Exhibit 4(i)
AMENDED AND RESTATED
AGENCY AGREEMENT
relating to
BANK OF AMERICA CORPORATION
and
BANK OF AMERICA, ▇.▇.
▇.▇. $25,000,000,000
Euro Medium-Term Note Program
among
BANK OF AMERICA CORPORATION
and
BANK OF AMERICA, N.A.
as issuers
and
THE CHASE MANHATTAN BANK, LONDON BRANCH
as Issuing and Principal Paying Agent
and
CHASE MANHATTAN BANK LUXEMBOURG S.A.
as Paying Agent
DATED AS OF JULY 27, 2001
INDEX
-----
Clause Page
------ ----
1. Definitions and Interpretation........................................ 1
2. Appointments of Agent, Paying Agents and Calculation Agents........... 2
3. Issue of Temporary Global Notes....................................... 4
4. Determination of Exchange Date, Issue of Permanent Global Notes or
Definitive Notes and Determination of Restricted Period .............. 4
5. Issue of Definitive Notes............................................. 5
6. Terms of Issue........................................................ 6
7. Payments.............................................................. 7
8. Determinations and Notifications in Respect of Notes and Interest
Determination......................................................... 8
9. Notice of any Withholding or Deduction................................ 11
10. Duties of the Agent in Connection with Early Redemption............... 11
11. Receipt and Publication of Notices; Receipt of Certificates........... 12
12. Cancellation of Notes, Receipts, Coupons and Talons................... 12
13. Issue of Replacement Notes, Receipts, Coupons and Talons.............. 13
14. Copies of Documents Available for Inspection.......................... 14
15. Meetings of Noteholders............................................... 14
16. Repayment by the Agent................................................ 15
17. Conditions of Appointment............................................. 15
18. Communication Between the Parties..................................... 16
19. Changes in Agent and Paying Agents.................................... 16
20. Merger and Consolidation.............................................. 17
21. Notification of Changes to Paying Agents.............................. 17
22. Change of Specified Office............................................ 18
23. Notices............................................................... 18
24. Taxes and Stamp Duties................................................ 20
25. Commissions, Fees and Expenses........................................ 20
26. Indemnity............................................................. 20
27. Reporting............................................................. 20
28. Governing Law......................................................... 21
29. Amendments............................................................ 21
30. Descriptive Headings.................................................. 22
31. Counterparts.......................................................... 22
Schedule 1 - Form of Temporary Global Note
----------
Schedule 2 - Form of Permanent Global Note
----------
Schedule 3 - Form of Definitive Note, Coupon, Receipt and Talon
----------
Schedule 4 - Terms and Conditions
----------
Schedule 5 - Form of Certificate to be Presented by Euroclear or
----------
Clearstream, Luxembourg
Schedule 6 - Form of Certificate of Beneficial Owner
----------
Schedule 7 - Provision for Meetings of Noteholders
----------
Schedule 8 - Form of Put Notice
----------
Schedule 9 - Form of Calculation Agency Agreement
----------
i
THIS AMENDED AND RESTATED AGENCY AGREEMENT (this "Agreement") dated as of July
27, 2001 is made by and among:
(i) Bank of America Corporation, a Delaware corporation (the
"Corporation"), and Bank of America, N.A., a national banking
association (the "Bank"; the Bank and the Corporation are each
an "Issuer" and collectively, "Issuers");
(ii) The Chase Manhattan Bank, London Branch (the "Agent" and the
"Issuing and Principal Paying Agent"); and
(iii) Chase Manhattan Bank Luxembourg S.A. (the "Paying Agent").
WHEREAS, the Corporation, the Bank, the Agent and the Paying
Agent wish to update the arrangements originally agreed among them pursuant to
that certain Agency Agreement dated November 8, 1995, as amended and restated to
the date hereof, including the amendment and restatement dated August 1, 2000
(the "Original Agency Agreement");
WHEREAS, the Issuers propose to issue up to U.S. $15,000,000,000 with
respect to the Corporation and U.S. $10,000,000,000 with respect to the Bank (or
its equivalent in other currencies) in aggregate principal amount of Euro
Medium-Term Notes (the "Notes") outstanding at any one time as provided in an
Amended and Restated Program Agreement of even date among the Issuers, the
Arranger and the Dealers named therein (the "Program Agreement") and as
described in an Offering Circular of even date (the "Offering Circular");
WHEREAS, Notes will be issued in the denominations specified in the
applicable Pricing Supplement issued in connection with each Series and each
Tranche of Notes; and
WHEREAS, unless otherwise determined by an Issuer and specified in the
applicable Pricing Supplement, beneficial interests in each Tranche of Notes
initially will be represented by a Temporary Global Note, exchangeable, as
provided in such Temporary Global Note, for beneficial interests in a Permanent
Global Note and, only under limited circumstances, beneficial interests in a
Global Note may be exchangeable for Definitive Notes, in each case in accordance
with the terms of the Global Notes.
NOW, THEREFORE, it is agreed as follows:
1. Definitions and Interpretation
------------------------------
(1) Terms and expressions defined in the Program Agreement or the
Notes or used in the applicable Pricing Supplement shall have the same meanings
in this Agreement, except where the context requires otherwise.
(2) Without prejudice to the foregoing in this Agreement:
"outstanding" means, in relation to the Notes, all the Notes
issued other than (a) those which have been redeemed in accordance with the
Terms and Conditions, (b) those in respect of which the redemption date in
accordance with the Terms and Conditions has occurred and the redemption moneys
(including all interest accrued on such Notes to the date for such redemption
and any interest or other amounts payable under the Terms and Conditions after
such date) have been duly paid to the Agent as provided in this Agreement and
remain available for payment against presentation and surrender of Notes and/or
Receipts and/or Coupons, as the case may be, (c) those which have become void
under Condition 8, (d) those which have been purchased and canceled as provided
in Condition 5 (or as provided in the Global Notes), (e) those mutilated or
defaced Notes which have been surrendered in exchange for replacement Notes
pursuant to Condition 10, (f) (for purposes only of determining how many Notes
are outstanding and without prejudice to their status for any other purpose)
those Notes alleged to have been lost, stolen or destroyed and in respect of
which replacement Notes have been issued pursuant to Condition 10, (g) any
Temporary Global Note to the extent that it shall have been exchanged for a
Permanent Global Note, in each case pursuant to their respective provisions;
provided that for the purposes of (i) ascertaining the right to attend and vote
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at any meeting of the Noteholders and (ii) the determination of how many Notes
are outstanding for the purposes of Schedule 7, those Notes which are
beneficially held by, or are held on behalf of, an Issuer or any of its
affiliates shall (unless and until ceasing to be so held) be deemed not to
remain outstanding;
"Paying Agents" means the Issuing and Principal Paying Agent
and the Paying Agent referred to above and such other Paying Agent or Agents as
may be appointed from time to time hereunder; and
(3) The term "Notes" as used in this Agreement shall include the
Temporary Global Note and the Permanent Global Note, Definitive Notes and
Coupons. The term "Global Note" as used in this Agreement shall include both
the Temporary Global Note and the Permanent Global Note, each of which is a
"Global Note." The term "Noteholders" as used in this Agreement shall mean the
several persons who are for the time being the holders of the Notes, which
expression, while the Notes are represented by a Global Note, shall mean (other
than with respect to the payment of principal and interest on the Notes, the
right to which shall be vested as against the relevant Issuer solely in the
bearer of such Global Note in accordance with and subject to its terms) the
persons for the time being shown in the records of a common depositary on
behalf of Euroclear Bank S.A./NV, as operator of the Euroclear System
("Euroclear or Clearstream Banking, societe anonyme ("Clearstream, Luxembourg")
(other than Clearstream, Luxembourg, if Clearstream, Luxembourg shall be an
accountholder of Euroclear, and Euroclear, if Euroclear shall be an
accountholder of Clearstream, Luxembourg) as the Noteholders of particular
principal amounts of Notes (in which regard any certificate or other document
issued by Euroclear or Clearstream, Luxembourg as to the principal amount of
Notes standing to the credit of the account of any person shall be conclusive
and binding for all purposes).
(4) For purposes of this Agreement, the Notes of each Series shall
form a separate series of Notes and the provisions of this Agreement shall
apply mutatis mutandis separately and independently to the Notes of each Series
and in such provisions the expressions "Notes", "Noteholders", "Receipts",
"Receiptholders", "Coupons", "Couponholders", "Talons" and "Talonholders" shall
be construed accordingly.
(5) All references in this Agreement to principal and/or interest or
both in respect of the Notes or to any moneys payable by an Issuer under this
Agreement shall have the meaning set out in Condition 4.
(6) All references in this Agreement to the "relevant currency"
shall be construed as references to the currency in which the relevant Notes
and/or Coupons are denominated (or payable in the case of Dual Currency
Notes).
(7) In this Agreement, Clause headings are inserted for convenience
and ease of reference only and shall not affect the interpretation of this
Agreement. All references in this Agreement to the provisions of any statute
shall be deemed to be references to that statute as from time to time modified,
extended, amended or re-enacted or to any statutory instrument, order or
regulation made thereunder or under such re-enactment.
(8) All references in this Agreement to an agreement, instrument or
other document (including, without limitation, this Agreement, the Program
Agreement, the Notes and any Terms and Conditions appertaining thereto) shall be
construed as a reference to that agreement, instrument or document as the same
may be amended, modified, varied or supplemented from time to time.
(9) Any references herein to Euroclear and/or Clearstream,
Luxembourg shall be deemed to include, whenever the context permits, a reference
to any additional or alternative clearance system approved by the Issuers and
the Agent.
2. Appointments of Agent, Paying Agents and Calculation Agents
-----------------------------------------------------------
(1) The Issuers hereby continue the appointment of The Chase
Manhattan Bank, London Branch, as agent, and The Chase Manhattan Bank, London
Branch, hereby acknowledges its continued acceptance of such appointment as
agent of the Issuers, upon the terms and subject to the conditions set out
below, for the purposes of:
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(a) completing, authenticating and delivering Global Notes
and (if required) authenticating and delivering Definitive Notes;
(b) exchanging Temporary Global Notes for Permanent Global
Notes or Definitive Notes, as the case may be, in accordance with the
terms of such Temporary Global Notes;
(c) under limited circumstances, exchanging Permanent Global
Notes for Definitive Notes in accordance with the terms of such
Permanent Global Notes;
(d) paying sums due on Global Notes and Definitive Notes,
Receipts and Coupons;
(e) determining the end of the Restricted Period applicable
to each Tranche;
(f) unless otherwise specified in the applicable Pricing
Supplement, determining the interest and/or other amounts
payable in respect of the Notes in accordance with the Terms
and Conditions;
(g) arranging on behalf of the Issuers for notices to be
communicated to the Noteholders;
(h) preparing and sending any required periodic reports to
the Ministry of Finance of Japan (the "MoF"), the Bank of England or
other appropriate authority and, subject to confirmation from the
relevant Issuer for the need for such further reporting, ensuring that
all necessary action is taken to comply with any reporting
requirements of any competent authority of any relevant currency as
may be in force from time to time with respect to the Notes to be
issued under the Program;
(i) subject to the Procedures Memorandum, submitting to the
appropriate stock exchange such number of copies of each
Pricing Supplement which relates to Notes which are to be
listed on that stock exchange as it may reasonably require;
(j) receiving notice from Euroclear and/or Clearstream,
Luxembourg relating to the certificates of non-United States
beneficial ownership of the Notes; and
(k) performing all other obligations and duties imposed upon
it by the Terms and Conditions, this Agreement or as may be agreed
between the relevant Issuer and the Agent in connection with a
particular Series or Tranche of Notes.
(2) The relevant Issuer may, in its discretion, appoint (or remove)
one or more agents outside the United States and its possessions (each, a
"Paying Agent") for the payment (subject to applicable laws and regulations)
of the principal of and any interest and Additional Amounts, if any, (as
defined in Section 6 of the Terms and Conditions) on the Notes. Each Issuer
hereby appoints Chase Manhattan Bank Luxembourg S.A., at its office in
Luxembourg at ▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇, as its Paying Agent in
Luxembourg. Upon its written acceptance of such appointment or execution of a
copy of this Agreement, each Paying Agent shall have the powers and authority
granted to and conferred upon it herein and in the Notes, and such further
powers and authority, acceptable to it, to act on behalf of the relevant Issuer
as such Issuer may hereafter grant to or confer upon it in writing. As used
herein, "paying agencies" shall mean paying agencies maintained by a Paying
Agent on behalf of an Issuer as provided elsewhere herein.
(3) The Issuers will appoint an agent to make certain calculations
with respect to the Notes (the "Calculation Agent") pursuant to the Terms and
Conditions.
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3. Issue of Temporary Global Notes
-------------------------------
(1) Subject to sub-clause (2), following receipt of a notification
from an Issuer in respect of an issue of Notes (such notification being by
receipt of a confirmation (a "Confirmation"), substantially in the applicable
form set out in the Procedures Memorandum) the Agent will take the steps
required of the Agent in the Procedures Memorandum. For this purpose the Agent
is hereby authorized on behalf of such Issuer:
(a) to prepare a Temporary Global Note in accordance with
such Confirmation by attaching a copy of the applicable Pricing
Supplement to a copy of the relevant master Temporary Global Note;
(b) to authenticate (or cause to be authenticated) such
Temporary Global Note;
(c) to deliver such Temporary Global Note to the specified
common depositary of Euroclear and/or Clearstream, Luxembourg in
accordance with the Confirmation against receipt from the common
depositary of confirmation that such common depositary is holding the
Temporary Global Note in safe custody for the account of Euroclear
and/or Clearstream, Luxembourg and to instruct Euroclear or
Clearstream, Luxembourg or both of them (as the case may be) unless
otherwise agreed in writing between the Agent and the relevant Issuer
(i) in the case of an issue of Notes on a non-syndicated basis, to
credit the Notes represented by such Temporary Global Note to the
Agent's distribution account, and (ii) in the case of Notes issued on
a syndicated basis, to hold the Notes represented by such Temporary
Global Note pursuant to the relevant Issuer's order; and
(d) to ensure that the Notes of each Tranche are assigned a
common code ("Common Code") and International Security Identification
Number ("ISIN") by Euroclear and Clearstream, Luxembourg which are
different from the Common Code and ISIN assigned to Notes of any other
Tranche of the same Series until 40 days after the completion of the
distribution of the Notes of such Tranche as notified by the Agent to
the relevant Dealer.
(2) The Agent shall only be required to perform its obligations
under sub-clause (1) if it holds:
(a) master Temporary Global Notes, duly executed by a person
or persons authorized to execute the same on behalf of the relevant
Issuer, which may be used by the Agent for the purpose of preparing
Temporary Global Notes in accordance with paragraph 3(1)(a); and
(b) master Permanent Global Notes, duly executed by a person
or persons authorized to execute the same on behalf of the relevant
Issuer, which may be used by the Agent for the purpose of preparing
Permanent Global Notes in accordance with Clause 4 below.
(3) The Agent will provide Euroclear and/or Clearstream, Luxembourg
with the notifications, instructions or other information to be given by the
Agent to Euroclear and/or Clearstream, Luxembourg in accordance with the
standard procedures of Euroclear and/or Clearstream, Luxembourg.
4. Determination of Exchange Date, Issue of Permanent Global Notes
---------------------------------------------------------------
or Definitive Notes and Determination of Restricted Period
----------------------------------------------------------
(1) (a) The Agent shall determine the Exchange Date for each
Temporary Global Note in accordance with the terms thereof. Forthwith upon
determining the Exchange Date in respect of any Tranche, the Agent shall notify
such determination to the relevant Issuer, the relevant Dealer, Euroclear and
Clearstream, Luxembourg.
(b) The Agent shall deliver, upon notice from Euroclear or
Clearstream, Luxembourg, a Permanent Global Note or Definitive
Notes, as the case may be, in accordance
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with the terms of the Temporary Global Note in each case against
certification of non-U.S. beneficial ownership as required by U.S.
Treasury Regulations unless such Certification has already been given.
Upon any such exchange of a portion of a Temporary Global Note for an
interest in a Permanent Global Note the Agent is hereby authorized on
behalf of the relevant Issuer:
(i) for the first Tranche of any Series of Notes, to
prepare and complete a Permanent Global Note in accordance with
the terms of the Temporary Global Note applicable to such
Tranche by attaching a copy of the applicable Pricing Supplement
to a copy of the relevant master Permanent Global Note;
(ii) for the first Tranche of any Series of Notes, to
authenticate such Permanent Global Note;
(iii) for the first Tranche of any Series of Notes, to
deliver such Permanent Global Note to the common depositary
which is holding the Temporary Global Note applicable to such
Tranche for the time being on behalf of Euroclear and/or
Clearstream, Luxembourg either in exchange for such Temporary
Global Note or, in the case of a partial exchange, on entering
details of such partial exchange of the Temporary Global Note in
the relevant spaces in Schedule 2 of both the Temporary Global
Note and the Permanent Global Note, and in either case against
receipt from the common depositary of confirmation that such
common depositary is holding the Permanent Global Note in safe
custody for the account of Euroclear and/or Clearstream,
Luxembourg; and
(iv) in any other case, to attach a copy of the applicable
Pricing Supplement to the Permanent Global Note applicable to
the relevant Series and enter details of any exchange in whole
or part as aforesaid.
(2) (a) For a Tranche in respect of which there is only one
Dealer, the Agent will determine the end of the Restricted Period in respect of
such Tranche as being the fortieth day following the date certified by the
relevant Dealer to the Agent as being the date as of which distribution of the
Notes of that Tranche was completed.
(b) For a Tranche in respect of which there is more than one
Dealer but is not issued on a syndicated basis, the Agent will
determine the end of the Restricted Period in respect of such
Tranche as being the fortieth day following the latest of the
dates certified by all the relevant Dealers to the Agent as
being the respective dates as of which distribution of the
Notes of that Tranche purchased by each such dealer was
completed.
(c) For a Tranche issued on a syndicated basis, the Agent
will determine the end of the Restricted Period in respect of such
Tranche as being the fortieth day following the date certified
by the Lead Manager to the Agent as being the date as of which
distribution of the Notes of that Tranche was completed.
(d) Forthwith upon determining the end of the Restricted
Period in respect of any Tranche, the Agent shall notify such
determination to the relevant Issuer and the relevant Dealer
or the Lead Manager in the case of a syndicated issue.
5. Issue of Definitive Notes
-------------------------
(1) Interests in a Global Note will be exchangeable for Definitive
Notes with Coupons attached only if: (i) an Event of Default (as defined in the
Terms and Conditions) occurs and is continuing, or (ii) the relevant Issuer is
notified that either Euroclear or Clearstream, Luxembourg has been closed for
business for a continuous period of 14 days (other than by reason of holiday,
statutory or otherwise) after the original issuance of the Notes or has
announced an intention permanently to cease business or has in fact done so and
no alternative
5
clearance system approved by the Noteholders is available, or
(iii) the relevant Issuer, after notice to the Agent, determines to issue Notes
in Definitive form. Upon the occurrence of these events, the Agent shall
deliver the relevant Definitive Note(s) in accordance with the terms of the
relevant Global Note. For this purpose the Agent is hereby authorized on behalf
of the relevant Issuer:
(a) to authenticate such Definitive Note(s) in accordance
with the provisions of this Agreement; and
(b) to deliver such Definitive Note(s) to or to the order of
Euroclear and/or Clearstream, Luxembourg in exchange for such
Global Note.
The Agent shall notify the relevant Issuer forthwith upon receipt of a request
for issue of Definitive Note(s) in accordance with the provisions of a Global
Note and this Agreement (and the aggregate principal amount of such Temporary
Global Note or Permanent Global Note, as the case may be, to be exchanged in
connection therewith).
(2) The relevant Issuer undertakes to deliver to the Agent
sufficient numbers of executed Definitive Notes with, if applicable, Receipts,
Coupons and Talons attached to enable the Agent to comply with its obligations
under this Clause 5.
6. Terms of Issue
--------------
(1) The Agent shall cause all Temporary Global Notes, Permanent
Global Notes and Definitive Notes delivered to and held by it under this
Agreement to be maintained in safe custody and shall ensure that such Notes are
issued only in accordance with the provisions of this Agreement and the
relevant Global Note and Terms and Conditions.
(2) Subject to the procedures set out in the Procedures Memorandum,
for the purposes of Clause 3(1) the Agent is entitled to treat a telephone,
telex or facsimile communication from a person purporting to be (and who the
Agent believes in good faith to be) the authorized representative of the
relevant Issuer named in the lists referred to in, or notified pursuant to,
Clause 17(7) as sufficient instructions and authority of such Issuer for the
Agent to act in accordance with Clause 3(l).
(3) If a person who has signed on behalf of the relevant Issuer any
Note not yet issued but held by the Agent in accordance with Clause 3(1) ceases
to be authorized as described in Clause 17(7), the Agent shall (unless such
Issuer gives notice to the Agent that Notes signed by that person do not
constitute valid and binding obligations of such Issuer or otherwise until
replacements have been provided to the Agent) continue to have authority to
issue any such Notes, and the relevant Issuer hereby warrants to the Agent that
such Notes shall be, unless notified as aforesaid, valid and binding
obligations of such Issuer. Promptly upon such person ceasing to be authorized,
the relevant Issuer shall provide the Agent with replacement Notes and upon
receipt of such replacement Notes the Agent shall cancel and destroy the Notes
held by it which are signed by such person and shall provide to the relevant
Issuer a confirmation of destruction in respect thereof specifying the Notes so
canceled and destroyed.
(4) If the Agent pays an amount (the "Advance") to an Issuer on the
basis that a payment (the "Payment") has been, or will be, received from a
Dealer and if the Payment is not received by the Agent on the date the Agent
pays such Issuer, the Agent shall notify such Issuer by tested telex or
facsimile that the Payment has not been received and such Issuer shall repay to
the Agent the Advance and shall pay interest on the Advance (or the
unreimbursed portion thereof) from (and including) the date such Advance is
made to (but excluding) the earlier of repayment of the Advance and receipt by
the Agent of the Payment (at a rate quoted at that time by the Agent as its
cost of funding the Advance).
(5) Except in the case of issues where the Agent does not act as
receiving bank for the relevant Issuer in respect of the purchase price of the
Notes being issued, if on the relevant Issue Date a Dealer does not pay the
full purchase price due from it in respect of any Note (the "Defaulted Note")
and, as a result, the Defaulted Note remains in the Agent's distribution
account with Euroclear and/or Clearstream, Luxembourg) after such Issue Date,
the Agent will continue to hold the Defaulted Note pursuant to the order of the
relevant Issuer. The
6
Agent shall notify the relevant Issuer forthwith of the failure of the Dealer to
pay the full purchase price due from it in respect of any Defaulted Note and,
subsequently, shall notify such Issuer forthwith upon receipt from the Dealer of
the full purchase price in respect of such Defaulted Note.
7. Payments
--------
(1) The Agent shall advise the relevant Issuer, no later than 10
Business Days (as defined below) immediately preceding the date on which any
payment is to be made to the Agent pursuant to this sub-clause (1) of the
payment amount, value date and payment instructions and the relevant Issuer
will before 10:00 a.m. New York time on each date on which any payment in
respect of any Notes issued by it becomes due, transfer to an account specified
by the Agent such amount in the relevant currency as shall be sufficient for
the purposes of such payment in funds settled through such payment system as
the Agent and the relevant Issuer may agree.
(2) The relevant Issuer will ensure that no later than 4:00 p.m.
(London time) on the second Business Day (as defined below) immediately
preceding the date on which any payment is to be made to the Agent pursuant to
sub-clause (1), the Agent shall receive from the paying bank of the relevant
Issuer an irrevocable confirmation in the form of a SWIFT message or tested
telex that such payment shall be made. For the purposes of this Clause 7,
"Business Day" means a day which is both:
(a) a day (other than a Saturday or a Sunday) on which
commercial banks and foreign exchange markets settle payments in
London and Charlotte, North Carolina and any additional business
center specified in the applicable Pricing Supplement; and
(b) either (1) for any sum payable in a Specified Currency,
a day on which commercial banks and foreign exchange markets settle
payments in the principal financial center (the "Principal
Financial Center") of the country of the relevant Specified
Currency (if other than London) or (2) for any sum payable in
euro, a day on which the Trans-European Automated Real-Time
Gross Settlement Express Transfer ("TARGET") is open. Unless
otherwise specified in the applicable Pricing Supplement, the
Principal Financial Center of any country for the purposes of
the Terms and Conditions shall be as provided in the ISDA
Definitions.
(3) The Agent shall ensure that payments of both principal and
interest in respect of any Temporary Global Note will be made only to the
extent that certification of non-U.S. beneficial ownership as required by U.S.
securities laws and U.S. Treasury regulations (in the form set out in the
Temporary Global Note) has been received from Euroclear and/or Clearstream,
Luxembourg in accordance with the terms thereof.
(4) Subject to the receipt by the Agent of the payment confirmation
as provided in sub-clause (2) above, the Agent or the relevant Paying Agent
shall pay or cause to be paid all amounts due in respect of the Notes on behalf
of the relevant Issuer in the manner provided in the Terms and Conditions. If
any payment provided for in sub-clause (l) is made late but otherwise in
accordance with the provisions of this Agreement, the Agent and each Paying
Agent shall nevertheless make payments in respect of the Notes as aforesaid
following receipt by it of such payment.
(5) If for any reason the Agent considers in its sole discretion
that the amounts to be received by the Agent pursuant to sub-clause (1) will
be, or the amounts actually received by it pursuant thereto are, insufficient
to satisfy all claims in respect of all payments then falling due in respect of
the Notes, neither the Agent nor any Paying Agent shall be obliged to pay any
such claims until the Agent has received the full amount of all such payments.
Should the Agent or any Paying Agent elect not to make payment of amounts
falling due in respect of the Notes as aforesaid, it shall advise the relevant
Issuer of any such decision as soon as practicable by telephone with
confirmation by telefax.
(6) Without prejudice to sub-clauses (4) and (5), if the Agent pays
any amounts to the holders of Notes, Receipts or Coupons or to any Paying Agent
at a time when it has not received payment in full in respect of the relevant
Notes in accordance with sub-clause (1) (the excess of the amounts so paid over
the amounts so received being the "Shortfall"), the relevant Issuer will, in
addition to paying amounts due under sub-clause (l),
7
pay to the Agent on demand interest (at a rate which represents the Agent's cost
of funding the Shortfall) on the Shortfall (or the unreimbursed portion thereof)
until the receipt in full by the Agent of the Shortfall.
(7) The Agent shall on demand promptly reimburse each Paying Agent
for payments in respect of Notes properly made by such Paying Agent in
accordance with this Agreement and the Terms and Conditions unless the Agent
has notified the Paying Agent, prior to the opening of business in the location
of the office of the Paying Agent through which payment in respect of the Notes
can be made prior to the day on which such Agent has to give payment
instructions in respect of the due date of a payment in respect of the Notes,
that the Agent does not expect to receive sufficient funds to make payment of
all amounts falling due in respect of such Notes.
(8) If the Agent pays out on or after the due date therefor, or
becomes liable to pay out, funds on the assumption that a corresponding payment
by the relevant Issuer has been or will be made and such payment has in fact
not been made by such Issuer, then such Issuer shall on demand reimburse the
Agent for the relevant amount, and pay interest to the Agent on such amount
from the date on which it is paid out to the date of reimbursement at a rate
per annum equal to the cost to the Agent of funding the amount paid out, as
certified by the Agent and expressed as a rate per annum. For the avoidance of
doubt, the provisions of the Terms and Conditions as to subordination shall not
apply to the relevant Issuer's obligations under this sub-clause (8).
(9) While any Notes are represented by a Global Note or Global
Notes, all payments due in respect of such Notes shall be made to, or to the
order of, the holder of the Global Note or Global Notes, subject to, and in
accordance with, the provisions of the Global Note or Global Notes. The Paying
Agent to which any Global Note was presented for the purpose of making such
payment shall cause the appropriate Schedule to the relevant Global Note to be
annotated so as to evidence the amounts and dates of such payments of principal
and/or interest as applicable.
(10) If the amount of principal and/or interest then due for payment
is not paid in full (otherwise than by reason of a deduction required by law to
be made therefrom), the Paying Agent to which a Note is presented for the
purpose of making such payment shall make a record of such shortfall on the
Note and such record shall, in the absence of manifest error, be prima facie
evidence that the payment in question has not to that extent been made.
8. Determinations and Notifications in Respect of Notes and
--------------------------------------------------------
Interest Determination
----------------------
(a) Determinations and Notifications
--------------------------------
(1) The Agent shall make all such determinations and calculations
(howsoever described) as it is required to do under the Terms and Conditions,
all subject to and in accordance with the Terms and Conditions, provided that
certain calculations with respect to the Notes, and associated publication or
notification, shall be made by the Calculation Agent in accordance with the
Terms and Conditions.
(2) The Agent or the Calculation Agent, as the case may be, shall
not be responsible to the relevant Issuer or to any third party (except in the
event of gross negligence, default or bad faith of the Agent or the Calculation
Agent) as a result of the Agent or the Calculation Agent having acted in good
faith on any quotation given by any Reference Bank which subsequently may be
found to be incorrect.
(3) The Agent or the Calculation Agent, as the case may be, shall
promptly notify (and confirm in writing to) the relevant Issuer, the other
Paying Agents and (in respect of a Series of Notes listed on a stock exchange)
the relevant stock exchange of, inter alia, each Rate of Interest, Interest
Amount and Interest Payment Date and all other amounts, rates and dates which
it is obliged to determine or calculate under the Terms and Conditions as soon
as practicable after the determination thereof (and in any event no later than
the tenth Business Day as defined in Clause 7(2) immediately preceding the date
on which payment is to be made to the Agent pursuant to Clause 7(l)) and of any
subsequent amendment thereto pursuant to the Terms and Conditions.
8
(4) The Agent or the Calculation Agent, as the case may be, shall
use its best efforts to cause each Rate of Interest, Interest Amount and
Interest Payment Date and all other amounts, rates and dates which it is
obliged to determine or calculate under the Terms and Conditions to be
published as required in accordance with the Terms and Conditions as soon as
possible after their determination or calculation.
(5) If the Agent or the Calculation Agent, as the case may be, does
not at any material time for any reason determine and/or calculate and/or
publish the Rate of Interest, Interest Amount and/or Interest Payment Date in
respect of any Interest Period or any other amount, rate or date as provided in
this Clause 8, it shall forthwith notify the relevant Issuer and the Paying
Agents of such fact.
(6) Determinations with regard to Notes (including, without
limitation, Indexed Notes and Dual Currency Notes) shall be made by the
Calculation Agent specified in the applicable Pricing Supplement in the manner
specified in the applicable Pricing Supplement. Unless otherwise agreed between
the relevant Issuer and the relevant Dealer, such determinations shall be made
on the basis of a Calculation Agency Agreement substantially in the form of
Schedule 9 to this Agreement.
(7) For the purposes of monitoring the aggregate principal amount of
Notes issued under the Program, the Agent shall determine the U.S. Dollar
equivalent of the principal amount of each issue of Notes denominated in
another currency, each issue of Dual Currency Notes, each Issue of Partly Paid
Notes and each issue of Indexed Notes as follows:
(a) the U.S. Dollar equivalent of Notes denominated in
a currency other than U.S. Dollars shall be determined as of the
Agreement Date for such Notes on the basis of the spot rate for the
sale of the U.S. Dollar against the purchase of the relevant currency
quoted by a foreign exchange dealer selected by the relevant Issuer on
the relevant day of calculation;
(b) the U.S. Dollar equivalent of Dual Currency Notes and
Indexed Notes (other than Indexed Redemption Amount Notes) shall be
calculated in the manner specified above by reference to the original
nominal amount of such Notes;
(c) the U.S. Dollar equivalent of Zero Coupon Notes, other
Notes issued at a discount or premium and Indexed Redemption Amount
Notes shall be calculated in the manner specified above by reference
to the net proceeds received by the relevant Issuer for the relevant
issue; and
(d) the U.S. Dollar equivalent of Partly Paid Notes shall be
determined in the manner specified above by reference to the
original principal amount of such Notes regardless of the
amount paid on the Notes.
(b) Interest Determination, Screen Rate Determination including
-----------------------------------------------------------
Fallback Provisions
-------------------
(1) Where screen rate determination ("Screen Rate Determination") is
specified in the applicable Pricing Supplement as the manner in which the Rate
of Interest is to be determined, the Rate of Interest for each Interest Period,
subject as provided below, will be either:
(a) the offered quotation (if there is only one quotation on
the relevant screen page (the "Relevant Screen Page"), whatever its
designation; or
(b) the arithmetic mean (rounded if necessary to the fifth
decimal place, with 0.000005 being rounded upwards) of the offered
quotations,
(expressed as a percentage rate per annum), for the rate (the "Reference Rate")
by reference to the Rate of Interest which appears or appear, as the case may
be, on the Relevant Screen Page on which the Reference Rate is for the time
being displayed on the Reuter Monitor Money Rates Service or the appropriate
display on Bridge Telerate Inc. (or such service as is specified in the
applicable Pricing Supplement) at 11:00 a.m. (London time in the case of
9
Libor, or Brussels time in the case of Euribor) on the dates on which the Rate
of Interest is to be determined (each, an "Interest Determination Date") plus or
minus the Margin, if any, all as determined by the Calculation Agent. If five or
more such offered quotations are available on the Relevant Screen Page, the
highest and the lowest shall be disregarded by the Calculation Agent for
purposes of determining the arithmetic mean of such offered quotations.
(2) If the Relevant Screen Page is not available or if, in the case
of sub-clause (b)(1)(A) above, no such offered quotation appears or, in the
case of sub-clause (b)(1)(B) above, fewer than three such offered quotations
appear, in each case as at the time specified in the preceding paragraph, the
Calculation Agent shall at its sole discretion request the principal London
office of each of the Reference Banks (defined below) to provide the
Calculation Agent with its offered quotation (expressed as a percentage rate
per annum) for deposits in the Specified Currency for the relevant Interest
Period to leading banks in the London interbank market at approximately 11:00
a.m. (London time in the case of LIBOR or Brussels time in the case of Euribor)
on the Interest Determination Date in question. If two or more of the Reference
Banks provide the Calculation Agent with such offered quotations, the Rate of
Interest for such Interest Period shall be the arithmetic mean (rounded if
necessary to the fifth decimal place, with 0.000005 being rounded upwards) of
such offered quotations plus or minus (as appropriate) the Margin, if any,
all as determined by the Calculation Agent.
(3) If on any Interest Determination Date only one or none of the
Reference Banks provides the Calculation Agent with such offered quotations as
provided in the preceding paragraph, the Rate of Interest for the relevant
Interest Period shall be the rate per annum which the Calculation Agent
determines to be the arithmetic mean (rounded if necessary to the fifth decimal
place, with 0.000005 being rounded upwards) of the rates, as communicated to
(and at the request of) the Calculation Agent by any two or more of the
Reference Banks, at which such banks were offered, at approximately 11:00 a.
m. (London time in the case of LIBOR, or Brussels time in the case of Euribor)
on the relevant Interest Determination Date, deposits in the Specified
Currency for the relevant Interest Period by leading banks in the London
interbank market in the case of LIBOR, or leading banks in the Euro-Zone inter-
bank market in the case of Euribor, plus or minus (as appropriate) the Margin,
if any. If fewer than two of the Reference Banks provide the Calculation Agent
with such offered quotations, the Rate of Interest shall be the offered
quotation for deposits in the Specified Currency for the relevant Interest
Period, or the arithmetic mean (rounded as provided above) of the offered
quotations for deposits in the Specified Currency for the relevant Interest
Period, at which, at approximately 11:00 a.m. (London time in the case of
LIBOR, or Brussels time in the case of Euribor) on the relevant Interest
Determination Date, any one or more banks informs the Calculation Agent it is
quoting to leading banks in the London interbank market in the case of LIBOR,
or leading banks in the EuroZone interbank market in the case of Euribor, plus
or minus (as appropriate) the Margin, if any, provided that, if the Rate of
Interest cannot be determined in accordance with the foregoing provisions of
this paragraph, the Rate of Interest shall be determined as at the last
preceding Interest Determination Date (though substituting, where a different
Margin is to be applied to the relevant Interest Period from that which
applied to the last preceding Interest Period, the Margin relating to the
relevant Interest Period, in place of the Margin relating to that last
preceding Interest Period).
(4) If the Reference Rate from time to time in respect of Floating
Rate Notes is specified in the applicable Pricing Supplement as being other
than LIBOR or Euribor, the Rate of Interest in respect of such Notes will be
determined as provided in the applicable Pricing Supplement.
In this Clause 3, the expression "Reference Banks" means, in
the case of sub-clause (b)(1)(A) above, those banks whose offered rates were
used to determine such quotation when such quotation last appeared on the
Relevant Screen Page and in the case of sub-clause (b)(1)(B) above, those
banks whose offered quotations last appeared on the Relevant Screen Page when
no fewer than three such offered quotations appeared.
The expression "Euro-Zone" means, the region comprised of member states of the
European Union that have adopted the euro as the single currency in accordance
with the Treaty establishing the European Community, as amended by the Treaty
on European Union, as amended by the Treaty of Amsterdam.
9. Notice of any Withholding or Deduction
--------------------------------------
If the relevant Issuer, in respect of any payment, is compelled to
withhold or deduct any amount for or on account of taxes, duties, assessments
or governmental charges as specifically contemplated under the
10
Terms and Conditions, the relevant Issuer shall give notice thereof to the Agent
as soon as it becomes aware of the requirement to make such withholding or
deduction and shall give to the Agent such information as it shall require to
enable it to comply with such requirement.
10. Duties of the Agent in Connection with Early Redemption
-------------------------------------------------------
(1) If the relevant Issuer decides to redeem any outstanding
Notes (in whole or in part) for the time being outstanding prior to their
Maturity Date or the Interest Payment Date falling in the Redemption Month (as
the case may be) in accordance with the Terms and Conditions, such Issuer
shall give notice of such decision to the Agent not less than seven London
Business Days before the date on which such Issuer will give notice of such
redemption to the Noteholders in accordance with the Terms and Conditions in
order to enable the Agent to undertake its obligations herein and in the Terms
and Conditions.
(2) If only some of the Notes of like tenor and of the same Series
are to be redeemed on such date, the Agent shall make the required drawing in
accordance with the Terms and Conditions but shall give the relevant Issuer
reasonable notice of the time and place proposed for such drawing. Where
partial redemptions are to be effected when there are Definitive Notes
outstanding, the Issuing and Principal Paying Agent will select by lot the
Notes to be redeemed from the outstanding Notes in compliance with all
applicable laws and stock exchange requirements and deemed by the Agent to be
appropriate and fair; and where partial redemptions are to be effected when
there are no Definitive Notes outstanding, the rights of Noteholders will be
governed by the standard provisions of Euroclear and Clearstream, Luxembourg.
Notice of any partial redemption and, when there are Definitive Notes
outstanding, of the serial numbers of the Notes so drawn, will be given by the
Agent to the Noteholders in accordance with the terms of the Notes and this
Agreement.
(3) On behalf of and at the expense of the relevant Issuer, the
Agent shall publish the notice required in connection with any such redemption
and shall at the same time also publish a separate list of the serial numbers
of any Notes previously drawn and not presented for redemption. Such notice
shall specify the date fixed for redemption, the redemption amount, the manner
in which redemption will be effected and, in the case of a partial redemption,
the serial numbers of the Notes to be redeemed. Such notice will be published
in accordance with the Terms and Conditions. The Agent also will notify the
other Paying Agents of any date fixed for redemption of any Notes.
(4) Immediately prior to the date on which any notice of
redemption is to be given to the Noteholders, the relevant Issuer shall
deliver to the Agent a certificate stating that such Issuer is entitled to
effect such redemption and setting forth in reasonable detail a statement of
facts showing that all conditions precedent to such redemption have occurred
or been satisfied and shall comply with all notice requirements provided for
in the Terms and Conditions.
(5) Each Paying Agent will keep a stock of notices (each a "Put
Notice") in the form set out in Schedule 8 and will make such notices
available on demand to Noteholders, the Terms and Conditions of which provide
for redemption at the option of Noteholders. Upon receipt of any Note
deposited in the exercise of such option in accordance with the Terms and
Conditions, the Paying Agent with which such Note is deposited shall hold such
Note (together with any Coupons, if any, relating to it and deposited with it)
on behalf of the depositing Noteholder (but shall not, save as provided below,
release it) until the due date for redemption of the relevant Note consequent
upon the exercise of such option, when, subject as provided below, it shall
present such Note (and any such Coupons, if any) to itself for payment of the
amount due thereon together with any interest due on such date in accordance
with the Terms and Conditions and shall pay such moneys in accordance with the
directions of the Noteholder contained in the Put Notice. If, prior to such
due date for its redemption, such Note becomes immediately due and payable or
if upon due presentation payment of such redemption moneys is improperly
withheld or refused, the Paying Agent concerned shall post such Note (together
with any such Coupons, if any) by uninsured post to, and at the risk of, the
relevant Noteholder unless the Noteholder has otherwise requested and paid the
costs of such insurance to the relevant Paying Agent at the time of depositing
the Notes at such address as may have been given by the Noteholder in the Put
Notice. At the end of each period for the exercise of such option, each Paying
Agent shall promptly notify the Agent of the principal amount of the Notes in
respect of which such option has been exercised with it together with their
serial numbers and the Agent shall promptly notify such details to the
relevant Issuer.
11
11. Receipt and Publication of Notices; Receipt of Certificates
-----------------------------------------------------------
(1) Upon the receipt by the Agent of a demand or notice from any
Noteholder in accordance with the Terms and Conditions, the Agent shall
forward a copy thereof to the relevant Issuer.
(2) On behalf of and at the request and expense of the relevant
Issuer, the Agent shall cause to be published all notices required to be given
by such Issuer to the Noteholders in accordance with the Terms and Conditions.
(3) The Agent shall have no responsibility to obtain the
certificate of the relevant Issuer delivered by such Issuer to the Agent
pursuant to Condition 9 if such a certificate is required to be issued, nor
shall the Agent have any responsibility to notify the relevant Issuer that the
Agent has not obtained such a certificate from such Issuer if such a
certificate is required to be issued.
12. Cancellation of Notes, Receipts, Coupons and Talons
---------------------------------------------------
(1) All Notes which are redeemed, all Receipts or Coupons which
are paid and all Talons which are exchanged shall be delivered outside the
United States to the Agent, and shall be canceled by the Agent. In addition,
all Notes which are purchased by or on behalf of the relevant Issuer or any of
its subsidiaries and are surrendered to the Agent for cancellation, together
(in the case of Notes in Definitive form) with all unmatured Receipts, Coupons
or Talons (if any) attached thereto or surrendered therewith, shall be
canceled by the Agent.
(2) The relevant Issuer shall have the right to request that the
Agent provide, without limitation, the following information:
(a) the aggregate principal amount of Notes which have
been redeemed and the aggregate amount paid in respect thereof;
(b) the number of Notes canceled together (in the case of
Definitive Notes, if any) with details of all unmatured Receipts,
Coupons or Talons (if any) attached thereto or delivered therewith;
(c) the aggregate amount paid in respect of interest on the
Notes;
(d) the total number by maturity date of Receipts, Coupons
and Talons so canceled; and
(e) in the case of Definitive Notes, if any, the serial
numbers of such Notes, which shall be given to the relevant Issuer by
the Agent as soon as reasonably practicable and in any event within
three months after the date of such repayment or, as the case may be,
payment or exchange.
(3) The Agent shall destroy all canceled Notes, Receipts, Coupons
and Talons.
(4) The Agent shall keep a full and complete record of all Notes,
Receipts, Coupons and Talons (other than serial numbers of Coupons, except
those which have been replaced pursuant to Condition 10) and of all
replacement Notes, Receipts, Coupons or Talons issued in substitution for
mutilated, defaced, destroyed, lost or stolen Notes, Receipts, Coupons or
Talons. The Agent shall at all reasonable times make such record available to
the relevant Issuer and any persons authorized by it for inspection and for
the taking of copies thereof or extracts therefrom.
(5) All records and certificates made or given pursuant to this
Clause 12 and Clause 13 shall make a distinction between Notes, Receipts,
Coupons and Talons of each Series.
12
13. Issue of Replacement Notes, Receipts, Coupons and Talons
--------------------------------------------------------
(1) The Issuers will cause a sufficient quantity of additional
forms of Notes, Receipts, Coupons and Talons to be available, upon request to
the Agent in Luxembourg (in such capacity, the "Replacement Agent") at its
specified office for the purpose of issuing replacement Notes, Receipts,
Coupons and Talons as provided below.
(2) The Replacement Agent will, subject to, and in accordance
with, the Terms and Conditions and the following provisions of this Clause 13,
authenticate and cause to be delivered any replacement Notes, Receipts,
Coupons and Talons which the relevant Issuer may determine to issue in place
of Notes, Receipts, Coupons and Talons which have been lost, stolen,
mutilated, defaced or destroyed.
(3) In the case of a mutilated or defaced Note, the Replacement
Agent shall ensure that (unless otherwise covered by such indemnity as the
relevant Issuer may reasonably require) any replacement Note will only have
attached to it Receipts, Coupons and Talons corresponding to those (if any)
attached to the mutilated or defaced Note which is presented for replacement.
(4) The Replacement Agent shall not issue any replacement Note,
Receipt, Coupon or Talon unless and until the applicant therefor shall have:
(a) paid such reasonable costs and expenses as may be
incurred in connection therewith, including any tax or other
governmental charge that may be imposed in relation thereto;
(b) furnished it with such evidence and indemnity as the
relevant Issuer may reasonably require; and
(c) in the case of any mutilated or defaced Note, Receipt,
Coupon or Talon, surrendered it to the Replacement Agent.
(5) The Replacement Agent shall cancel any mutilated or defaced
Notes, Receipts, Coupons and Talons in respect of which replacement Notes,
Receipts, Coupons and Talons have been issued pursuant to this Clause 13 and
shall furnish the relevant Issuer with a certificate stating the serial
numbers of the Notes, Receipts, Coupons and Talons so canceled and, unless
otherwise instructed by such Issuer in writing, shall destroy such canceled
Notes, Receipts, Coupons and Talons and furnish such Issuer with a destruction
certificate stating the serial number of the Notes (in the case of Definitive
Notes) and the number by maturity date of Receipts, Coupons and Talons so
destroyed.
(6) The Replacement Agent shall, on issuing any replacement Note,
Receipt, Coupon or Talon, forthwith inform the relevant Issuer, the Agent and
the other Paying Agents of the serial number of such replacement Note,
Receipt, Coupon or Talon issued and (if known) of the serial number of the
Note, Receipt, Coupon or Talon in place of which such replacement Note,
Receipt, Coupon or Talon has been issued. Whenever replacement Receipts,
Coupons or Talons are issued pursuant to the provisions of this Clause 13, the
Replacement Agent shall also notify the Agent and the other Paying Agents of
the maturity dates of the lost, stolen, mutilated, defaced or destroyed
Receipts, Coupons or Talons and of the replacement Receipts, Coupons or Talons
issued.
(7) The Agent shall keep a full and complete record of all
replacement Notes, Receipts, Coupons and Talons issued and shall make such
record available at all reasonable times to the relevant Issuer and any
persons authorized by it for inspection and for the taking of copies thereof
or extracts therefrom.
(8) Whenever any Note, Receipt, Coupon or Talon for which a
replacement Note, Receipt, Coupon or Talon has been issued and in respect of
which the serial number is known is presented to the Agent or any of the
Paying Agents for payment, the Agent or, as the case may be, the relevant
Paying Agent shall immediately send notice thereof to the relevant Issuer and
the other Paying Agents and shall not make payment in respect thereto, until
instructed by such Issuer.
13
14. Copies of Documents Available for Inspection
--------------------------------------------
The Agent and the Paying Agents shall hold available for inspection
copies of:
(1) the organizational documents of the Issuers;
(2) the latest available audited consolidated financial statements
of the Corporation and its consolidated subsidiaries, beginning with such
financial statements for the fiscal years ended December 31, 2000 and the
publicly available portions of the Call Reports with respect to the Bank
beginning with the period ending December 31, 2000;
(3) the Program Agreement and this Agreement;
(4) the Offering Circular; and
(5) any future offering circulars, information memoranda and
supplements (except that a Pricing Supplement relating to any unlisted Note
will only be available for inspection by a holder of such Note and such holder
must produce evidence satisfactory to the Paying Agent as to ownership) to the
Offering Circular and any other documents incorporated therein by reference
and in the case of a syndicated issue of listed Notes, the syndication
agreement (or equivalent document).
For this purpose, the Issuers shall furnish the Agent and the Paying
Agents with sufficient copies of each of such documents.
15. Meetings of Noteholders
-----------------------
(1) The provisions of Schedule 7 hereto shall apply to meetings of
the Noteholders and shall have effect in the same manner as if set out in this
Agreement.
(2) Without prejudice to sub-clause (l), each of the Agent and the
Paying Agents on the request of any Noteholder shall issue voting certificates
and block voting instructions in accordance with Schedule 7 and shall
forthwith give notice to the relevant Issuer in writing of any revocation or
amendment of a block voting instruction. Each of the Agent and the Paying
Agents will keep a full and complete record of all voting certificates and
block voting instructions issued by it and, not less than 24 hours before the
time appointed for holding a meeting or adjourned meeting, will deposit at
such place as the Agent shall designate or approve, full particulars of all
voting certificates and block voting instructions issued by it in respect of
such meeting or adjourned meeting.
16. Repayment by the Agent
----------------------
Upon the relevant Issuer being discharged from its obligation to make
payments in respect of any Notes pursuant to the relevant Terms and Conditions,
and provided that there is no outstanding, bona fide and proper claim in
respect of any such payments, the Agent shall forthwith on written demand pay
to the relevant Issuer sums equivalent to any amounts paid to it by such
Issuer for the purposes of such payments.
17. Conditions of Appointment
-------------------------
(1) The Agent shall be entitled to deal with money paid to it by
an Issuer for the purpose of this Agreement in the same manner as other money
paid to a banker by its customers except:
(a) that it shall not exercise any right of set-off, lien
or similar claim in respect thereof; and
(b) as provided in sub-clause (2) below; and
14
(c) that it shall not be liable to account to the relevant
Issuer for any interest thereon.
(2) In acting hereunder and in connection with the Notes, the
Agent and the Paying Agents shall act solely as agents of the Issuers and will
not thereby assume any obligations towards or relationship of agency or trust
for or with any of the owners or holders of the Notes, Receipts, Coupons or
Talons.
(3) The Agent and the Paying Agents hereby undertake to the
Issuers to perform such obligations and duties, and shall be obliged to
perform such duties and only such duties as are herein, in the Terms and
Conditions and in the Procedures Memorandum specifically set forth and no
implied duties or obligations shall be read into this Agreement or the Notes
against the Agent and the Paying Agents, other than the duty to act honestly
and in good faith.
(4) The Agent may consult with legal and other professional
advisers and the opinion of such advisers shall be full and complete
protection in respect of any action taken, omitted or suffered hereunder in
good faith and in accordance with the opinion of such advisers.
(5) Each of the Agent and the Paying Agents shall be protected and
shall incur no liability for or in respect of any action taken, omitted or
suffered in reliance upon any instruction, request or order from the relevant
Issuer or any notice, resolution, direction, consent, certificate, affidavit,
statement, cable, telex or other paper or document which it reasonably
believes to be genuine and to have been delivered, signed or sent by the
proper party or parties or upon written instructions from the relevant Issuer.
(6) Any of the Agent and the Paying Agents and their officers,
directors and employees may become the owner of, or acquire any interest in
any Notes, Receipts, Coupons or Talons with the same rights that it or he
would have if the Agent or the relevant Paying Agent, as the case may be, were
not appointed hereunder, and may engage or be interested in any financial or
other transactions with the relevant Issuer and may act on, or as depositary,
trustee or agent for, any committee or body of Noteholders or Couponholders or
in connection with any other obligations of the relevant Issuer as freely as
if the Agent or the relevant Paying Agent, as the case may be, were not
appointed hereunder.
(7) The relevant Issuer shall provide the Agent with a certified
copy of the list of persons authorized to execute documents and take action on
its behalf in connection with this Agreement and shall notify the Agent
immediately in writing if any of such persons ceases to be so authorized or if
any additional person becomes so authorized together, in the case of an
additional authorized person, with evidence satisfactory to the Agent that
such person has been so authorized, provided, however, that the Agent shall
not incur any liability for any losses, claims or damages resulting from the
relevant Issuer's failure to provide such notification to the Agent.
18. Communication Between the Parties
---------------------------------
A copy of all communications relating to the subject matter of this
Agreement between any Issuer and the Noteholders, Receiptholders or
Couponholders and any of the Paying Agents shall be sent to the Agent by the
relevant Paying Agent.
19. Changes in Agent and Paying Agents
----------------------------------
(1) The Issuers agree that, for so long as any Note is
outstanding, or until moneys for the payment of all amounts in respect of all
outstanding Notes have been made available to the Agent or have been returned
to the relevant Issuer as provided herein:
(a) so long as any Notes are listed on any stock exchange,
there will at all times be a Paying Agent with a specified office in
such place as may be required by the rules and regulations of the
relevant stock exchange;
15
(b) there will at all times be a Paying Agent with a
specified office in a city in continental Europe; and
(c) there will at all times be an Agent.
In addition, the Issuers shall appoint a Paying Agent having a
specified office in New York City in the circumstances described in the final
paragraph of Condition 4(b). Any variation, termination, appointment or change
only shall take effect (other than in the case of insolvency (as provided in
sub-clause (5)), when it shall be of immediate effect) after not less than 30
nor more than 45 days' prior notice thereof shall have been given to the
Noteholders in accordance with the Terms and Conditions.
(2) The Agent may (subject as provided in sub-clause (4)) at any
time resign as Agent by giving at least 90 days' written notice to the Issuers
of such intention on its part, specifying the date on which its desired
resignation shall become effective, provided that such date shall never be
less than three months after the receipt of such notice by the Issuers unless
the Issuers agree to accept less notice.
(3) The Agent may (subject as provided in sub-clause (4)) be
removed at any time on at least 45 days' notice by the filing with it of an
instrument in writing signed on behalf of each Issuer specifying such removal
and the date when it shall become effective.
(4) Any resignation under sub-clause (2) or removal under sub-
clause (3) shall only take effect upon the appointment by the Issuers as
hereinafter provided, of a successor Agent and (other than in cases of
insolvency of the Agent) on the expiration of the notice to be given under
Clause 21. The Issuers agree with the Agent that if, by the day falling ten
days before the expiration of any notice under sub-clause (2), the Issuers
have not appointed a successor Agent, then the Agent shall be entitled, on
behalf of the Issuers, to appoint as a successor Agent in its place a
reputable financial institution of good standing as it may reasonably
determine to be capable of performing the duties of the Agent hereunder.
(5) In case at any time the Agent resigns, or is removed, or
becomes incapable of acting or is adjudged bankrupt or insolvent, or files a
voluntary petition in bankruptcy or makes an assignment for the benefit of its
creditors or consents to the appointment of an administrator, liquidator or
administrative or other receiver of all or a substantial part of its property,
or admits in writing its inability to pay or meet its debts as they mature or
suspends payment thereof, or if any order of any court is entered approving
any petition filed by or against it under the provisions of any applicable
bankruptcy or insolvency law or if a receiver of it or of all or a substantial
part of its property is appointed or any officer takes charge or control of it
or of its property or affairs for the purpose of rehabilitation, conservation
or liquidation, a successor Agent, which shall be a reputable financial
institution of good standing, may be appointed by the Issuers by an instrument
in writing filed with the successor Agent. Upon the appointment as aforesaid
of a successor Agent and acceptance by the latter of such appointment and
(other than in case of insolvency of the Agent) upon expiration of the notice
to be given under Clause 21 the Agent so superseded shall cease to be the
Agent hereunder.
(6) Subject to sub-clause (l):
(a) the Issuers may, after prior consultation (other than
in the case of insolvency of any Paying Agent) with the Agent,
terminate the appointment of any of the Paying Agents at any time;
and/or
(b) the Issuers may in respect of the Program or the
relevant Issuer may in respect of any Series of Notes, if so required
by the relevant Stock Exchange or regulatory body, appoint one or more
further Paying Agents by giving to the Agent, and to the relevant
Paying Agent, at least 45 days' notice in writing to that effect.
(7) Subject to sub-clause (l), all or any of the Paying Agents may
resign their respective appointments hereunder at any time by giving the
Issuers and the Agent at least 45 days' written notice to that effect.
16
(8) Upon its resignation or removal becoming effective the Agent
or the relevant Paying Agent:
(a) shall, in the case of the Agent, forthwith transfer
all moneys held by it hereunder and the records referred to in Clause
12(4) to the successor Agent hereunder; and
(b) shall be entitled to the payment by the Issuers of its
commissions, fees and expenses for the services theretofore rendered
hereunder in accordance with the terms of Clause 25.
(9) Upon its appointment becoming effective, a successor Agent and
any new Paying Agent, without further act, deed or conveyance, shall become
vested with all the authority, rights, powers, trusts, immunities, duties and
obligations of its predecessor or, as the case may be, a Paying Agent with
like effect as if originally named as Agent or (as the case may be) a Paying
Agent hereunder.
20. Merger and Consolidation
------------------------
Any entity into which the Agent or any Paying Agent may be merged or
converted, or any entity with which the Agent or any of the Paying Agents may
be consolidated or any entity resulting from any merger, conversion or
consolidation to which the Agent or any of the Paying Agents shall be a party,
or any entity to which the Agent or any of the Paying Agents shall sell or
otherwise transfer all or substantially all the assets of the Agent or any
Paying Agent shall, on the date when such merger, conversion, consolidation or
transfer becomes effective and to the extent permitted by any applicable laws,
become the successor Agent or, as the case may be, Paying Agent under this
Agreement without the execution or filing of any paper or any further act on
the part of the parties hereto, unless otherwise required by the Issuers, and
after the said effective date all references in this Agreement to the Agent
or, as the case may be, such Paying Agent shall be deemed to be references to
such entity. Written notice of any such merger, conversion, consolidation or
transfer forthwith shall be given to the Issuers by the relevant Agent or
Paying Agent.
21. Notification of Changes to Paying Agents
----------------------------------------
Following receipt of notice of resignation from the Agent or any
Paying Agent and forthwith upon appointing a successor Agent or, as the case
may be, other Paying Agents or on giving notice to terminate the appointment
of any Agent or, as the case may be, Paying Agent, the Agent (on behalf of and
at the expense of the Issuers) shall give or cause to be given not more than
60 days' nor less than 30 days' notice thereof to the Noteholders in
accordance with the Terms and Conditions.
22. Change of Specified Office
--------------------------
If the Agent or any Paying Agent determines to change its specified
office it shall give to the Issuers and (if applicable) the Agent written
notice of such determination giving the address of the new specified office
which shall be in the same city and stating the date on which such change is
to take effect, which shall not be less than 45 days thereafter. The Agent (on
behalf and at the expense of the Issuers) shall within 15 days of receipt of
such notice (unless the appointment of the Agent or the relevant Paying Agent,
as the case may be, is to terminate pursuant to Clause 19 on or prior to the
date of such change) give or cause to be given not more than 45 days' nor less
than 30 days' notice thereof to the Noteholders in accordance with the Terms
and Conditions.
23. Notices
-------
All notices hereunder shall be deemed to have been given when
deposited in the mail as first class mail, registered or certified, return
receipt requested, postage prepaid, addressed to any party hereto as follows:
17
Address
-------
The Corporation: Bank of America Corporation
Bank of America Corporate Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 28255-0065
Attn: Corporate Treasury
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Bank of America Corporation
Bank of America Corporate Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Legal Department
NC1-007-56-11
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
General Counsel
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
The Bank: Bank of America, N.A.
Bank of America Corporate Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Corporate Treasury
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
18
with a copy to:
Bank of America Corporation
Bank of America Corporate Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Legal Department
NC1-007-56-11
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
General Counsel
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
The Agent: The Chase Manhattan Bank
Trinity Tower
9 ▇▇▇▇▇▇ ▇▇▇▇ Street
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attn: Manager, Institutional Trust Services
Telecopy: 44-1202-34-7601
The Paying Agent: Chase Manhattan Bank Luxembourg S.A.
▇ ▇▇▇ ▇▇▇▇▇▇▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ - ▇▇▇▇▇
Attn: Manager, Corporate Trust Operations
Telecopy: ▇▇▇-▇▇▇▇▇▇-▇▇▇
with a copy to:
Bank of America Corporation
Bank of America Corporate Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Legal Department
NC1-007-56-11
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
General Counsel
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
or at any other address of which any of the foregoing shall have notified the
others in writing.
(1) if delivered in person to the relevant address specified in
the signature pages hereof and if so delivered, shall be deemed to have been
delivered at the time of receipt; or
(2) if sent by facsimile or telex to the relevant number specified
on the signature pages hereof and, if so sent, shall be deemed to have been
delivered immediately after transmission provided such transmission is
confirmed by the answerback of the recipient (in the case of telex) or when an
acknowledgment of receipt is received (in the case of facsimile).
19
Where a communication is received after business hours it shall be deemed to be
received and become effective on the next business day. Every communication
shall be irrevocable save in respect of any manifest error therein.
24. Taxes and Stamp Duties
----------------------
The Issuers agree to pay any and all stamp and other documentary taxes
or duties which may be payable in connection with the execution, delivery,
performance and enforcement of this Agreement.
25. Commissions, Fees and Expenses
------------------------------
(1) The Issuers undertake to pay in respect of the services of the
Agent and the Paying Agents under this Agreement such fees and expenses as may
be agreed between them from time to time, the initial such fees being set out
in a letter of even date herewith from the Agent to, and countersigned by, the
Issuers.
(2) The Issuers will promptly pay on demand all reasonable out-of-
pocket expenses (including legal, advertising, facsimile, telex and postage
expenses) properly incurred by the Agent and the Paying Agents in connection
with their services hereunder, including, without limitation, the expenses
contemplated in Clause 24.
26. Indemnity
---------
(1) The relevant Issuer (or Issuers, as the case may be) undertakes
to indemnify and hold harmless each of the Agent and the Paying Agents against
all losses, liabilities, costs (including, without limitation, legal fees and
expenses), expenses, claims, actions or demands which the Agent or any Paying
Agent, as the case may be, may reasonably incur or which may be made against
the Agent or any Paying Agent, as a result of or in connection with the
appointment or the exercise of or performance of the powers, discretions,
authorities and duties of the Agent or any Paying Agent under this Agreement
except such as may result from its own gross negligence, bad faith or failure
to comply with its obligations hereunder or that of its officers, employees or
agents.
(2) Each of the Agent and the Paying Agents shall severally
indemnify and hold harmless the relevant Issuer (or Issuers, as the case
may be) against any loss, liability, costs (including, without limitation,
legal fees and expenses), expense, claim, action or demand which it may
reasonably incur or which may be made against it as a result of such Agent's or
Paying Agent's own negligence, bad faith or material failure to comply with its
obligations under this Agreement or that of its officers, employees or agents.
(3) If, under any applicable law and whether pursuant to a judgment
being made or registered or in the liquidation, insolvency or analogous process
of any party hereto or for any other reason, any payment under or in connection
with this Agreement is made or fails to be satisfied in a currency (the "Other
Currency") other than that in which the relevant payment is expressed to be due
(the "Required Currency") under this Agreement, then, to the extent that the
payment (when converted into the Required Currency at the rate of exchange on
the date of payment or, if it is not practicable for the payee to purchase the
Required Currency with the Other Currency on the date of payment, at the rate of
exchange as soon thereafter as it is practicable for it to do so or, in the
case of a liquidation, insolvency or analogous process, at the rate of exchange
on the latest date permitted by applicable law for the determination of
liabilities in such liquidation, insolvency or analogous process) actually
received by the payee falls short of the amount due under the terms of this
Agreement, the payor shall, as a separate and independent obligation, indemnify
and hold harmless the payee against the amount of such shortfall. For the
purpose of this Clause 26, "rate of exchange" means the rate at which the payee
is able on the relevant date to purchase the Required Currency with the Other
Currency and shall take into account any premium and other costs of exchange.
27. Reporting
---------
(1) The Agent shall upon receipt of a written request therefor from
an Issuer and after the payment of any further remuneration agreed between such
Issuers and the Agent (on behalf of such Issuers and on the basis of the
information and documentation the Agent had in its possession) use all
reasonable efforts to submit such reports or information as may be required
from time to time by any applicable law, regulation or guideline
20
promulgated by (i) any relevant United States governmental regulatory authority
in respect of the issue and purchase of Notes or (ii) any other relevant
governmental regulatory authority in respect of the issue and purchase of Notes
denominated in the applicable currency of such governmental regulatory
authority.
(2) The Agent will notify the MoF of such details relating to Yen
Notes and provide such other information about the Program to the MoF as may be
required.
(3) The Agent will notify the German Bundesbank of such details
relating to DM-denominated Notes issued during the month in question and
provide such other information about the Program to the German Bundesbank as
may be required.
(4) The Agent will notify the Bank of England of such details
relating to Sterling Notes and provide such other information about the Program
to the Bank of England as may be required.
28. Governing Law
-------------
(1) This Agreement, the Notes, and any Receipts, Coupons or Talons
appertaining thereto shall be governed by and construed in accordance with the
laws of the State of New York, United States of America, without regard to
principles of conflicts of laws.
(2) The Issuers and the Agent each hereby irrevocably submit to the
non-exclusive jurisdiction of any United States federal court sitting in New
York City, the Borough of Manhattan over any suit, action or proceeding arising
out of or related to this Agreement, any Note, Receipt, Coupon or Talon, as the
case may be (together, the "Proceedings"). The Issuers and the Agent each
irrevocably waive, to the fullest extent permitted by law, any objection which
it may have to the laying of the venue of the Proceedings brought in such a
court and any claim that the Proceedings have been brought in an inconvenient
forum. The Issuers and the Agent each agree that final judgment in the
Proceedings brought in such a court shall be conclusive and binding upon the
Issuers or the Agent, as the case may be, and may be enforced in any court of
the jurisdiction to which the relevant Issuer (or Issuers, as the case may be)
or the Agent is subject by a suit upon such judgment, provided that the service
--------
of process is effected upon such Issuers and the Agent in the manner specified
in subsection (3) below or as otherwise permitted by law.
(3) As long as any of the Notes, Receipts, Coupons or Talons
remains outstanding, the relevant Issuer shall at all times either maintain an
office or have an authorized agent in New York City upon whom process may be
served in the Proceedings. Service of process upon either Issuer at its offices
or upon such agent with written notice of such service mailed or delivered to
the relevant Issuer shall, to the fullest extent permitted by law, be deemed in
every respect effective service of process upon such Issuer in the Proceedings.
Each Issuer hereby appoints CT Corporation System located at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as its agent for such purposes, and covenants and agrees
that service of process in the Proceedings may be made upon it at its office or
at the specified offices of such agent (or such other addresses or at the
offices of any other authorized agents which the relevant Issuer may designate
by written notice to the Agent) and prior to any termination of such agencies
for any reason, it will so appoint a successor thereto as agent hereunder.
29. Amendments
----------
Without the consent of the Noteholders, Receiptholders or Couponholders,
the Agent and the Issuers may agree to modifications of or amendments to this
Agreement, the Notes, the Receipts or the Coupons for any of the following
purposes:
(A) to evidence the succession of another entity to an Issuer and
the assumption by any such successor of the covenants of such Issuer in this
Agreement, the Notes, Receipts or Coupons;
(B) to add to the covenants of an Issuer for the benefit of the
Noteholders, the Receiptholders or the Couponholders, or to surrender any right
or power herein conferred upon such Issuer;
21
(C) to relax or eliminate the restrictions on payment of principal
and interest in respect of the Notes, Receipts or Coupons in the United States,
provided that such payment is permitted by United States tax laws and
regulations then in effect and provided that no adverse tax consequences would
result to the Noteholders, the Receiptholders or the Couponholders;
(D) to cure any ambiguity, to correct or supplement any defective
provision herein or any provision which may be inconsistent with any other
provision herein;
(E) to make any other provisions with respect to matters or
questions arising under the Notes, the Receipts, the Coupons or this Agreement,
provided such action pursuant to this sub-clause (E) shall not adversely affect
the interests of the Noteholders, the Receiptholders or the Couponholders;
(F) to authorize or facilitate the issuance of Notes in registered
form;
(G) to facilitate the issuance of Notes in accordance with the laws
of a particular country; and
(H) to permit further issuances of Notes in accordance with the
terms of the Program Agreement.
Any such modification or amendment shall be binding on the Noteholders,
the Receiptholders and the Couponholders and any such modification or amendment
shall be notified to the Noteholders, the Receiptholders or the Couponholders
in accordance with Condition 13 as soon as practicable thereafter.
30. Descriptive Headings
--------------------
The descriptive headings in this Agreement are for convenience of
reference only and shall not define or limit the provisions hereof.
31. Counterparts
------------
This Agreement may be executed in any number of counterparts, all of
which shall constitute one and the same instrument. Any party may enter into
this Agreement by signing such a counterpart.
22
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their respective corporate names by their respective officers
thereunder duly authorized as of the date and year first above written.
BANK OF AMERICA CORPORATION
as Issuer
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
BANK OF AMERICA, N.A.
as Issuer
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
THE CHASE MANHATTAN BANK,
LONDON BRANCH
as Agent and
Principal Paying Agent
By /s/ ▇. ▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇. ▇▇▇▇▇▇▇
Title: Authorized Signatory
CHASE MANHATTAN BANK LUXEMBOURG S.A.
as Paying Agent
By /s/ ▇. ▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇. ▇▇▇▇▇▇▇
Title: Authorized Signatory
23