EXHIBIT NO. 4(l)
FISCAL AND PAYING AGENCY AGREEMENT
dated as of
July 5, 1995
between
NATIONSBANK CORPORATION
and
The Chase Manhattan Bank, N.A.,
as Fiscal and Principal Paying Agent
US $500,000,000
Floating Rate Senior Notes, due 2000
TABLE OF CONTENTS
1. The Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Appointment of Agents . . . . . . . . . . . . . . . . . . . . . 3
3. Closing Date, Exchange of Temporary Global Note . . . . . . . . 4
4. Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
5. Redemption. . . . . . . . . . . . . . . . . . . . . . . . . . . 9
6. Surrendered Notes . . . . . . . . . . . . . . . . . . . . . . . 10
7. Mutilated, Destroyed, Stolen or Lost Notes. . . . . . . . . . . 10
8. Signatures. . . . . . . . . . . . . . . . . . . . . . . . . . . 10
9. Agreements Concerning Agents. . . . . . . . . . . . . . . . . . 11
10. Offices, Resignation, Successors, Etc. of Agents. . . . . . . . 14
11. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
12. Meetings and Votes of Holders . . . . . . . . . . . . . . . . . 16
13. Modifications, Etc. . . . . . . . . . . . . . . . . . . . . . . 20
14. Further Issuances . . . . . . . . . . . . . . . . . . . . . . . 21
15. Merger, Consolidation or Sales of Assets. . . . . . . . . . . . 21
16. Stockholders, Officers and Directors of the
Corporation Exempt from Individual Liability. . . . . . . . . . 22
17. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . 23
18. Amendments. . . . . . . . . . . . . . . . . . . . . . . . . . . 23
19. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
20. Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . 24
21. Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
EXHIBIT A
EXHIBIT B
SCHEDULE I
SCHEDULE II
EXHIBIT C
EXHIBIT D
EXHIBIT E
FISCAL AND PAYING AGENCY AGREEMENT, dated as of July 5, 1995 (this
"Agreement"), by and among NATIONSBANK CORPORATION, a corporation duly
organized and validly existing under the laws of the State of North Carolina
(the "Corporation"), and The Chase Manhattan Bank, N.A., London Branch, as
Fiscal and Principal Paying Agent (the "Fiscal and Principal Paying Agent"),
and The Chase Manhattan Bank Luxembourg, S.A., as paying agent (a duly
appointed "Paying Agent"), relating to the Corporation's U.S. $500,000,000
aggregate principal amount of Floating Rate Senior Notes, due 2000 (the
"Notes").
1. The Notes. (a) The Corporation has, by a Subscription Agreement,
dated July 3, 1995 (the "Subscription Agreement"), among the Corporation
and the several managers named in Schedule I thereto (the "Managers"), agreed
to issue the Notes. The Notes will constitute direct and unsecured senior
obligations of the Corporation, ranking pari passu with each other and with
all present and future unsecured and unsubordinated indebtedness of the
Corporation. Pursuant to the Subscription Agreement, the Managers may resell
the Notes to persons who are not "U.S. Persons" (as such term is defined in
Regulation S promulgated by the United States Securities and Exchange
Commission (the "SEC") pursuant to the Securities Act of 1933, as amended
(the "Securities Act") in transactions that meet the requirements of Regulation
S (the "Offering").
(b) The Notes will initially be issued in the form of a temporary global
note, in bearer form without interest coupons, substantially in the form of
Exhibit A hereto (the "Temporary Global Note"), in a principal amount equal
to the initial aggregate principal amount of the Notes. As hereinafter
provided, interests in the Temporary Global Note will be exchangeable for
interests in a permanent global note (the "Permanent Global Note") in
bearer form without interest coupons, substantially in the form of Exhibit
B hereto, held by the Common Depositary (as defined below). In certain limited
circumstances interests in the Permanent Global Note will be exchangeable for
definitive notes (the "Definitive Notes"), in bearer form, with interest
coupons (the "Coupons") attached, substantially in the form of Exhibit C
hereto, as provided in Section 3(g), and in the denominations specified on the
reverse of the Definitive Note set forth in Exhibit C.
(c) The Corporation shall obtain an ISIN number and a Common Code
number for the Notes.
(d) 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 "Holders" or "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 Holders 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).
(e) In compliance with United States tax laws and regulations, the Notes
may not be offered or sold during the 40-day period beginning on the
Closing Date (as hereinafter defined) or at any time if part of a
Manager's unsold allotment (the "Restricted Period") to a person who is
within the United States or to a United States Person other than (a)
foreign branches of United States financial institutions if such
institutions agree in writing to comply with the requirements of Section
165(j)(3)(A), (B), or (C) of the Internal Revenue Code of 1986, as amended,
and the regulations thereunder, (b) United States offices of exempt
distributors, or (c) United States offices of international organizations or
foreign central banks. United States tax laws and regulations also require
that the Notes in bearer form not be delivered within the United States. For
purposes of this paragraph (e), terms are defined as such terms are defined
for purposes of United States Treasury Regulation Section 1.163-5(c)(2)(i)(D)
(the "D Rules").
(f) The Notes may be redeemed by the Corporation as provided in Section
5 of the Conditions (as defined below) and Section 5 hereof. The Permanent
Global Note and the Temporary Global Note shall contain such appropriate
insertions, omissions, substitutions and other variations as are required
or permitted by this Agreement and may have such letters, numbers or other
marks of identification and such legends or endorsements placed thereon as
may, consistent herewith, be determined by the officer of the Corporation
executing such Notes, as evidenced by his execution of such Note.
(g) References in this Agreement to the "Conditions" are to the
terms and conditions of the Notes as set out on the reverse side of the
form of Definitive Note included as Exhibit C hereto.
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2. Appointment of Agents.
(a) The Corporation hereby appoints The Chase Manhattan Bank, N.A.,
at its principal corporate trust office in London at ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, as its fiscal and
principal paying agent in respect of the Notes upon the terms and subject
to the conditions herein set forth. The Chase Manhattan Bank, N.A. and its
successor or successors as such fiscal and paying agent qualified and
appointed in accordance with this section are herein called the "Fiscal
and Principal Paying Agent." The Fiscal and Principal Paying Agent shall
have the powers and authority granted to and conferred upon it herein and
in the Notes, and such further powers and authority, acceptable to it,
to act on behalf of the Corporation as the Corporation may hereafter grant
to or confer upon it in writing.
(b) 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 4 of the
Conditions) on the Notes. The Corporation hereby appoints The Chase Manhattan
Bank Luxembourg, S.A., at its office in Luxembourg at ▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇, as its Paying Agent in Luxembourg. Each Paying Agent shall
have the powers and authority granted to and conferred upon it herein and
in the Notes, and such further powers and authority, acceptable to it,
to act on behalf of the 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.
(c) The Fiscal and Principal Paying Agent may, with the written
consent of the Corporation, appoint by an instrument or instruments in
writing (in form and substance satisfactory to the Corporation) one or more
agents for the authentication of Notes on its behalf (each, an "Authenticating
Agent") and may, with such written consent, vary or terminate any such
appointment upon written notice and approve any change in the office
through which any such Authenticating Agent may act. The Corporation may
also terminate any such appointment at any time by written notice to the
Fiscal and Principal Paying Agent and the Authenticating Agent whose
appointment is to be terminated. Each such Authenticating Agent shall
accept such appointment pursuant to an instrument or instruments in
writing (in form and substance satisfactory to the Corporation) and shall
agree to act as an Authenticating Agent pursuant to the terms and conditions
of this Agreement.
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(d) The Corporation may, in its discretion, appoint one or more agents to
calculate and determine the rate and amount of interest payable in connection
with the Notes (each, an "Agent Bank"). Initially, The Chase Manhattan Bank,
N.A., London Branch, is appointed to serve in such capacity. An Agent Bank
Agreement, entered into between the Corporation and the Agent Bank, will
set forth the terms of such appointment.
3. CLOSING DATE; EXCHANGE OF TEMPORARY GLOBAL NOTE.
(a) At any time and from time to time after the execution and delivery of
this Agreement, the Corporation may deliver outside the United States Notes
executed by the Corporation in accordance with this Agreement to the Fiscal
and Principal Paying Agent for authentication (or cause an Authenticating Agent
to authenticate on its behalf) together with an officer's certificate of the
Corporation directing such authentication, and the Fiscal and Principal
Paying Agent shall thereupon authenticate (or cause to be authenticated) and
make such Notes available for delivery upon and in accordance with the written
order of the Corporation. No Note shall be valid or enforceable for any
purpose unless and until the certificate of authentication thereon shall have
been manually signed by a duly authorized signatory of the Fiscal and Principal
Paying Agent or Authenticating Agent or an attorney-in-fact duly appointed
pursuant to a valid power of attorney and such duly executed certificate of
authentication on any Note shall be conclusive evidence that the Note has been
duly authenticated and delivered hereunder.
The Corporation shall initially execute and deliver on July 5, 1995 (the
"Closing Date"), the Temporary Global Note and the Permanent Global Note to the
Fiscal and Principal Paying Agent outside the United States, and the Fiscal
and Principal Paying Agent, shall, upon the written order of the Corporation,
authenticate or cause to be authenticated the Temporary Global Note and the
Permanent Global Note and deliver the Temporary Global Note to a common
depositary outside the United States (the "Common Depositary") for the benefit
of ▇▇▇▇▇▇ Guaranty Trust Corporation of New York, Brussels office, as operator
of the Euroclear System ("Euroclear"), and for Cedel Bank, societe anonyme
("Cedel"). Euroclear or Cedel, as the case may be, will credit each subscriber
of Notes with a principal amount of Notes equal to the principal amount thereof
for which it has subscribed and paid. The Fiscal and Principal Paying Agent
shall retain the Permanent Global Note for the account of the Corporation until
instructed with the Common Depositary in accordance with paragraph (b) of this
Section 3, to exchange such Permanent Global Note for the Temporary Global Note
held by the Common Depositary.
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(b) On or after a date which is 40 days after the later to occur of the
commencement of the Offering or the Closing Date (the "Exchange Date"), the
Corporation shall instruct the Fiscal and Principal Paying Agent to make the
Permanent Global Note available to be exchanged for the Temporary Global Note.
If Notes are issued pursuant to Section 14 hereof (any such Notes being
referred to herein as "Additional Notes") prior to the Exchange Date, the
Exchange Date shall be deferred to a date not earlier than 40 days after the
later of the commencement of the offering of such Additional Notes and the
closing date for such Additional Notes. No interest in the Temporary Global
Note or the Permanent Global Note shall be exchangeable for definitive notes
except as provided herein.
(c) On or after the Exchange Date, the interest of a beneficial owner of
Notes represented by the Temporary Global Note shall be exchanged for an
interest in the Permanent Global Note when such beneficial owner, or, if
other than such beneficial owner, the holder of the account through which such
beneficial owner's interest is held, instructs Euroclear or Cedel, as the case
may be, to request such exchange on his behalf and (i) upon delivery by the
account holder to Euroclear or Cedel, as the case may be, of a certificate
substantially in the form set forth in Exhibit E hereto, copies of which
certificate shall be available at the offices of Euroclear and Cedel and the
Fiscal and Principal Paying Agent, and (ii) upon delivery by Euroclear or
Cedel, as the case may be, to the Fiscal and Paying Agent of a certificate
or certificates substantially in the form set forth in Exhibit D hereto.
Upon receipt of the certificate or certificates provided for in the preceding
sentence and upon presentation to it of the Temporary Global Note by the
Common Depository, the Fiscal and Principal Paying Agent shall exchange
the interest in the Temporary Global Note covered by such certification for
an interest in the Permanent Global Note. No interest shall be paid with
respect to any Note represented by the Temporary Global Note to any Holder
until the foregoing certification has been provided to Euroclear or Cedel, as
the case may be, and no interest shall be paid to Euroclear or Cedel until
the foregoing certification has been provided to the Fiscal and Principal
Paying Agent. No interest in the Temporary Global Note shall be exchanged for
an interest in the Permanent Global Note prior to the Exchange Date. The
Temporary Global Note, Permanent Global Note and any Notes in definitive form
with coupons attached will be delivered only outside the United States
(including any state of the United States and the District of Columbia),
its territories or its possessions (including Puerto Rico, the U.S. Virgin
Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands).
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(d) Upon any such exchange of a portion of the Temporary Global Note for
an interest in the Permanent Global Note, the Temporary Global Note shall be
endorsed by the Fiscal and Principal Paying Agent to reflect the reduction of
its principal amount by an amount equal to the amount so exchanged and the
Permanent Global Note shall be similarly endorsed to reflect the increase of
the principal amount evidenced thereby, whereupon its principal amount shall
be increased for all purposes by the amount so exchanged. Until so exchanged in
full, the Temporary Global Note shall in all respects be entitled to the same
benefits under this agreement as the Permanent Global Note authenticated and
delivered hereunder, except that neither the holder thereof nor the beneficial
owners of the Notes represented thereby shall be entitled to receive payment of
interest thereon. Any exchange of an interest in the Temporary Global Note for
an interest in the Permanent Global Note pursuant to this Section shall be
free of charge.
(e) The delivery to the Fiscal and Principal Paying Agent by the Euroclear
Operator or Cedel of any certificate referred to above may be relied upon by the
Corporation and the Fiscal and Principal Paying Agent as conclusive evidence
that a corresponding certificate or certificates has or have been delivered to
the Euroclear Operator or Cedel pursuant to the terms of this Agreement.
(f) Promptly after the Temporary Global Note has been exchanged in full,
it shall be surrendered by the Common Depositary to the Fiscal and Principal
Paying Agent, as the Corporation's agent.
(g) Interests in the Permanent Global Note will be exchangeable for
Definitive Notes with Coupons attached only if: (i) an Event of Default (as
defined in the 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 Holders of the Notes is available,
or (iii) the Corporation, after notice to the Fiscal and Principal Paying
Agent, determines to issue Notes in definitive form.
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4. PAYMENT.
(a) In order to provide for the payment of the principal of and interest
on and any Additional Amounts on the Notes as the same shall become due and
payable, the Corporation shall pay to the Fiscal and Principal Paying Agent at
its office in London, in such coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts therein, and in same-day funds, the following amounts (and the
Corporation shall give notice to the Fiscal and Principal Paying Agent at least
one full Business Day, as defined herein, prior to the date payment is due to
the Fiscal and Principal Paying Agent as to the means of such payment, if other
than by wire transfer), to be held and applied by the Paying Agent as
hereinafter set forth:
(i) The Corporation shall pay to the Fiscal and Principal Paying Agent by
11:00 A.M., New York time, on each interest payment date in same-day funds an
amount sufficient to pay the interest due on (and Additional Amounts, if any,
on) all the Notes outstanding on such interest payment date, and the Fiscal and
Principal Paying Agent shall apply the amounts so paid to it to the payment
of such interest (and Additional Amounts, if any) on such interest payment date.
(ii) If the Corporation shall elect to redeem the Notes in accordance with
Section 5 hereof, the Corporation will pay to the Fiscal and Principal Paying
Agent on the Business Day immediately prior to the date fixed for redemption
thereof in same-day funds an amount sufficient (with any amount then held by the
Fiscal and Principal Paying Agent and available for that purpose) to pay the
redemption price of the Notes called for redemption on the redemption date or
entitled to be redeemed, together with accrued interest thereon (and Additional
Amounts, if any, thereon) to the date fixed for redemption if such redemption
date occurs on an interest payment date, and the Fiscal and Principal Paying
Agent shall apply such amount to the payment of the redemption price and accrued
interest (and Additional Amounts, if any) in accordance with the Conditions.
(iii) By no later than 11:00 A.M., New York time, on the maturity date of
the Notes, the Corporation shall pay to the Fiscal and Principal Paying Agent in
same-day funds an amount which, together with any amounts then held by the
Fiscal and Principal Paying Agent, and available for payment thereof, shall be
equal to the entire amount of principal and interest (and Additional Amounts, if
any) to be due on such maturity date on all the Notes then outstanding, and the
Fiscal and Principal Paying Agent
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shall apply such amount to the payment of the principal of and interest on (and
Additional Amounts, if any, on) the Notes in accordance with the Conditions.
(iv) In connection with any payments made pursuant to this clause (a), the
Corporation shall direct the bank through which such payment shall be made to
provide to the Fiscal and Principal Paying Agent by 10:00 a.m. (London time)
two Business Days prior to the due date for any such payment an irrevocable
confirmation, by tested telex or authenticated SWIFT MT100 message, of the
Corporation's intent to make such payment.
(b) The Fiscal and Principal Paying Agent shall arrange directly with any
Paying Agent who may have been appointed by the provisions of Section 2 hereof
for the payment from funds so paid by the Corporation of the principal of and
any interest on the Notes outside the United States as set forth herein and in
the Conditions. Notwithstanding the foregoing, if the Corporation so notifies
the Fiscal and Principal Paying Agent, the Corporation may provide directly
to a Paying Agent funds for the payment of the principal and interest payable
on any Notes under an agreement with respect to such funds containing
substantially the same terms and conditions set forth in this Section 4 and in
Section 9 hereof, and the Fiscal and Principal Paying Agent shall have no
responsibility whatsoever with respect to any funds so provided by the
Corporation to any such Paying Agent. If for any reason the amounts received
by the Fiscal and Principal Paying Agent or any funds provided directly to a
Paying Agent as set forth in the previous sentence shall be insufficient to
satisfy all claims for principal and interest then due and payable on the
Notes presented to it, the Fiscal and Principal Paying Agent or such Paying
Agent, as the case may be, shall not be bound to pay any such claim until (i)
it has received the full amount of the moneys then due and payable in
respect of such Notes or (ii) other arrangements satisfactory to it have
been made.
(c) At least 15 days prior to the date on which any payment of Additional
Amounts shall be required to be made pursuant to Section 4 of the Conditions,
the Corporation will furnish each Paying Agent of the Corporation and the
Fiscal and Principal Paying Agent with a certificate of one of its duly
authorized officers instructing the Fiscal and Principal Paying Agent and each
other paying agency of the Corporation as to the amounts required (i) to be
deducted or withheld for or on account of any taxes described in Section 4
of the Conditions from a payment to be made on that date and (ii) to be paid to
each Holder of Notes as Additional Amounts pursuant to that Section. If the
foregoing amounts are not uniform for all Holders, then the Corporation's
certificate shall specify by country of residence or other factor the amounts
required to be
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deducted or withheld and to be paid as Additional Amounts for each Holder or
class of Holders of the Notes. In the absence of its receipt of any such
certificate from the Corporation, the Paying Agent may make payment without
deduction or withholding. The Corporation hereby agrees to indemnify the Paying
Agent, each other paying agency of the Corporation and the Fiscal and Principal
Paying Agent for, and to hold them harmless against, any loss, liability or
expense reasonably incurred without gross negligence or bad faith on their part,
arising out of or in connection with actions taken or omitted by any of them in
reliance on any certificate furnished pursuant to this Section.
(d) Subject to the foregoing provisions of this Section 4, each Note
delivered under this Agreement, or in exchange for, or in lieu of any other
Note shall carry all the rights to interest accrued and unpaid, and to accrue,
which were carried by such other Note.
(e) Notwithstanding anything in this Section to the contrary, if any
payment of interest or principal (and Additional Amounts, if any) is due on
a day that is not a Business Day, payment shall be made on the next
succeeding Business Day, with the same effect as if made on the day such
payment was due and no interest will accrue for the period after such interest
or principal payment date. A "Business Day" shall mean any day on which
commercial banks and foreign exchange markets are open for business (including
dealings in foreign exchange and foreign currency deposits) in New York,
London and Luxembourg.
5. REDEMPTION. If, under the circumstances described in Section 5 of the
Conditions, the Corporation shall elect to redeem the outstanding Notes
(in whole or in part):
(a) The Corporation shall give notice to the Agents (as defined in Section
9 hereof) of its election to redeem the Notes; the Fiscal and Principal
Paying Agent shall cause to be published on behalf of and at the expense of
the Corporation any notice of redemption in accordance with the provisions of
Section 5 of the Conditions. The Fiscal and Principal Paying Agent shall send
a copy of such notice of redemption to the Corporation and each other paying
agency of the Corporation.
(b) Where partial redemptions are to be effected when there are Definitive
Notes outstanding, the Fiscal 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 Fiscal and
Principal Paying Agent to be appropriate and fair; and where partial redemptions
are to be effected when there are no Definitive Notes outstanding, the rights of
Holders will be governed by the standard provisions of Euroclear and Cedel.
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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
Fiscal and Principal Paying Agent to the Holders of the Notes in accordance with
the terms of the Notes and this Agreement.
(c) Immediately prior to the date on which any notice of redemption is to
be given to the Holders of the Notes, the Corporation shall deliver to the
Fiscal and Principal Paying 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 Conditions.
6. SURRENDERED NOTES. All Notes and Coupons surrendered for payment,
redemption, retirement or exchange shall be delivered outside the United States
to the Fiscal and Principal Paying Agent. In any such case, the Fiscal and
Principal Paying Agent shall cancel all Notes and Coupons not previously
canceled and shall dispose of such canceled Notes and Coupons (unless otherwise
previously requested by the Corporation). Upon such destruction, the Fiscal and
Principal Paying Agent shall provide the Corporation with a certificate to such
effect if so requested by the Corporation.
7. MUTILATED, DESTROYED, STOLEN OR LOST NOTES. The Fiscal and Principal
Paying Agent is hereby authorized, in accordance with the Conditions and this
Section, from time to time to authenticate and deliver outside the United States
Notes and Coupons in exchange for or in lieu of Notes and Coupons that
become mutilated, destroyed, stolen or lost, upon receipt of such indemnity
(including the posting of a bond at the expense of a claimant) and such other
documents or proof as may be required in form and substance satisfactory to the
Fiscal and Principal Paying Agent and the Corporation. Every Note or Coupon
authenticated and delivered in exchange for or in lieu of any such Note or
Coupons shall be considered the obligation of the Corporation and shall carry
all the rights to interest accrued and unpaid and to accrue which were carried
by such Note or Coupon. Upon the issuance of any substitute Notes or Coupons,
the Corporation may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Fiscal and Principal Paying
Agent) connected therewith.
8. SIGNATURES. Notes shall be executed on behalf of the Corporation by its
Chairman of the Board and Chief Executive Officer or Chief Financial Officer,
any Vice President or Associate General Counsel (and any of these being
hereinafter referred to as an "Authorized Officer"). Such signatures may be
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the manual or facsimile signatures of the current or any future such officers.
Any signature in facsimile may be imprinted or otherwise reproduced on the
Notes. The Corporation may adopt and use the signature or facsimile signature of
any Authorized Officer, notwithstanding the fact that at the time the Notes
shall be authenticated and delivered, or disposed of, such Authorized Officer
shall have ceased to have held such office by virtue of which such Authorized
Officer so executed such security.
9. AGREEMENTS CONCERNING AGENTS. Each of the Fiscal and Principal Paying
Agent and any other Paying Agent (each of which is referred to herein as an
"Agent") accepts its appointment and its obligations herein and in the Notes,
upon the terms and conditions hereof and thereof, including the following, to
all of which the Corporation agrees and to all of which the rights hereunder of
the Holders from time to time of the Notes shall be subject:
(a) Each of the Agents shall be entitled to reasonable compensation
for all services rendered by such Agent, as separately agreed to from time to
time by the Corporation and such Agent, and the Corporation agrees to pay
promptly such compensation and to reimburse each of the Agents for the
reasonable out-of-pocket expenses (including, but not limited to, reasonable
counsel fees and expenses) incurred by such Agent in connection with the
services rendered by it hereunder. The Corporation also agrees to indemnify each
of the Agents and its officers, employees and agents for, and to hold it
harmless against, any loss, liability or expense (including the costs and
expenses of defending against any claim of liability, including the reasonable
fees and expenses of its counsel) incurred without gross negligence or bad faith
on the part of such Agent or its officers, employees or agents, arising out of
or in connection with its acting as an Agent of the Corporation hereunder. The
obligations of the Corporation under this paragraph (a) shall survive payment of
the Notes or the resignation or removal of any Agent.
(b) In acting under this Agreement and in connection with the Notes,
each of the Agents of the Corporation is acting solely as agent of the
Corporation, and does not assume any obligation, or relationship of agency or
trust, for or with any of the owners or Holders of the Notes, except that all
funds held by the Agents for payment of principal of or interest on (and
Additional Amounts, if any, on) the Notes shall be held in trust but need not be
segregated from other funds except as required by law and as set forth herein
and in the Notes, and shall be applied as set forth herein and in the Notes;
provided, however, that monies paid by the Corporation to an Agent for the
payment of principal of or interest on (and Additional Amounts, if any, on)
Notes remaining unclaimed at the end of two years
-11-
after such principal or interest (and Additional Amounts, if any) shall have
become due and payable shall be repaid to the Corporation without interest,
whereupon the aforesaid trust shall terminate and all liability of any Agent
with respect thereto shall cease. Thereafter, the Holder of such Note shall, as
an unsecured general creditor, look only to the Corporation for payment thereof.
(c) Each of the Agents may consult with one or more counsel
satisfactory to it (including counsel to the Corporation), and the written
opinion of such counsel shall be full and complete authorization and protection
in respect of any action taken, omitted or suffered by it hereunder in good
faith and in accordance with the opinion of such counsel.
(d) Each of the Agents shall be protected and shall incur no liability
for or in respect of any action taken, omitted or suffered by it in reliance
upon any Note, notice, direction, consent, certificate, affidavit, statement or
other paper or document believed in good faith by such Agent to be genuine and
to have been signed by the proper party or parties.
(e) Each of the Agents, its officers, directors and employees may
become the owner of, or acquire any interest in, any Notes, with the same rights
that it would have if it were not an Agent hereunder, and may engage or be
interested in any financial or other transaction with the Corporation and its
affiliates and may act on, or as depositary, trustee or agent for, any
committee or body of Holders of Notes or other obligations of the Corporation,
as freely as if it were not an Agent.
(f) The Fiscal and Principal Paying Agent shall not be under any
liability for interest on, or have any responsibility to invest, any monies at
any time received by it pursuant to any of the provisions of this Agreement or
of the Notes.
(g) The recitals contained herein and in the Notes (except in the
Fiscal and Principal Paying Agent's certificates of authentication), shall be
taken as the statements of the Corporation, and the Agents assume no
responsibility for the correctness of the same. None of the Agents makes any
representation as to the validity or sufficiency of this Agreement or the Notes
or the Corporation's Offering Circular dated July 3, 1995, or any other offering
material, except for such Agent's due authorization to execute this Agreement.
The Agents shall not be accountable for the use or application by the
Corporation of the proceeds of any Notes.
-12-
(h) The Agents shall be obligated to perform such duties and only such
duties as are herein and in the Notes specifically set forth and no implied
duties or obligations shall be read into this Agreement or the Notes against the
Agents. The Agents shall not be under any obligation to take any action
hereunder which may tend to involve it in any expense or liability, the payment
or reimbursement of which within a reasonable time is not, in its reasonable
opinion, assured to it through surety or other indemnity satisfactory to such
Agents.
(i) Unless herein or in the Notes otherwise specifically provided, any
order, certificate, notice, request, direction, or other communication, from the
Corporation made by or given by it under any provision of this Agreement shall
be in writing and shall be sufficient if signed by an Authorized Officer.
(j) Anything in this Agreement to the contrary notwithstanding, none
of the Agents shall incur any liability hereunder, except as a result of gross
negligence or bad faith attributable to them or their officers or employees, and
shall incur no liability for the gross negligence or bad faith of their agents
appointed by them with due care; provided that the Agents shall notify the
Corporation of the appointment of any such agents.
(k) Except as specifically provided herein or in the Notes, none of
the Agents shall have any duty or responsibility in case of any default by the
Corporation in the performance of their obligations (including, without limiting
the generality of the foregoing, any duty or responsibility to accelerate all or
any of the Notes or to initiate or to attempt to initiate any proceedings at law
or otherwise or to make any demand for the payment thereof upon the
Corporation).
(l) Any Agent may act hereunder through its officers, employees,
agents and attorneys. No Agent shall ever be required to post a bond in
connection with the providing of its services hereunder. No Agent shall be
responsible or liable in any manner whatever for the sufficiency, correctness,
genuineness or validity of the subject matter of this Agreement or any part
thereof, the form or execution thereof or the identity or authority of any
person executing or acting under it. In no event shall any Agent's liability
include any special, consequential, punitive or indirect loss or damage which
the Corporation may incur or suffer in connection with this Agreement. In no
event shall an Agent be responsible for the Corporation's attorneys' fees. Each
Agent shall be protected in this Agreement in acting upon any written notice,
request, waiver, consent, certificate, authorization, power of attorney or other
paper or documents that such Agent in good faith believes to be genuine and what
it purports to be and may
-13-
assume any person purporting to give any written notice, advice or instruction
in connection with the provisions hereof has been duly authorized to do so.
10. OFFICES, RESIGNATION, SUCCESSORS, ETC. OF AGENTS.
(a) So long as there shall be a Fiscal and Principal Paying Agent
hereunder, the Corporation shall maintain agencies outside the United States
where interests in Notes may be surrendered for payment (and for the payment of
Additional Amounts, if any), which shall include an agency in Luxembourg so long
as the Notes are listed on the Luxembourg Stock Exchange (the "LSE") and the
rules of such exchange shall so require. The Corporation now intends to maintain
additional agencies (subject to applicable laws and regulations) where an
interest in the Permanent Global Note may be surrendered for payment (and for
the payment of Additional Amounts, if any), in London, England and Luxembourg,
and during such period to keep the Agents advised of the names and locations of
such agencies. Unless the Corporation shall otherwise notify each of the Agents
in writing, the sole such paying agencies shall be the agencies specified in the
Notes. If at any time the Corporation shall fail to maintain any such required
office or agency outside the United States and, so long as the Notes are listed
on the LSE, and the rules of the LSE so require, in Luxembourg, or shall fail to
furnish the Fiscal and Principal Paying Agent with the address thereof,
presentations and surrenders of the Notes for payment may be made at the
principal office of the Fiscal and Principal Paying Agent in London. The
Corporation agrees that it will maintain at all times an office or agency in New
York City for the purpose of receiving notices and demands (other than demands
for payment) from the Holders of the Notes, but not for the purpose of making
payments in respect of the Notes.
(b) The Fiscal and Principal Paying Agent or any other Paying Agents
may at any time resign by giving written notice to the Corporation of such
intention on its part, specifying the date on which its desired resignation
shall become effective; provided, however, that such date shall never be less
than 30 days after receipt of such notice by the Corporation unless the
Corporation agrees to accept less notice. The Fiscal and Principal Paying Agent
may be removed at any time by filing with it at least 30 days prior to the date
of such proposed removal, an instrument in writing signed by an Authorized
Officer on behalf of the Corporation and specifying such removal and the date
when it is intended to become effective. Such resignation or removal shall take
effect upon the date of the appointment by the Corporation, as hereinafter
provided, of a successor Fiscal and Principal Paying Agent or other Paying Agent
of the Corporation, as the case may be, and the acceptance of such appointment
by such successor Fiscal and Principal Paying Agent provided that if the Fiscal
and Principal
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Paying Agent or any other Paying Agent has attempted to resign and a successor
has not been appointed within 60 days, such Fiscal and Principal Paying Agent or
any other Paying Agent shall have the right to appoint a successor Fiscal and
Principal Paying Agent or any other Paying Agent provided that such successor
shall be of international repute. At the time of its resignation or removal, the
Fiscal and Principal Paying Agent shall be entitled to the payment by the
Corporation of its compensation for the services rendered hereunder and to the
reimbursement of all reasonable out-of-pocket expenses incurred in connection
with the services rendered hereunder. All protections and indemnities
benefitting the Fiscal and Principal Paying Agent (and any other indemnified
party hereunder) are cumulative of any other rights it (or they) may have by law
or otherwise, and shall survive the termination of this Agreement or the
resignation or removal of such Fiscal and Principal Paying Agent.
(c) In case at any time any of the Agents shall resign, or shall be
removed, or shall be incapable of acting, or shall file a voluntary petition as
a debtor under Chapter 7 or 11 of Title 11 of the United States Code or have an
order for relief entered against it as a debtor under Chapter 7 or 11 of Title
11 of the United States Code or make an assignment for the benefit of its
creditors or consent to the appointment of a receiver of all or any substantial
part of its property, or shall admit in writing its inability to pay or meet its
debts as they mature, or if an order of any court shall be entered approving any
petition filed by or against the Fiscal and Principal Paying Agent under any
legislation similar to the provisions of Title 11 of the United States Code or
against any of the Agents under the Provisions of any legislation similar to the
Provisions of Title 11 of the United States Code, or if a receiver of it or of
all or any substantial part of its property shall be appointed, or if any public
officer shall take charge or control of it or of its property or affairs, for
the purpose of rehabilitation, conservation or liquidation, a successor Agent,
qualified as aforesaid, shall be appointed by the Corporation by an instrument
in writing. Upon the appointment as aforesaid of a successor Agent and
acceptance by it of such appointment, the Agent so superseded shall cease to be
such Agent hereunder. If no successor Agent shall have been so appointed by the
Corporation and shall have accepted appointment as hereinafter provided, any
Holder of a Note, on behalf of itself and all others similarly situated, or any
Agent may petition any court of competent jurisdiction for the appointment of a
successor Agent and shall promptly notify the Corporation of such action.
-15-
(d) Any successor Fiscal and Principal Paying Agent or Paying
Agent appointed hereunder shall execute, acknowledge and deliver to its
predecessor and to the Corporation an instrument accepting such appointment
hereunder, and thereupon such successor Agent, without any further act, deed
or conveyance, shall become vested with all the authority, rights,
powers, trusts,immunities, duties and obligations of such predecessor with
like effect as if originally named as such Agent hereunder, and such
predecessor, upon payment of its charges and disbursements then unpaid,
shall thereupon become obligated to transfer, deliver and pay over, and such
successor Agent shall be entitled to receive, all monies, securities or other
property on deposit with or held by such predecessor, as such Agent
hereunder.
(e) Any corporation or bank into which any of the Agents may be
merged or converted, or any corporation or bank with which such Agent may
be consolidated, or any corporation or bank resulting from any merger,
conversion or consolidation to which such Agent shall be a party, or any
corporation or bank to which such Agent shall sell or otherwise transfer
all or substantially all the assets and business of such Agent, or any
corporation to which the Fiscal and Principal Paying Agent shall sell or
otherwise transfer all or substantially all of its corporate trust
business, provided that it shall be qualified as aforesaid, shall be the
successor to such Agent under this Agreement without the execution or
filing of any document or any further act on the part of any of the
parties hereto.
11. TAXES. The Corporation will pay all stamp taxes and other similar
duties, if any, that may be imposed by the United States of America, the
United Kingdom or Luxembourg or Hong Kong, or any state or political
subdivision thereof or taxing authority therein, with respect to the
execution or delivery of this Agreement, or the issuance of the Temporary
Global Note, or the exchange from time to time of interests in the Temporary
Global Note for an interest in the Permanent Global Note, or the exchange
of an interest in the Permanent Global Note for a Definitive Note, if available.
12. MEETINGS AND VOTES OF HOLDERS
(A) A meeting of Holders of Notes may be called at any time and
from time to time pursuant to this Section 12 for any of the following
purposes: (i) to give any notice to the Corporation or to the Fiscal and
Principal Paying Agent, or to give any directions to the Fiscal and Principal
Paying Agent, or to consent to the waiving of
any default hereunder or under the Notes and its consequences, or to take
any other action authorized to be taken by Holders of Notes pursuant to
Section 9 of the Conditions; or (ii) to take any other action authorized
to be taken by or on behalf of the Holders of any specified
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aggregate principal amount of the Notes under any other provision of this
Agreement, the Conditions or under applicable law.
(b) Meetings of Holders of Notes may be held at such place or
places in the City of New York or London as the Fiscal and Principal Paying
Agent or, in case of its failure to act, the Corporation or the Holders
calling the meeting shall from time to time determine.
(c) The Fiscal and Principal Paying Agent may at any time call a
meeting of Holders of Notes to be held at such time and at such place in any
of the locations designated in Section 12(b) hereof as the Fiscal and
Principal Paying Agent shall determine. Notice of every meeting of Holders
shall be published on behalf and at the expense of the Corporation in
accordance with Section 14 of the Conditions. Such notice shall set forth
the time and the place of such meeting and in general terms the action
proposed to be taken at such meeting, and shall be published at least twice,
the first publication to be not less than 21 nor more than 180 days prior to
the date fixed for the meeting.
(d) In case at any time the Corporation or the Holders of at least
33% in aggregate principal amount of the Notes outstanding shall have requested
the Fiscal and Principal Paying Agent to call a meeting of Holders, by
written request setting forth in reasonable detail the action proposed to
be taken at the meeting, and the Fiscal and Principal Paying Agent shall not
have given the first 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 Corporation or Holders of Notes in the
amount above specified may determine the time and the place in either of the
locations designated in Section 12(b) hereof for such meeting and may call
such meeting to take any action authorized in Section 12(a) hereof by giving
notice thereof as provided in Section 12(c) hereof.
(e) To be entitled to vote at any meeting of Holders of Notes,
a person shall be (i) a Holder of one or more Notes, or (ii) a person
appointed by an instrument in writing as proxy for a Holder or Holders of
Notes by such Holder or Holders, which proxy need not be a Holder of
Notes. The only persons who shall be entitled to be present or to speak
at any meeting of Holders shall be the persons entitled to vote at such
meeting and their counsel and any representatives of the Fiscal and
Principal Paying Agent and its counsel and any representatives of the
Corporation and its counsel.
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(f) The persons entitled to vote a majority in principal amount of
the outstanding Notes shall constitute a quorum for the transaction of all
business specified in Section 12(a) hereof. No business shall be transacted
in the absence of a quorum unless a quorum is represented when the meeting is
called to order. In the absence of a quorum within 30 minutes of the time
appointed for any such meeting, the meeting shall, if convened at the request
of the Holders of Notes (as provided in Section 12(d) hereof), be dissolved.
In any other case the meeting shall 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 adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 12(c) hereof except
that such notice need be published only once but must be given not less
than five days prior to the date on which the meeting is scheduled to be
reconvened. Subject to the foregoing, at the reconvening of any meeting
adjourned for a lack of a quorum the persons entitled to vote 33% in
principal amount of the Notes shall constitute a quorum for the taking of any
action set forth in the notice of the original meeting. Notice of the
reconvening of an adjourned meeting shall state expressly the percentage of
the aggregate principal amount of the Notes that shall constitute a quorum.
At a meeting or an adjourned meeting duly reconvened and at which a quorum
is present as aforesaid, any resolution and all matters (except as limited
by Section 9(b) of the Conditions) shall be effectively passed and decided
if passed or decided by the persons entitled to vote a majority in principal
amount of the Notes represented and voting at such meeting, provided that
such amount shall be not less than 33% in principal amount of the Notes
outstanding. Any Holder of a Note who has executed and delivered an
instrument in writing appointing a person as his proxy shall be deemed to be
present for the purposes of determining a quorum and be deemed to have voted;
provided, however, that such Holder shall be considered as present or voting
only with respect to the matters covered by such instrument in writing.
Any resolution effectively passed or decision taken at any meeting of the
Holders of Notes duly held in accordance with this Section 12 shall be
binding on all Holders of Notes whether or not present or represented at
the meeting and whether or not notation of such decision is made upon the
Notes.
(g) Notwithstanding any other provision of this Agreement, the
Fiscal and Principal Paying Agent may make such reasonable regulations as it
may deem advisable for any meeting of Holders of Notes in regard to proof of
the holding of 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. Except as
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otherwise permitted or required by any such regulations, the holding of
Notes shall be proved by the production of the Notes or by a
certificate executed, as depositary, by, and the appointment of any proxy
shall be proved by having the signature of the person executing the proxy
witnessed or guaranteed by, in each case, any trust company, bank or banker
satisfactory to the Fiscal and Principal Paying Agent. Such regulations may
provide that written instruments appointing proxies, regular on their face,
may be presumed valid and genuine without the proof specified herein or other
proof.
(h) The Fiscal and Principal Paying Agent shall, by an instrument
in writing, appoint a temporary chairperson and a temporary secretary of
the meeting, unless the meeting shall have been called by the Corporation
or by the Holders of Notes as provided herein and in the Notes, in which
case the Corporation or the Holders calling the meeting, as the case may be,
shall in like manner appoint a temporary chairperson and a temporary
secretary. A permanent chairperson and a permanent secretary of the
meeting shall be elected by vote of the Holders of a majority in principal
amount of the Notes represented at the meeting and entitled to vote.
(i) At any meeting each Holder or proxy shall be entitled to one
vote for each U.S. $1,000 principal amount of Notes held or represented by
such Holder; provided, however, that no vote shall be cast or counted at any
meeting in respect of any Notes challenged as not outstanding and ruled by the
chairperson of the meeting to be not outstanding. The chairperson of the
meeting shall have no right to vote, except as a Holder or proxy.
(j) Any meeting of Holders of Notes duly called pursuant to
Section 12(c) or 12(d) hereof at which a quorum is present may be adjourned
from time to time by vote of Holders (or proxies for Holders) of a majority
in principal amount of the Notes represented at the meeting and entitled to
vote; and the meeting may be held as so adjourned without further notice.
(k) The vote upon any resolution submitted to any meeting of
Holders of Notes shall be by written ballots on which shall be subscribed
the signatures of Holders of Notes or of their representatives by proxy
(and the serial number or numbers of the Notes held or represented by them).
The permanent chairperson of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the meeting
their verified written reports in triplicate of all votes cast at the
meeting. A record, at least in triplicate, of the proceedings of each
meeting of Holders of Notes shall be prepared by the secretary of the
meeting and there shall be attached to said record the original reports of
the inspectors
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of votes on any vote by ballot taken thereat and affidavits by one or
more persons having knowledge of the facts setting forth a copy of the notice
of the meeting and showing that said notice was published as provided in
Section 12(c) or 12(d) hereof and, if applicable, Section 12(f) hereof.
Each copy shall be signed and verified by the affidavits of the chairperson
and secretary of the meeting, and one such copy shall be delivered to the
Corporation and another to the Fiscal and Principal Paying Agent to be
preserved by the Fiscal and Principal Paying Agent, the copy delivered
to the Fiscal and Principal Paying Agent to have attached thereto the
ballots voted at the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
13. MODIFICATIONS, ETC.
(a) The Corporation and the Fiscal and Principal Paying Agent
may, without the approval of any Holders of Notes and Coupons, amend this
Agreement or the Notes and Coupons to (i) 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 or the Notes and
Coupons, or (ii) add to the covenants of the Corporation for the benefit
of the Holders of the Notes and the Coupons, or surrender any right or power
conferred upon the Corporation, or (iii) relax or eliminate the restrictions
on payment of principal or interest in respect of Notes or Coupons in the
United States to the extent then permitted under applicable regulations of
the U.S. Department of the Treasury, and provided no adverse tax
consequences would result to the Holders of the Notes or Coupons, or
(iv) cure any ambiguity or correct or supplement any defective provision
herein or therein or any provision that may be inconsistent with another
provision herein or therein, or (v) permit further issuances of Notes in
accordance with Section 14 hereof, or (vi) make any other provisions with
respect to matters or questions arising under the Notes or this Agreement,
provided such action pursuant to this clause (vi) shall not be inconsistent
with the provisions of the Notes and shall not adversely affect the
interests of the Holders of the Notes or Coupons.
(b) It shall not be necessary for the vote or consent of Holders
of Notes to approve the particular form of any proposed modification,
amendment, supplement or action but it shall be sufficient if such consent
shall approve the substance thereof.
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14. Further Issuances. The Corporation may from time to time without
the consent of Holders of Notes undertake further issuances of notes with
terms identical to the Notes except as to the issue date and the amount of the
first payment of interest thereon. In connection with such issuance, the
Corporation and the Fiscal and Principal Paying Agent shall enter into a
supplemental agreement hereto that, if applicable, shall provide for the
extension of the period during which interest in the Temporary Global Note
may not be exchanged for interests in the Permanent Global Note in order to
comply with Regulation S and applicable tax laws and regulations including
the D Rules; provided, however, that no such further notes may be issued
if to do so would extend the Exchange Date in respect of any Notes beyond
the first Interest Payment Date (as defined in the form of Permanent
Global Note included as Exhibit B hereto) for such Notes. Upon the issuance
of such notes in accordance herewith, such notes and the Notes shall form
part of a single class and shall have identical rights and all references
to the term "Notes" and "Coupons" hereunder shall be deemed to include such
notes and the coupons appertaining thereto.
15. Merger, Consolidation or Sale of Assets.
(a) If at any time there shall be a merger, consolidation, sale
or conveyance of assets or assumption of obligations to which any of the
covenants contained in Section 7 of the Conditions pertains, then in any such
event the successor or assuming corporation referred to therein will promptly
deliver to the Fiscal and Principal Paying Agent:
(i) a certificate signed by an Authorized Officer of such
successor or assuming corporation stating that as of the time
immediately after the effective date of any such transaction the
covenants of the Corporation contained in the Permanent Global Note
have been complied with and the successor or assuming corporation
is not in default under the provisions of this Agreement or the
Notes, as applicable; and
(ii) a written opinion of legal counsel stating that in such
such counsel's opinion the covenants of the Corporation contained in
Section 7 of the Conditions have been complied with and that any
instrument or instruments executed in the performance of such covenants
comply with the requirements thereof.
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In case of any such merger, consolidation, sale, conveyance or
assumption, such successor or assuming corporation shall succeed to and be
substituted for the Corporation with the same effect, subject to (in the case
of a merger to which the Corporation is a party) Section 7(b) of the Conditions,
as if it had been named herein and in the Permanent Global Note as the
Corporation; the Corporation shall thereupon be relieved of any further
obligation or liability hereunder or upon the Notes, and the Corporation,
as the predecessor corporation may thereupon or at any time thereafter be
dissolved, wound up or liquidated. Upon the order of such successor or
assuming corporation, instead of the Corporation, and subject to all the terms,
conditions and limitations in this Agreement prescribed, the Fiscal and
Principal Paying Agent shall authenticate and shall deliver any Notes which
previously shall have been signed and delivered by the officers of the
Corporation to the Fiscal and Principal Paying Agent for authentication, and
any Notes which such successor or assuming corporation thereafter shall
cause to be signed and delivered to the Fiscal and Principal Paying Agent
for that purpose. All the Notes so issued shall in all respects have the
same legal rank and benefit under this Agreement as the Notes theretofore or
thereafter issued in accordance with the terms of this Agreement as though
all of such Notes had been issued at the date of the execution hereof.
In case of any merger, consolidation, sale, conveyance or assumption,
such changes in phraseology and form (but not in substance) may be made in the
Notes thereafter to be issued as may be appropriate.
(b) The Fiscal and Principal Paying Agent may rely on the documents
delivered to it pursuant to this Agreement by any successor or assuming
corporation pursuant to this Section 15 as conclusive evidence that any such
merger, consolidation, sale, conveyance or assumption complies with the
provisions of this Section and the Notes.
16. Stockholders, Officers and Directors of the Corporation Exempt from
Individual Liability. No recourse under or upon any obligation, covenant or
agreement contained in this Agreement, or in any Note, or because of any
indebtedness evidenced thereby, shall be had against any past, present or
future stockholder, officer, director or employee, as such, of the
Corporation or of any successor, either directly or through the Corporation
or any successor, under any rule or law, statute or constitutional provision
or by the enforcement of any assessment or by any legal or equitable proceeding
or otherwise, all such liability being expressly waived and released by the
acceptance of the Notes by the Holders thereof and as part of the
consideration for the issue of the Notes.
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17. GOVERNING LAW. THIS AGREEMENT, THE NOTES 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.
18. Amendments. This Agreement may be amended by the parties hereto,
and certain provisions hereof may be waived, in the manner provided in Section
9 of the Conditions. This Agreement may also be amended by the parties hereto,
without the consent of the Holder of any Note, for the purposes set forth in
Section 8 of the Conditions.
19. 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
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Treasurer
with a copy to:
NationsBank Corporation
NationsBank Corporate Center
Legal Department
NC 1007-20-1
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
General Counsel
The Fiscal and Principal Paying Agent:
The Chase Manhattan Bank, N.A.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attn: Manager, Corporate Trust
Operations
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The Paying Agent:
The Chase Manhattan Bank
Luxembourg S.A.
▇ ▇▇▇ ▇▇▇▇▇▇▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ - ▇▇▇▇▇.
or at any other address of which any of the foregoing shall have notified the
others in writing.
So long as the Notes are represented by the Temporary Global Note or the
Permanent Global Note, notices to Holders of the Notes may be given by delivery
of the relevant notice to Euroclear and Cedel for communication by them to the
relevant account holders and a common depositary; provided, however, that
for so long as the Notes are listed on the LSE and the rules of such exchange
shall so require, the Corporation shall also give notice by publication in
a daily newspaper of general circulation in Luxembourg; and provided further
that for so long as the Notes are listed on the Stock Exchange of Hong Kong
(the "HKSE") and the rules of such exchange shall so require. The Corporation
shall also give notice by publication in a daily newspaper of general
circulation in Hong Kong. The corporation may, but need not, cause such
notice to be given by publication in the Luxembourger Wort and in the
South China Morning Post, for Luxembourg and Hong Kong, respectively.
20. Counterparts. This Agreement may be executed in separate
counterparts, and by each party separately in a separate counterpart, each
such counterpart, when so executed and delivered, to be an original. Such
counterparts shall together constitute but one and the same instrument.
21. Headings. The descriptive headings appearing herein are for
convenience of reference only and shall not alter, limit or define the
provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
NATIONSBANK CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President
and Treasurer
By or on behalf of
THE CHASE MANHATTAN BANK, N.A.
as Fiscal and Principal Paying Agent
By: /s/
Name: ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
THE CHASE MANHATTAN BANK LUXEMBOURG S.A.
as Paying Agent
By: /s/
Name: ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President