Exhibit 4(l)
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AMENDED AND RESTATED
AGENCY AGREEMENT
RELATING TO
BANK OF AMERICA CORPORATION
and
BANK OF AMERICA, ▇.▇.
▇.▇. $15,000,000,000
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 30, 1999
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INDEX
Clause Page
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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..................................................................10
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..................................................................................14
17. Conditions of Appointment...............................................................................14
18. Communication Between the Parties.......................................................................15
19. Changes in Agent and Paying Agents......................................................................15
20. Merger and Consolidation................................................................................17
21. Notification of Changes to Paying Agents................................................................17
22. Change of Specified Office..............................................................................17
23. Notices.................................................................................................17
24. Taxes and Stamp Duties..................................................................................19
25. Commissions, Fees and Expenses..........................................................................19
26. Indemnity...............................................................................................19
27. Reporting...............................................................................................20
28. Governing Law...........................................................................................20
29. Amendments..............................................................................................20
30. Descriptive Headings....................................................................................21
31. Counterparts............................................................................................21
Schedule 1 - Form of Temporary Global Note
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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 Cedelbank
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Schedule 6 - Form of Certificate of Beneficial Owner
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Schedule 7 - Provision for Meetings of Noteholders
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Schedule 8 - Form of Put Notice
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Schedule 9 - Form of Calculation Agency Agreement
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i
THIS AMENDED AND RESTATED AGENCY AGREEMENT dated as of July 30, 1999 among:
(i) Bank of America Corporation, a Delaware corporation
(the "Corporation"), and Bank of America, N.A., a
national banking association and the successor in
interest to NationsBank, N.A., (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 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 November 16, 1998 (the
"Original Agency Agreement").
WHEREAS, the Issuers propose to issue up to U.S.
$10,000,000,000 with respect to the Corporation and $5,000,000,000 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 Arrangers 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 relevant Pricing Supplement issued in connection with each Series and
each Tranche of Notes;
WHEREAS, beneficial interests in each Tranche of Notes will
initially be represented by a Temporary Global Note, exchangeable, as provided
in such Temporary Global Note, for beneficial interests in a Permanent Global
Note and, only under limited circumstances, beneficial interests in a Global
Note may be exchangeable for Definitive Notes, in each case in accordance with
the terms of the Global Notes; and
NOW, THEREFORE, it is agreed as follows:
1. DEFINITIONS AND INTERPRETATION
(1) Terms and expressions defined in the Program Agreement or
the Notes or used in the applicable Pricing Supplement shall have the same
meanings in this Agreement, except where the context requires otherwise.
(2) Without prejudice to the foregoing in this Agreement:
"outstanding" means, in relation to the Notes, all the Notes
issued other than (a) those which have been redeemed in accordance with the
Terms and Conditions, (b) those in respect of which the date for redemption in
accordance with the Terms and Conditions has occurred and the redemption moneys
(including all interest accrued on such Notes to the date for such redemption
and any interest or other amounts payable under the Terms and Conditions after
such date) have been duly paid to the Agent as provided in this Agreement and
remain available for payment against presentation and surrender of Notes and/or
Receipts and/or Coupons, as the case may be, (c) those which have become void
under Condition 8, (d) those which have been purchased and canceled as provided
in Condition 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
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case pursuant to their respective provisions; provided that for the purposes of
(i) ascertaining the right to attend and vote at any meeting of the Noteholders
and (ii) the determination of how many Notes are outstanding for the purposes of
Schedule 7, those Notes which are beneficially held by, or are held on behalf
of, 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 Permanent Global Note, the Definitive Notes and the Coupons and, as the case
may be, the Temporary Global Note. The term "Global Note" as used in this
Agreement shall include both the Temporary Global Note and the Permanent Global
Note, each of which is a "Global Note." The term "Noteholders" as used in this
Agreement shall mean the several persons who are for the time being the holders
of the Notes, which expression, 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
Euroclear (as defined below) or Cedelbank (as defined below) (other than
Cedelbank, if Cedelbank shall be an accountholder of Euroclear, and Euroclear,
if Euroclear shall be an accountholder of Cedelbank) as the Noteholders of
particular principal amounts of Notes (in which regard any certificate or other
document issued by Euroclear or Cedelbank 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 Cedelbank 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 appoint The Chase Manhattan Bank,
London Branch, as agent, and The Chase Manhattan Bank, London Branch, hereby
accepts 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 Cedelbank
relating to the certificates of non-U.S. beneficial ownership
of the Notes; and
(k) performing all other obligations and duties
imposed upon it by the Terms and Conditions and this
Agreement.
(2) The relevant Issuer may, in its discretion, appoint one or
more agents outside the United States and its possessions (each a "Paying
Agent") for the payment (subject to applicable laws and regulations) of the
principal of and any interest and Additional Amounts, if any, (as defined in
Section 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. 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 Cedelbank 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 Cedelbank and to instruct
Euroclear or Cedelbank 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 and ISIN by Euroclear and Cedelbank
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 (a) of that sub-clause; 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 Cedelbank with the
notifications, instructions or other information to be given by the Agent to
Euroclear and/or Cedelbank in accordance with the standard procedures of
Euroclear and/or Cedelbank.
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 Cedelbank.
(b) The Agent shall deliver, upon notice from
Euroclear or Cedelbank, a Permanent Global Note or Definitive
Notes, as the case may be, in accordance with the terms of the
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Temporary Global Note. Upon any such exchange of a portion of
a Temporary Global Note for an interest in a Permanent Global
Note the Agent is hereby authorized on behalf of the 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 Cedelbank 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
Cedelbank; 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 Cedelbank has been closed
for business for a continuous period of 14 days (other than by reason of
holiday, statutory or otherwise) after the original issuance of the Notes or has
announced an intention permanently to cease business or has in fact done so and
no alternative clearance system approved by the Noteholders is available, or
(iii) the relevant Issuer, after notice to the Agent, determines to issue
5
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 Cedelbank in exchange for such
Global Note.
The Agent shall notify the relevant Issuer forthwith upon receipt of a request
for issue of (a) Definitive Note(s) in accordance with the provisions of a
Global Note and this Agreement (and the aggregate principal amount of such
Temporary Global Note or Permanent Global Note, as the case may be, to be
exchanged in connection therewith).
(2) The 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, unless notified as aforesaid, be 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 Cedelbank) after such Issue Date,
6
the Agent will continue to hold the Defaulted Note pursuant to the order of the
relevant Issuer. The 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 in Charlotte, North Carolina; and
(b) in relation to a payment to be made in a
Specified Currency, a day on which commercial banks and
foreign exchange markets settle payments in the principal
financial center of the country of the relevant Specified
Currency (if other than London).
(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 Cedelbank 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), 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.
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(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 the corresponding
payment by the relevant Issuer has been or will be made and such payment has in
fact not been so 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. On the
occasion of any such payment the Paying Agent to which any Global Note was
presented for the purpose of making such payment shall cause the appropriate
Schedule to the relevant Global Note to be annotated so as to evidence the
amounts and dates of such payments of principal and/or interest as applicable.
(10) If 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.
(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
8
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; and
(B) the U.S. Dollar equivalent of Dual Currency Notes
and Indexed Notes shall be calculated in the manner specified
above by reference to the original nominal amount of such
Notes; and
(C) the U.S. Dollar equivalent of Zero Coupon Notes
and other Notes issued at a discount 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")); or
(B) the arithmetic mean (rounded if necessary to the
fifth decimal place, with 0.000005 being rounded upwards) of
the offered quotations,
(expressed as a percentage rate per annum), for the reference rate ("Reference
Rate") which appears or appear, as the case may be, on the Relevant Screen Page
at approximately 11:00 a.m. (London time) on the interest determination date
("Interest Determination Date") in question plus or minus (as indicated in the
applicable Pricing Supplement) the Margin (if any), all as determined by the
Calculation Agent. If five or more such offered quotations are available on the
Relevant Screen Page, the highest (or, if there is more than one such highest
quotation, one only of such quotations) and the lowest (or, if there is more
than one such lowest quotation, one only of such quotations)
9
shall be disregarded by the Calculation Agent for the purpose of determining the
arithmetic mean (rounded as provided above) of such offered quotations.
(2) If the Relevant Screen Page is not available or if, in the
case of sub-clause (b)(1)(A) above, no such offered quotation appears or, in the
case of sub-clause (b)(1)(B) above, fewer than three such offered quotations
appear, in each case as at the time specified in the preceding paragraph, the
Calculation Agent shall at its sole discretion request the principal London
office of each of the Reference Banks (defined below) to provide the Calculation
Agent with its offered quotation (expressed as a percentage rate per annum) for
deposits in the Specified Currency for the relevant Interest Period to leading
banks in the London inter-bank market at approximately 11:00 a.m. (London time)
on the Interest Determination Date in question. If two or more of the Reference
Banks provide the Calculation Agent with such offered quotations, the Rate of
Interest for such Interest Period shall be the arithmetic mean (rounded if
necessary to the fifth decimal place with 0.000005 being rounded upwards) of
such offered quotations plus or minus (as appropriate) the Margin (if any), all
as determined by the Calculation Agent.
(3) If on any Interest Determination Date one only or none of
the Reference Banks provides the Calculation Agent with such offered quotations
as provided in the preceding paragraph, the Rate of Interest for the relevant
Interest Period shall be the rate per annum which the Calculation Agent
determines as being the arithmetic mean (rounded if necessary to the fifth
decimal place, with 0.000005 being rounded upwards) of the rates, as
communicated to (and at the request of) the Calculation Agent by the Reference
Banks or any two or more of them, at which such banks offered, at approximately
11:00 a.m. (London time) on the relevant Interest Determination Date, deposits
in the Specified Currency for the relevant Interest Period by leading banks in
the London inter-bank market plus or minus (as appropriate) the Margin (if any).
If fewer than two of the Reference Banks provide the Calculation Agent with such
offered quotations, the Rate of Interest shall be the offered quotation for
deposits in the Specified Currency for the relevant Interest Period, or the
arithmetic mean (rounded as provided above) of the offered quotations for
deposits in the Specified Currency for the relevant Interest Period, at which,
at approximately 11:00 a.m. (London time) on the relevant Interest Determination
Date, any one or more banks informs the Calculation Agent it is quoting to
leading banks in the London inter-bank market plus or minus (as appropriate) the
Margin (if any), provided that, if the Rate of Interest cannot be determined in
accordance with the foregoing provisions of this paragraph, the Rate of Interest
shall be determined as at the last preceding Interest Determination Date (though
substituting, where a different Margin is to be applied to the relevant Interest
Period from that which applied to the last preceding Interest Period, the Margin
relating to the relevant Interest Period, in place of the Margin relating to
that last preceding Interest Period).
(4) If the Reference Rate from time to time in respect of
Floating Rate Notes is specified in the applicable Pricing Supplement as being
other than the London inter-bank offered rate, the Rate of Interest in respect
of such Notes will be determined as provided in the applicable Pricing
Supplement.
In this Clause 8, the 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.
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 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
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 to the Noteholders in
accordance with the Terms and Conditions of such redemption in order to enable
the Agent to undertake its obligations herein and in the Terms and Conditions.
(2) If only some of the Notes of like tenor and of the same
Series are to be redeemed on such date, the Agent shall make the required
drawing in accordance with the Terms and Conditions but shall give the 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 Cedelbank. Notice of any partial redemption
and, when there are Definitive Notes outstanding, of the serial numbers of the
Notes so drawn, will be given by the Agent to the Noteholders in accordance with
the terms of the Notes and this Agreement.
(3) The Agent shall publish the notice on behalf of and at the
expense of the relevant Issuer required in connection with any such redemption
and shall at the same time also publish a separate list of the serial numbers of
any Notes previously drawn and not presented for redemption. Such notice shall
specify the date fixed for redemption, the redemption amount, the manner in
which redemption will be effected and, in the case of a partial redemption, the
serial numbers of the Notes to be redeemed. Such notice will be published in
accordance with the Terms and Conditions. The Agent will also notify the other
Paying 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 holders of Notes, the Terms and Conditions of which
provide for redemption at the option of Noteholders. Upon receipt of any Note
deposited in the exercise of such option in accordance with the Terms and
Conditions, the Paying Agent with which such Note is deposited shall hold such
Note (together with any Coupons, if any, relating to it and deposited with it)
on behalf of the depositing Noteholder (but shall not, save as provided below,
release it) until the due date for redemption of the relevant Note consequent
upon the exercise of such option, when, subject as provided below, it shall
present such Note (and any such Coupons, if any) to itself for payment of the
amount due thereon together with any interest due on such date in accordance
with the Terms and Conditions and shall pay such moneys in accordance with the
directions of the Noteholder contained in the Put Notice. If, prior to such due
date for its redemption, such Note becomes immediately due and payable or if
upon due presentation payment of such redemption moneys is improperly withheld
or refused, the Paying Agent concerned shall post such Note (together with any
such Coupons, if any) by uninsured post to, and at the risk of, the relevant
Noteholder unless the Noteholder has otherwise requested and paid the costs of
such insurance to the relevant Paying Agent at the time of depositing the Notes
at such address as may have been given by the Noteholder in the Put Notice. At
the end of each period for the exercise of such option, each Paying Agent shall
promptly notify the Agent of the principal amount of the Notes in respect of
which such option has been exercised with it together with their serial numbers
and the Agent shall promptly notify such details to the 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:
(i) the organizational documents of the Issuers;
(ii) 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, 1996, December 31, 1997 and
December 31, 1998 and the publicly available portions of the
Call Reports with respect to the Bank beginning with the
period ending December 31, 1998;
(iii) the Program Agreement and this Agreement;
(iv) the Offering Circular; and
(v) any future offering circulars, information
memoranda and supplements (except that a Pricing Supplement
relating to any unlisted Note will only be available for
inspection by a holder of such Note and such holder must
produce evidence satisfactory to the Paying Agent as to
ownership) to the Offering Circular and any other documents
incorporated therein by reference and in the case of a
syndicated issue of listed Notes, the syndication agreement
(or equivalent 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
14
(b) as provided in sub-clause (2) below; and
(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, concerned 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:
15
(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;
(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
shall only take effect (other than in the case of insolvency (as provided in
sub-clause (5)), when it shall be of immediate effect) after not less than 30
nor more than 45 days' prior notice thereof shall have been given to the
Noteholders in accordance with the Terms and Conditions.
(2) The Agent may (subject as provided in sub-clause (4)) at
any time resign as Agent by giving at least 90 days' written notice to the
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
16
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.
(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 corporation into which the Agent or any Paying Agent may
be merged or converted, or any corporation with which the Agent or any of the
Paying Agents may be consolidated or any corporation resulting from any merger,
conversion or consolidation to which the Agent or any of the Paying Agents shall
be a party, or any corporation to which the Agent or any of the Paying Agents
shall sell or otherwise transfer all or substantially all the assets of the
Agent or any Paying Agent shall, on the date when such merger, conversion,
consolidation or transfer becomes effective and to the extent permitted by any
applicable laws, become the successor Agent or, as the case may be, Paying Agent
under this Agreement without the execution or filing of any paper or any further
act on the part of the parties hereto, unless otherwise required by the 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 corporation. Written notice of any such merger, conversion, consolidation
or transfer shall forthwith 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
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All notices hereunder shall be deemed to have been given when
deposited in the mail as first class mail, registered or certified, return
receipt requested, postage prepaid, addressed to any party hereto as follows:
Address
-------
The Corporation: Bank of America Corporation
Bank of America Corporate Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 28255-0065
Attn: ▇▇▇▇ ▇. ▇▇▇▇
Senior Vice President
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: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Senior Vice President
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
The Agent: The Chase Manhattan Bank, London Branch
Trinity Tower
9 ▇▇▇▇▇▇ ▇▇▇▇ Street
▇▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attn: Manager, Corporate Trust Operations
Telecopy: ▇▇-▇▇▇▇-▇▇▇▇▇▇
The Paying Agent: Chase Manhattan Bank Luxembourg S.A.
▇ ▇▇▇ ▇▇▇▇▇▇▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ - ▇▇▇▇▇
Attn: Manager, Corporate Trust Operations
Telecopy: ▇▇▇-▇▇▇▇▇▇-▇▇▇
or at any other address of which any of the foregoing shall have notified the
others in writing.
(a) if delivered in person to the relevant address
specified in the signature pages hereof and if so delivered,
shall be deemed to have been delivered at the time of receipt;
or
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(b) if sent by facsimile or telex to the relevant
number specified on the signature pages hereof and, if so
sent, shall be deemed to have been delivered immediately after
transmission provided such transmission is confirmed by the
answerback of the recipient (in the case of telex) or when an
acknowledgment of receipt is received (in the case of
facsimile).
Where a communication is received after business hours it
shall be deemed to be received and become effective on the next business day.
Every communication shall be irrevocable save in respect of any manifest error
therein.
24. TAXES AND STAMP DUTIES
The 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 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
19
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 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
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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:
(i) to evidence the succession of another corporation to
an Issuer and the assumption by any such successor of
the covenants of such Issuer in this Agreement, the
Notes, Receipts or Coupons;
(ii) 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;
(iii) to relax or eliminate the restrictions on payment of
principal and interest in respect of the Notes,
Receipts or Coupons in the United States, provided
that such payment is permitted by United States tax
laws and regulations then in effect and provided that
no adverse tax consequences would result to the
Noteholders, the Receiptholders or the Couponholders;
(iv) to cure any ambiguity, to correct or supplement any
defective provision herein or any provision which may
be inconsistent with any other provision herein;
(v) to make any other provisions with respect to matters
or questions arising under the Notes, the Receipts,
the Coupons or this Agreement, provided such action
pursuant to this sub-clause (v) shall not adversely
affect the interests of the Noteholders, the
Receiptholders or the Couponholders; and
(vi) permit further issuances of Notes in accordance with
the terms of 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.
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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: Vice President
CHASE MANHATTAN BANK LUXEMBOURG S.A.
as Paying Agent
By /S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
22