ISSUING AND PAYING AGENCY AGREEMENT
BETWEEN
NATIONSBANK, N.A. (CAROLINAS),
NATIONSBANK OF TEXAS, N.A.
AND
NATIONSBANK OF GEORGIA, N.A.
AS ISSUERS
AND
BANKERS TRUST COMPANY,
AS ISSUING AND PAYING AGENT,
DATED AS OF APRIL 10, 1995
-------------------
SHORT-TERM AND MEDIUM-TERM NOTES
DUE FROM 30 DAYS TO 15 YEARS FROM DATE OF ISSUE
Table of Contents
Page
SECTION 1. Definition................................................................................. 1
SECTION 2. Appointment of Agents...................................................................... 9
(a) Issuing and Paying Agent................................................ 9
(b) Selling Agents......................................................... 10
(c) Registrar.............................................................. 10
(d) Transfer Agents........................................................ 10
(e) Calculation Agents...................................................... 10
SECTION 3. The Notes.................................................................................. 11
(a) Note Form; Signature.................................................... 11
(b) Denominations........................................................... 14
(c) Completion of Notes..................................................... 14
(d) Date.................................................................... 15
(e) Certificate of Authentication........................................... 15
(f) Original Issue Discount Note............................................ 15
(g) Custody of Notes........................................................ 15
(h) Certificated Notes...................................................... 15
SECTION 4. Authorized Representatives................................................................. 16
SECTION 5. Completion, Authentication and Delivery of
Notes........................................................................................ 16
SECTION 6. Procedure upon Sale of the Notes........................................................... 20
SECTION 7. Payment of Interest; Actions on Days Other
than Business Days........................................................................... 20
SECTION 8. Payment of Principal....................................................................... 22
SECTION 9. Designation of Accounts to Receive Pay-
ment......................................................................................... 22
SECTION 10. Information Regarding Amounts Due......................................................... 22
SECTION 11. Specified Currency Notes.................................................................. 23
SECTION 12. Deposit of Funds.......................................................................... 23
SECTION 13. Optional Redemption....................................................................... 23
(a) Optional Redemption..................................................... 23
(b) Optional Repayment...................................................... 24
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Page
(c) Optional Extension of Maturity.......................................... 24
(d) Optional Renewal........................................................ 26
SECTION 14. Events of Default......................................................................... 27
SECTION 15. Registration; Transfer.................................................................... 28
SECTION 16. Persons Deemed Owners..................................................................... 30
SECTION 17. Mutilated, Lost, Stolen or Destroyed
Notes........................................................................................ 30
SECTION 18. Return of Unclaimed Funds................................................................. 31
SECTION 19. Amendment or Supplement................................................................... 31
SECTION 20. Resignation or Removal of Agents; Ap-
pointment of Successors to Agents............................................................ 33
(a) Resignation or Removal of Agent......................................... 33
(b) Appointment of Successor to Agent....................................... 34
(c) Successor of Agent...................................................... 35
(d) Merger, Etc. of Agent................................................... 35
(e) Change in Duties of an Agent............................................ 36
(f) Additional Agents....................................................... 36
SECTION 21. Reliance on Instructions.................................................................. 36
SECTION 22. Cancellation of Unissued Notes............................................................ 36
SECTION 23. Representation and Warranties of the
Issuers; Instructions by Certificate......................................................... 36
SECTION 24. Fees...................................................................................... 37
SECTION 25. Notices................................................................................... 37
SECTION 26. Information Furnished by the Issuing and
Paying Agent................................................................................. 38
SECTION 27. Liability................................................................................. 39
SECTION 28. Additional Responsibilities; Additional
Responsibilities............................................................................. 39
SECTION 29. Transfer of Notes and Moneys.............................................................. 39
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Page
SECTION 30. Indemnity................................................................................. 41
SECTION 31. Limitation of Liability; Reliance on
Opinions and Certificates.................................................................... 41
SECTION 32. Benefit of Agreement...................................................................... 42
SECTION 33. Governing Law............................................................................. 42
SECTION 34. Headings and Table of Contents............................................................ 42
SECTION 35. Counterparts.............................................................................. 43
SECTION 35. Termination of Prior Issuing and Paying
Agent Agreements............................................................................. 43
EXHIBIT A - Forms of DTC Letters of Representations
EXHIBIT B - Administrative Procedures
EXHIBIT C - Form of Fixed Rate Note
EXHIBIT D - Form of Floating Rate Note
EXHIBIT E - Form of Legend for Original Issue Discount
Note
EXHIBIT F - The Issuers' Authorized Representatives
EXHIBIT G - Form of Issuing and Paying Agent's Officer's
Certificate Referencing Authorized Represen-
tatives
iii
NATIONSBANK, N.A. (CAROLINAS)
NATIONSBANK OF TEXAS, N.A.
NATIONSBANK OF GEORGIA, N.A.
SHORT-TERM AND MEDIUM-TERM NOTES
ISSUING AND PAYING AGENCY AGREEMENT
ISSUING AND PAYING AGENCY AGREEMENT dated as of April 10,
1995, between NATIONSBANK, N.A. (CAROLINAS), NATIONSBANK OF TEXAS, N.A., and
NATIONSBANK OF GEORGIA, N.A., each a national banking association organized
under the laws of the United States, each as an Issuer, and BANKERS TRUST
COMPANY, a New York banking corporation, as Issuing and Paying Agent.
SECTION 1. Definitions. Except as otherwise expressly provided
or unless the context otherwise requires: (l) the words and phrases with initial
capitals used herein have the meanings specified in this Section; and (2) the
words "herein," "hereof" and "hereunder" and other words of similar impact refer
to this Issuing and Paying Agency Agreement as a whole and not to any particular
section or other subdivision. Capitalized terms used herein but not otherwise
defined herein shall have the same meaning and intention specified therefor in
the applicable Note.
ADDITIONAL RESPONSIBILITIES - Has the meaning given such term
in Section 28.
ADMINISTRATIVE PROCEDURES - The Administrative Procedures
applicable to the Notes, as set forth in Exhibit B hereto.
AGENT OR AGENTS - Any of the Issuing and Paying Agent, any
paying agent or the Registrar, as the context indicates.
AGREEMENT - This Issuing and Paying Agency Agreement,
including the exhibits hereto, as amended or supplemented from time to time.
AMORTIZING NOTE - Any Note the terms of which provide for the
payment of Principal thereof and interest thereon on each Interest Payment Date
and the Stated Maturity thereof.
AUTHORIZED DENOMINATION - Has the meaning given such term in
Section 3(b).
AUTHORIZED REPRESENTATIVE - With respect to an Issuer, any
duly authorized representative of such Issuer as set forth in Exhibit F hereto,
and any other representative of such Issuer as to which such Issuer may
hereafter certify in writing to the Issuing and Paying Agent.
BUSINESS DAY - Unless otherwise specified in a Pricing
Supplement relating to a particular Note, with respect to any Note issued by an
Issuer, any day that is not a Saturday or Sunday and that is not a day on which
banking institutions in The City of New York, New York are generally authorized
or obligated by law to close (or, if the Issuing and Paying Agent is other than
Bankers Trust Company, the city in which such successor Issuing and Paying
Agent's principal office is located). With respect to LIBOR Notes, "Business
Day" means London Business Day. If a particular Note is denominated in or
indexed to a Specified Currency other than U.S. dollars or the European Currency
Unit ("ECU"), "Business Day" means any day that is not a Saturday or Sunday and
that is not a day on which banking institutions in The City of New York and the
principal financial center of the country issuing the Specified Currency are
generally authorized or obligated by law or regulation to close and is a day on
which banking institutions in such principal financial center are carrying out
transactions in such Specified Currency and, if such Note is denominated in or
indexed to ECU, each day which is not a day that banking institutions in the
country of Luxembourg are authorized or required by law or regulation to close
and which is an ECU clearing day, as determined by the ECU Banking Association
in Paris, France.
CALCULATION AGENT - With respect to Notes issued by an Issuer,
such person appointed by such Issuer to calculate the interest rates applicable
to Floating Rate Notes or certain other Notes, and for certain related matters,
as more fully described in Section 2(e).
CERTIFICATE OF AUTHENTICATION - Has the meaning given such
term in Section 3(e).
CERTIFICATED NOTES - Any Notes issued in fully registered,
certificated form.
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COMPONENTS - Has the meaning given such term in Section 11(d).
DEPOSITARY - With respect to Notes issued in the form of one
or more Global Notes, the Person designated as Depositary by the Issuer thereof
pursuant hereto, which Depositary at all times shall be a trust company validly
existing and in good standing (at the time of its appointment) under the laws of
the United States or any state thereof and shall be a clearing agency duly
registered under the Securities Exchange Act.
DISTRIBUTION AGREEMENT - The Distribution Agreement, dated
April 10, 1995, among the Issuers, NationsBanc Capital Markets, Inc., CS First
Boston Corporation, ▇▇▇▇▇▇ Brothers, ▇▇▇▇▇▇ Brothers Inc. (including its
affiliates ▇▇▇▇▇▇ Commercial Paper Inc. and ▇▇▇▇▇▇ Government Securities Inc.)
and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, as
amended and supplemented from time to time.
DTC - The Depository Trust Company or its successors and
assigns.
EVENT OF DEFAULT - Has the meaning given such term in Section
14.
EXTENSION NOTICE - The notice to be provided to Holders of
Notes the Stated Maturity of which is extended by an Issuer as provided in
Section 13(c) hereof.
EXTENSION PERIOD(S) - The period or periods, by which an
Issuer may extend the Stated Maturity of Notes which provide for such extension,
as described more fully in Section 13(c) hereof.
FINAL MATURITY DATE - The latest date designated on the face
of a Note which provides for the maturity thereof.
FIXED RATE NOTES - Any Notes bearing interest at fixed rates
and substantially in the form of Exhibit C hereto.
FLOATING RATE NOTES - Any Notes bearing interest at a variable
rate or rates determined by reference to an interest rate formula, which may be
adjusted by adding or
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subtracting a number of basis points or "spread" specified by the Issuer on the
related Floating Rate Note as being applicable to such Floating Rate Note and/or
by multiplying a percentage or "spread multiplier" specified by the Issuer
thereof on the related Floating Rate Note as being applicable to such Floating
Rate Note and substantially in the form of Exhibit D.
GLOBAL NOTE - A Note, in the form provided by Section 3(a),
issued to the Depositary or its nominee, and registered in the Register in the
name of the Depositary or its nominee.
HOLDER - Means the person in whose name a Note is registered
in the Register.
INITIAL MATURITY DATE - Has the meaning given such term in
Section 13(d).
INITIAL REDEMPTION DATE - With respect to a Note that is
subject to an Optional Redemption, the date specified as the Initial Redemption
Date on such Note and after which, but prior to the Stated Maturity, an Optional
Redemption of such Note may occur as specified in such Note.
INITIAL RENEWAL DATE - Has the meaning given such term in
Section 13(d).
INTEREST PAYMENT DATE - A date for payment of interest on a
Note, as provided in the Note.
ISSUER - Each of NationsBank, N.A. (Carolinas), a national
banking association, and its successors and assigns, NationsBank of Texas, N.A.,
a national banking association, and its successors and assigns, and NationsBank
of Georgia, N.A., a national banking association, and its successors and
assigns. All such entities are collectively referred to herein as the "Issuers".
ISSUING AND PAYING AGENT - Bankers Trust Company, or any
successor Issuing and Paying Agent appointed in accordance with this Agreement
under Section 20 that has accepted such appointment hereunder.
LETTERS OF REPRESENTATIONS - The letters from the Issuing and
Paying Agent to be furnished to DTC in accor-
4
dance with Section 2(a) hereof, substantially in the forms set forth in Exhibit
A hereto.
LONDON BUSINESS DAY - Any day on which dealings in deposits in
U.S. dollars are transacted in the London inter-bank market.
NEW MATURITY DATE - Has the meaning given such term in Section
13(d).
NEW YORK BUSINESS DAY - Any day other than a Saturday or
Sunday or a day on which banking institutions in The City of New York are
authorized or required by law or executive order to close.
NOTE OR NOTES - Any of an Issuer's Short-Term Notes or
Medium-Term Notes issued, authenticated and delivered under this Agreement.
OFFERING CIRCULAR - The Offering Circular of the Issuers
relating to the Notes dated April 10, 1995, as the same may be amended or
supplemented from time to time.
OFFICER'S CERTIFICATE - With respect to an Issuer, a
certificate (i) signed by the Chairman of the Board, the President, or any
Executive Vice President or Senior Vice President of an Issuer or such other
persons as such Issuer designates in an Officer's Certificate signed by the
President or any Vice President, and (ii) delivered to the Issuing and Paying
Agent.
OPTIONAL REDEMPTION - A redemption of a Note on or after the
date designated on such Note as the Initial Redemption Date at the option of the
Issuer thereof as set forth in such Note at a Redemption Price as set forth in
such Note.
ORIGINAL ISSUE DATE - As to any Note, the date on which such
Note was issued and the purchase price therefore was paid by the related Holder.
ORIGINAL ISSUE DISCOUNT NOTE - Any Note issued at an issue
price representing more than a DE MINIMIS discount from the principal amount
payable at its Stated Maturity for federal income tax purposes.
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ORIGINAL STATED MATURITY - Has the meaning given such term in
Section 13(c).
OUTSTANDING - For purposes of the provisions of this Agreement
and the Notes, any Note authenticated and delivered pursuant to this Agreement
shall, as of any date of determination, be deemed to be "Outstanding," except:
(i) Notes theretofore cancelled or delivered to the Issuing and Paying Agent for
cancellation; (ii) Notes that have become due and payable on their Principal
Payment Date and with respect to which monies sufficient to pay the Principal or
Redemption Price thereof, as the case may be, and interest thereon shall have
been made available to the Issuing and Paying Agent; or (iii) Notes in lieu of
or in substitution for which other Notes shall have been authenticated and
delivered pursuant to this Agreement.
PAYMENT DATE - A date for payment of Principal of and interest
on an Amortizing Note as provided in the Note.
PERSON - Any legal person, including any individual,
corporation, partnership, joint venture, association, joint stock company,
trust, unincorporated organization or government or any agency, instrumentality
or political subdivision thereof.
PREDECESSOR NOTES - With respect to any particular Note, every
previous Note evidencing all or a portion of the same debt as that evidenced by
such particular Note; and, for the purpose of this definition, any Note
authenticated and delivered under Section 17 or the terms of a Note in lieu of
or in exchange for a mutilated, lost, destroyed, or stolen Note shall be deemed
to evidence the same debt as the mutilated, lost, destroyed or stolen Note, and
any Note issued upon registration of transfer of or in exchange for any other
Note shall be deemed to evidence all or a portion of the same debt evidenced by
such other Note.
PREPAYMENT OPTION DATES - If specified on the applicable Note,
a date or dates for prepayment of a Note prior to the Stated Maturity thereof at
the option of the Holder.
PREPAYMENT OPTION PRICE - The amount prepayable to a Holder on
a Prepayment Option Date together with any accrued interest to the Prepayment
Option Date, as and if specified above on the applicable Note.
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PRICING SUPPLEMENT - A supplement to the Offering Circular for
a particular Note or Notes.
PRINCIPAL - The amount of a Note due and payable on the Stated
Maturity therefor or, in the case of an Amortizing Note, the "Amortized Face
Amount" (as specified in the Note).
PRINCIPAL OFFICE - Subject to the right of each to change its
office, by advance written notice to the Issuers, such term means, (1) for the
Issuing and Paying Agent, its principal corporate trust office at Four Albany
Street, 4th floor, New York, New York 10006, Attention: Corporate Trust and
Agency Group; and (2) for any successor or additional Agents, their offices
specified in writing to the Issuers and the Issuing and Paying Agent.
PRINCIPAL PAYMENT DATE - The date provided on the face of the
Note on which the Principal, or Redemption Price of the Note, as the case may
be, becomes due and payable.
REDEMPTION PRICE - With respect to any Note subject to an
Optional Redemption, the amount specified in such Note as payable, when such
Note is redeemed on or after the Initial Redemption Date, pursuant to the
related Note.
REGISTER - The register for the registration and transfer of
the Notes maintained by the Issuing and Paying Agent pursuant to Section 15
hereof.
REGISTRAR - Bankers Trust Company, or any successor or
successors as Registrar, appointed in accordance with Section 20 hereof, who
shall perform the duties provided under Section 2(c) hereof.
REGULAR RECORD DATE - With respect to any Note, unless
otherwise specified in such Note, the Regular Record Date with respect to any
Interest Payment Date or Payment Date shall be the date that is the fifteenth
calendar day (whether or not a Business Day) prior to the applicable Interest
Payment Date or Payment Date, as the case may be.
RENEWABLE NOTE - A Note the maturity of which may be renewed
at the option of the Holder in accordance with the terms thereof.
7
RENEWAL DATE - Has the meaning given such term in Section
13(d).
SECURITIES EXCHANGE ACT - The Securities Exchange Act of 1934,
as amended.
SELLING AGENT - Any party, other than an Issuer,
to the Distribution Agreement, including any party added to
such agreement after its initial date of execution. The
initial Selling Agents are: NationsBanc Capital Markets,
Inc., CS First Boston Corporation, ▇▇▇▇▇▇ Brothers, ▇▇▇▇▇▇
Brothers Inc. (including its affiliates ▇▇▇▇▇▇ Commercial
Paper Inc. and ▇▇▇▇▇▇ Government Securities Inc.) and
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated.
SPECIAL ELECTION INTERVAL - A period during which, if so
specified on the applicable Renewable Note, on the Interest Payment Date
occurring in the last month of each such Special Election Interval after an
Initial Renewal Date, the term of the Note may be extended to the Interest
Payment Date occurring in the last month in a period equal to twice the Special
Election Interval after the applicable Renewal Date, if the Holder of such Note
elects to extend the term of the Note or any portion thereof as provided in such
Note.
SPECIAL ELECTION PERIOD - A period, if specified on the
applicable Note, during which the Holder of such Note may elect to renew the
term of the Note, or if provided in the applicable Note, any portion thereof, by
delivering a notice to such effect to the Paying Agent.
SPECIFIED CURRENCY - The currency in which such Note is
denominated if such currency is denominated in a composite currency, currency
unit or a currency other than U.S. dollars.
SPECIFIED CURRENCY NOTE - A Note, which pursuant to the terms
specified thereon, is denominated in a Specified Currency.
STATED MATURITY - As to any Note or any installment of
Principal thereof or interest thereon, the date specified therein as the fixed
date on which the Principal of such Note or such installment of Principal and
interest is due and payable.
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TRANSFER AGENT - With respect to any Note issued by an Issuer,
any Person appointed by such Issuer to exchange or transfer Notes issued by such
Issuer.
SECTION 2. Appointment of Agents.
(a) Issuing and Paying Agent. Each Issuer hereby
appoints Bankers Trust Company, as Issuing and Paying Agent of the
Issuers in respect to the Notes upon the terms and subject to the
conditions herein set forth, and Bankers Trust Company hereby accepts
such appointment. The Issuing and Paying Agent shall have the powers
and authority granted to and conferred upon it in the Notes and this
Agreement and such further powers and authority to act on behalf of
each Issuer as may be agreed upon by such Issuer and the Issuing and
Paying Agent from time to time. All of the terms and provisions with
respect to such powers and authority contained in the Notes are subject
to and governed by the terms and provisions hereof.
Each Issuer further appoints and authorizes Bankers
Trust Company, as Issuing and Paying Agent, to act as its Issuing and
Paying Agent in executing the Letters of Representations to be
delivered to the Depositary, in substantially the forms set forth in
Exhibit A hereto.
The Issuing and Paying Agent shall at all times be a
bank or trust company organized under the laws of the United States or
any jurisdiction in the United States and authorized and empowered
under such laws to fulfill and perform all the duties and obligations
of the Issuing and Paying Agent hereunder.
The Issuing and Paying Agent hereby represents that
it is a corporation meeting the foregoing requirements and that it
shall promptly notify each Issuer of any occurrence or event that
renders it unable to continue to make the aforesaid representation.
(b) Selling Agents. Each Issuer has ap-
pointed NationsBanc Capital Markets, Inc., ▇▇▇▇▇▇
Brothers, ▇▇▇▇▇▇ Brothers Inc. (including its affili-
ates Lehman Commercial Paper Inc. and ▇▇▇▇▇▇ Government
Securities Inc.) and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, as Selling
9
Agents for the Notes by and under the terms of the Distribution
Agreement, under which the Issuers may, from time to time, appoint
other Selling Agents.
(c) Registrar. Each Issuer hereby appoints Bankers
Trust Company as Registrar of the Issuers in respect of the Notes upon
the terms and subject to the conditions herein set forth, and Bankers
Trust Company hereby accepts such appointment. The Registrar will keep
the Register and otherwise act as Registrar in accordance with the
terms of this Agreement.
The Registrar will keep a record of all Notes at its
Principal Office or at such other location as it may choose and as to
which it will give advance notice to the Issuer. The Registrar will
include in such record a notation as to whether such Notes have been
paid or cancelled or, in the case of mutilated, destroyed, stolen or
lost Notes, whether such Notes have been replaced. In the case of the
replacement of any of the Notes, the Registrar will keep a record of
the Notes so replaced and the Notes issued in replacement thereof.
(d) Transfer Agents. Each Issuer (at its sole cost
and expense) may appoint from time to time one or more Transfer Agents
for one or more of the Notes. The Issuer shall solicit written
acceptance of the appointment from any entity so appointed as Transfer
Agent. Such written acceptance shall be in a form satisfactory to the
Issuing and Paying Agent and state that by the Transfer Agent's
acceptance of such appointment, it agrees to act as a Transfer Agent
pursuant to the terms and conditions of this Agreement. Each Issuer
hereby appoints Bankers Trust Company as the initial Transfer Agent for
the Notes, and Bankers Trust Company hereby accepts such appointment.
(e) Calculation Agents. The Issuing and Paying Agent
is hereby designated as calculation agent (in such capacity, the
"Calculation Agent") for the purpose of calculating the rate of
interest on the Floating Rate Notes including the CD Rate, the
Commercial Paper Rate, the Federal Funds Rate, the Prime Rate, LIBOR,
the CMT Rate, the 11th District Cost of Funds Rate and the Treasury
Rate all in accordance with the terms of the Floating Rate Notes.
10
The duties and responsibilities of the Calculation Agent shall
be as specified herein, in the Administrative Procedures attached as
Exhibit B hereto, and in the applicable Note. As promptly as
practicable after each Interest Determination Date for a Floating Rate
Note, the Calculation Agent will notify the Issuer thereof of the
interest rate which will become effective on the next interest Reset
Date (as defined in such Floating Rate Note). Upon the request of the
Holder of a Floating Rate Note, the Calculation Agent will provide to
such Holder the interest rate then in effect and, if determined, the
interest rate which will become effective on the next Interest Reset
Date with respect to such Floating Rate Note.
Each Issuer (at its sole cost and expense) may appoint from
time to time one or more Calculation Agents for one or more of the
Notes. The Issuer shall solicit written acceptance of the appointment
from any entity so appointed as Calculation Agent. Such written
acceptance shall be in a form satisfactory to the Issuing and Paying
Agent and state that by the Calculation Agent's acceptance of such
appointment, it agrees to act as a Calculation Agent pursuant to the
terms and conditions of this Agreement. Each Issuer hereby appoints
Bankers Trust Company as the initial Calculation Agent for the Notes,
and Bankers Trust Company hereby accepts such appointment.
SECTION 3. The Notes.
(a) Note Form; Signature. Except as otherwise
provided in Section 3(h) hereof, each Note issued by an Issuer with the
same original issue date and otherwise having identical terms shall be
represented by a single note certificate (each a "Global Note"). Fixed
Rate Notes will be substantially in the form of Exhibit C hereto and
Floating Rate Notes will be substantially in the form of Exhibit D
hereto, provided that any Specified Currency Notes will be
substantially in either such form with such changes as may be agreed
upon by the Issuer and the Issuing and Paying Agent as provided in
Section 11 hereof. The Notes may contain such insertions, omissions,
substitutions, and other variations as the Issuer determines to be
required or permitted by this Agreement and may have such letters,
numbers, or other marks of identification and such
11
legend or legends or endorsements placed thereon as any officer of the
Issuer executing such Notes may determine to be necessary or
appropriate, as evidenced by such officer's execution of such Notes by
manual or facsimile signature, including, without limitation, any
legends or endorsements that may be required to comply with any law or
with any rules or regulations pursuant thereto, or with any rules of
any securities exchange on which the Notes may be listed or to conform
to general usage.
Any Global Note issued hereunder shall, in addition to the provisions
contained in Exhibits C or D, hereto, as the case may be, bear a legend in
substantially the following form:
"This Note is a Global Note within the meaning of the Issuing
and Paying Agency Agreement hereinafter referred to and is
registered in the name of a Depositary or a nominee of a
Depositary. This Note is exchangeable for Notes registered in
the name of a person other than the Depositary or its nominee
only in the limited circumstances described in the Issuing and
Paying Agency Agreement and may not be transferred except as a
whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another
nominee of the Depositary."
Furthermore, each Global Note issued hereunder to DTC or its nominee
shall bear a legend in substantially the following form:
"Unless this Note is presented by an authorized representative
of The Depository Trust Company to the issuer or its agent for
registration of transfer, exchange or payment, and any
certificate issued is registered in the name of CEDE & CO. or
such other name as requested by an authorized representative
of The Depository Trust Company and any payment is made to
CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the regis-
12
tered owner hereof, CEDE & CO., has an interest herein."
Each Issuer will from time to time furnish the Issuing and
Paying Agent with an adequate supply of Certificated Notes, without coupons,
serially numbered, which will have the Principal amount, date of issue, Stated
Maturity, Initial Redemption Date, if any, rate of interest (in the case of
Fixed Rate Notes) or base rate, initial interest rate, spread and/or spread
multiplier, if any, interest reset dates, index maturity and maximum and minimum
interest rates, if any (in the case of Floating Rate Notes), and, in each case,
the name and address of the Holder, and other applicable terms which may be
specified with respect to such Notes in accordance with the Administrative
Procedures left blank.
Each Floating Rate Note will bear interest at a rate
determined by reference to a base rate, which may be adjusted by a spread or
multiplied by a spread multiplier. Each Floating Rate Note will designate an
applicable base rate. Such base rate shall be calculated by reference to an
interest rate formula described in such Note. The interest rates borne by any
particular Notes may vary as against the rates borne by any other Notes. Any
such variations in interest rates with respect to particular Notes shall not
affect the rates of interest borne by any other Notes issued hereunder.
Each Note will be signed manually or by facsimile by an
Authorized Representative included in Group I on Exhibit F hereto. The Notes
will have a Stated Maturity of not less than (30) thirty days from date of issue
and not more than (15) fifteen years from date of issue and will be issued in
the respective orders of the serial numbers imprinted thereon. The Issuing and
Paying Agent hereby agrees to hold such blank Notes in safekeeping in accordance
with its customary practices and procedures.
Notwithstanding the foregoing, any Global Note issued by an
Issuer shall be exchangeable pursuant to this Section for Notes registered in
the name of Persons other than the Depositary for such Note or its nominee only
if (i) such Depositary notifies the Issuing and Paying Agent that it is
unwilling or unable to continue as Depositary for such Global Note or if at any
time such Depositary ceases to be a clearing agency registered under the
Securities Exchange Act
13
and in either such case a successor Depositary is not appointed by the Issuers
within ninety (90) days, or (ii) the Issuer thereof executes and delivers to the
Issuing and Paying Agent a written notification that such Global Note shall be
so exchangeable or (iii) an Event of Default occurs with respect to such Global
Note. Any Global Note that is exchangeable pursuant to the preceding sentence
shall be exchangeable for Notes registered in such names as such Depositary
shall direct. Notwithstanding any other provision in this Agreement, a Global
Note may not be transferred except as a whole by the Depositary with respect to
such Global Note to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary.
The aggregate principal amount of Notes which may be issued
and Outstanding at any time may not exceed $9,000,000,000. Not more than
$9,000,000,000 aggregate principal amount of Notes with maturities ranging from
more than 270 days to 15 years may be issued. Notes having maturities ranging
from 30 days to 270 days may be issued from time to time and may be outstanding
at any one time in an aggregate maximum principal amount equal to $9,000,000,000
minus the principal amount of Notes having maturities of more than 270 days
which have been issued. Outstanding notes issued by any of the Issuers which
were issued pursuant to any of those certain individual Issuing and Paying Agent
Agreements with an April 30, 1993 Effective Date entered into between Bankers
Trust Company and (i) NationsBank of North Carolina, N.A., as Issuer, (ii)
NationsBank of Georgia, N.A., as Issuer and (iii) NationsBank of Texas, N.A., as
Issuer, shall be deemed to be Notes issued hereunder solely for the purposes of
calculating the principal amount of Notes which may be issued or outstanding
hereunder.
(b) Denominations. Unless otherwise indicated in the
applicable Notes and except as provided in Section 3(h) and to the
extent that an Issuer elects to issue Notes in definitive form, the
Notes shall be issuable only in book-entry form, without coupons, in
minimum denominations of $250,000 and integral multiples of $1,000 in
excess thereof.
(c) Completion of Notes. Upon receipt of
the information set forth in Section 5(a), the Issuing
and Paying Agent shall complete and authenticate each Note.
14
(d) Date. The Issuing and Paying Agent will
date each Note the date of its authentication.
(e) Certificate of Authentication. Only Notes that
bear thereon a certificate of authentication substantially in a form
set forth below (a "Certificate of Authentication"), executed by the
Issuing and Paying Agent by its manual signature, will be valid:
Certificate of Authentication
This is one of the Notes referred to in the
within-mentioned Issuing and Paying Agency Agreement.
Dated:_____ BANKERS TRUST COMPANY
as Issuing and Paying Agent
By __________________________
Authorized Signatory
(f) Original Issue Discount Note. Each
Original Issue Discount Note shall contain on its face
a legend substantially in the form of Exhibit E hereto.
(g) Custody of Notes. The Issuing and Paying Agent
shall maintain in safe custody all blank Notes an Issuer delivers to it
and that it holds hereunder and shall complete and issue such Notes
only in accordance with the terms hereof.
(h) Certificated Notes. If at any time the Depositary
notifies an Issuer or the Issuing and Paying Agent that it is unwilling
or unable to continue to act as depositary for any of the Global Notes,
or if at any time such Depositary ceases to be a clearing agency
registered under the Securities Exchange Act and in either such case a
successor Depositary is not appointed by the Issuers within ninety (90)
days, the Issuers will execute and the Issuing and Paying Agent will,
upon the receipt of procedures for certificated securities in form and
substance satisfactory to the Issuers and the Issuing and Paying Agent
and upon receipt of instructions in writing from the Issuers,
authenticate and deliver to the Holder or the Holder's designee Notes
of like tenor and terms in definitive form in an
15
aggregate principal amount equal to the Global Notes then outstanding
in exchange for such Global Notes.
SECTION 4. Authorized Representatives. Each Issuer hereby
certifies that each person named in Exhibit F hereto and designated as
affiliated with such Issuer is a duly Authorized Representative of such Issuer
and that the signature set forth opposite such representative's name is his or
her true and genuine signature. The Issuing and Paying Agent shall be entitled
to rely on the information set forth in Exhibit F for purposes of determining an
Authorized Representative until such time as the Issuing and Paying Agent
receives a subsequent certificate from the Issuer deleting or amending any of
the information set forth therein. The Issuing and Paying Agent shall not have
any responsibility to an Issuer to determine whether any signature on a Note
purporting to be that of an Authorized Representative in Group I of Exhibit F
with respect to such Issuer is genuine, so long as such signature resembles the
specimen signature set forth in Group I of Exhibit F or in a subsequent
certificate delivered to the Issuing and Paying Agent by such Issuer. Any Note
bearing the signature of a person who is an Authorized Representative in Group I
of Exhibit F with respect to an Issuer on the date he or she signs such Note
shall be a binding obligation of such Issuer upon the completion and
authentication thereof by the Issuing and Paying Agent, notwithstanding that
such person shall have ceased to be an Authorized Representative on the date
such Note is completed, authenticated or delivered by the Issuing and Paying
Agent.
SECTION 5. Completion, Authentication and
Delivery of Notes.
(a) From time to time, the Issuing and Paying Agent
shall receive instructions from an Authorized Representative included
in Group II on Exhibit F hereto with respect to an Issuer regarding the
completion and delivery of Notes. The Issuing and Paying Agent may rely
on such instructions if they are received by one of the duly Authorized
Representatives of the Issuing and Paying Agent named in Exhibit G
hereto or their successors, which may be named by the Issuing and
Paying Agent (of which the Issuers shall be notified in writing), from
time to time through the use of a facsimile transmission (confirmed by
guaranteed delivery of overnight courier) from any person purporting to
be
16
any of the individuals included in Group II on Exhibit F hereto. Such
instructions shall include the following (each term as used or
defined in the related form of Note attached):
1. Issuer of the Note, Principal Amount of
the Note, CUSIP Number and, if applica-
ble, the Specified Currency.
2. (a) Fixed Rate Notes:
(i) Interest Rate,
(ii) Interest Payment Dates.
(iii) Regular Record Dates.
(b) Floating Rate Notes:
(i) Base Rate or Rates,
(ii) Initial Interest Rate,
(iii) Spread and/or Spread Multi-
plier, if any,
(iv) Interest Reset Date or
Dates,
(v) Interest Reset Period,
(vi) Interest Payment Dates,
(vii) Regular Record Dates,
(viii) Index Maturity,
(ix) Maximum and Minimum Interest
Rates, if any,
(x) Calculation Agent, if other
than the Issuing and Paying
Agent.
3. Price to public, if any, of the Note (or
whether the Note is being offered at varying
prices relating to prevailing
17
market prices at time of resale as
determined by the Selling Agent).
4. Trade date.
5. Original Issue Date.
6. Stated Maturity.
7. Redemption provisions, if any, including
Initial Redemption Date, Initial Redemption
Percentage, Annual Redemption Reduction
Percentage, whether partial redemption is
permitted and method of determining Notes to
be redeemed.
8. Prepayment Option Date(s) and Prepayment
Option Price(s).
9. Extension provisions, if any, including
length of Extension Period(s), number of
Extension Periods and Final Maturity
Date.
10. Renewal terms, if any, including Special
Election Interval and Special Election
Period.
11. Net proceeds to the Issuer.
12. The Selling Agent's commission or under-
writing discount and the Selling Agent's
participant account at the Depositary
for settlement.
13. Whether such Notes are being sold to the
Selling Agent as principal or to an investor
or other purchaser through the Selling Agent
acting as agent for the Issuer, or through
the Issuer itself.
14. Whether such Note is being issued as an
Original Issue Discount Note and the terms
thereof.
15. Such other information specified with
respect to the Notes (whether by adden-
18
dum or otherwise), including, with respect
to any Specified Currency Note, provisions
regarding the calculation of any payments
under such Note.
(b) Upon receipt of the information set forth in
subsection (a) above, the Issuing and Paying Agent will confirm by
facsimile to the Issuer the principal amount of the Notes of the Issuer
issued as of such date hereunder after giving effect to such
transaction and to all other transactions of which such Issuer has
given instructions to the Issuing and Paying Agent but which have not
yet been settled.
(c) Upon receipt of such instructions, if such Notes
are to be issued as one or more Global Notes, the Issuing and Paying
Agent shall communicate to the Depositary and the Selling Agent through
DTC's Participant Terminal System, a pending deposit message specifying
the following settlement information and any such additional
information as is required in the Administrative Procedures:
1. The information set forth in Section
5(a).
2. Identification numbers of the partici-
pant accounts maintained by the Deposi-
tary on behalf of the Issuing and Paying
Agent and the Selling Agent.
3. Identification of the Note as a Fixed
Rate Note or Floating Rate Note.
4. Initial Interest Payment Date for such
Note, number of days by which such date
succeeds the related record date for
Depositary purposes (or, in the case of
Floating Rate Notes which reset daily or
weekly, the date five calendar days pre-
ceding the Interest Payment Date) and,
if then calculable, the amount of inter-
est payable on such Interest Payment
Date (which amount shall have been con-
firmed by the Issuing and Paying Agent).
5. CUSIP number representing such Note.
19
6. Whether such Note represents any other
Notes issued or to be issued in book-
entry form.
(d) Instructions regarding the completion of a Note
must be received by the Issuing and Paying Agent not later than 11:00
A.M., New York City time, on the Original Issue Date.
SECTION 6. Procedure upon Sale of the Notes. The Issuing and
Paying Agent will deliver Notes to the appropriate Selling Agents on the
Original Issue Date as provided in Section 5(c) hereof.
SECTION 7. Payment of Interest; Actions on Days
Other than Business Days.
(a) Subject to the receipt of funds as provided in
Section 12 hereof, interest payments will be made on the Notes on each
Interest Payment Date and on the Stated Maturity thereof (or the date
of Optional Redemption, if any) pursuant to the terms stated thereon.
All such interest payments (other than interest due on the Stated
Maturity, or on the date of Optional Redemption, if a Note is redeemed
prior to its Stated Maturity) will be paid to the Holder of such Note
at the close of business on the applicable Regular Record Date.
Notwithstanding the foregoing, if a Note is dated between the Regular
Record Date next preceding an Interest Payment Date and such Interest
Payment Date, the first payment of interest on such Note will be made
on the next succeeding Interest Payment Date following the next
succeeding Regular Record Date, to the Holder on the Regular Record
Date immediately succeeding such first Interest Payment Date, unless
otherwise specified in the applicable Pricing Supplement. Interest will
begin to accrue on the issue date and not from the previous Interest
Payment Date. Interest on Fixed Rate Notes (including payments for
partial periods) will be calculated on the basis of a 360-day year
consisting of twelve 30-day months; provided, however, that if the term
of such Fixed Rate Note is for a period from 30 days through and
including one year, then interest payable on such Fixed Rate Note, if
any, on each Interest Payment Date and on the Stated Maturity will be
calculated on the basis of the actual number of calendar days from and
including the last Interest Payment
20
Date to which interest has been paid to, but excluding, such Interest
Payment Date or Stated Maturity, as the case may be, divided by 360. In
the case of Floating Rate Notes, interest will be calculated and paid
on the basis of the actual number of days since the preceding Interest
Payment Date (or, if none, since the Original Issue Date) divided by
360 or, if the base rate is the Treasury Rate or CMT Rate, as defined
in the applicable Note, by the actual number of days since the
preceding Interest Payment Date (or, if none, since the Original Issue
Date). All interest on Certificated Notes (other than interest payable
at Stated Maturity or upon any Optional Redemption) will be paid by
check of the Issuing and Paying Agent mailed by such Issuing and Paying
Agent to the Holder as such Holder's address is shown in the Register
referred to in Section 15 on the applicable Regular Record Date, or to
such other address in the United States as such Holder shall designate
to the Issuing and Paying Agent in writing not later than the relevant
Regular Record Date; provided, however, that a Holder of one million
dollars ($1,000,000) or more in aggregate Principal amount of
Certificated Notes (all of which have identical terms and tenor) shall
be entitled to receive payments of interest (other than interest
payable at maturity or upon redemption) by wire transfer of immediately
available funds upon written request to the Issuing and Paying Agent
not later than fifteen (15) calendar days prior to the applicable
Payment Date. All interest payments on any Global Note (other than
Interest due on the Stated Maturity or the Optional Redemption Date, if
any) shall be paid by the transfer of immediately available funds to
the Depositary. The Issuing and Paying Agent will withhold taxes, if
any, on interest to the extent that it has been instructed in writing
by the Issuer of the related Note that any taxes should be withheld.
(b) Actions Due on Saturdays, Sundays and Holidays.
If any date on which a payment, notice or other action required by this
Agreement, the Administrative Procedures or the Note falls on any day
other than a Business Day, then that action or payment need not be
taken or made on such date, but may be taken or made on the next
succeeding Business Day on which the Issuing and Paying Agent is open
for business with the same force and effect as if made on such date.
21
SECTION 8. Payment of Principal. Upon the Stated Maturity (or
date of Optional Redemption, if any) of any Note, or on each Interest Payment
Date and the Stated Maturity, in the case of an Amortizing Note, and upon
presentation and surrender of any Note on or after the Stated Maturity (or the
date of Optional Redemption, if any), the Issuing and Paying Agent shall pay,
subject to the receipt of funds as provided in Section 12 hereof, the Principal
amount of the Note together with accrued interest due on the Stated Maturity (or
the date of Optional Redemption, if any) either (i) by separate wire transfer of
immediately available funds to such account at a bank in The City of New York
(or other bank consented to by the Issuer of the related Note) as the Holder of
such Note shall have designated in writing to the Issuing and Paying Agent at
least 15 days prior to such Principal Payment Date and if such Note is a Global
Note, to the Depositary, or (ii) by check of the Issuing and Paying Agent
payable to the order of the Holder of the Note or its properly designated
assignee or custodian. The Issuing and Paying Agent will cancel the Note and
remit it directly to the Issuer thereof.
SECTION 9. Designation of Accounts to Receive Payment. In the
event that Notes are issued in certificated form, a bank account to receive
payments due under a certificated Note may be designated to the Issuing and
Paying Agent to receive payments of interest and Principal under Sections 7 and
8 hereof either (i) by an Authorized Representative of an Issuer included in
Group II of Exhibit F hereto in the authentication instructions given by it to
the Issuing and Paying Agent under Section 5(a) hereof in respect of particular
Notes, or (ii) in the event that the authentication instructions make no
designation, or that the Holder wishes to change a designation previously made,
by written notice from the Holder to the Issuing and Paying Agent. Such written
notice must be provided to the Issuing and Paying Agent not later than fifteen
(15) days prior to any Interest Payment Date, Principal Payment, Specified
Currency Payment Date on Payment Date, as the case may be.
SECTION 10. Information Regarding Amounts Due. The
Issuing and Paying Agent shall provide to each Issuer, at least five (5)
Business Days before each Interest Payment Date, a list of interest payments to
be made on the following Interest Payment Date for each Note and in total. The
Issuing and Paying Agent will provide to the Issuers by the fifteenth day of
each month a list of the Principal and
22
interest to be paid on Notes maturing in the next succeeding month.
SECTION 11. Specified Currency Notes. Prior to the issuance of
any Specified Currency Note, the Issuer thereof shall provide to the Issuing and
Paying Agent a form of such Note, which form shall be in substantially the form
of Exhibit C or D hereto, with such changes and additions as may be reasonably
satisfactory to the Issuing and Paying Agent.
SECTION 12. Deposit of Funds. Each Issuer shall, prior to
11:00 a.m., New York City time, on each Interest Payment Date pay to the Issuing
and Paying Agent an amount in immediately available funds sufficient to pay all
interest due on Notes issued by such Issuer on such Interest Payment Date and
shall, prior to 11:00 a.m., New York City time, on the Stated Maturity (or any
date of Optional Redemption, if any) of any Note issued by such Issuer, pay to
the Issuing and Paying Agent an amount in immediately available funds sufficient
to pay the Principal of any such Note, and interest accrued to the Stated
Maturity (or the date of Optional Redemption, as the case may be).
SECTION 13. Optional Redemption.
(a) Optional Redemption. If so provided in the
applicable Note, an Issuer may at its option redeem a Note issued by it
in whole or from time to time in part (subject to the requirement that
the principal amount of such Note after such redemption, if such Note
is redeemed in part, (unless otherwise specified in a Pricing
Supplement) be not less than $250,000 or any integral multiple of
$1,000 in excess thereof, such minimum denomination, the "Authorized
Denomination") on or after the date designated in such Note as the
Initial Redemption Date at the applicable Redemption Price, in each
case, with accrued and unpaid interest to the date of redemption. An
Issuer may exercise such option by giving to the Holder thereof a
notice of such redemption at least thirty (30) but not more than sixty
(60) days prior to the date of redemption. In the event of redemption
of the Note in part only, a new Note or Notes of like tenor and terms
for the unredeemed portion thereof shall be issued in the name of the
Holder thereof upon the cancellation thereof in accordance with the
terms of this Agreement. Unless other
23
wise provided in the applicable Note, if less than all of the Notes
with like tenor and terms to such Note are to be redeemed, the Notes to
be redeemed shall be selected by the Issuing and Paying Agent by pro
rata, by lot or by such method as shall be agreed upon by the Issuing
and Paying Agent and the Issuer as being fair and appropriate.
(b) Optional Repayment. If so provided in the
applicable Note, such Note will be repayable prior to its Stated
Maturity at the option of the Holder on the Prepayment Option Dates and
at the Prepayment Option Prices provided in the applicable Note
together with accrued interest to such date. Unless otherwise provided
in the applicable Note, in order for the Note to be repaid, the Issuer
thereof must receive, at least thirty (30) but not more than forty-five
(45) days prior to an Prepayment Option Date, the Note and the form,
entitled "Option to Elect Repayment" included with such Note at the
time of its issue, duly completed. Exercise of this repayment option
shall be irrevocable, except as otherwise provided under Section 13(c)
below. If so provided in the applicable Note, the repayment option may
be exercised by the Holder of such Note for less than the aggregate
principal amount of the Note then outstanding provided that the
principal amount of the Note remaining outstanding after repayment is
in an Authorized Denomination. Upon such partial repayment the Note
shall be cancelled and a new Note or Notes of like tenor and terms for
the remaining principal amount thereof shall be issued in the name of
the Holder.
(c) Optional Extension of Maturity. If so specified
in the applicable Note, the Stated Maturity of such Note may be
extended at the option of the Issuer thereof, in the manner set forth
below (unless otherwise provided on the face thereof), for that
number of periods each of such length as provided in the applicable
Note (each an "Extension Period") up to but not beyond the Final
Maturity Date set forth in such Note. The Issuer may exercise such
option by notifying the Issuing and Paying Agent of such exercise at
least fifty (50) but no more than sixty (60) days prior to the Stated
Maturity in effect prior to such exercise (the "Original Stated
Maturity"). If the Issuer exercises such option, the Issuing and Paying
Agent will
24
mail (by first class mail, postage prepaid) to the Holder of the Note
no later than forty (40) days prior to the Original Stated Maturity a
notice (the "Extension Notice") relating to such Extension Period,
setting forth (i) the election of the Issuer to extend the Original
Stated Maturity, (ii) the new Stated Maturity (which shall then be
considered the Stated Maturity for all purposes of the Note), (iii)
spread or spread multiplier applicable to the Extension Period, and
(iv) the provisions, if any, for redemption during such Extension
Period. Upon the Issuing and Paying Agent's transmittal of the
Extension Notice, the Original Stated Maturity of the Note shall be
extended automatically, and, except as modified by the Extension Notice
and as described in the next paragraph, such Note will have the same
terms as prior to the transmittal of such Extension Notice.
Notwithstanding the foregoing, not later than twenty
(20) days prior to the Original Stated Maturity of such Note an Issuer
may, at its option, in the case of a Fixed Rate Note, revoke the
interest rate provided for in the Extension Notice for the Extension
Period and establish an interest rate that is higher than the interest
rate provided for in the Extension Notice for the Extension Period, or
in the case of a Floating Rate Note, revoke the spread or spread
multiplier provided for in the Extension Notice for the Extension
Period by causing the Issuing and Paying Agent to transmit notice of
such higher interest rate, or higher spread or spread multiplier, as
the case may be, to the Holder of such Note. Such notice shall be
irrevocable. All Notes with respect to which the Stated Maturity is
extended and with respect to which the Holders of such Notes have not
tendered such Notes for repayment (or have validly revoked any such
tender) pursuant to the succeeding paragraph will bear such higher
interest rate, or higher spread or spread multiplier, as the case may
be, for the Extension Period.
If an Issuer elects to extend the Stated Maturity of
the Note, the Holder thereof will have the option to elect repayment of
the Note by the Issuer thereof on the Original Stated Maturity at a
price equal to the aggregate principal amount thereof outstanding plus
interest accrued to such date. In order to obtain such repayment, the
Holder thereof must fol-
25
low the procedures set forth in Section 13(b) for optional repayment
except that the period for delivery of the Note or notification to the
Issuing and Paying Agent shall be at least twenty-five (25) but not
more than thirty-five (35) days prior to the Original Stated Maturity
and except that, if the Holder thereof has tendered the Note for
repayment pursuant to an Extension Notice, such Holder may, by written
notice to the Issuing and Paying Agent, revoke such tender for
repayment until the close of business on the tenth day prior to the
Original Stated Maturity.
(d) Optional Renewal. If so provided in the
applicable Note, such Note may be renewed by the Holder of the Note on
an Interest Payment Date (provided in the applicable Note) occurring in
or prior to the twelfth month following the Original Issue Date (the
"Initial Maturity Date") in accordance with the procedures described
below.
Unless a Special Election Interval is provided in the
applicable Note, on the Interest Payment Date occurring in the sixth
month prior to the Initial Maturity Date (as provided in the applicable
Note) of a Renewable Note (the "Initial Renewal Date") and on the
Interest Payment Date occurring in each sixth month (or in the last
month of each Special Election Interval) after such Initial Renewal
Date (each, together with the Initial Renewal Date, a "Renewal Date"),
the term of the Note may be extended to the Interest Payment Date
occurring in the twelfth month (or, if a Special Election Interval is
specified the last month in a period equal to twice the Special
Election Interval) after such Renewal Date, if the Holder of such Note
elects to extend the term of the Note or any portion thereof as
provided below. If the Holder of the Note does not elect to extend the
term of any portion of the principal amount of such Note during the
specified period prior to any Renewal Date, such portion will become
due and payable on the Interest Payment Date occurring in the sixth
month (or the last month in the Special Election Interval) after such
Renewal Date (the "New Maturity Date").
A Holder of such Note may elect to renew the term of
the Note, or if provided in the applicable Note, any portion
constituting an Authorized Denomina-
26
tion thereof, by delivering a notice to such effect to the Issuing and
Paying Agent not less than fifteen (15) nor more than thirty (30) days
prior to such Renewal Date (unless a different Special Election Period
is provided in the applicable Note). Such election will be irrevocable
and will be binding upon each subsequent Holder of the Note. An
election to renew the term of such Note may be exercised with respect
to less than the entire principal amount of the Note only if notice is
provided as provided in the applicable Note and only in such principal
amount, or any integral multiple in excess thereof, as specified in
such notice. Notwithstanding the foregoing, the term of such Note may
not be extended beyond the maturity provided in the applicable Note.
If the Holder of such Note does not elect to renew
the term of the Note, the Note must be presented to the Issuing and
Paying Agent (or any duly appointed paying agent) and, if the Note is
issued in definitive form, as soon as practicable following receipt of
the Note, the Issuing and Paying Agent (or any duly appointed paying
agent) shall issue in exchange herefor in the name of the Holder (i) a
Note, in a principal amount equal to the principal amount of such Note
for which no election to renew the term thereof was exercised, with
terms identical to those specified on the Note (except that such Note
shall have a fixed, nonrenewable maturity on the New Maturity Date) and
(ii) if an election to renew is made with respect to less than the full
principal amount of the Note, a replacement Note, in a principal amount
equal to the principal amount of such exchanged Note for which the
election to renew was made, with terms identical to such exchanged
Note.
SECTION 14. Events of Default.
Unless otherwise specified in the applicable Note, the
following will constitute "Events of Default" and the only Events of Default
with respect to each Note: (a) default in the payment of any interest upon such
Note when due, which continues for thirty (30) days; (b) default in the payment
of any principal of or premium, if any, upon such Note when due; (c) default in
the performance of any covenant or agreement of the Issuer thereof contained in
such Note which, unless otherwise specified therein, contin-
27
ues for 90 days; (d) the appointment of a conservator, receiver,
liquidator or similar official for the Issuer thereof or for all or
substantially all of its property, or the taking by the Issuer thereof of any
action to seek relief under any applicable insolvency or reorganization law.
If an Event of Default with respect to a Global Note shall
occur, the Issuer thereof shall promptly issue Certificated Notes in exchange
for such Global Note and the remedies provided in such Global Note for any such
Event of Default will be exercisable only after such exchange has occurred, and
only by the Holders of such Certificated Notes. The Holder of each such
Certificated Note will itself be solely and entirely responsible for the
exercise of any remedies provided therein.
If an Event of Default with respect to a Certificated Note
shall occur and be continuing with respect thereto, the Holder thereof may: (i)
by written notice to the Issuing and Paying Agent declare the entire outstanding
principal amount thereof, together with any unpaid interest and premium accrued
thereon, to be immediately due and payable; (ii) institute a judicial proceeding
of the enforcement of the terms thereof including the collection of all sums due
and unpaid thereunder, prosecute such proceeding to judgment or final decree,
and enforce the same against the Issuer thereof and collect monies adjudged or
decreed to be payable in the manner provided by law out of the property of the
Issuer thereof; and (iii) take such other action at law or in equity as may
appear necessary or desirable to collect and enforce such Certificated Note;
provided, however, that in the event that such Note is an Original Issue
Discount Note, unless otherwise specified in such Note, the amount of principal
that becomes due and payable upon such declaration shall be equal to the
Amortized Face Amount as defined therein, and provided further, that the Holder
of a Certificated Note may waive any Event of Default that occurs with respect
thereto.
SECTION 15. Registration; Transfer.
(a) The Registrar shall maintain a Register in which
it shall register the names, addresses and taxpayer identification
numbers of the Holders of the Notes and shall register the transfer of
Notes.
28
(b) Upon surrender for registration of transfer of
any Note to the Registrar or any Transfer Agent, the Issuer thereof
shall execute, and the Issuing and Paying Agent shall complete,
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Notes, of any Authorized Denominations and
having identical terms and provisions and for a like aggregate
principal amount.
(c) At the option of the Holder of a certificated
Note, certificated Notes may be exchanged for other certificated Notes
of any Authorized Denominations and having identical terms and
provisions and for a like aggregate principal amount, upon surrender of
the Notes to be exchanged at the Registrar or any Transfer Agent.
Whenever any certificated Notes are so surrendered for exchange, the
Issuer thereof shall execute, and the Issuing and Paying Agent shall
complete, authenticate and deliver, the certificated Notes which the
Holder of the certificated Note making the exchange is entitled to
receive. Each new Note issued upon presentment of any Note for
registration of transfer or exchange shall be issued as of the date of
its authentication. Except as provided herein, owners of beneficial
interests in a Global Note representing Book Entry Notes registered in
their names, will not receive or be entitled to receive physical
delivery of Certificated Notes and will not be considered the owners or
Holders thereof under this Agreement.
(d) Notwithstanding the foregoing neither the
Registrar or any Transfer Agent shall register the transfer of or
exchange (i) any Note that has been called for redemption in whole or
in part, except the unredeemed portion of Notes being redeemed in part,
(ii) any Note during the period beginning at the opening of business 15
days before the mailing of a notice of such redemption and ending at
the close of business on the date of such mailing, or (iii) any Global
Note in violation of the legend contained on the face of such Global
Note.
(e) All Notes issued upon any registration of
transfer or exchange of Notes shall be the valid obligations of the
Issuer thereof, evidencing the same debt, and entitled to the same
benefits as the Notes
29
surrendered upon such registration of transfer or exchange.
(f) Every Note presented or surrendered for
registration of transfer or for exchange shall be duly endorsed, or be
accompanied by a written instrument of transfer with such evidence of
due authorization and guaranty of signature as may reasonably be
required by the Registrar or any Transfer Agent, as applicable, in form
satisfactory to either of them, duly executed by the Holder thereof or
his attorney duly authorized in writing.
(g) No service charge shall be made to a Holder of
Notes for any transfer or exchange of Notes, but the Issuer thereof may
require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith.
SECTION 16. Persons Deemed Owners. Prior to due presentment of
a Note for registration of transfer, the Issuer thereof, the Issuing and Paying
Agent and any agent of such Issuer or the Issuing and Paying Agent may treat the
Holder as the owner of such Note for the purpose of receiving payment of
Principal of, interest and premium, if any, on such Note and for all other
purposes whatsoever, whether or not such Note be overdue, and neither such
Issuer, the Issuing and Paying Agent nor any agent of such Issuer or the Issuing
and Paying Agent shall be affected by notice to the contrary.
SECTION 17. Mutilated, Lost, Stolen or Destroyed Notes. In
case any Note shall become mutilated, destroyed, lost or stolen, and upon the
satisfaction by the applicant of the requirements of this Section 17 for a
substituted Note, the Issuer thereof shall execute, and upon its written request
the Issuing and Paying Agent shall authenticate and deliver, a new Note having
identical terms and provisions and having a number not contemporaneously
outstanding, in exchange and substitution for the mutilated Note or in lieu of
any substitution for the Note destroyed, lost or stolen. In the case of loss,
theft or destruction, the applicant for a substituted Note shall furnish to such
Issuer and to the Issuing and Paying Agent such security or indemnity as may be
required by them to save each of them harmless. Such applicant shall also
furnish to such Issuer and to the Issuing and Paying Agent evidence to their
satisfaction of the
30
destruction, loss or theft of such Note and of the ownership thereof. In the
case of mutilation, the applicant for a substituted Note shall surrender such
mutilated Note to the Issuer thereof or to the Issuing and Paying Agent for
cancellation thereof. The Issuing and Paying Agent may authenticate any such
substituted Note and deliver the same upon the written request or authorization
of any Authorized Representative. Upon the issuance of any substituted Note, the
Issuer thereof may require the payment of a sum sufficient to cover any expense
connected therewith. In case any Note which has matured or is about to mature
shall become mutilated or be destroyed, lost or stolen, the Issuer thereof may,
instead of issuing a substituted Note, pay or authorize the payment of the same
(without surrender thereof except in the case of a mutilated Note) if the
applicant for such payment shall furnish such Issuer and the Issuing and Paying
Agent with such security or indemnity as may be required by them to save each of
them harmless, and, in the case of destruction, loss or theft, evidence to the
satisfaction of such Issuer of the destruction, loss or theft of such Note and
of the ownership thereof. All applications under this Section shall be processed
by the Issuing and Paying Agent.
SECTION 18. Return of Unclaimed Funds. Any money deposited
with the Issuing and Paying Agent and remaining unclaimed for two (2) years
after the date upon which the last payment of principal of or interest on any
Note to which such deposit relates shall have become due and payable, shall be
repaid to the Issuer of such Note by the Issuing and Paying Agent on written
demand, and the Holder of any Note to which such deposit related entitled to
receive payment shall thereafter look only to the Issuer thereof for the payment
thereof and all liability of the Issuing and Paying Agent with respect to such
money shall thereupon cease.
SECTION 19. Amendment or Supplement. The Issuers and the
Issuing and Paying Agent may modify, amend or supplement this Agreement without
the consent of any Holder. In addition, an Issuer may modify, amend or
supplement the terms and conditions of the Notes issued by it, without the
consent of any Holder thereof: (i) to evidence succession of another party to
such Issuer, and such party's assumption of such Issuer's obligations under the
Notes, upon the occurrence of a merger or consolidation, or transfer, sale or
lease of assets as described below; (ii) to add addition
31
al covenants, restrictions or conditions for the protection of the Holder
thereof; (iii) to cure ambiguities in the Notes, or correct defects or
inconsistencies in the provisions thereof; (iv) to reflect the replacement of
the Issuing and Paying Agent, or the assumption, by such Issuer or a substitute
Issuing and Paying Agent of some or all of the Issuing and Paying Agent's or
Calculation Agent's responsibilities under this Agreement; (v) to evidence the
replacement or change of address of the Depositary; (vi) in the case of any
extendible, redeemable, prepayable, amortizing or indexed amortizing Note, to
reduce the principal amount thereof to reflect the payment, prepayment and/or
redemption of a portion of the outstanding principal amount thereof; (vii) in
the case of any extendible, renewable or indexed amortizing Note, to reflect any
change in the maturity date thereof in accordance with the terms thereof; or
(viii) to reflect the issuance in exchange therefor, in accordance with the
terms thereof, of one or more certificated notes. However, the Notes may not be
modified or amended without the express written consent of the registered Holder
to: (i) change the Stated Maturity, except in the case of an extendible,
renewable or indexed amortizing note as provided therein; (ii) extend the time
of payment for the premium, if any, or interest on the Note, except in the case
of an extendible, renewable or indexed amortizing note as provided therein;
(iii) change the coin or currency in which the principal of, premium, if any, or
interest on the Note is payable; (iv) reduce the principal amount thereof or the
interest rate thereon, except in the case of an extendible, prepayable,
redeemable, amortizing or indexed Note as provided therein; (v) change the
method of payment to other than wire transfer in immediately available funds;
(vi) impair the right of the Holder thereof to institute suit for the
enforcement of payments of principal of, premium, if any, or interest or other
amounts on the Note; (vii) change any Note's definition of "Event of Default" or
otherwise eliminate or impair any remedy available thereunder upon the
occurrence of any Event of Default (as defined in such Note); or (viii) modify
the provisions therein governing the amendment thereof.
Notes authenticated and delivered after the execution of any
agreement modifying, amending or supplementing this Agreement or the Notes may
bear a notation in form approved by the Issuer thereof as to any matter provided
for in such modification, amendment or supplement to this Agreement or the
Notes. New Notes so modified as to conform, in
32
the opinion of the Issuer thereof, to any provisions contained in any such
modification, amendment or supplement may be prepared by such Issuer,
authenticated by the Issuing and Paying Agent (or any Authenticating Agent) and
delivered in exchange for Outstanding Notes.
No Issuer may consolidate or merge with or into any other
person, or convey, transfer or lease its properties and assets substantially as
an entirety to any person, unless (i) the surviving entity in such consolidation
or merger, or the person that acquires by conveyance or transfer, or that
leases, the properties and assets of such Issuer substantially as an entirety,
shall be a bank, corporation or partnership organized and validly existing under
the laws of the United States, any State thereof or the District of Columbia,
and shall expressly assume the due and punctual payment of the principal of,
premium, if any, and interest on the Notes issued by such Issuer, and the
performance or observance of every provision of the Notes on the part of such
Issuer to be performed or observed; and (ii) immediately after giving effect to
such transaction, no Event of Default with respect to such Issuer, and no event
which, after notice or the lapse of time or both, would become an Event of
Default with respect to such Issuer, shall have happened and be continuing.
If this Agreement is amended or modified pursuant to an
agreement by the parties hereto pursuant to this Section 19, the Issuing and
Paying Agent may require, and shall be fully protected in relying upon, an
opinion of counsel, which opinion may be rendered by counsel to the Issuer,
stating that the execution of such amendment or modification is authorized or
permitted by this Agreement, and that such amendment or modification constitutes
the legal, valid and binding obligation of the Issuers enforceable in accordance
with its terms and subject to customary exceptions.
SECTION 20. Resignation or Removal of Agents;
Appointment of Successors to Agents.
(a) Resignation or Removal of Agent. Any Agent may at
any time resign as such by giving written notice to the Issuers and,
except in the case of the resignation of the Issuing and Paying Agent,
to the Issuing and Paying Agent of such intention on its part,
specifying the date on which its desired resignation
33
shall become effective; provided that such date shall not be less than
thirty (30) days after the date on which such notice is given unless
each Issuer agrees to accept less notice.
An Issuer may remove any Agent with respect to Notes
issued by such Issuer at any time by filing with it an instrument in
writing signed by or on behalf of such Issuer and specifying such
removal and the date when it shall become effective.
The resignation or removal of an Agent with respect
to Notes issued by an Issuer shall become effective on the date set
forth in the notice thereof and shall only be effective with respect to
such Issuer and Notes issued by such Issuer, except that any
resignation or removal of the Issuing and Paying Agent or the Registrar
shall take effect upon the Issuers' appointment, as hereinafter
provided, of a successor Issuing and Paying Agent or Registrar, as the
case may be, and such Agent's acceptance of such appointment; provided,
that if the Issuers have not appointed a replacement Agent within 30
days after any such removal or replacement, the affected Agent (at the
expense of the Issuers) may petition any court of competent
jurisdiction for the appointment of a successor Agent.
(b) Appointment of Successor to Agent. In case at
any time the Issuing and Paying Agent or the Registrar becomes
incapable of acting, or is adjudged bankrupt or insolvent, or files a
petition for corporate reorganization under any applicable federal,
state, or foreign bankruptcy, insolvency, or similar law or makes an
assignment for the benefit of its creditors, or consents to the
appointment of a receiver, custodian, or other similar official of all
or substantially all of its property, or admits in writing its
inability to pay or meet its debts as they mature, or if a receiver,
custodian, or other similar official of it or of all or substantially
all of its property is appointed, or if an order of any court is
entered for relief against it under the provisions of any applicable
federal, state or foreign bankruptcy, insolvency or similar law, or if
any public officer takes charge or control of any such Agent, or of its
property or affairs, for the purpose of rehabilitation, conservation
or liquidation, such Agent shall promptly notify the
34
Issuers and the Issuing and Paying Agent, in writing, of the
occurrence of such event.
Either (i) following receipt of notice of resignation
from, (ii) upon an Issuer's removal of, or (iii) following the Issuers'
receipt of the notice referred to in the first paragraph of this
Section 20(b) from, the Issuing and Paying Agent or the Registrar, the
Issuers (or the applicable Issuer, in the case of clause (ii) above)
shall appoint a successor to such Agent by an instrument in writing
filed with the Issuing and Paying Agent (or its successor). Upon the
appointment as aforesaid of a successor Issuing and Paying Agent or
Registrar and acceptance by such successor of such appointment, the
Issuing and Paying Agent or Registrar hereunder so superseded shall
cease to be such Issuing and Paying Agent or Registrar hereunder.
(c) Successor of Agent. Any successor Issuing and
Paying Agent or Registrar appointed hereunder shall execute,
acknowledge, and deliver to its predecessor and to the Issuers (or the
applicable Issuer) an instrument accepting such appointment hereunder,
and thereupon such successor Issuing and Paying Agent or Registrar
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 Issuing and Paying Agent or Registrar hereunder. Such
predecessor, upon payment of any amount then payable to it pursuant to
Section 24, shall thereupon become obligated to transfer, deliver and
pay over, and such successor Issuing and Paying Agent or Registrar
shall be entitled to receive, all money, securities and other property
on deposit with or held by such predecessor as such Issuing and Paying
Agent or Registrar hereunder.
(d) Merger, Etc. of Agent. Any corporation into
which any Agent hereunder may be merged, or converted, or any
corporation with which any Agent may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to
which any Agent shall be a party, or a corporation to which any Agent
shall sell or otherwise transfer all or substantially all of the assets
and business of such Agent shall be
35
the successor to such Agent under this Agreement (provided that it
shall be qualified as aforesaid) without the execution or filing of any
paper or any further act on the part of any of the parties hereto. Each
Agent will advise the Issuers promptly after any public announcement of
a proposal by such Agent to enter into any such transaction.
(e) Change in Duties of an Agent. The Issu-
ers may vary the appointment of any Agent other than
the Issuing and Paying Agent.
(f) Additional Agents. Each Issuer may from time to
time appoint a paying agent for one or more Notes. In the event that
(i) the Issuing and Paying Agent shall be removed or resign and any
successor thereto shall not be located in The City of New York or (ii)
the Issuing and Paying Agent shall cease to maintain an office in The
City of New York at which amounts due on the Notes are payable, then in
either such case each Issuer, with respect to Notes issued by it, shall
appoint a paying agent with an office in The City of New York at which
such Notes may be paid.
SECTION 21. Reliance on Instructions. The Issuing and Paying
Agent shall incur no liability to an Issuer in acting hereunder upon
instructions contemplated hereby which the Issuing and Paying Agent believed in
good faith to have been properly given. In the event a discrepancy exists
between the instructions as originally received by the Issuing and Paying Agent
and any subsequent written confirmation thereof, such original instructions will
be deemed controlling provided the Issuing and Paying Agent gives notice to the
applicable Issuer of such discrepancy promptly upon receipt of such written
confirmation.
SECTION 22. Cancellation of Unissued Notes. Promptly upon the
written request of an Issuer, the Issuing and Paying Agent shall cancel and
return to such Issuer all unissued Notes of such Issuer in its possession.
SECTION 23. Representation and Warranties of the
Issuers; Instructions by Certificate.
(a) Each instruction given to the Issuing and Paying
Agent in accordance with Section 5 hereof shall constitute a
representation and warranty to the
36
Issuing and Paying Agent by the applicable Issuer that the issuance and
delivery of the Notes have been duly and validly authorized by such
Issuer and, when completed, authenticated and delivered pursuant
hereto, the Notes will constitute the valid and legally binding
obligations of such Issuer enforceable against such Issuer in
accordance with its terms.
(b) Any instruction given by an Issuer to the Issuing
and Paying Agent under this Agreement shall be in the form of an
Officers' Certificate. For the purposes of this Agreement, "Officers'
Certificate" means a certificate signed by an Authorized Representative
and delivered to the Issuing and Paying Agent.
SECTION 24. Fees. For their services under this Agreement, the
Agents, including the Issuing and Paying Agent, shall be entitled to
compensation as shall be mutually agreed upon in writing between each such Agent
and the Issuers from time to time and the Issuers jointly and severally agree to
reimburse the Issuing and Paying Agent for all reasonable out of pocket
disbursements and advances made or incurred by the Issuing and Paying Agent
incurred without negligence or willful misconduct.
SECTION 25. Notices.
(a) All communications by or on behalf of an Issuer
relating to the completion, delivery or payment of the Notes are to be
directed to the Corporate Trust Agency Group of the Issuing and Paying
Agent, Four Albany Street, 4th floor, New York, New York 10006,
Attention: Corporate Trust and Agency Group (or such other department
or division as the Issuing and Paying Agent shall specify in writing to
the Issuers). Each Issuer will send all Notes to be completed and
delivered by the Issuing and Paying Agent to such Corporate Trust and
Agency Group (or such other department or division as the Issuing and
Paying Agent shall specify in writing to the Issuers). The Issuing and
Paying Agent will, upon written request, advise the Issuers from time
to time of the individuals generally responsible for the administration
of this Agreement.
(b) Notices and other communications hereunder shall
(except to the extent otherwise expressly provided) be in writing and
shall be addressed as fol-
37
lows, or to such other address as the party receiving such notice
shall have previously specified:
If to an Issuer:
NationsBank, N.A. (Carolinas)
NationsBank Corporate Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
NationsBank of Texas, N.A.
NationsBank Corporate Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
NationsBank of Georgia, N.A.
NationsBank Corporate Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
If to the Issuing and Paying Agent:
Bankers Trust Company
Four ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇/6392
Attention: Corporate Trust and Agency Group
SECTION 26. Information Furnished by the Issuing and Paying
Agent. Upon the reasonable request of an Issuer and from time to time, the
Issuing and Paying Agent shall promptly provide such Issuer with information
with respect to Notes issued by it hereunder to the extent such information is
reasonably available.
38
SECTION 27. Liability. Neither the Issuing and Paying Agent
nor its officers or employees shall be liable to an Issuer for any act or
omission hereunder except in the case of negligence or willful misconduct. The
duties and obligations of the Issuing and Paying Agent, its officers and
employees shall be determined by the express provisions of this Agreement and
they shall not be liable except for the negligent performance of such duties and
obligations as are specifically set forth herein and no implied covenants shall
be read into this Agreement against them. Neither the Issuing and Paying Agent
nor its officers shall be required to ascertain whether any issuance or sale of
Notes (or any amendment or termination of this Agreement) is in compliance with
any other agreement to which any Issuer is a party (whether or not any of the
Agents is also a party to such other agreement).
SECTION 28. Additional Responsibilities; Attorneys'
Fees.
(a) If an Issuer shall ask the Issuing and Paying
Agent to perform any duties not specifically set forth in the Agreement
as duties of the Issuing and Paying Agent (the "Additional
Responsibilities") and the Issuing and Paying Agent chooses to perform
such Additional Responsibilities, the Issuing and Paying Agent shall be
held to the same standard of care and shall be entitled to all the
protective provisions (including, but not limited to, indemnification)
set forth herein.
(b) In the event an Issuer shall default under any
of the provisions or obligations of this Agreement, the Notes or any
amendment, supplement or modification related hereto, affecting the
rights or duties of the Issuing and Paying Agent, and the Issuing and
Paying Agent shall employ attorneys or incur other expenses for the
enforcement of performance or observance of any such obligation or
agreement, such Issuer agrees that, in the absence of negligence or
willful misconduct on the part of the Issuing and Paying Agent, it will
on demand therefore pay to the Issuing and Paying Agent the reasonable
fees of such attorneys and such other expenses incurred by the Issuing
and Paying Agent.
SECTION 29. Transfer of Notes and Moneys.
(a) The Issuing and Paying Agent shall hold all
Certificated Notes delivered to it for payment solely for the benefit
of the respective Holders of the Notes which
39
shall have so delivered such Notes until moneys representing the
payment for such Notes shall have been delivered to or for the account
of or to the order of such Holders.
(b) The Issuing and Paying Agent shall hold all
moneys delivered to it pursuant to this Agreement for the payment of
Certificated Notes in trust solely for the benefit of the person or
entity which shall have so delivered such moneys until such Notes shall
have been delivered to or for the account of such person or entity, but
such moneys need not be segregated from other funds except to the
extent required by law.
(c) The Issuing and Paying Agent shall only make such
payments called for under this Agreement from funds transferred to it
for payment pursuant to this Agreement which funds are immediately
available and on deposit in an appropriate account maintained by the
Issuing and Paying Agent in The City of New York.
(d) Under no circumstances shall the Issuing and
Paying Agent be obligated to expend any of its own funds in connection
with the performance of its duties hereunder.
(e) The Issuing and Paying Agent may become a
purchaser, holder, transferor or otherwise own, hold or transfer any
Notes and may commence or join in any action which a Holder is entitled
to take without any conflict with its responsibilities pursuant to this
Agreement.
(f) The Issuing and Paying Agent shall not be
required to invest any moneys delivered to it.
(g) The Issuing and Paying Agent shall have no
liability for interest on any moneys received from the
Issuer hereunder.
(h) The Issuing and Paying Agent shall not be
responsible for the correctness of any recital in the Notes or in any
offering materials and makes no representations as to the validity of
the Notes and shall incur no responsibility in respect thereto.
(i) The Issuing and Paying Agent shall be protected
in acting upon any notice, order, requisition, request, consent,
certificate, order, opinion (including
40
an opinion of counsel), affidavit, letter, telegram or other paper or
document in good faith deemed by it to be genuine and correct and to
have been signed or sent by the proper person or persons.
(j) Any action taken by the Issuing and Paying Agent
pursuant to this Agreement upon the request or authority or consent of
any person who at the time of making such request or giving such
authority or consent is the Holder of any Note shall be conclusive and
binding upon all future holders of the same Note and Notes issued in
exchange therefor or in place thereof.
(k) Any instruction given by an Issuer to the Issuing
and Paying Agent under this Agreement shall be in the form of an
Officers' Certificate. For the purposes of this Agreement, "Officers'
Certificate" means a certificate signed by an Authorized Representative
and delivered to the Issuing and Paying Agent.
(l) In paying Notes hereunder, the Issuing and Paying
Agent shall be acting as a conduit and shall not be paying Notes for
its own account, and in the absence of written notice from an Issuer to
the contrary and in the absence of gross negligence or wilful
misconduct of the Issuing and Paying Agent, the Issuing and Paying
Agent shall be entitled to assume that any Global Note presented to it,
or deemed presented to it, for payment, is entitled to be so paid.
SECTION 30. Indemnity. The Issuers covenant and agree to
jointly and severally indemnify the Issuing and Paying Agent (including its
directors, officers, attorneys, employees and agents) for, and to hold it
harmless against, any loss, liability or expense (including reasonable
attorney's fees and disbursements) incurred without negligence or willful
misconduct on its part, arising out of or in connection with this Agreement or
the Administrative Procedures and/or the performance of the Issuing and Paying
Agent's duties hereunder and the Administrative Procedures, including the
reasonable costs and expenses of defending it against any claim of liability in
the premises. The Issuing and Paying Agent may refuse to perform any duty or
exercise any right or power hereunder unless it receives indemnity satisfactory
to it against any related loss, liability or expense. These indemnification
obligations shall survive the termination of this Agreement including any
termination under state or federal banking law or other insol-
41
vency law, to the extent enforceable under applicable law, and shall
survive the resignation or removal of the Issuing and Paying Agent while
remaining applicable to any action taken or omitted by the Issuing and Paying
Agent while acting pursuant to this Agreement.
SECTION 31. Limitation of Liability; Reliance on
Opinions and Certificates.
(a) THE ISSUING AND PAYING AGENT'S DUTIES ARE MINISTERIAL IN
NATURE AND IN NO EVENT SHALL THE ISSUING AND PAYING AGENT BE LIABLE, DIRECTLY OR
INDIRECTLY, TO ANY PERSON OR ENTITY FOR ANY (a) LOSS, LIABILITY, DAMAGES OR
EXPENSES (OTHER THAN, IN THE CASE OF THE ISSUERS ONLY, THOSE WHICH RESULT
DIRECTLY FROM THE ISSUING AND PAYING AGENT'S NEGLIGENCE OR WILLFUL MISCONDUCT)
OR (b) SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES
(INCLUDING, WITHOUT LIMITATION, LOST PROFITS), EVEN IF THE ISSUING AND PAYING
AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF
LIABILITY WILL APPLY REGARDLESS OF THE FORM OF ACTION, INCLUDING WITHOUT
LIMITATION FOR BREACH OF THIS CONTRACT OR TORT (INCLUDING NEGLIGENCE).
(b) The Issuing and Paying Agent shall be entitled to consult
with counsel of its choosing and shall have no liability to an Issuer in respect
of an action taken or omitted by the Issuing and Paying Agent in good faith in
reliance on an opinion of counsel or an Officers' Certificate, including
in-house counsel.
(c) Notwithstanding anything to the contrary herein, the
Issuing and Paying Agent shall not be responsible for any misconduct or
negligence on the part of any agent, correspondent, attorney or receiver
appointed with due care by it hereunder.
SECTION 32. Benefit of Agreement. This Agreement is solely for
the benefit of the parties hereto and the Holders and their successors and
assigns and no other person shall acquire or have any rights under or by virtue
hereof.
SECTION 33. Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of New York
applicable to agreements to be entered into and to be performed in such State.
42
SECTION 34. Headings and Table of Contents. The table of
contents and the section and subsection headings herein are for convenience only
and shall not affect the construction hereof.
SECTION 35. Counterparts. This Agreement may be
signed in separate counterparts, each of which shall be deemed
to be an original and all of which together shall constitute
but one and the same instrument.
SECTION 36. Termination of Prior Issuing and Paying Agent
Agreements. Each Issuer and Bankers Trust Company agree that on the day on which
no notes issued by such Issuer and authenticated and delivered under the Issuing
and Paying Agent Agreement with an April 30, 1993 Effective Date entered into
between Bankers Trust Company and such Issuer remain outstanding, such agreement
shall terminate (other than the provisions contained therein which by their
terms survive termination).
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
43
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed on their behalf by their officers duly authorized
thereunto, as of the day and year first above written.
NATIONSBANK, N.A. (CAROLINAS), as Issuer
By: /s/
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
NATIONSBANK OF TEXAS, N.A., as Issuer
By: /s/
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
NATIONSBANK OF GEORGIA, N.A., as Issuer
By: /s/
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
BANKERS TRUST COMPANY,
as Issuing and Paying Agent
By: /s/
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Assistant Vice President