10-K Exhibit 4.(m)
AGENCY AGREEMENT
relating to
NATIONSBANK CORPORATION,
U.S.$1,500,000,000
Euro Medium-Term Note Program
among
NATIONSBANK CORPORATION
as Issuer
and
THE CHASE MANHATTAN BANK, N.A., London Branch
as Issuing and Principal Paying Agent
and
CHASE MANHATTAN BANK LUXEMBOURG S.A.
as Paying Agent
Dated as of November 8, 1995
INDEX
Clause Page
1. Definitions and Interpretation................................... 1
2. Appointments of Agent, Paying Agents
and Calculation Agents......................................... 3
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............................. 5
5. Issue of Definitive Notes........................................ 6
6. Terms of Issue................................................... 6
7. Payments......................................................... 7
8. Determination and Notifications in Respect of
Notes and Interest Determination............................... 9
9. Notice of any Withholding or Deduction........................... 12
10. Duties of the Agent in Connection with Early
Redemption..................................................... 12
11. Receipt and Publication of Notices; Receipt of
Certificates................................................... 13
12. Cancellation of Notes, Receipts, Coupons and Talons.............. 13
13. Issue of Replacement Notes, Receipts, Coupons and
Talons......................................................... 14
14. Copies of Documents Available for Inspection..................... 15
15. Meetings of Noteholders.......................................... 16
16. Repayment by the Agent........................................... 16
17. Conditions of Appointment........................................ 16
18. Communication Between the Parties................................ 17
19. Change in Agent and Paying Agents................................ 17
20. Merger and Consolidation......................................... 19
21. Notification of Changes to Paying Agents......................... 19
22. Change of Specified Office....................................... 19
23. Notices.......................................................... 20
24. Taxes and Stamp Duties........................................... 21
25. Commissions, Fees and Expenses................................... 21
26. Indemnity........................................................ 21
27. Reporting........................................................ 22
28. Governing Law.................................................... 22
29. Amendments....................................................... 23
30. Descriptive Headings............................................. 24
31. Counterparts..................................................... 24
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
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
THIS AGREEMENT is made as of November 8, 1995 among:
(i) NationsBank Corporation (the "Corporation");
(ii) The Chase Manhattan Bank, N.A., 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 proposes to issue up to U.S.$1,500,000,000 (or its
equivalent in other currencies) in aggregate principal amount of Euro Medium-
Term Notes (the "Notes") outstanding at any one time;
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 8, (d) those which have been purchased and canceled as provided
in Condition 6 (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 10, (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 10,
(g) any Temporary Global Note to the extent that it shall have been exchanged
for a 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, the Corporation 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
Corporation 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 (as defined below) (other than Cedel,
if Cedel shall be an accountholder of Euroclear, and Euroclear, if Euroclear
shall be an accountholder of Cedel) as the Noteholders of particular principal
amounts of Notes (in which regard any certificate or other document issued by
Euroclear or Cedel 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 the Corporation under
this Agreement shall have the meaning set out in Condition 5.
(6) All references in this Agreement to the "relevant currency" shall
be construed as references to the currency (which term shall, for these
purposes, be deemed to include ECU) in which the relevant Notes and/or Coupons
are denominated (or payable in the case of Dual Currency Notes) or, in the case
of Notes denominated in ECU, the chosen currency (as defined in Condition 5(c))
in which payments in respect of such Notes are to be made, as the case may be.
(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 shall, whenever
the context so permits, be deemed to include a reference to any additional or
alternative clearance system approved by the Corporation and the Agent.
2
2. Appointments of Agent, Paying Agents and Calculation Agents
(1) The Corporation hereby appoints The Chase Manhattan Bank, N.A.,
London Branch, as Agent and The Chase Manhattan Bank, N.A., London Branch hereby
accepts such appointment as agent of the Corporation, upon the terms and subject
to the conditions set out below, for the purposes of, inter alia:
(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 Corporation for notices to be
communicated to the Noteholders;
(h) preparing and sending monthly reports to the Ministry of
Finance of Japan (the "MoF") and the German Central Bank and subject to
confirmation from the Corporation 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 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 Corporation 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 5 of the
Terms and Conditions) on the Notes. The Corporation 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
3
upon it herein and in the Notes, and such further powers and authority,
acceptable to it, to act on behalf of the Corporation as the Corporation 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 the Corporation as provided elsewhere herein.
(3) The Corporation will appoint an agent to make certain calculations
with respect to the Notes (the "Calculation Agent") pursuant to the Terms and
Conditions.
3. Issue of Temporary Global Notes
(1) Subject to sub-clause (2), following receipt of a notification from
the Corporation 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 the Corporation:
(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 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 and to instruct
Euroclear or Cedel or both of them (as the case may be) unless otherwise
agreed in writing between the Agent and the Corporation (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
Corporation's order; and
(d) to ensure that the Notes of each Tranche are assigned a
Common Code and ISIN by Euroclear and Cedel 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 Corporation, 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
4
(b) master Permanent Global Notes, duly executed by a person or
persons authorized to execute the same on behalf of the Corporation, 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 with the
notifications, instructions or other information to be given by the Agent to
Euroclear and/or Cedel in accordance with the standard procedures of Euroclear
and/or Cedel.
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 Corporation, the relevant Dealer,
Euroclear and Cedel.
(b) The Agent shall deliver, upon notice from Euroclear
or Cedel, a Permanent Global Note or Definitive Notes, as the case may be,
in accordance with the terms of 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
Corporation:
(i) in the case of 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) in the case of the first Tranche of any Series of
Notes, to authenticate such Permanent Global Note;
(iii) in the case of 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
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; 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) In the case of 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.
5
(b) In the case of 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 fortieth 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) In the case of 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 fortieth 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
Corporation 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 Corporation is notified
that either Euroclear or Cedel 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
Corporation, after notice to the Agent, determines 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
Corporation:
(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 in exchange for such Global Note.
The Agent shall notify the Corporation 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 Corporation 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.
6
(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 Corporation
named in the lists referred to in, or notified pursuant to, Clause 17(7) as
sufficient instructions and authority of the Corporation for the Agent to act
in accordance with Clause 3(1).
(3) In the event that a person who has signed on behalf of the
Corporation 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 the Corporation gives notice to the Agent that Notes signed by
that person do not constitute valid and binding obligations of the Corporation
or otherwise until replacements have been provided to the Agent) continue to
have authority to issue any such Notes, and the Corporation hereby warrants to
the Agent that such Notes shall, unless notified as aforesaid, be valid and
binding obligations of the Corporation. Promptly upon such person ceasing to be
authorized, the Corporation 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
Corporation a confirmation of destruction in respect thereof specifying the
Notes so canceled and destroyed.
(4) If the Agent pays an amount (the "Advance") to the Corporation 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 the Corporation, the Agent shall notify the Corporation by tested
telex or facsimile that the Payment has not been received and the Corporation
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 Corporation in respect of the purchase price of the Notes
being issued, if on the relevant Issue Date a Dealer 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) after such Issue Date, the Agent will continue to hold
the Defaulted Note to the order of the Corporation. The Agent shall notify the
Corporation 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 the Corporation 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 Corporation, 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 Corporation 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 Corporation
may agree.
(2) The Corporation 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 Corporation an
irrevocable confirmation in the form of a SWIFT message on tested telex that
such payment shall be made. For the purposes of this Clause 7 "Business Day"
means a day which is both:
7
(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) either (1) 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) or (2) in
relation to a payment to be made in ECU, an ECU Settlement Day.
(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 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 Corporation in the manner provided in the Terms and Conditions. If any
payment provided for in sub-clause (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.
(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
Corporation 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 Corporation will, in addition to
paying amounts due under sub-clause (1), pay to the Agent on demand interest (at
at 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
(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 Corporation has been or will be made and such payment has in fact not been
so made by the Corporation, then the Corporation 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 Corporation'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 a payment in respect of a Note denominated in ECU is to be made
in a chosen currency:
(i) the Agent shall choose a component currency of the ECU as the
chosen currency as provided in Condition 5(c) and shall forthwith notify
the Corporation, the other Paying Agents and the Stock Exchange;
(ii) the Agent shall promptly perform the duties required of it
under Condition 5(c); and
(iii) the Agent shall notify the Corporation and the other Paying
Agents of the amount payable per Note and Coupon in the chosen currency.
(11) 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 Corporation 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.
9
(3) The Agent or the Calculation Agent, as the case may be, shall
promptly notify (and confirm in writing to) the Corporation, 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 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(1) 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 Corporation and the Paying Agent 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 Corporation
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 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 by the Agent as of the date of
the agreement to issue such Notes or on the preceding day on which
commercial banks and foreign exchange markets are open for business in
London, in each case on the basis of the spot rate for the sale of the U.S.
dollar against the purchase of such other currency in the London foreign
exchange market quoted by any leading bank selected by the Agent;
(b) the U.S. dollar equivalent of Dual Currency Notes, Indexed
Notes and Partly Paid Notes shall be determined in the manner specified
above by reference to the original principal amount of such Notes; and
(c) the U.S. dollar equivalent of Zero Coupon Notes and other
Notes issued at a discount shall be deemed to be the net proceeds received
by the Company for the relevant issue.
(b) Interest Determinations, Screen Rate Determination
including Fallback Provisions
(1) Where screen rate determinations ("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:
10
(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,
(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 were 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).
11
(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 expresssion "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 Corporation 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 Corporation 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.
10. Duties of the Agent in Connection with Early Redemption
(1) If the Corporation 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, the Corporation shall give notice of
such decision to the Agent not less than seven London Business Days before the
date on which the Corporation 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 Corporation
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. 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 Corporation 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 Agent of any date fixed for redemption of any Notes.
12
(4) Immediately prior to the date on which any notice of redemption is
to be given to the Noteholders, the Corporation shall deliver to the Agent a
certificate stating that the Corporation 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 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 Corporation.
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 Corporation.
(2) On behalf of and at the request and expense of the Corporation, the
Agent shall cause to the published all notices required to be given by the
Corporation to the Noteholders in accordance with the Terms and Conditions.
(3) The Agent shall have no responsibility to obtain the certificate of
the Corporation delivered by the Corporation to the Agent pursuant to Condition
9 if such a certificate is required to be issued, nor shall the Agent have any
responsibility to notify the Corporation that the Agent has not obtained such a
certificate from the Corporation 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 Corporation 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 Corporation shall have the right to request that the Agent
provide, without limitation, the following information:
13
(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 Corporation 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 10) 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 Corporation and any
persons authorized by it for inspection and for the taking of copies thereof or
extracts therefrom.
(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 Corporation 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 is 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 Corporation 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 Corporation
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;
14
(b) furnished it with such evidence and indemnity as the
Corporation 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 Corporation with a certificate stating the serial numbers of the Notes,
Receipts, Coupons and Talons so canceled and, unless otherwise instructed by the
Corporation in writing, shall destroy such canceled Notes, Receipts, Coupons and
Talons and furnish the Corporation 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 Corporation, 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 Corporation and any persons authorized by it for
inspection and for the taking of copies thereof or extracts therefrom.
(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 Corporation and the other Paying Agents
and shall not make payment in respect thereto, until instructed by the
Corporation.
14. Copies of Documents Available for Inspection
The Agent and the Paying Agent shall hold available for inspection copies
of:
(i) the organizational documents of the Corporation;
(ii) the latest available audited consolidated financial
statements of NationsBank Corporation and its consolidated subsidiaries
beginning with such financial statements for the fiscal years ended
December 31, 1993 and December 31, 1994 and the latest available
consolidated unaudited interim financial statements of NationsBank
Corporation and its consolidated subsidiaries, beginning with the
statements for the quarter ended June 30, 1995;
(iii) the Program Agreement and this Agreement;
(iv) the Offering Circular; and
15
(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 documents).
For this purpose, the Corporation 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 (1), 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 Corporation 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 as 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 Corporation 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
Corporation sums equivalent to any amounts paid to it by the Corporation for the
purposes of such payments.
17. Conditions of Appointment
(1) The Agent shall be entitled to deal with money paid to it by the
Corporation 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 Corporation 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 Corporation 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.
16
(3) The Agent and the Paying Agents hereby undertake to the Corporation
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 Corporation 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 Corporation.
(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 Corporation 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 Corporation as freely as if the
Agent or the relevant Paying Agent, as the case may be, were not appointed
hereunder.
(7) The Corporation 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 Corporation'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 the Corporation 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
(1) The Corporation agrees 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
Corporation 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.
17
In addition, the Corporation shall appoint a Paying Agent having a
specified office in New York City in the circumstances described in the final
paragraph of Condition 5(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 Corporation 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 Corporation unless the
Corporation agrees 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 the Corporation 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 Corporation as hereinafter
provided, 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 21. The Corporation
agrees with the Agent that if, by the day falling ten days before the expiry of
any notice under sub-clause (2), the Corporation has not appointed a successor
Agent, then the Agent shall be entitled, on behalf of the Corporation, 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 Corporation 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 (1):
(A) the Corporation 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
(B) the Corporation may in respect of the Program or the
Corporation 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.
-18-
(7) Subject to sub-clause (1), all or any of the Paying Agents may
resign their respective appointments hereunder at any time by giving the
Corporation 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 Corporation 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 Corporation, 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 Corporation by the relevant Agent or
Paying Agent.
21. Notification of Changes to Paying Agents
Following receipt of notice or 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 Corporation) 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 Corporation 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 Corporation) 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 19 on or prior to the date of
-19-
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: NationsBank Corporation
NationsBank Corporate Center
NC 1007-23-1
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attn: Xxxx X. Xxxx
Treasurer
Telecopy: (000) 000-0000
with a copy to:
NationsBank Corporation
NationsBank Corporate Center
Legal Department
NC 1007-20-1
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attn: Xxxx X. Xxxxxxx, Esq.
General Counsel
Telecopy: (000) 000-0000
The Agent:
The Chase Manhattan Bank, N.A.
Xxxxxxxx Xxxxx
Xxxxxxx Xxxxxx
Xxxxxx XX0X 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.
Manager, Corporate Trust Operations
Telecopy: 000-000000-000
-20-
or at any other address of which any of the foregoing shall have notified the
others in writing.
(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 acknowledgement 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 Corporation agrees 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
(A) The Corporation undertakes 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
Corporation.
(B) The Corporation 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
(A) The Corporation undertakes 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.
(B) Each of the Agent and the Paying Agents shall severally indemnify
and hold harmless the Corporation 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.
-21-
(C) 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
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 27,
"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
(A) The Agent shall upon receipt of a written request therefor from the
Corporation and after the payment of any further remuneration agreed between the
Corporation and the Agent (on behalf of the Corporation 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.
(B) 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.
(C) 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.
28. Governing Law
(A) 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.
(B) The Corporation and the Agent each hereby irrevocably submits 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 Corporation and the Agent each
irrevocably waives, 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 Corporation and the Agent each agrees that final judgment in the
Proceedings brought in such a court shall be conclusive and binding upon the
Corporation or the Agent, as the case may be, and may be enforced in any court
of the jurisdiction to which the Corporation or the Agent is subject by a suit
upon such judgment, provided that the service of process is effected upon
-22-
the Corporation and the Agent in the manner specified in subsection (C) below or
as otherwise permitted by law.
(C) As long as any of the Notes, Receipts, Coupons or Talons remains
outstanding, the Corporation 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 Corporation
shall, to the fullest extent permitted by law, be deemed in every respect
effective service of process upon the Corporation in the Proceedings. The
Corporation hereby appoints CT Corporation System 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
Corporation 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.
29. Amendments
Without the consent of the Noteholders, Receiptholders or Couponholders,
the Agent and the Corporation 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 the Corporation
and the assumption by any such successor of the covenants of the
Corporation in this Agreement, the Notes, Receipts or Coupons;
(ii) to add to the covenants of the Corporation for the benefit of the
Noteholders, the Receiptholders or the Couponholders, or to
surrender any right or power herein conferred upon the Corporation;
(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
this Agreement and as further provided hereof.
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 13 as soon as practicable thereafter.
-23-
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 couterparts, all of which
shall constitute one and the same instrument. Any party may enter into this
Agreement by signing such a counterpart.
-24-
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.
NATIONSBANK CORPORATION
as Issuer
By /s/ Xxxx X. Xxxx
Name: XXXX X. XXXX
Title: Senior Vice President and Treasurer
THE CHASE MANHATTAN BANK, N.A.,
LONDON BRANCH
as Agent and
Principal Paying Agent
By /s/ X. Xxxxxxx
Name: X. Xxxxxxx
Title: senior Vice President
CHASE MANHATTAN BANK LUXEMBOURG S.A.
as Paying Agent
By /s/ X. Xxxxxxx
Name: X. Xxxxxxx
Title: Authorized Signatory
