Euroclear" means Xxxxxx Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear System;
"Global Note" means a Temporary Global Note or a Permanent Global
Note;
"Issue Date" means, in respect of any Note, the date of issue and
purchase of such Note pursuant to Section 2 of the Programme Agreement, being in
the case of any Note in the form of a Permanent Global Note or a Definitive
Note, the same date as the date of issue of the Temporary Global Note which
initially represented such Note;
"Listing Rules" means in the case of Notes which are, or are to
be, listed on a Stock Exchange, the listing rules and regulations for the time
being in force for such Stock Exchange;
"Note" means any note issued or to be issued by the Company
pursuant to the Programme Agreement, which Note may be represented by a Global
Note or a Definitive Note;
"Noteholders" means the several persons who are for the time
being holders of outstanding Notes save that for so long as any of the Notes are
represented by a Global Note, each person who is for the time being shown in the
records of Euroclear and/or Cedel Bank (in which regard any certificate or other
document issued by Euroclear and/or Cedel Bank as to the principal amount of
such Notes standing to the account of any person shall be conclusive and binding
for all purposes save in the case of manifest error) as the holder of a
particular principal amount of such Notes (other than Cedel Bank if Cedel Bank
shall be an account holder of Euroclear and other than Euroclear if Euroclear
shall be an account holder of Cedel Bank), shall be treated by the Company, the
Agent and any other Paying Agent as a holder of such principal amount of such
Notes for all purposes other than for the payment of principal and interest on
such Notes, the right to which shall be vested, as against the Company, the
Agent and any other Paying Agent, solely in the bearer of the Global Note in
accordance with and subject to its terms (and the expressions "Noteholder,"
"holder of Notes" and related expressions shall be construed accordingly);
"Offering Circular" means the Offering Circular relating to the
Programme as revised, supplemented, amended or updated from time to time,
including in relation to each Tranche of Notes, the Pricing Supplement relating
to such Tranche and such other documents as are from time to time incorporated
therein by reference;
"outstanding" means, in relation to the Notes, all the Notes
issued other than (a) those which have been redeemed in full in accordance with
this Agreement or the Conditions, (b) those in respect of which the date for
redemption in accordance with the Conditions has occurred and the redemption
moneys (including all interest (if any) accrued thereon to the date for such
redemption and any interest (if any) payable under the Conditions after such
date) have been duly paid to the Agent as provided herein (and, where
appropriate, notice has been given to the Noteholders in accordance with
Condition 16) and remain available for payment against presentation of Notes,
(c) those which have become void under Condition 15, (d) those which have been
purchased and cancelled as provided in Condition 5, (e) those Notes which have
been surrendered in exchange for new or replacement Notes pursuant to Condition
14, (f) (for the
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 14 and (g) Temporary Global Notes to the
extent that they shall have been duly exchanged for Permanent Global Notes and
Permanent Global Notes to the extent that they shall have been duly exchanged
for Definitive Notes, in each case pursuant to their respective provisions;
"Paying Agents" means, in relation to all Series of the Notes,
the several institutions (including, where the context permits or requires, the
Agent) at their respective specified offices named as such at the end of the
Conditions or such other or further paying agents at their respective specified
offices for all or any Series of the Notes as may from time to time be appointed
in respect thereof by the Company and notice of whose appointment is given to
the Noteholders pursuant to Clause 21 or Clause 23 and in accordance with
Condition 16.
"Permanent Global Note" means a permanent global note
substantially in the form set out in Part 2 of Appendix B hereto (or in such
other form as may be agreed between the Company, the Agent and the relevant
Purchaser or Purchasers) comprising Notes issued or to be issued by the Company
in exchange for the whole or part of a Temporary Global Note issued in respect
of the Notes of the same Tranche;
"Pricing Supplement" means the pricing supplement issued in
relation to each Tranche of Notes (substantially in the form of Annex D to the
Procedures Memorandum) as a supplement to the Offering Circular and giving
details of that Tranche;
"Programme" means the Euro Medium-Term Note Programme established
by the Programme Agreement;
"Programme Agreement" means the second amended and restated
agreement of even date herewith between the Company and the Dealers concerning
the purchase of Notes to be issued by the Company and includes any amendment or
supplement thereto;
"Purchaser" means a Dealer or any third party other than a dealer
(as defined in Section 2(12) of the United States Securities Act of 1933), who
agrees to purchase Notes pursuant to the Programme Agreement and references to a
relevant Purchaser or Purchasers mean in relation to any Note, the Purchaser or
Purchasers to whom the Company has agreed to issue and sell such Note;
"Series" means all Notes which are denominated in the same
currency and which have the same Maturity Date or Redemption
Month or Redemption Date (as the case may be) and Interest/Payment Basis and
Interest Payment Dates (if any) (all as indicated in the applicable Pricing
Supplement) and the terms of which (except for the Issue Date or Interest
Commencement Date (as the case may be) and/or the Issue Price (except in the
case of Zero Coupon Notes) (all as indicated as aforesaid)) are otherwise
identical (including whether or not the Notes are listed and whether the Notes
are Senior Notes or Subordinated Notes); and the expressions "Notes of the
relevant Series" and "holders of Notes of the relevant Series" and related
expressions shall be construed accordingly;
"Specified Currency" means the currency (which expression shall
include European Currency Units ("ECUs")) in which Notes are denominated and, in
the case of Dual Currency Notes, the currency or currencies in which payment in
respect of the Notes is to be made;
"Stock Exchange" means the Luxembourg Stock Exchange or such
other stock exchange(s) on which any Notes may from time to time be listed and
references in this Agreement to the "relevant Stock Exchange" shall, in relation
to any Notes, be references to the Stock Exchange on which such Notes are from
time to time, or will be, listed;
"Temporary Global Note" means a temporary global note
substantially in the form set out in Part 1 of Appendix B hereto (or in such
other form as may be agreed between the Company, the Agent and the relevant
Purchaser or Purchasers) comprising Notes issued or to be issued by the Company
pursuant to the Programme Agreement and issued in respect of the Notes of the
same Tranche;
"Tranche" means all Notes of the same Series with the same Issue
Date, Interest Commencement Date and Issue Price; and
"U.S.$" and "U.S. dollars" means the coin or currency of the
United States of America as at the time of payment shall be legal tender for the
payment of public and private debts in the United States of America.
(2) Terms and expressions (including the definitions of
currencies or composite currencies) defined in the Conditions or Appendix E or
used in the applicable Pricing Supplement shall have the same meanings in this
Agreement, except where the context requires otherwise.
(3) Any references to Notes shall, unless the context otherwise
requires, include any Temporary Global Notes, Permanent Global Notes and
Definitive Notes.
(4) Any reference herein to Euroclear and/or Cedel
Bank shall, whenever the context so permits, be deemed to include a reference to
any additional or alternative clearance system approved by the Company and the
Agent.
(5) Nothing in this Agreement shall apply to, or alter the rights
and remedies conferred by the Prior Agency Agreement upon, Notes created and
issued prior to the date hereof.
2. Appointment of Agent and Paying Agents
(1) The Agent is hereby appointed as agent of the Company, to act
as issuing and principal paying agent, upon the terms and subject to the
conditions set out below, for the purposes of, INTER ALIA:
(a) completing, authenticating and issuing Notes;
(b) exchanging Temporary Global Notes for Permanent Global Notes
and exchanging Permanent Global Notes for Definitive Notes in accordance with
the terms of such Global Notes;
(c) paying sums due on Global Notes and Definitive Notes,
Receipts and Coupons;
(d) determining the interest and/or other amounts payable in
respect of the Notes in accordance with the Conditions and Clause 9 hereof;
(e) arranging on behalf of the Company for notices to be
communicated to the Noteholders and the relevant Stock Exchanges;
(f) ensuring that all necessary action is taken to comply with
the periodic reporting requirements of the Bank of England, the German Central
Bank and the Ministry of Finance of Japan with respect to the Notes to be issued
under the Programme;
(g) receiving notice from Euroclear and/or Cedel Bank relating to
the certificates of non-U.S. beneficial ownership of the Notes;
(h) notifying the relevant Dealer or Dealers of the end of the
restricted period in respect of each Series of Notes based upon the
determinations and certifications of such Dealer(s); and
(i) performing all other obligations and duties imposed upon it
by the Conditions and this Agreement.
(2) The Company hereby appoints each of the Agent at c/o Union
Bank of Switzerland, London Branch, P.O. Xxx
000, 000 Xxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX and Kredietbank S.A. Luxembourgeoise,
00 Xxxxxxxxx Xxxxx, X-0000, Xxxxxxxxxx (xxxxxxxx with the Agent, the "Paying
Agents," which expression shall include any additional or successor paying agent
appointed in accordance with Clause 21 and "Paying Agent" shall mean any of the
Paying Agents) as paying agent of the Company upon the terms and subject to the
conditions set out below, for the purposes of paying sums due on Notes, Receipts
and Coupons.
3. Issue of Temporary Global Notes
(1) Subject to subclause (2), following receipt of confirmation
(the "Confirmation") from the Company in respect of an issue of Notes in
accordance with the provisions of the Procedures Memorandum set out in Appendix
D hereto (as from time to time varied, with the prior approval of the Agent, by
the Company and the relevant Purchaser or Purchasers in respect of a Tranche or
Series of Notes of such issue) the Agent will take the steps required of the
Agent in the Procedures Memorandum. For this purpose the Agent is authorized on
behalf of the Company:
(a) to prepare a Temporary Global Note or Temporary Global Notes
containing the relevant Conditions and to complete, in accordance with such
Confirmation, the necessary details on such Temporary Global Note(s);
(b) to authenticate such Temporary Global Note(s); and
(c) to deliver such Temporary Global Note(s) to the specified
common depositary of Euroclear and 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(s) 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) to credit the Notes represented
by such Temporary Global Note(s), unless otherwise agreed in writing between the
Agent and the Company, to the Agent's distribution account (or in the case of a
syndicated note issue, the lead manager's account).
(2) The Agent shall only be required to perform its obligations
under subclause (1) if it holds a master Temporary Global Note duly executed by
a person or persons authorized to execute the same on behalf of the Company,
which may be used by the Agent for the purpose of preparing Temporary Global
Notes in accordance with paragraph (a) of that subclause.
(3) The Agent shall 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.
4. Issue of Permanent Global Notes
(1) Subject to subclause (2), upon the occurrence of any event
which pursuant to the terms of a Temporary Global Note requires the issue of a
Permanent Global Note, the Agent shall issue a Permanent Global Note in
accordance with the terms of the Temporary Global Note. For this purpose the
Agent is authorized on behalf of the Company:
(a) to prepare a Permanent Global Note containing the relevant
Conditions and to complete, in accordance with the terms of the Temporary Global
Note, the necessary details on such Permanent Global Note and attach a copy of
the applicable Pricing Supplement to such Permanent Global Note;
(b) to authenticate such Permanent Global Note; and
(c) to deliver such Permanent Global Note to the specified common
depositary that is holding the Temporary Global Note for the time being on
behalf of Euroclear and/or Cedel Bank in exchange for such Temporary Global Note
or, in the case of a partial exchange, after noting the details of such exchange
in the appropriate spaces on 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.
(2) The Agent shall only be required to perform its obligations
under subclause (1) if it holds a master Permanent Global Note duly executed by
a person or persons authorized to execute the same on behalf of the Company,
which may be used by the Agent for the purpose of preparing Permanent Global
Notes in accordance with paragraph (a) of that subclause.
(3) The Agent shall 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.
5. Issue of Definitive Notes
(1) Upon notice from Euroclear or Cedel Bank pursuant to the
terms of a Permanent Global Note requiring the issue of one or more Definitive
Note(s), the Agent shall deliver the relevant Definitive Note(s) in accordance
with the terms of the Permanent Global Note. For this purpose the Agent is
hereby authorized on behalf of the Company:
(a) to authenticate (if so instructed by the Company) such
Definitive Note(s); and
(b) to deliver such Definitive Note(s) to or to the order of
Euroclear and/or Cedel Bank.
The Agent shall notify the Company forthwith upon receipt of a
request for issue of any Definitive Note(s) in accordance with the provisions of
a Permanent Global Note (and shall state the aggregate principal amount of such
Permanent Global Note to be exchanged in connection therewith).
(2) The Company undertakes to deliver to the Agent, pursuant to a
request for the issue of Definitive Notes under the terms of the relevant
Permanent Global Note, sufficient numbers of executed Definitive Notes to enable
the Agent to comply with its obligations under this Clause 5.
6. Exchanges
Upon any exchange of all or a portion of an interest in a
Temporary Global Note for an interest in a Permanent Global Note or upon any
exchange of all, but not a portion, of an interest in a Permanent Global Note
for Definitive Notes, the Global Note shall be endorsed to reflect the reduction
of its principal amount by the aggregate principal amount so exchanged. Until
exchanged in full, the holder of an interest in any Global Note shall in all
respects be entitled to the same benefits as the holder of Notes, Receipts and
Coupons authenticated and delivered hereunder, subject as set out in the
Conditions. The Agent is hereby authorized on behalf of the Company (i) to
endorse or to arrange for the endorsement of the relevant Global Note to reflect
the reduction in the principal amount represented thereby by the amount so
exchanged and, if appropriate, to endorse the Permanent Global Note to reflect
any increase in the principal amount represented thereby, and in either case, to
sign in the relevant space on the relevant Global Note recording such exchange
or increase and (ii) in the case of a total exchange, to cancel or arrange for
the cancellation of the relevant Global Note.
7. 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 Conditions.
(2) Subject to the procedures set out in the Procedures
Memorandum, for the purposes of subclause (1) the Agent is entitled to treat a
telephone, telex or facsimile
communication from a person purporting to be (and who the Agent, after
ascertaining that such person appears on the list of persons described in Clause
19(7), believes in good faith to be) the authorized representative of the
Company named in the list referred to in, or notified pursuant to, Clause 19(7)
as sufficient instructions and authority of the Company for the Agent to act in
accordance with subclause (1).
(3) In the event that a person who has signed on behalf of the
Company a master Temporary Global Note, a master Permanent Global Note or
Definitive Notes not yet issued but held by the Agent in accordance with Clause
5(2) ceases to be authorized as described in Clause 19(7), the Agent shall
(unless the Company gives notice to the Agent that Notes signed by that person
do not constitute valid and binding obligations of the Company or otherwise
until replacements have been provided to the Agent) continue to have authority
to issue any such Notes, and the Company hereby warrants to the Agent that such
Notes shall, unless notified as aforesaid, be valid and binding obligations of
the Company. Promptly upon such person ceasing to be authorized, the Company
shall provide the Agent with replacement master Temporary Global Notes, master
Permanent Global Notes and Definitive Notes and the Agent shall cancel and
destroy the master Temporary Global Notes, master Permanent Global Notes and
Definitive Notes held by it which are signed by such person and shall provide to
the Company a confirmation of destruction in respect thereof specifying the
Notes so cancelled and destroyed.
(4) Unless otherwise agreed in writing between the Company and
the Agent, each Note credited to the Agent's distribution account with Euroclear
or Cedel Bank following the delivery of a Temporary Global Note or Permanent
Global Note to a common depositary pursuant to Clause 3(1)(c) or 4(1)(c),
respectively, shall be held to the order of the Company. The Agent shall procure
that the principal amount of Notes which the relevant Purchaser has agreed to
purchase is:
(a) debited from the Agent's distribution account; and
(b) credited to the securities account of such Purchaser with
Euroclear or Cedel Bank (as specified in the Confirmation),
in each case only upon receipt by the Agent on behalf of the Company of the
purchase price due from the relevant Purchaser in respect of such Notes.
(5) If on the relevant Issue Date a Purchaser 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 Company. The Agent shall notify the Company forthwith
of the failure of the Purchaser to pay the full purchase price due from it in
respect of any Defaulted Note and, subsequently, shall notify the Company
forthwith upon receipt from the Purchaser of the full purchase price in respect
of such Defaulted Note.
(6) If the Agent pays an amount (the "Advance") to the Company on
the basis that a payment (the "Payment") will be received from a Purchaser and
if the Payment is not received by the Agent on the date the Agent pays the
Company, the Agent shall notify the Company by tested telex or facsimile that
the Payment has not been received and the Company 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).
(7) In the event of an issue of Notes and subject to receipt of a
Confirmation from the Company in accordance with the terms of the Procedures
Memorandum, the Agent will promptly, and in any event prior to the Issue Date in
respect of such issue, send the Pricing Supplement to the Company, relevant
Stock Exchange and the relevant Dealers.
8. Payments
(1) The Agent shall advise the Company, no later than ten
Business Days (as defined below) immediately preceding the date on which any
payment is to be made to the Agent with respect to Notes pursuant to this
subclause (1), of the payment amount, payment date, whether the Notes are Senior
Notes or Subordinated Notes and payment instructions which shall provide for
separate accounts for Senior Notes and Subordinated Notes and the Company shall
on each date on which any payment in respect of any Notes becomes due, transfer
to the account(s) specified by the Agent not later than the Payment Time such
amounts 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
Company may agree. As used in this subclause (1), the term "Payment Time" means
2:00 p.m. local time in the principal financial center of the country of the
currency in which the payment is to be made (which in the case of payment in ECU
is Brussels).
(2) No later than the third Business Day immediately preceding
the date on which any payment is to be made to the Agent pursuant to subclause
(1), the Agent shall receive a
confirmation from the Company that payment will be made. For the purposes of
this Clause 8, "Business Day" means a day which is:
(a) a day (other than a Saturday or a Sunday) on which commercial
banks and foreign exchange markets settle payments in London;
(b) either (i) in relation to a payment to be made in a Specified
Currency other than ECU, 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, and which, if the Specified
Currency is Australian dollars, shall be Sydney and if the Specified Currency is
New Zealand dollars, shall be Auckland) or (ii) in relation to a payment to be
made in ECU, an ECU Settlement Day (as defined in the 1991 ISDA Definitions
published by the International Swaps and Derivatives Association, Inc.
as amended and updated at the Issue Date of the Notes,); and
(c) a day (other than a Saturday or a Sunday) on which banks
settle payments in the relevant place of business of the Agent.
(3) Subject to the Agent being satisfied in its sole discretion
that payment will be duly made as provided in subclause (1), 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 Company in the manner provided in the Conditions.
If any payment provided for in subclause (1) 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.
(4) If for any reason the Agent considers in its sole discretion
that the amounts to be received by the Agent pursuant to subclause (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
either the Senior Notes or the Subordinated Notes, the Agent shall then
forthwith notify the Company of such insufficiency and, until such time as the
Agent has received the full amount of all such payments, neither the Agent nor
any Paying Agent shall be obliged to pay any such claims; provided that in the
event that payments are received in the account for payment of Senior Notes
which are sufficient to pay the Senior Notes, payments shall be made on the
Senior Notes and all payments on the Subordinated Notes shall be made in
accordance with Condition 2 of the Conditions.
(5) Without prejudice to subclauses (3) and (4), 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 subclause (1) (the
excess of the amounts so paid over the amounts so received being the
"Shortfall"), the Company shall, in addition to paying amounts due under
subclause (1), pay to the Agent on demand interest (at a rate which represents
the Agent's actual overnight cost of funding the Shortfall) on the Shortfall (or
the unreimbursed portion thereof) until the receipt in full by the Agent of the
Shortfall. The Agent shall notify the Company by tested telex or facsimile as
soon as practicable, it being understood that the Company shall have the right
to make such payment subsequently with good value as of such Business Day.
(6) 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 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 on
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.
9. Determinations and notifications in respect of Notes
(1) The Agent shall make all such determinations and calculations
(howsoever described) as it is required to do under the Conditions, all subject
to and in accordance with the Conditions and Clause 29 hereof.
(2) The Agent shall not be responsible to the Company or to any
third party (except in the event of negligence, wilful default or bad faith) as
a result of the Agent having acted on any quotation given by any Reference Bank
which subsequently may be found to be incorrect.
(3) The Agent shall promptly notify the Company, any other Paying
Agent 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 Conditions as soon as practicable
after the determination thereof and of any subsequent amendment thereto pursuant
to the Conditions.
(4) The Agent 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 Conditions to
be published as
required in accordance with the Conditions as soon as possible after their
determination or calculation.
(5) If the Agent 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 9, it shall forthwith notify the
Company and the other Paying Agents of such fact.
(6) At the end of each calendar month, the Agent shall, if
required, provide (i) the Bank of England with information on the amount,
interest rate and other terms of each issue of Sterling-denominated Notes during
the month, and such other information as the Bank of England may require from
time to time, (ii) the Japanese Ministry of Finance with information on the
amount, interest rate and other terms of each issue of Yen-denominated Notes
during the month, and such other information as the Japanese Ministry of Finance
may require from time to time, and (iii) the German Central Bank with
information on the amount, interest rate and other terms of each issue of
Deutsche Xxxx-denominated Notes during the month, and such other information as
the German Central Bank may require from time to time.
(7) For purposes of monitoring the aggregate principal amount of
Notes issued under the Programme, 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 and Indexed Notes, each issue of
Zero Coupon Notes and each issue of Partly Paid Notes, as follows:
(a) the U.S. dollar equivalent of the principal amount of Notes
denominated in a currency other than U.S. dollars shall be determined by the
Agent by reference to a spot rate displayed on a page on the Reuters Monitor
Money Rates Service or the appropriate Associated Press-Dow Xxxxx Telerate
Service or such other service as is agreed between the Agent and the Company
from time to time and such Notes shall be revalued at least monthly and the most
recent valuation used;
(b) the U.S. dollar equivalent of the principal amount of Dual
Currency Notes and Indexed Notes shall be determined in the manner specified
above by reference to the original principal amount of such Notes, and if Notes
are payable in alternate currencies or currency equivalents at the option of the
holder, the largest amount payable shall be used;
(c) the U.S. dollar equivalent of the principal amount of Zero
Coupon Notes and other Notes sold for 90% or less of their principal amount at
stated maturity shall be calculated at least monthly, and the proceeds received
or to be received, plus
any portion of original issue discount which is amortized from the date of issue
to the date of the most recent valuation, without adjustment for any
underwriting, placement agent or similar discount, fee or charge, or any other
payment, receipt, or expense, shall be used for the valuation instead of their
principal amount at stated maturity; and
(d) the U.S. dollar equivalent of the principal amount of Partly
Paid Notes shall be the principal amount regardless of the amount paid up on
such Notes.
(8) The Agent will determine the Rate of Interest pursuant to
Condition 4(b)(iv) in the event that the Relevant Screen Page is not available
or if, in the case of subclause (x) thereof, no offered quotation appears or, in
the case of subclause (y) thereof, fewer than three of such offered quotations
appear, at the time specified in Condition 4(b)(iv), as follows:
(a) the Rate of Interest for the applicable Interest Period
shall, subject as provided below, be the arithmetic mean (rounded, if necessary,
to the fifth decimal place with 0.000005 being rounded upwards) of the offered
quotations (expressed as a percentage rate per annum), of which the Agent is
advised by all Reference Banks (as defined below) as at 11:00 a.m. (London time)
on the Interest Determination Date plus or minus (as specified in the applicable
Pricing Supplement) the Margin (if any), all as determined by the Agent;
(b) if on the Interest Determination Date to which subclause
(8)(a) applies, two or three only of the Reference Banks advise the Agent of
such offered quotations, the Rate of Interest for the next Interest Period shall
be determined as in subclause (8)(a) on the basis of the rates of those
Reference Banks advising such offered quotations;
(c) if on the Interest Determination Date to which subclause
(8)(a) applies, one only or none of the Reference Banks advises the Agent of
such rates, the Rate of Interest for the next Interest Period shall be whichever
is the higher of:
(1) the Rate of Interest in effect for the last preceding
Interest Period to which subclause (8)(a) shall have applied (plus or
minus (as specified in the applicable Pricing Supplement), where a
different Margin is to be applied to the next Interest Period than that
which applied to the last preceding Interest Period, the Margin relating
to the next Interest Period in place of the Margin relating to the last
preceding Interest Period); or
(2) the reserve interest rate (the "Reserve
Interest Rate") which shall be the rate per annum which the Agent
determines to be either (x) the arithmetic mean (rounded, if necessary,
to the fifth decimal place with 0.000005 being rounded upwards) of the
lending rates for the Specified Currency which banks selected by the
Agent in the principal financial center of the country of the Specified
Currency (which, if Australian dollars, shall be Sydney and, if New
Zealand dollars, shall be Auckland) are quoting on the relevant Interest
Determination Date for the next Interest Period to the Reference Banks
or those of them (being at least two in number) to which such quotations
are, in the opinion of the Agent, being so made, plus or minus (as
specified in the applicable Pricing Supplement) the Margin (if any), or
(y) in the event that the Agent can determine no such arithmetic mean,
the lowest lending rate for the Specified Currency which banks selected
by the Agent in the principal financial center of the country of the
Specified Currency (which, if Australian dollars, shall be Sydney and,
if New Zealand dollars, shall be Auckland) are quoting on such Interest
Determination Date to leading European banks for the next Interest
Period, plus or minus (as specified in the applicable Pricing
Supplement) the Margin (if any), provided that if the banks selected as
aforesaid by the Agent are not quoting as mentioned above, the Rate of
Interest shall be the Rate of Interest specified in (1) above; and
(d) unless otherwise specified in the applicable Pricing
Supplement, the Reference Banks will be Barclays Bank PLC, National Westminster
Bank PLC, Bankers Trust Company and The Bank of Tokyo, Ltd. So long as any
Floating Rate Note to which subclause (8)(a) is applicable remains outstanding,
in the case of any bank being unable or unwilling to continue to act as a
Reference Bank, the Company shall specify the London office of some other
leading bank engaged in the Eurodollar market to act as such in its place.
The Agent shall promptly notify the Company of each determination
made as aforesaid.
10. Notice of any withholding or deduction
If the Company is, in respect of any payments, compelled to
withhold or deduct any amount for or on account of taxes, duties, assessments or
governmental charges as specifically contemplated under the Conditions, the
Company shall give notice thereof to the Agent as soon as it becomes aware of
the 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.
11. Duties of the Agent in connection with early redemption
(1) If the Company decides to redeem any Notes 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 Conditions, the
Company shall give notice of such decision to the Agent not less than 40 days
before the relevant redemption date.
(2) If only some of the Notes of like tenor and of the same
Series are to be redeemed on such date the Agent (or, in the case of a Global
Note, Euroclear and/or Cedel Bank) shall make the required drawing in accordance
with the Conditions.
(3) The Agent shall publish the notice required in connection
with any such redemption and shall at the same time also publish a separate list
of 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 Conditions.
12. Publication of notices
On behalf of and at the request and expense of the Company, the
Agent shall cause to be published all notices required to be given by the
Company in accordance with the Conditions.
13. Cancellation of Notes, Receipts, Coupons and Talons
(1) Any Notes which are purchased pursuant to the Conditions by
or on behalf of the Company, together (in the case of Notes in definitive form)
with all unmatured Receipts, Coupons or Talons (if any) attached thereto or
surrendered therewith, may, at the Company's option, be surrendered to the Agent
for cancellation. Where any Notes, Receipts, Coupons or Talons are purchased and
surrendered to the Agent for cancellation as aforesaid, the Company shall
procure that all relevant details are promptly given to the Agent and that all
Notes, Receipts, Coupons or Talons to be so cancelled are delivered to the
Agent. All Notes which are redeemed, all Receipts or Coupons which are paid and
all Talons which are exchanged shall be cancelled by the Agent or Paying Agent
by which they are redeemed, paid or exchanged. Each of the Paying Agents shall
give to the Agent details of all payments made by it and shall deliver all
cancelled Notes, Receipts, Coupons and Talons to the Agent or to any Paying
Agent authorized from time to time in writing by the Agent to accept delivery of
cancelled Notes, Receipts, Coupons and Talons (an "Authorized Agent").
(2) A certificate stating:
(a) the aggregate principal amount of Notes which have been
redeemed and the aggregate amount paid in respect thereof;
(b) the number of Notes cancelled together (in the case of Notes
in definitive form) 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 cancelled; and
(e) the serial numbers of such Notes,
shall be given to the Company by the Agent as soon as reasonably practicable and
in any event within 30 days after the date of such repayment or, as the case may
be, payment or exchange.
(3) Subject to being duly notified in due time, the Agent shall
give a certificate to the Company, within three months of the date of purchase
and cancellation of Notes as aforesaid, stating:
(a) the principal amount of Notes so purchased and cancelled;
(b) the serial numbers of such Notes; and
(c) the total number by maturity date of the Receipts, Coupons
and Talons (if any) appertaining thereto and surrendered therewith or attached
thereto.
(4) The Agent or an Authorized Agent shall destroy all cancelled
Notes, Receipts, Coupons and Talons (unless otherwise instructed by the Company)
and, forthwith upon destruction, furnish the Company and, in the case of an
Authorized Agent, the Agent with a certificate of the serial numbers of the
Notes and the number by maturity date of Receipts, Coupons and Talons so
destroyed.
(5) Without prejudice to the obligations of the Agent pursuant to
subclause (2), 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 14) and of all new or replacement
Notes, Receipts, Coupons or Talons issued in substitution for exchanged or
mutilated, defaced, destroyed, lost or stolen Notes, Receipts, Coupons or
Talons. The Agent shall at all reasonable times make such record available to
the Company and any person authorized by the Company for inspection and for the
taking of copies thereof or extracts therefrom.
(6) All records and certificates made or given pursuant to this
Clause 13 and Clause 14 shall make a distinction between Notes, Receipts,
Coupons and Talons of each Series.
14. Exchange; Issue of new and replacement Notes, Receipts,
Coupons and Talons
(1) The Company will cause a sufficient quantity of additional
forms of Notes, Receipts, Coupons and Talons to be available, upon request, to
the Agent at its specified office for the purpose of issuing Notes, Receipts,
Coupons and Talons as provided below.
(2) Notes (together with any Receipts, Coupons and Talons
appertaining thereto) may be exchanged for Notes of the same Series in any
authorized denominations and of like tenor and terms and aggregate principal
amount, upon surrender of the Notes to be exchanged with all unmatured Receipts,
Coupons and Talons appertaining thereto at the specified office of the Agent, in
accordance with all applicable laws and regulations, upon payment, if the
Company shall so require, of the costs incurred in connection therewith. If the
Noteholder is unable to produce
any of the Receipts, Coupons and Talons appertaining to such Note, such new Note
will only have attached to it Receipts, Coupons and Talons corresponding to
those (if any) attached to the Note which is presented for exchange, unless the
surrender of such missing Receipts, Coupons or Talons is waived by the Company
upon the condition that the Noteholder furnish such indemnity as the Company may
require. Whenever any Notes are so surrendered for exchange, the Company shall
execute, and the Agent shall authenticate and deliver, each Note which the
Noteholder making the exchange is entitled to receive.
(3) The Agent will, subject to and in accordance with the
Conditions and the following provisions of this Clause 14, cause to be delivered
any replacement Notes, Receipts, Coupons and Talons which the Company may
determine to issue in place of Notes, Receipts, Coupons and Talons which have
been lost, stolen, mutilated, defaced or destroyed. In the case of a mutilated
or defaced Note, the Agent shall ensure that (unless otherwise covered by such
indemnity as the Company may 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 Agent shall not issue any replacement Note, Receipt,
Coupon or Talon unless and until the applicant therefor shall have:
(a) paid such costs as may be incurred in connection therewith;
(b) furnished it with such evidence (including evidence as to the
serial number of such Note, Receipt, Coupon or Talon) and indemnity (which may
include a bank guarantee) as the Company may reasonably require; and
(c) in the case of any mutilated or defaced Note, Receipt, Coupon
or Talon, surrendered the same to the Agent.
(5) The Agent shall cancel any Notes (and the Receipts, Coupons
and Talons appertaining thereto) presented for exchange or any mutilated or
defaced Notes, Receipts, Coupons and Talons in respect of which new or
replacement Notes, Receipts, Coupons and Talons, as the case may be, have been
issued pursuant to this Clause 14 and shall furnish the Company with a
certificate stating the serial numbers of the Notes, Receipts, Coupons and
Talons so cancelled and, unless otherwise instructed by the Company in writing,
shall destroy such cancelled Notes, Receipts, Coupons and Talons and furnish the
Company with a destruction certificate containing the information specified in
Clause 13(4).
(6) The Agent shall, on issuing any new or replacement Note,
Receipt, Coupon or Talon, forthwith inform the Company and the Paying Agents of
the serial number of such new or 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 new or replacement Note, Receipt, Coupon or Talon has
been issued. Whenever new or replacement Receipts, Coupons or Talons are issued
pursuant to the provisions of this Clause 14, the Agent shall also notify the
Paying Agents of the maturity dates of the exchanged or lost, stolen, mutilated,
defaced or destroyed Receipts, Coupons or Talons and of the new or replacement
Receipts, Coupons or Talons issued.
(7) The Agent shall keep a full and complete record of all new
and replacement Notes, Receipts, Coupons and Talons issued and shall make such
record available all at reasonable times to the Company and any persons
authorized by the Company for inspection and for the taking of copies thereof or
extracts therefrom.
(8) Whenever any Note, Receipt, Coupon or Talon for which a new
or 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 Company and the Agent.
15. Copies of this Agreement and each Pricing Supplement
available for inspection
The Agent and the Paying Agents shall, for as long as any Note
remains outstanding, hold copies of this Agreement, each Pricing Supplement, the
Company's Certificate of Incorporation as amended and restated from time to time
and the latest annual and any interim reports of the Company available for
inspection. For this purpose, the Company shall furnish the Agent and the Paying
Agents with sufficient copies of each of such documents.
16. Commissions and expenses
(1) The Company shall pay to the Agent such fees and commissions
as the Company and the Agent may separately agree in respect of the services of
the Agent and the Paying Agents hereunder together with any reasonable
out-of-pocket expenses (including legal, printing, postage, tax, cable and
advertising expenses required in connection with the Notes issued hereunder)
incurred by the Agent and the Paying Agents in connection with their said
services.
(2) The Agent shall make payment of the fees and commissions due
hereunder to the Paying Agents and shall
reimburse their expenses promptly after the receipt of the relevant moneys from
the Company. The Company shall not be responsible for any such payment or
reimbursement by the Agent to the Paying Agents.
17. Indemnity
(1) The Company shall indemnify the Agent and each of the Paying
Agents against any direct losses, liabilities, costs, claims, actions, demands
or expenses (including, but not limited to, all reasonable costs, legal fees,
charges and expenses paid or incurred in disputing or defending any of the
foregoing but excluding loss of profits) which it may incur or which may be made
against the Agent or any Paying Agent as a result of or in connection with its
appointment by the Company or the exercise of its powers and duties hereunder
except such as may result from its own wilful default, negligence or bad faith
or that of its officers, directors or employees or the breach by it of the terms
of this Agreement.
(2) The Agent and the Paying Agents shall not be liable for any
action taken or omitted hereunder except for their own wilful default,
negligence or bad faith or that of their respective officers, directors or
employees or the breach by any of them of the terms of this Agreement.
(3) Neither the Agent nor any of the Paying Agents shall be
responsible for the acts or failure to act of any other of them and each of the
Agent and the Paying Agents shall indemnify the Company against any loss,
liability, cost, claim, action, demand or expense (including, but not limited
to, all reasonable costs, legal fees, charges and expenses paid or incurred in
disputing or defending any of the foregoing but excluding loss of profits) which
the Company may incur or which may be made against it as a result of the breach
by the Agent or any such Paying Agent of the terms of this Agreement or its
wilful default, negligence or bad faith or that of its officers, directors or
employees.
18. Repayment by the Agent
The Agent shall, forthwith on demand, upon the Company being
discharged from its obligation to make payments in respect of any Notes under
the Conditions, provided that there is no outstanding, bona fide and proper
claim in respect of any such payments, pay to the Company sums equivalent to any
amounts paid to it by the Company in respect of such Notes.
19. Conditions of appointment
(1) The Agent shall be entitled to deal with money paid to it by
the Company 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 subclause (2) below; and
(c) that it shall not be liable to account to the Company for any
interest thereon except as otherwise agreed between the Company and the Agent.
(2) In acting hereunder and in connection with the Notes, the
Agent and the Paying Agents shall act solely as agents of the Company 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, except that all funds held by the Agent or the Paying Agents for payment
to the Noteholders shall be held in trust, to be applied as set forth herein,
but need not be segregated from other funds except as required by law; provided,
however, that monies paid by the Company to the Agent for the payment of
principal or interest on Notes remaining unclaimed at the end of one year after
such principal or interest shall become due and payable shall be repaid to the
Company as provided and in the manner set forth in the Notes where upon all
liability of the Agent with respect thereto shall cease.
(3) The Agent and the Paying Agents hereby undertake to the
Company to perform such obligations and duties, and shall be obliged to perform
such duties and only such duties, as are herein, in the 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.
(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 Company 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 Company.
(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 transaction with the Company and may act on, or as depositary, trustee or
agent for, any committee or body of holders of Notes or Coupons or in connection
with any other obligations of the Company as freely as if the Agent or the
relevant Paying Agent, as the case may be, were not appointed hereunder.
(7) The Company shall provide the Agent with a certified copy of
the list of persons authorized to execute documents and take action on behalf of
the Company 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 a certified copy of the revised list of
persons authorized to execute documents and take action on behalf of the
Company.
20. Communication between the parties
A copy of all communications relating to the subject matter of
this Agreement between the Company and any holders of Notes, Receipts or Coupons
and any of the Paying Agents shall be sent to the Agent by the relevant Paying
Agent.
21. Changes in Agent and Paying Agents
(1) The Company agrees that, until no 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 (whichever is the later):
(a) so long as any Notes are listed on a Stock Exchange, there
will at all times be a Paying Agent (or the Agent) having a specified office in
each location required by the rules and regulations of the relevant Stock
Exchange;
(b) there will at all times be a Paying Agent (or the Agent) with
a specified office in a city approved by the Company and the Agent in
continental Europe; and
(c) there will at all times be an Agent.
In addition, the Company shall appoint a Paying Agent having a
specified office in New York City in the circumstances described in the final
paragraph of Condition 6(b). Any variation, termination, appointment or change
shall only take effect (other than in the case of insolvency, 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 Agent and the Noteholders in accordance
with Condition 16.
(2) The Agent may (subject as provided in subclause (4)) at any
time resign as Agent by giving written notice to the Company 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 Company unless the Company agrees to accept
less notice.
(3) The Agent may (subject as provided in subclause (4)) be
removed at any time by the filing with it of an instrument in writing signed on
behalf of the Company specifying such removal and the date when it shall become
effective.
(4) Any resignation under subclause (2) or removal under
subclause (3) shall only take effect upon the appointment by the Company of a
successor Agent and (other than in cases of insolvency of the Agent) on the
expiry of the notice to be given under Clause 23. If, by the day falling 10 days
before the expiry of any notice under subclause (2), the Company has not
appointed a successor Agent, then the Agent shall be entitled, on behalf of the
Company, to appoint as a successor Agent in its place such 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 action 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 if an administrator, liquidator or administrative or other receiver of it or
all or a substantial part of its property is appointed, or it admits in writing
its inability to pay or meet its debts as they become due, or if an 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 any officer
takes charge or control of it or of its property or affairs for the purpose of
rehabilitation,
administration or liquidation, a successor Agent may be appointed by the Company
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 23 the Agent so superseded shall cease to be
the Agent hereunder.
(6) Subject to subclause (1), the Company may, after prior
consultation with the Agent, terminate the appointment of any of the Paying
Agents at any time and/or 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 subclause (1), all or any of the Paying Agents may
resign their respective appointments hereunder at any time by giving the Company
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 forthwith transfer all moneys held by it hereunder and,
in the case of the Agent, the records referred to in Clauses 13(5) and 14(7) to
the successor Agent hereunder; and
(b) shall be entitled to the payment by the Company of its
commissions and fees for the services theretofore rendered hereunder in
accordance with the terms of Clause 16 and to the reimbursement of all
reasonable out-of-pocket expenses (including legal fees and together with any
applicable value added tax or similar tax thereon) incurred in connection
therewith.
(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, trust, immunities, duties and
obligations of such predecessor with like effect as if originally named as Agent
or (as the case may be) a Paying Agent hereunder.
22. Merger and consolidation
Any corporation into which the Agent or any Paying Agent may be
merged, or any corporation with which the Agent or any of the Paying Agents may
be consolidated, or any corporation resulting from any merger 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, 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 Company, 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.
Notice of any such merger, consolidation or transfer shall forthwith be given to
the Company by the relevant Agent or Paying Agent.
23. Notifications
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 Agent or on giving notice to terminate the
appointment of any Agent or, as the case may be, Paying Agent, the Company shall
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 Conditions.
24. Change of specified office
If the Agent or any Paying Agent determines to change its
specified office it shall give to the Company 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 of the Company) 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 terminate pursuant to Clause 21 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 Conditions.
25. Notices
Any notice or communication given hereunder shall be sufficiently
given or served:
(a) if delivered in person to the relevant address specified on
the signature pages hereof and, if so delivered, shall be deemed to have been
delivered at time of receipt; or
(b) if sent by facsimile (and followed by delivery to the
relevant address) or telex to the relevant number specified on the signature
pages hereof and, if so sent, shall be deemed to have been delivered upon
transmission provided such transmission is confirmed by the answer back of the
recipient (in the case of telex) or when an acknowledgement of receipt is
received (in the case of facsimile).
26. Taxes and stamp duties
The Company agrees to pay any and all stamp and other documentary
taxes or duties (other than any interest or penalties arising as a result of a
failure by any other person to account promptly to the relevant authorities for
any such duties or taxes after such person shall have received from the Company
the full amount payable in respect thereof) which may be payable in connection
with the execution, delivery, performance and enforcement of this Agreement.
27. Currency indemnity
If, under any applicable law and whether pursuant to a judgment
being made or registered against the Company or for any other reason, any
payment under or in connection with this Agreement is made or is 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 Agent or the relevant Paying Agent 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
Agent or the relevant Paying Agent falls short of the amount due under the terms
of this Agreement, the Company shall, as a separate and independent obligation,
indemnify and hold harmless the Agent against the amount of such shortfall.
For the purposes of this Clause 27, "rate of exchange" means the
rate at which the Agent 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.
28. Amendments; Meetings of Holders
(1) This Agreement, the Notes and any Receipts and Coupons
attached to the Notes may be amended by the Company and the Agent, without
consent of the holder of any Note, Receipt or Coupon (i) for the purpose of
curing any ambiguity, or of curing, correcting or supplementing any defective
provision contained herein or therein, or to evidence the succession of another
corporation to the Company as provided in Condition 11, (ii) to make any further
modifications of the terms of this Agreement necessary or desirable to allow for
the issuance of any additional Notes (which modifications shall not be
materially adverse to holders of outstanding Notes) or (iii) in any manner which
the Company (and, in the case of this Agreement, the Agent) may deem necessary
or desirable and which shall not materially adversely affect the interests of
the holders of the Notes, Receipts and Coupons. In addition, (a) with the
consent of the holders of not less than a majority in aggregate principal amount
of the Senior Notes then outstanding affected thereby, or by a resolution
adopted by a majority in aggregate principal amount of such outstanding Senior
Notes affected thereby present or represented at a meeting of such holders at
which a quorum is present, this Agreement with respect to such Senior Notes and
the terms and conditions of such Senior Notes, Receipts and Coupons may be
modified or amended by the parties hereto, and future compliance and past
defaults in respect thereto waived, and (b) with the consent of the holders of
not less than a majority in aggregate principal amount of the Subordinated Notes
then outstanding affected thereby, or by a resolution adopted by a majority in
aggregate principal amount of such outstanding Subordinated Notes affected
thereby present or represented at a meeting of such holders at which a quorum is
present, this Agreement with respect to such Subordinated Notes and the terms
and conditions of such Subordinated Notes, Receipts and Coupons may be modified
or amended by the parties hereto, and future compliance and past defaults in
respect thereto waived, in each case as provided in Conditions 12 and 13 and
subject to the limitations therein provided.
(2) The holders of Senior Notes and Subordinated Notes will have
separate meetings and vote as separate classes of Notes. A meeting of holders of
Senior or Subordinated Notes may be called by the holders of at least 10 per
cent. in principal amount of the outstanding Senior or Subordinated Notes,
respectively, at any time and from time to time to make, give or
take any request, demand authorization, direction, notice, consent, waiver or
other action provided by this Agreement or such Notes to be made, given or taken
by holders of such Notes.
(3) The Agent may at any time call a meeting of holders of Senior
or Subordinated Notes for any purpose specified in subclause (1) to be held at
such time and at such place in The City of New York or in London, as the Agent
and the Company shall determine. Notice of every meeting of holders of Senior or
Subordinated Notes, setting forth the time and the place of such meeting and in
general terms the action proposed to be taken at such meeting, shall be given by
the Agent to the Company and to the holders of the respective Notes, in the same
manner as provided in Condition 16, not less than 21 nor more than 180 days
prior to the date fixed for the meeting. If at any time the Company or the
holders of at least 10 per cent. in principal amount of the outstanding Senior
or Subordinated Notes shall have requested the Agent to call a meeting of the
holders to take any action authorized in subclause (1), by written request
setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Agent shall not have given notice of such meeting within 21
days after receipt of such request or shall not thereafter proceed to cause the
meeting to be held as provided herein, then the Company, or the holders of
Senior or Subordinated Notes, as the case may be, in the amount above-specified,
as the case may be, may determine the time and the place in The City of New York
or London for such meeting and may call such meeting by giving notice thereof as
provided in this subclause (3).
(4) To be entitled to vote at any meeting of holders of Senior or
Subordinated Notes, a person shall be a holder of outstanding Senior or
Subordinated Notes, as the case may be, affected thereby at the time of such
meeting, or a person appointed by an instrument in writing as proxy for such
holder.
(5) The persons entitled to vote a majority in principal amount
of the outstanding Senior or Subordinated Notes affected thereby shall
constitute a quorum in respect of such Senior or Subordinated Notes. In the
absence of a quorum, within 30 minutes of the time appointed for any such
meeting, the meeting may be adjourned for a period of not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in subclause (3) except that such notice need be given not
less than five days prior to the date on which the meeting is scheduled to be
reconvened. Notice
of the reconvening of an adjourned meeting shall state expressly that 25 per
cent. of the principal amount of the outstanding Senior or Subordinated Notes
affected thereby shall constitute a quorum.
Subject to the foregoing, at the reconvening of any meeting
adjourned for a lack of a quorum, the persons entitled to vote 25 per cent. in
principal amount of the outstanding Senior or Subordinated Notes affected
thereby, as the case may be, shall constitute a quorum for the taking of any
action set forth in the notice of the original meeting. Any meeting of holders
of Senior or Subordinated Notes at which a quorum is present may be adjourned
from time to time by vote of a majority in principal amount of the outstanding
Senior or Subordinated Notes affected thereby, as the case may be, represented
at the meeting, and the meeting may be held as so adjourned without further
notice. At a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid, any resolution and all matters shall be
effectively passed and decided if passed or decided by the persons entitled to
vote a majority in principal amount of the outstanding Senior or Subordinated
Notes represented and voting at such meeting, provided that such amount
approving such resolution shall be not less than 25 per cent. in principal
amount of the outstanding Senior or Subordinated Notes affected thereby, as the
case may be.
(6) The Agent may make such reasonable regulations as it may deem
advisable for any meeting of holders of Senior or Subordinated Notes in regard
to proof of the holding of such Notes and of the appointment of proxies and in
regard to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. The Agent shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or holders of Senior or Subordinated Notes as provided above, in which
case the Company or the holders of Senior or Subordinated Notes calling the
meeting, as the case may be, shall in like manner appoint a temporary chairman.
A permanent chairman and a permanent secretary of the meeting shall be elected
by vote of the persons entitled to vote a majority in principal amount of the
outstanding Senior or Subordinated Notes represented at the meeting. The
chairman of the meeting shall have no right to vote, except as a holder of
Senior or Subordinated Notes affected thereby or as a proxy. A record, at least
in triplicate, of the proceedings of each meeting of holders of Senior or
Subordinated Notes shall be prepared, and one such copy shall be delivered to
the Company and another to the Agent to be preserved by the Agent.
29. Calculation Agency Agreement
A form of calculation agency agreement is annexed to this
Agreement as Appendix C. Where the Conditions require functions to be carried
out by a calculation agent (including in respect of Indexed Notes and Dual
Currency Notes), the Company may execute such an agreement or an agreement in
such form as the Company and the calculation agent may agree and any
calculations will be made in the manner specified in the applicable Pricing
Supplement.
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. Governing Law
This Agreement is governed by, and shall be construed in
accordance with, the laws of the State of California, United States of America,
applicable to agreements made and to be performed wholly within such
jurisdiction.
32. Counterparts
This Agreement may be executed in one or more counterparts all of
which shall constitute one and the same agreement.
[Signature Page Next]
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
The Company
-----------
BANKAMERICA CORPORATION
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Telephone: 0 000 000 0000
Telefax: 1 415 622 3611
Attention: Xxxxx X. Xxxxxxx, Senior Vice President
and Assistant Treasurer
By: /s/ X.X. Xxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxx
Title:Senior Vice President and Assistant Treasurer
The Agent
FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Telephone: 0 000 000 0000
Telefax: 1 212 809 5459
Attention: Xxxx Xxxxxx, Vice President
By: /s/ Xxxx Xxxxxx
--------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
The Agent's agent with respect to its obligations as issuing and principal
paying agent under this Agreement
UNION BANK OF SWITZERLAND,
LONDON BRANCH
Telephone: 00 000 000 0000
Telefax: 44 171 901 6118
Attention: Xxxxxxxx Xxxxxx
By: /s/ Xxxxxx Xxxx
--------------------------------------
Name: Xxxxxx Xxxx
Title: Authorised Officer
--------------------------------------------------------------------------------
BankAmerica Corporation
NationsBank (DE) Corporation
--------------------------------------------------------------------------------
AMENDMENT TO
SECOND AMENDED AND RESTATED AGENCY AGREEMENT
Dated as of September 30, 1998
Amending the Second Amended and Restated Agency Agreement dated
as of November 15, 1996, between
BankAmerica Corporation and
U.S. Bank Trust, National Association
(successor to First Trust of New York, National Association), as Agent
--------------------------------------------------------------------------------
AMENDMENT TO SECOND AMENDED AND RESTATED AGENCY AGREEMENT, dated as of
September 30, 1998 (the "Amendment"), among NationsBank (DE) Corporation, a
Delaware corporation ("NationsBank (DE)") and a direct wholly owned subsidiary
of NationsBank Corporation, a North Carolina corporation ("NationsBank"),
BankAmerica Corporation, a Delaware corporation ("BankAmerica"), and U.S. Bank
Trust National Association, as Agent (the "Agent") under the
Agency Agreement referred to herein;
WHEREAS, BankAmerica and the Agent heretofore executed and delivered a
Second Amended and Restated Agency Agreement, dated as of November 15, 1996 (the
"Agency Agreement"); and
WHEREAS, pursuant to the Agency Agreement BankAmerica issued and the
Agent authenticated and delivered one or more series of BankAmerica's Euro
Medium-Term Notes (the "Notes"); and
WHEREAS, NationsBank and BankAmerica have entered into the Agreement and
Plan of Reorganization, dated as of April 10, 1998, pursuant to which (i)
NationsBank will merge (the "Reincorporation Merger") with and into NationsBank
(DE), in accordance with the terms and conditions of the Plan of Reincorporation
Merger by and between NationsBank and NationsBank (DE), dated as of August 3,
1998, with NationsBank (DE) as the surviving corporation in the Reincorporation
Merger, and (ii) BankAmerica will thereafter merge (the "Merger," and together
with the Reincorporation Merger, the "Reorganization")with and into NationsBank
(DE), with NationsBank (DE) as the surviving corporation in the Merger; and
WHEREAS, the Reorganization is expected to be consummated on September
30, 1998, at which time, NationsBank (DE) will change its name to BankAmerica
Corporation; and
WHEREAS, Condition 11 of the Terms and Conditions of the Notes, which
are attached as Appendix A of the Agency Agreement (the "Terms and Conditions"),
provides that in the case of the Reorganization, NationsBank (DE) shall
expressly assume by amendment to the Agency Agreement all the obligations under
the Notes and the Agency Agreement on the part of BankAmerica to be performed or
observed; and
WHEREAS, Section 28(1) of the Agency Agreement provides that BankAmerica
and the Agent may amend the Agency Agreement and the Notes without notice to or
consent of any Holders of the Notes in order to comply with Condition 11 of the
Terms and Conditions; and
2
WHEREAS, this Amendment has been duly authorized by all necessary
corporate action on the part of each of NationsBank (DE) and BankAmerica.
NOW, THEREFORE, NationsBank (DE), BankAmerica and the Agent agree as
follows for the equal and ratable benefit of the Holders of the Notes:
ARTICLE I
ASSUMPTION BY SUCCESSOR CORPORATION
SECTION 1.1. Assumption of the Notes. NationsBank (DE) hereby expressly
assumes the due and punctual payment of the principal of (and premium, if any)
and interest (including all Additional Amounts, if any, as provided in Condition
9 of the Terms and Conditions) on all the Notes, Receipts and Coupons, according
to their tenor, and the performance of every covenant and condition of the Notes
and the Agency Agreement to be performed by BankAmerica.
SECTION 1.2. Agent's Acceptance. The Agent hereby accepts this Amendment
and agrees to perform the same under the terms and conditions set forth in the
Agency Agreement.
ARTICLE II
MISCELLANEOUS
SECTION 2.1. Effect of Amendment. Upon the later to occur of (i) the
execution and delivery of this Amendment by NationsBank (DE), BankAmerica and
the Agent and (ii) the consummation of the Reorganization, the Agency Agreement
shall be amended in accordance herewith, and this Amendment shall form a part of
the Agency Agreement for all purposes, and every Holder of Notes heretofore or
hereafter authenticated and delivered under the Agency Agreement shall be bound
thereby.
SECTION 2.2. Agency Agreement Remains in Full Force and Effect. Except
as amended hereby, all provisions in the Agency Agreement shall remain in full
force and effect.
SECTION 2.3. Agency Agreement and Amendment. This Amendment amends the
Agency Agreement, and the Agency Agreement and this Amendment shall henceforth
be read and construed together.
3
SECTION 2.4. Confirmation and Preservation of Agency Agreement. The
Agency Agreement, as amended by this Amendment is in all respects confirmed and
preserved.
SECTION 2.5 Severability. In case any provision in this Amendment shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 2.6 Terms Defined in the Agency Agreement. All capitalized terms
not otherwise defined herein shall have the meanings ascribed to them in the
Agency Agreement, including its appendices.
SECTION 2.7. Headings. The Article and Section headings of this
Amendment have been inserted for convenience of reference only, are not to be
considered part of this Amendment and shall in no way modify or restrict any of
the terms or provisions hereof.
SECTION 2.8. Benefits of Amendment, etc. Nothing in this Amendment or
the Notes, express or implied, shall give to any Person, other than the parties
hereto and thereto and their successors hereunder and thereunder and the Holders
of the Notes, any benefit of any legal or equitable right, remedy or claim under
the Agency Agreement, this Amendment or the Notes.
SECTION 2.9. Successors. All agreements of NationsBank (DE) in this
Amendment shall bind its successors. All agreements of the Agent in this
Amendment shall bind its successors.
SECTION 2.10. Agent Not Responsible for Recitals. The recitals contained
herein shall be taken as the statements of BankAmerica and NationsBank (DE), and
the Agent assumes no responsibility for their correctness. The Agent makes no
representations as to, and shall not be responsible for, the validity or
sufficiency of this Amendment.
SECTION 2.11. Certain Duties and Responsibilities of the Agent. In
entering into this Amendment, the Agent shall be entitled to the benefit of
every provision of the Agency Agreement relating to the conduct or affecting the
liability or affording protection to the Agent, whether or not elsewhere herein
so provided.
SECTION 2.13. Governing Law. This Amendment to the Agency Agreement
shall be governed by, and construed in accordance with, the laws of the
jurisdiction which govern the Agency Agreement and its construction.
4
SECTION 2.14. Counterpart originals. The parties may sign any number of
copies of this Amendment. Each signed copy shall be an original, but all of them
together represent the same agreement.
5
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed as of the date first written above.
NationsBank (DE) Corporation
By: /s/ Xxxx X. Xxxx
---------------------------------
Name: Xxxx X. Xxxx
Title: Senior Vice President
BankAmerica Corporation
By: /s/ X.X. Xxxxxxx
---------------------------------
Name: X.X. Xxxxxxx
Title: Senior Vice President and
Assistant Treasurer
U.S. Bank Trust, National
Association, as Agent
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
The Agent's agent with respect to
its obligations as issuing and
principal paying agent under the
Agency Agreement.
Midland Bank PLC, London office
By: /s/ Xxxxx Xxxxxx
---------------------------------
Name: Xxxxx Xxxxxx
Title: Head of Issuer Services
6
