Exhibit 4(m)
AMENDED AND RESTATED
ISSUING AND PAYING AGENCY AGREEMENT
between
BANK OF AMERICA, N.A.,
as Issuer
and
BANKERS TRUST COMPANY,
as Issuing and Paying Agent,
Dated as of July 30, 1999
---------------------------
SHORT-TERM AND MEDIUM-TERM NOTES
Due 7 Days or More From Date of Issue
Table of Contents
Page
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SECTION 1. Definitions 1
SECTION 2. Appointment of Agents 6
(a) Issuing and Paying Agent 6
(b) Selling Agents 7
(c) Registrar 7
(d) Transfer Agents 7
(e) Calculation Agents 8
SECTION 3. The Notes 8
(a) Note Form; Signature 8
(b) Denominations 10
(c) Completion of Notes 11
(d) Date 11
(e) Certificate of Authentication 11
(f) Original Issue Discount Notes 11
(g) Custody of Notes 11
(h) Certificated Notes 11
SECTION 4. Authorized Representatives 11
SECTION 5. Completion, Authentication and Delivery of Notes 12
SECTION 6. Procedure Upon Sale of the Notes 15
SECTION 7. Payment of Interest; Actions on Days Other than Business Days 15
SECTION 8. Payment of Principal 16
SECTION 9. Designation of Accounts to Receive Payment 16
SECTION 10. Information Regarding Amounts Due 17
SECTION 11. Specified Currency Notes 17
SECTION 12. Deposit of Funds 17
SECTION 13. Optional Redemption 17
(a) Optional Redemption 17
(b) Optional Repayment 18
(c) Optional Extension of Maturity 18
(d) Optional Renewal 19
SECTION 14. Events of Default 20
SECTION 15. Registration; Transfer 21
SECTION 16. Persons Deemed Owners 22
SECTION 17. Mutilated, Lost, Stolen or Destroyed Notes 22
SECTION 18. Return of Unclaimed Funds 23
SECTION 19. Amendment or Supplement 23
SECTION 20. Resignation or Removal of Agents; Appointment
of Successors to Agents 24
(a) Resignation or Removal of Agent 24
(b) Appointment of Successor to Agent 25
(c) Successor of Agent 25
(d) Merger, Etc. of Agent 26
(e) Change in Duties of an Agent 26
(f) Additional Agents 26
SECTION 21. Reliance on Instructions 26
SECTION 22. Cancellation of Unissued Notes 26
SECTION 23. Representation and Warranties of the Issuer;
Instructions by Certificate 26
SECTION 24. Fees 27
SECTION 25. Notices 27
SECTION 26. Information Furnished by the Issuing and Paying Agent 28
SECTION 27. Liability 29
SECTION 28. Additional Responsibilities; Attorneys Fees 29
SECTION 29. Transfer of Notes and Moneys 29
SECTION 30. Indemnity 30
SECTION 31. Limitation of Liability; Reliance on Opinions and Certificates 31
SECTION 32. Benefit of Agreement 31
SECTION 33. Governing Law 32
SECTION 34. Headings and Table of Contents 32
SECTION 35. Counterparts 32
SECTION 36. Termination of Prior Issuing and Paying Agent Agreements 32
EXHIBIT A Forms of DTC Letters of Representations 34
EXHIBIT B Administrative Procedures 35
EXHIBIT C Form of Face of Fixed Rate Note 36
EXHIBIT D Form of Face of Floating Rate Note 37
EXHIBIT E Form of Face of Indexed Note
EXHIBIT F Form of Legend for Original Issue Discount Notes 38
EXHIBIT G Bank of America, N.A. Authorized Representatives 39
EXHIBIT H Form of Issuing and Paying Agent's Officer's
Certificate Referencing Authorized Representatives 40
BANK OF AMERICA, N.A.
SHORT-TERM AND MEDIUM-TERM NOTES
AMENDED AND RESTATED
ISSUING AND PAYING AGENCY AGREEMENT
-----------------------------------
AMENDED AND RESTATED ISSUING AND PAYING AGENCY AGREEMENT dated as of
July 30, 1999 between BANK OF AMERICA, N.A., a national banking association
organized under the laws of the United States, as Issuer and as successor to
NationsBank, N.A., and BANKERS TRUST COMPANY, a New York banking corporation, as
Issuing and Paying Agent, amending and restating that certain Issuing and Paying
Agency Agreement dated as of May 19, 1998, between NationsBank, N.A., and
Bankers Trust Company.
SECTION 1 DEFINITIONS. Except as otherwise expressly provided herein or
in the applicable Note or unless the context otherwise requires: (1) the words
and phrases with initial capitals used herein have the meanings specified in
this Section; and (2) the words "herein," "hereof" and "hereunder" and other
words of similar impact refer to this Issuing and Paying Agency Agreement as a
whole and not to any particular section or other subdivision. Capitalized terms
used herein but not otherwise defined herein shall have the same meaning and
intention specified therefor in the applicable Note.
ADDITIONAL RESPONSIBILITIES - Has the meaning given such term in
Section 28.
ADMINISTRATIVE PROCEDURES - The Administrative Procedures applicable to
the Notes, as set forth in Exhibit B hereto.
AGENT OR AGENTS - Any of the Issuing and Paying Agent, any paying agent
or the Registrar, as the context indicates.
AGREEMENT - This Issuing and Paying Agency Agreement, including the
exhibits hereto, as amended or supplemented from time to time.
AMORTIZING NOTE - Any Note the terms of which provide for the payment
of Principal thereof and interest thereon on each Interest Payment Date and the
Stated Maturity thereof.
AUTHORIZED DENOMINATION - Has the meaning given such term in Section 3
(b)
AUTHORIZED REPRESENTATIVE - With respect to the Issuer, any duly
authorized representative of the Issuer as set forth in Exhibit F hereto, and
any other representative of the Issuer as to which the Issuer may hereafter
certify in writing to the Issuing and Paying Agent.
BUSINESS DAY - Unless otherwise specified in a Pricing Supplement
relating to a particular Note, with respect to any Note issued by the Issuer,
any day that is not a Saturday or Sunday and that is not a day on which banking
institutions in The City of New York, New York or Charlotte, North Carolina (or,
if the Issuing and Paying Agent is other than Bankers Trust Company, the city in
which such successor Issuing and Paying Agent's principal office is located) are
generally authorized or obligated by law to close. With respect to LIBOR Notes
(as described herein), "Business Day" means London Business Day. If a particular
Note is
denominated in or indexed to a Specified Currency other than U.S. dollars,
"Business Day" means any day that is not a Saturday or Sunday and that is not a
day on which banking institutions in The City of New York or Charlotte, North
Carolina and the principal financial center of the country issuing the Specified
Currency are generally authorized or obligated by law or regulation to close and
is a day on which banking institutions in such principal financial center are
carrying out transactions in such Specified Currency and, if such Note is
denominated in euros, is a day on which the Trans-European Automated Real-Time
Gross Settlement Express Transfer (TARGET) System is open.
CALCULATION AGENT - With respect to Notes issued by the Issuer, such
person appointed by the Issuer to calculate the interest rates applicable to
Floating Rate Notes or certain other Notes, and for certain related matters, as
more fully described in Section 2 (e).
CERTIFICATE OF AUTHENTICATION - Has the meaning given such term in
Section 3 (e).
CERTIFICATED NOTES - Any Notes issued in fully registered, certificated
form.
COMPONENTS - Has the meaning given such term in Section 11(d).
DEPOSITARY - With respect to Notes issued in the form of one or more
Global Notes, the Person designated as Depositary by the Issuer thereof pursuant
hereto, which Depositary at all times shall be a trust company validly existing
and in good standing (at the time of its appointment) under the laws of the
United States or any state thereof and shall be a clearing agency duly
registered under the Securities Exchange Act.
DISTRIBUTION AGREEMENT - The Amended and Restated Distribution
Agreement, dated as of July 30, 1999, among the Issuer, Banc of America
Securities LLC, Credit Suisse First Boston Corporation, ▇▇▇▇▇▇ Brothers Inc.
(including its affiliate ▇▇▇▇▇▇ Commercial Paper Inc.), ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.,
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., as amended and supplemented from
time to time.
DTC - The Depository Trust Company or its successors and assigns.
EVENT OF DEFAULT - Has the meaning given such term in Section 14.
EXTENSION NOTICE - The notice to be provided to Holders of Notes the
Stated Maturity of which is extended by the Issuer as provided in Section 13(c)
hereof.
EXTENSION PERIOD(S) - The period or periods, by which the Issuer may
extend the Stated Maturity of Notes which provide for such extension, as
described more fully in Section 13(c) hereof.
FINAL MATURITY DATE - The latest date designated on the face of a Note
which provides for the maturity thereof.
FIXED RATE NOTES - Any Notes bearing interest at fixed rates and
substantially in the form of Exhibit C hereto.
FLOATING RATE NOTES - Any Notes bearing interest at a variable rate or
rates determined by reference to an interest rate formula, which may be adjusted
by adding or subtracting a number of basis points or "spread" specified by the
Issuer on the related Floating Rate Note as being applicable to such Floating
Rate Note and/or by multiplying a percentage or "spread multiplier" specified by
the Issuer thereof on the related Floating Rate Note as being applicable to such
Floating Rate Note and substantially in the form of Exhibit D.
GLOBAL NOTE - A Note, in the form provided by Section 3(a), issued to
the Depositary or its nominee, and registered in the Register in the name of the
Depositary or its nominee.
HOLDER - Means the person in whose name a Note is registered in the
Register.
INDEXED NOTES- Any Notes pursuant to which the amount of principal,
premium, if any, or interest payable is to be determined with reference to one
or more specified commodities or loans or stocks or other securities, or any
combination or basket of the foregoing, or the exchange rate of one or more
specified currencies (including composite currencies), or another index, formula
or other method and substantially in the form of Exhibit E.
INITIAL MATURITY DATE - Has the meaning given such term in Section
13(d).
INITIAL REDEMPTION DATE - With respect to a Note that is subject to an
Optional Redemption, the date specified as the Initial Redemption Date on such
Note and after which, but prior to the Stated Maturity, an Optional Redemption
of such Note may occur as specified in such Note.
INITIAL RENEWAL DATE - Has the meaning given such term in Section
13(d).
INTEREST PAYMENT DATE - A date for payment of interest on a Note, as
provided in the Note.
ISSUER - Bank of America, N.A., a national banking association, and its
successors and assigns is referred to herein as the "Issuer".
ISSUING AND PAYING AGENT - Bankers Trust Company, or any successor
Issuing and Paying Agent appointed in accordance with this Agreement under
Section 20 that has accepted such appointment hereunder.
LETTERS OF REPRESENTATIONS - The letters from the Issuing and Paying
Agent and Bank, as appropriate, to be furnished to DTC in accordance with
Section 2(a) hereof, substantially in the forms set forth in Exhibit A hereto.
LONDON BUSINESS DAY - Any day on which dealings in deposits in U.S.
dollars are transacted in the London inter-bank market.
NEW MATURITY DATE - Has the meaning given such term in Section 13(d).
NOTE OR NOTES - Any of the Issuer's Short-Term Notes or Medium-Term
Notes issued, authenticated and delivered under this Agreement.
OFFERING CIRCULAR - The Offering Circular of the Issuer relating to the
Notes dated July 30, 1999 as the same may be amended or supplemented from time
to time.
OFFICER'S CERTIFICATE - With respect to the Issuer, a certificate (i)
signed by the Chairman of the Board, the President, or any Executive Vice
President or Senior Vice President of the Issuer or such other persons as the
Issuer designates in an Officer's Certificate signed by the President or any
Vice President, and (ii) delivered to the Issuing and Paying Agent.
OPTIONAL REDEMPTION - A redemption of a Note on or after the date
designated on such Note as the Initial Redemption Date at the option of the
Issuer as set forth in such Note at a Redemption Price as set forth in such
Note.
ORIGINAL ISSUE DATE - As to any Note, the date on which such Note was
issued and the purchase price therefore was paid by the related Holder.
ORIGINAL ISSUE DISCOUNT NOTE - Any Note issued at an issue price
representing more than a de minimis discount from the principal amount payable
at its Stated Maturity for federal income tax purposes.
ORIGINAL STATED MATURITY - Has the meaning given such term in Section
13(c).
OUTSTANDING - For purposes of the provisions of this Agreement and the
Notes, any Note authenticated and delivered pursuant to this Agreement shall, as
of any date of determination, be deemed to be "Outstanding," except: (i) Notes
theretofore canceled or delivered to the Issuing and Paying Agent for
cancellation; (ii) Notes that have become due and payable on their Principal
Payment Date and with respect to which monies sufficient to pay the Principal or
Redemption Price thereof, as the case may be, and interest thereon shall have
been made available to the Issuing and Paying Agent; or (iii) Notes in lieu of
or in substitution for which other Notes shall have been authenticated and
delivered pursuant to this Agreement.
PAYMENT DATE - A date for payment of Principal of and interest on an
Amortizing Note as provided in the Note.
PERSON - Any legal person, including any individual, corporation,
limited liability company, partnership, joint venture, association, joint stock
company, trust, unincorporated organization or government or any agency,
instrumentality or political subdivision thereof.
PREDECESSOR NOTES - With respect to any particular Note, every previous
Note evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purpose of this definition, any Note authenticated
and delivered under Section 17 or the terms of a Note in lieu of or in exchange
for a mutilated, lost, destroyed, or stolen Note shall be deemed to evidence the
same debt as the mutilated, lost, destroyed or stolen Note, and any Note issued
upon registration of transfer of or in exchange for any other Note shall be
deemed to evidence all or a portion of the same debt evidenced by such other
Note.
PREPAYMENT OPTION DATES - If specified on the applicable Note, a date
or dates for prepayment of a Note prior to the Stated Maturity thereof at the
option of the Holder.
PREPAYMENT OPTION PRICE - The amount prepayable to a Holder on a
Prepayment Option Date together with any accrued interest to the Prepayment
Option Date, as and if specified above on the applicable Note.
PRICING SUPPLEMENT - A supplement to the Offering Circular for a
particular Note or Notes.
PRINCIPAL - The amount of a Note due and payable on the Stated Maturity
therefor or, in the case of an Amortizing Note, the "Amortized Face Amount" (as
specified in the Note).
PRINCIPAL OFFICE - Subject to the right of each to change its office,
by advance written notice to the Issuer, such term means, (1) for the Issuing
and Paying Agent, its principal corporate trust office at Four Albany Street,
4th floor, New York, New York 10006, Attention: Corporate Trust and Agency
Group; and (2) for any successor or additional Agents, their offices specified
in writing to the Issuer and the Issuing and Paying Agent.
PRINCIPAL PAYMENT DATE - The date provided on the face of the Note on
which the Principal, or Redemption Price of the Note, as the case may be,
becomes due and payable.
REDEMPTION PRICE - With respect to any Note subject to an Optional
Redemption, the amount specified in such Note as payable, when such Note is
redeemed on or after the Initial Redemption Date, pursuant to the related Note.
REGISTER - The register for the registration and transfer of the Notes
maintained by the Issuing and Paying Agent pursuant to Section 15 hereof.
REGISTRAR - Bankers Trust Company, or any successor or successors as
Registrar, appointed in accordance with Section 20 hereof, who shall perform the
duties provided under Section 2(c) hereof.
REGULAR RECORD DATE - With respect to any Note, unless otherwise
specified in such Note, the Regular Record Date with respect to any Interest
Payment Date or Payment Date shall be the date that is the fifteenth calendar
day (whether or not a Business Day) prior to the applicable Interest Payment
Date or Payment Date, as the case may be.
RENEWABLE NOTE - A Note the maturity of which may be renewed at the
option of the Holder in accordance with the terms thereof.
RENEWAL DATE - Has the meaning given such term in Section 13 (d).
SECURITIES EXCHANGE ACT - The Securities Exchange Act of 1934, as
amended.
SELLING AGENT - Any party, other than the Issuer, to the Distribution
Agreement, including any party added to such agreement after its initial date of
execution. The initial Selling Agents are: Banc of America Securities LLC,
Credit Suisse First Boston Corporation, ▇▇▇▇▇▇ Brothers Inc. (including its
affiliate, ▇▇▇▇▇▇ Commercial Paper Inc.), ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Merrill,
Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., Incorporated
and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
SPECIAL ELECTION INTERVAL - A period during which, if so specified on
the applicable Renewable Note, on the Interest Payment Date occurring in the
last month of each such Special Election Interval after an Initial Renewal Date,
the term of the Note may be extended to the Interest Payment Date occurring in
the last month in a period equal to twice the Special Election Interval after
the applicable Renewal Date, if the Holder of such Note elects to extend the
term of the Note or any portion thereof as provided in such Note.
SPECIAL ELECTION PERIOD - A period, if specified on the applicable
Note, during which the Holder of such Note may elect to renew the term of the
Note, or if provided in the applicable Note, any portion thereof, by delivering
a notice to such effect to the Issuing and Paying Agent.
SPECIFIED CURRENCY - The currency in which such Note is denominated if
such currency is denominated in a composite currency, currency unit or a
currency other than U.S. dollars.
SPECIFIED CURRENCY NOTE - A Note, which pursuant to the terms specified
thereon, is denominated in a Specified Currency.
STATED MATURITY - As to any Note or any installment of Principal
thereof or interest thereon, the date specified therein as the fixed date on
which the Principal of such Note or such installment of Principal and interest
is due and payable.
TRANSFER AGENT - With respect to any Note issued by the Issuer, any
Person or Persons appointed by the Issuer to exchange or transfer Notes issued
by the Issuer.
SECTION 2. APPOINTMENT OF AGENTS.
(a) ISSUING AND PAYING AGENT. The Issuer hereby appoints
Bankers Trust Company, as Issuing and Paying Agent of the Issuer in
respect to the Notes upon the terms and subject to the conditions
herein set forth, and Bankers Trust Company hereby accepts such
appointment. The Issuing and Paying Agent shall have the powers and
authority granted to and conferred upon it in the Notes and this
Agreement and such further powers and authority to act on behalf of the
Issuer as may be agreed upon by the Issuer and the Issuing and Paying
Agent from time to time. All of the terms and provisions with respect
to such powers and authority contained in the Notes are subject to and
governed by the terms and provisions hereof.
The Issuer, further appoints and authorizes Bankers Trust
Company, as Issuing and Paying Agent, to act as its Issuing and Paying
Agent in executing the Letters of Representations to be delivered to
the Depositary, in substantially the forms set forth in Exhibit A
hereto.
The Issuing and Paying Agent shall at all times be a bank or
trust company organized under the laws of the United States or any
jurisdiction in the United States and authorized and empowered under
such laws to fulfill and perform all the duties and obligations of the
Issuing and Paying Agent hereunder.
The Issuing and Paying Agent hereby represents that it is a
bank or trust company meeting the foregoing requirements and that it
shall promptly notify the Issuer of any occurrence or event that
renders it unable to continue to make the aforesaid representation.
(b) SELLING AGENTS. The Issuer has appointed Banc of America
Securities LLC, Credit Suisse First Boston Corporation, ▇▇▇▇▇▇ Brothers
Inc. (Including its affiliate ▇▇▇▇▇▇ Commercial Paper Inc.), ▇▇▇▇▇▇▇
▇▇▇▇▇ & Co., Merrill, Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., Incorporated and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., as
Selling Agents for the Notes by and under the terms of the Distribution
Agreement, under which the Issuer may, from time to time, appoint other
Selling Agents.
(c) REGISTRAR. The Issuer hereby appoints Bankers Trust
Company as Registrar of the Issuer in respect of the Notes upon the
terms and subject to the conditions herein set forth, and Bankers Trust
Company hereby accepts such appointment. The Registrar will keep the
Register and otherwise act as Registrar in accordance with the terms of
this Agreement.
The Registrar will keep a record of all Notes, at its
Principal Office or at such other location as it may choose and as to
which it will give advance notice to the Issuer. The Registrar will
include in such record a notation as to whether such Notes have been
paid or cancelled or, in the case of mutilated, destroyed, stolen or
lost Notes, whether such Notes have been replaced. In the case of the
replacement of any of the Notes, the Registrar will keep a record of
the Notes so replaced and the Notes issued in replacement thereof.
(d) TRANSFER AGENTS. The Issuer (at its sole cost and expense)
may appoint from time to time one or more Transfer Agents for one or
more of the Notes. The Issuer shall solicit written acceptance of the
appointment from any entity so appointed as Transfer Agent. Such
written acceptance shall be in a form satisfactory to the Issuing and
Paying Agent and state that by the Transfer Agent's acceptance of such
appointment, it agrees to act as a Transfer Agent pursuant to the terms
and conditions of this Agreement. The Issuer hereby appoints Bankers
Trust Company as the initial Transfer Agent for the Notes, and Bankers
Trust Company hereby accepts such appointment.
(e) CALCULATION AGENTS.
1. APPOINTMENT OF CALCULATION AGENT: The Issuer (at
its sole cost and expense) may appoint from time to time one
or more Calculation Agents for one or more of the Notes. The
Issuer shall solicit written acceptance of the appointment
from any entity so appointed as Calculation Agent. Such
written acceptance shall be in a form satisfactory to the
Issuing and Paying Agent and state that by the Calculation
Agent's acceptance of such appointment, it agrees to act as a
Calculation Agent pursuant to the terms and conditions of this
Agreement.
(a) FLOATING RATE NOTES: Except as otherwise
specified in a Pricing Supplement relating to a
particular Note, the Issuer hereby appoints Bankers
Trust Company as the initial Calculation Agent for
the Floating Rate Notes, and Bankers Trust Company
hereby accepts such appointment.
(b). INDEXED NOTES: Before issuing an
Indexed Note, the Issuer shall appoint a Calculation
Agent for the purpose of calculating the rate of
interest or other amounts payable on the Indexed
Notes, all in accordance with the terms of the
Indexed Notes. With respect to Indexed Notes, at such
times as shall be specified in the Pricing Supplement
and the Indexed Note, the Calculation Agent shall
determine the index (if required), principal,
premium, if any, rate of interest, interest payable
or other amounts payable. Upon the request of the
Holder of any Indexed Note, the Calculation Agent
will provide, if applicable, the current index,
principal, premium, if any, rate of interest,
interest payable or other amounts payable in
connection with such Indexed Note.
2. DUTIES AND RESPONSIBILITIES: The duties and
responsibilities of the Calculation Agent shall be as
specified herein, in the Administrative Procedures attached as
Exhibit B hereto, and in the applicable Note. As promptly as
practicable after each Interest Determination Date for a
Floating Rate Note or an Indexed Note, the Calculation Agent
will notify the Issuer thereof of the interest rate which will
become effective on the next interest Reset Date (as defined
in such Floating Rate Note or Indexed Rate Note). Upon the
request of the Holder of a Floating Rate Note or an Indexed
Rate Note, the Calculation Agent will provide to such Holder
the interest rate then in effect and, if determined, the
interest rate which will become effective on the next Interest
Reset Date with respect to such Floating Rate Note or such
Indexed Note.
SECTION 3. THE NOTES.
(a) NOTE FORM; SIGNATURE. Except as otherwise provided in
Section 3(h) hereof, each Note issued by the Issuer with the same
original issue date and otherwise having identical terms shall be
represented by a single note certificate (each a "Global Note"). Fixed
Rate Notes will be substantially in the form of Exhibit C hereto,
Floating Rate Notes will be substantially in the form of Exhibit D
hereto, and Indexed Notes will be substantially in the form of Exhibit
E hereto, provided that any Specified Currency Notes will be
substantially in any such form with such changes as may be agreed upon
by the Issuer and the Issuing and Paying Agent as provided in Section
11 hereof. The Notes may contain such insertions, omissions,
substitutions, and other variations as the Issuer
determines to be required or permitted by this Agreement and may have
such letters, numbers, or other marks of identification and such legend
or legends or endorsements placed thereon as any officer of the Issuer
executing such Notes may determine to be necessary or appropriate, as
evidenced by such officer's execution of such Notes by manual or
facsimile signature, including, without limitation, any legends or
endorsements that may be required to comply with any law or with any
rules or regulations pursuant thereto, or with any rules of any
securities exchange on which the Notes may be listed or to conform to
general usage.
Any Global Note issued hereunder shall, in addition to the
provisions contained in Exhibits C, D or E, hereto, as the case may be,
bear a legend in substantially the following form:
"This Note is a Global Note within the meaning of the Issuing
and Paying Agency Agreement hereinafter referred to and is
registered in the name of a Depositary or a nominee of a
Depositary. This Note is exchangeable for Notes registered in
the name of a person other than the Depositary or its nominee
only in the limited circumstances described in the Issuing and
Paying Agency Agreement and may not be transferred except as a
whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee
of the Depositary."
Furthermore, each Global Note issued hereunder to DTC or its
nominee shall bear a legend in substantially the following form:
"Unless this Note is presented by an authorized representative
of The Depository Trust Company to the issuer or its agent for
registration of transfer, exchange or payment, and any
certificate issued is registered in the name of CEDE & CO. or
such other name as requested by an authorized representative
of The Depository Trust Company and any payment is made to
CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the
registered owner hereof, CEDE & CO., has an interest herein."
The Issuer will from time to time and upon request furnish the
Issuing and Paying Agent with an adequate supply of Certificated Notes,
without coupons, serially numbered, which will have the Principal
amount, date of issue, Stated Maturity Initial Redemption Date, if any,
rate of interest (in the case of Fixed Rate Notes) or base rate,
initial interest rate, spread and/or spread multiplier, if any,
interest reset dates, index, if any, index maturity, other amounts
payable, and maximum and minimum interest rates, if any (in the case of
Floating Rate Notes or Indexed Notes), and, in each case, the name and
address of the Holder, and other applicable terms which may be
specified with respect to such Notes in accordance with the
Administrative Procedures left blank.
Each Floating Rate Note will bear interest at a rate
determined by reference to a base rate, which may be adjusted by a
spread or multiplied by a spread multiplier. Each Floating Rate Note
will designate an applicable base rate. Such base rate shall be
calculated by reference to an interest rate formula described in such
Note. The interest rates borne by any particular Notes may vary as
against the rates borne by any other Notes. Any such variations in
interest rates with respect to particular Notes shall not affect the
rates of interest borne by any other Notes issued hereunder.
Each of the principal, premium, if any, interest payable or
other amounts payable, or any combination of the foregoing, may be
determined by reference to one or more indices. each Indexed Note and
the associated Pricing Supplement will designate the applicable
indices. The principal, premium, if any, interest payable or other
amounts payable may vary as against those borne by any other Indexed
Notes. Any such variations in principal, premium, if any, interest
payable or other amounts payable with respect to particular Indexed
Notes shall not necessarily affect the principal, premium, if any,
interest payable or other amounts payable borne by any other Indexed
Notes issued under the Distribution Agreement.
Each Note will be signed manually or by facsimile by an
Authorized Representative included in Group I on Exhibit G hereto. The
Notes will have a Stated Maturity of not less than (7) seven days from
date of issue and will be issued in the respective orders of the serial
numbers imprinted thereon. The Issuing and Paying Agent hereby agrees
to hold such blank Notes in safekeeping in accordance with its
customary practices and procedures.
Notwithstanding the foregoing, any Global Note issued by the
Issuer shall be exchangeable pursuant to this Section for Notes
registered in the name of Persons other than the Depositary for such
Note or its nominee only if (i) such Depositary notifies the Issuing
and Paying Agent that it is unwilling or unable to continue as
Depositary for such Global Note or if at any time such Depositary
ceases to be a clearing agency registered under the Securities Exchange
Act and in either such case a successor Depositary is not appointed by
the Issuer within ninety (90) days, or (ii) the Issuer thereof executes
and delivers to the Issuing and Paying Agent a written notification
that such Global Note shall be so exchangeable or (iii) an Event of
Default occurs with respect to such Global Note. Any Global Note that
is exchangeable pursuant to the preceding sentence shall be
exchangeable for Certificated Notes registered in such names as such
Depositary shall direct. Notwithstanding any other provision in this
Agreement, a Global Note may not be transferred except as a whole by
the Depositary with respect to such Global Note to a nominee of such
Depositary or by a nominee of such Depositary to such Depositary or
another nominee of such Depositary.
As of the date hereof, the Issuer has authorized the issuance
and sale of up to not more than $35,000,000,000 aggregate principal
amount of Notes with maturities of 7 days or more. Subject to the last
sentence of this paragraph, the maximum aggregate principal amount of
Notes outstanding at any one time is limited to $35,000,000,000. In
addition, subject to the last sentence of this paragraph, the aggregate
principal amount of Notes having maturities of more than 270 days which
may be issued throughout the term of the Issuing and Paying Agency
Agreement is limited to $35,000,000,000.
Notwithstanding the foregoing, if the Issuer authorizes the issuance of
additional Notes and, to the extent necessary, registers such Notes
with the Office of the Comptroller of the Currency (the "OCC") such
additional Notes may be sold to or through the Agents pursuant to the
terms of this Agreement, all as though the issuance of such Notes were
authorized as of the date hereof.
(b) DENOMINATIONS. Unless otherwise indicated in the
applicable Notes and the applicable Pricing Supplement except as
provided in Section 3(h) and to the extent that the Issuer elects to
issue Notes in definitive form, the Notes shall be issuable only in
book-entry form, without coupons, in minimum denominations of $250,000
and integral multiples of $1,000 in excess thereof.
(c) COMPLETION OF NOTES. Upon receipt of the information set
forth in Section 5 (a), the Issuing and Paying Agent shall complete and
authenticate each Note.
(d) DATE. The Issuing and Paying Agent will date each Note the
date of its authentication.
(e) CERTIFICATE OF AUTHENTICATION. Only Notes that bear
thereon a certificate of authentication substantially in a form set
forth below (a "Certificate of Authentication"), executed by the
Issuing and Paying Agent by its manual signature, will be valid:
Certificate of Authentication
This is one of the Notes referred to in the
within-mentioned Issuing and Paying Agency Agreement.
Dated:________ BANKERS TRUST COMPANY
as Issuing and Paying Agent
By:
---------------------------------
Authorized Signatory
(f) ORIGINAL ISSUE DISCOUNT NOTES. Each Original Issue
Discount Note shall contain on its face a legend substantially in the
form of Exhibit F hereto.
(g) CUSTODY OF NOTES. The Issuing and Paying Agent shall
maintain in safe custody all blank Notes that the Issuer delivers to it
and that it holds hereunder and shall complete and issue such Notes
only in the terms hereof.
(h) CERTIFICATED NOTES. If at any time the Depositary notifies
the Issuer or the Issuing and Paying Agent that it is unwilling or
unable to continue to act as depositary for any of the Global Notes, or
if at any time such Depositary ceases to be a clearing agency
registered under the Securities Exchange Act and in either such case a
successor Depositary is not appointed by the Issuer within ninety (90)
days, the Issuer will execute and the Issuing and Paying Agent will,
upon the receipt of procedures for certificated securities in form and
substance satisfactory to the Issuer and the Issuing and Paying Agent
and upon receipt of instructions in writing from the Issuer,
authenticate and deliver
to the Holder or the Holder's designee Notes of like tenor and terms in
definitive form in an aggregate principal amount equal to the Global
Notes then outstanding in exchange for such Global Notes.
SECTION 4. AUTHORIZED REPRESENTATIVES. The Issuer hereby certifies that
each person named in Exhibit F hereto and designated as affiliated with the
Issuer is a duly Authorized Representative of the Issuer and that the signature
set forth opposite such representative's name is his or her true and genuine
signature. The Issuing and Paying Agent shall be entitled to rely on the
information set forth in Exhibit G for purposes of determining an Authorized
Representative until such time as the Issuing and Paying Agent receives a
subsequent certificate from the Issuer deleting or amending any of the
information set forth therein. The Issuing and Paying Agent shall not have any
responsibility to the Issuer to determine whether any signature on a Note
purporting to be that of an Authorized Representative in Group I of Exhibit G
with respect to the Issuer is genuine, so long as such signature resembles the
specimen signature set forth in Group I of Exhibit G or in a subsequent
certificate delivered to the Issuing and Paying Agent by the Issuer. Any Note
bearing the signature of a person who is an Authorized Representative in Group I
of Exhibit G with respect to the Issuer on the date he or she signs such Note
shall be a binding obligation of the Issuer upon the completion and
authentication thereof by the Issuing and Paying Agent, notwithstanding that
such person shall have ceased to be an Authorized Representative on the date
such Note is completed, authenticated or delivered by the Issuing and Paying
Agent.
SECTION 5. COMPLETION, AUTHENTICATION AND DELIVERY OF NOTES.
(a) The Issuing and Paying Agent may rely on such instructions
if they are received by one of the duly Authorized Representatives of
the Issuing and Paying Agent named in Exhibit H hereto or their
successors, which may be named by the Issuing and Paying Agent (of
which the Issuer shall be notified in writing), from time to time
through the use of a facsimile transmission (confirmed by guaranteed
delivery of overnight courier) from any person purporting to be any of
the individuals included in Group II on Exhibit G hereto. Such
instructions shall include the following (each term as used or defined
in the related form of Note attached):
1. Principal Amount of the Note, CUSIP Number and, if
applicable, the Specified Currency.
2. (a) Fixed Rate Notes:
(i) Interest Rate,
(ii) Interest Payment Dates, and
(iii) Regular Record Dates.
(b) Floating Rate Notes:
(i) Base Rate or Rates,
(ii) Initial Interest Rate,
(iii) Spread and/or Spread Multiplier, if
any,
(iv) Interest Reset Date or Dates,
(v) Interest Reset Period,
(vi) Interest Payment Dates,
(vii) Regular Record Dates,
(viii) Index Maturity,
(ix) Maximum and Minimum Interest Rates, if
any, and
(x) Calculation Agent, if other than the
Issuing and Paying Agent.
(c) Indexed Notes:
(i) Base Rates,
(ii) Initial Interest Rate(s),
(iii) Underlying index, credit or formula,
(iv) Interest (or Other Amounts Payable)
Reset Date(s),
(v) Interest (or Other Amounts Payable)
Reset Period(s),
(vi) Interest (or Other Amounts Payable)
Payment Date(s),
(vii) Regular Record Dates,
(viii) Maximum and Minimum Interest Rates,
if any, and
(ix) Calculation Agent, if other than the
Issuing and Paying Agent.
3. Price to public, if any, of the Note (or whether
the Note is being offered at varying prices relating to
prevailing market prices at time of resale as determined by
the Selling Agent).
4. Trade date.
5. Original Issue Date.
6. Stated Maturity.
7. Redemption provisions, if any, including Initial
Redemption Date, Initial Redemption Percentage, Annual
Redemption Reduction Percentage, whether partial redemption is
permitted and method of determining Notes to be redeemed.
8. Prepayment Option Date(s) and Prepayment Option
Price(s).
9. Extension provisions, if any, including length of
Extension Period(s), number of Extension Periods and Final
Maturity Date.
10. Renewal terms, if any, including Special Election
Interval and Special Election Period.
11. Net proceeds to the Issuer.
12. The Selling Agent's commission or underwriting
discount and the Selling Agent's participant account at the
Depositary for settlement.
13. Whether such Notes are being sold to the Selling
Agent as principal or to an investor or other purchaser
through the Selling Agent acting as agent for the Issuer, or
through the Issuer itself.
14. Whether such Note is being issued as an Original
Issue Discount Note and the terms thereof.
15. Such other information specified with respect to
the Notes (whether by addendum, text to be included under
"Other Provisions" on the face of such Note, or otherwise),
including, with respect to any Specified Currency Note,
provisions regarding the calculation of any interest or
principal payments under such Note.
(b) Upon receipt of the information set forth in subsection
(a) above, the Issuing and Paying Agent will confirm by facsimile to
the Issuer the principal amount of the Notes of the Issuer issued as of
such date hereunder after giving effect to such
transaction and to all other transactions of which the Issuer has given
instructions to the Issuing and Paying Agent but which have not yet
been settled.
For purposes of monitoring the aggregate principal amount of
Notes issued and/or outstanding at any time hereunder, the Issuing and
Paying Agent shall determine the U.S. Dollar equivalent of the
principal amount of each Original Issue Discount Note or series of
Original Issue Discount Notes, each Indexed Note the principal of which
is determined by reference to an index or series of such Indexed Notes
and each Specified Currency Note or series of Specified Currency Notes
as follows:
(i) the U.S. Dollar equivalent of Specified
Currency Notes shall be determined by the Issuing and
Paying Agent as of 2:30 P.M., London time, on the
Original Issue Date for such Notes by reference to
the spot rate for U.S. Dollars against the Specified
Currency provided to the Issuing and Paying Agent by
the Issuer or, if such spot rate is not so provided
on a timely basis, by reference to the Issuing and
Paying Agent's middle market spot rate for U.S.
Dollars against the Specified Currency on the London
Business Day immediately preceding the date on which
the Issuing and Paying Agent receives the Issuer's
instruction to issue the Notes.
(ii) the principal amount of Original Issue
Discount Notes and any other Notes issued at a
discount shall be deemed to be (x) the principal
amount received by the Issuer for the relevant issue
or (y) in the case of a Specified Currency Note, the
U.S. Dollar equivalent, determined in the manner
specified in clause (i) above, of the principal
amount received by the Issuer for the relevant issue.
(iii) the principal amount of any Indexed
Notes the principal of which is determined by
reference to an index shall be deemed to be the
principal amount received by the Issuer for the
relevant issue.
The Issuing and Paying Agent shall promptly notify the Issuer
of each determination made as aforesaid.
(c) Upon receipt of such instructions, if such Notes are to be
issued as one or more Global Notes, the Issuing and Paying Agent shall
communicate to the Depositary and the Selling Agent through DTC's
Participant Terminal System, a pending deposit message specifying the
settlement information required in the Administrative Procedures.
(d) Instructions regarding the completion of a Note must be
received by the Issuing and Paying Agent not later than the time and
date specified in the Administrative Procedures.
SECTION 6. PROCEDURE UPON SALE OF THE NOTES. The Issuing and Paying
Agent will upon reasonable written request, promptly deliver copies of such
Global Notes (with any additional terms provided by the Issuer included thereon)
to the appropriate Selling Agents in accordance with Section 5(c) hereof.
SECTION 7. PAYMENT OF INTEREST; ACTIONS ON DAYS OTHER THAN BUSINESS
DAYS; PAYMENT OF OTHER AMOUNTS.
(a) Subject to the receipt of funds as provided in Section 12
hereof, interest payments will be made on the Notes on each Interest
Payment Date and on the Stated Maturity thereof (or the date of
Optional Redemption, if any) pursuant to the terms stated thereon. All
such interest payments (other than interest due on the Stated Maturity,
or on the date of Optional Redemption, if a Note is redeemed prior to
its Stated Maturity) will be paid to the Holder of such Note at the
close of business on the applicable Regular Record Date.
Notwithstanding the foregoing, if a Note is dated between the Regular
Record Date next preceding an Interest Payment Date and such Interest
Payment Date, the first payment of interest on such Note will be made
on the next succeeding Interest Payment Date following the next
succeeding Regular Record Date, to the Holder on the Regular Record
Date immediately succeeding such first Interest Payment Date, unless
otherwise specified in the applicable Pricing Supplement. Interest will
begin to accrue on the issue date and not from the previous Interest
Payment Date. Unless otherwise specified on the face of the Note and in
an applicable Pricing Supplement, interest on Fixed Rate Notes
(including payments for partial periods) will be calculated on the
basis of a 360-day year consisting of twelve 30-day months; provided,
however, that if the term of such Fixed Rate Note is for a period from
7 days through and including one year, then interest payable on such
Fixed Rate Note, if any, on each Interest Payment Date and on the
Stated Maturity will be calculated on the basis of the actual number of
calendar days from and including the last Interest Payment Date to
which interest has been paid to, but excluding, such Interest Payment
Date or Stated Maturity, as the case may be, divided by 360. Unless
otherwise specified on the face of the Note and in an applicable
Pricing Supplement, in the case of Floating Rate Notes, interest will
be calculated and paid on the basis of the actual number of days since
the preceding Interest Payment Date (or, if none, since the Original
Issue Date) divided by 360 or, if the base rate is the Treasury Rate or
CMT Rate, as defined in the applicable Note, by the actual number of
days since the preceding Interest Payment Date (or, if none, since the
Original Issue Date) . All interest on Certificated Notes (other than
interest payable at Stated Maturity or upon any Optional Redemption)
will be paid by check of the Issuing and Paying Agent mailed by such
Issuing and Paying Agent to the Holder as such Holders address is shown
in the Register referred to in Section 15 on the applicable Regular
Record Date, or to such other address in the United States as such
Holder shall designate to the Issuing and Paying Agent in writing not
later than the relevant Regular Record Date; provided, however, that a
Holder of one million dollars ($1,000,000) or more in aggregate
Principal amount of Certificated Notes (all of which have identical
terms and tenor) shall be entitled to receive payments of interest
(other than interest payable at maturity or upon redemption) by wire
transfer of immediately available funds upon written request to the
Issuing and Paying Agent not later than fifteen (15) calendar days
prior to the applicable Payment Date. All interest payments on any
Global Note (other than Interest due on the Stated Maturity or the
Optional Redemption Date, if any) shall be paid by the transfer of
immediately available funds to the Depositary. The Issuing and Paying
Agent will withhold taxes, if any, on
interest to the extent that it has been instructed in writing by the
Issuer of the related Note that any taxes should be withheld.
(b) Actions Due on Saturdays, Sundays and Holidays. If any
date on which a payment, notice or other action required by this
Agreement, the Administrative Procedures or the Note falls on any day
other than a Business Day, then that action or payment need not be
taken or made on such date, but may be taken or made on the next
succeeding Business Day on which the Issuing and Paying Agent is open
for business with the same force and effect as if made on such date.
(c) Payment of Other Amounts. With respect to any Indexed Note
which may include the payment of other amounts, the relevant Pricing
Supplement shall provide for determination of, and timing and method of
payment for, such other amounts.
SECTION 8. PAYMENT OF PRINCIPAL. Upon the Stated Maturity (or date of
Optional Redemption, if any) of any Note, or on each Interest Payment Date and
the Stated Maturity, in the case of an Amortizing Note, and upon presentation
and surrender of any Note on or after the Stated Maturity (or the date of
Optional Redemption, if any), the Issuing and Paying Agent shall pay, subject to
the receipt of funds as provided in Section 12 hereof, the Principal amount of
the Note together with accrued interest due on the Stated Maturity (or the date
of Optional Redemption, if any), either (i) by separate wire transfer of
immediately available funds to such account at a bank in The City of New York
(or other bank consented to by the Issuer of the related Note) as the Holder of
such Note shall have designated in writing to the Issuing and Paying Agent at
least 15 days prior to such Principal Payment Date and if such Note is a Global
Note, to the Depositary, or (ii) by check of the Issuing and Paying Agent
payable to the, order of the Holder of the Note or its properly designated
assignee or custodian. Upon payment in full, the Issuing and Paying Agent will
cancel the Note and remit it directly to the Issuer thereof.
SECTION 9. DESIGNATION OF ACCOUNTS TO RECEIVE PAYMENT. In the event
that Notes are issued in certificated form, a bank account to receive payments
due under a certificated Note may be designated to the Issuing and Paying Agent
to receive payments of interest and Principal under Sections 7 and 8 hereof
either (i) by an Authorized Representative of the Issuer included in Group II of
Exhibit G hereto in the authentication instructions given by it to the Issuing
and Paying Agent under Section 5(a) hereof in respect of particular Notes, or
(ii) in the event that the authentication instructions make no designation, or
that the Holder wishes to change a designation previously made, by written
notice from the Holder to the Issuing and Paying Agent. Such written notice must
be provided to the Issuing and Paying Agent not later than fifteen (15) days
prior to any Interest Payment Date, Principal Payment, or Payment Date, as the
case may be.
SECTION 10. INFORMATION REGARDING AMOUNTS DUE. The Issuing and Paying
Agent shall provide to the Issuer, at least five (5) Business Days before each
Interest Payment Date or other payment date, a list of interest payments or
other payments to be made on the following Interest Payment Date or other
payment date for each Note and in total. The Issuing and Paying Agent will
provide to the Issuer by
the fifteenth day of each month a list of the Principal, premium, if any, and
interest or other amounts to be paid on Notes maturing in the next succeeding
month.
SECTION 11. SPECIFIED CURRENCY NOTES. Prior to the issuance of any
Specified Currency Note, the Issuer thereof shall provide to the Issuing and
Paying Agent a form of such Note, which form shall be in substantially the form
of Exhibit C, D or E hereto unless otherwise provided in the applicable Pricing
Supplement, with such changes and additions as may be reasonably satisfactory to
the Issuing and Paying Agent.
SECTION 12. DEPOSIT OF FUNDS. The Issuer shall, prior to 11:00 a.m.,
New York City time, on each Interest Payment Date or other payment date, pay to
the Issuing and Paying Agent an amount in immediately available funds sufficient
to pay all interest or other payments due on Notes issued by the Issuer on such
Interest Payment Date and shall, prior to 11:00 a.m., New York City time, on the
Stated Maturity (or any date of Optional Redemption, if any) of any Note issued
by the Issuer, pay to the Issuing and Paying Agent an amount in immediately
available funds sufficient to pay the Principal of any such Note, and interest
accrued and/or other amounts due to the Stated Maturity (or the date of Optional
Redemption, as the case may be).
SECTION 13. OPTIONAL REDEMPTION.
(a) OPTIONAL REDEMPTION. In accordance with and subject to the
terms and conditions provided in the applicable Note and Pricing
Supplement, the Issuer may at its option redeem a Note issued by it in
whole or from time to time in part (subject to the requirement that the
principal amount of such Note after such redemption, if such Note is
redeemed in part, (unless otherwise specified in a Pricing Supplement)
be not less than $250,000 or any integral multiple of $1,000 in excess
thereof, such minimum denomination, the "Authorized Denomination") on
or after the date designated in such Note as the Initial Redemption
Date at the applicable Redemption Price, in each case, with accrued and
unpaid interest to the date of redemption. Unless otherwise specified
in an applicable Pricing Supplement and in the Note, the Issuer may
exercise such option by giving to the Holder thereof a notice of such
redemption at least thirty (30) but not more than sixty (60) days prior
to the date of redemption. The Issuer shall notify the Issuing and
Paying Agent of its election to redeem any Note at least forty-five
(45) days prior to the date of redemption (unless a shorter period is
satisfactory to the Issuing and Paying Agent). In the event of
redemption of the Note in part only, a new Note or Notes of like tenor
and terms for the unredeemed portion thereof shall be issued in the
name of the Holder thereof upon the cancellation thereof in accordance
with the terms of this Agreement. Unless otherwise provided in the
applicable Note, if less than all of the Notes with like tenor and
terms to such Note are to be redeemed, the Notes to be redeemed shall
be selected by the Issuing and Paying Agent by pro rata, by lot or by
such method as shall be agreed upon by the Issuing and Paying Agent and
the Issuer as being fair and appropriate.
(b) OPTIONAL REPAYMENT. In accordance with and subject to the
terms and conditions provided in the applicable Note and Pricing
Supplement, such Note will be repayable prior to its Stated Maturity at
the option of the Holder on the Prepayment
Option Dates and at the Prepayment Option Prices provided in the
applicable Note together with accrued interest to such date. Unless
otherwise provided in the applicable Note and Pricing Supplement, in
order for the Note to be repaid, the Issuer (or the Issuing and Paying
Agent, on behalf of the Issuer) must receive, at least thirty (30) but
not more than forty-five (45) days prior to an Prepayment Option Date,
the Note and the form, entitled "Option to Elect Repayment" included
with such Note at the time of its issue, duly completed. Exercise of
this repayment option shall be irrevocable, except as otherwise
provided under Section 13 (c) below. If so provided in the applicable
Note, the repayment option may be exercised by the Holder of such Note
for less than the aggregate principal amount of the Note then
outstanding provided that the principal amount of the Note remaining
outstanding after repayment is in an Authorized Denomination. Upon such
partial repayment the Note shall be cancelled and a new Note or Notes
of like tenor and terms for the remaining principal amount thereof
shall be issued in the name of the Holder.
(c) OPTIONAL EXTENSION OF MATURITY. If so specified in the
applicable Note and Pricing Supplement, the Stated Maturity of such
Note may be extended at the option of the Issuer, in the manner set
forth below (unless otherwise provided on the face thereof), for that
number of periods each of such length as provided in the applicable
Note (each an "Extension Period") up to but not beyond the Final
Maturity Date set forth in such Note. Unless otherwise specified in the
Applicable Note and Pricing Supplement, the Issuer may exercise such
option by notifying the Issuing and Paying Agent of such exercise at
least fifty (50) but no more than sixty (60) days prior to the Stated
Maturity in effect prior to such exercise (the "Original Stated
Maturity") . If the Issuer exercises such option, the Issuing and
Paying Agent will mail (by first class mail, postage prepaid) to the
Holder of the Note no later than forty (40) days prior to the Original
Stated Maturity a notice (the "Extension Notice") relating to such
Extension Period, setting forth (i) the election of the Issuer to
extend the Original Stated Maturity, (ii) the new Stated Maturity
(which shall then be considered the Stated Maturity for all purposes of
the Note) , (iii) spread or spread multiplier applicable to the
Extension Period, and (iv) the provisions, if any, for redemption
during such Extension Period. Upon the Issuing and Paying Agent's
transmittal of the Extension Notice, the Original Stated Maturity of
the Note shall be extended automatically, and, except as modified by
the Extension Notice and as described in the next paragraph, such Note
will have the same terms as prior to the transmittal of such Extension
Notice.
Notwithstanding the foregoing unless otherwise provided in the
Note and applicable Pricing Supplement, not later than twenty (20) days
prior to the Original Stated Maturity of such Note the Issuer may, at
its option, in the case of a Fixed Rate Note, revoke the interest rate
provided for in the Extension Notice for the Extension Period and
establish an interest rate that is higher than the interest rate
provided for in the Extension Notice for the Extension Period, or in
the case of a Floating Rate Note, revoke the spread or spread
multiplier provided for in the Extension Notice for the Extension
Period, or in the case of an Indexed Note, make such other changes to
the determination of principal, premium, if any, interest payable or
other amounts payable, or any combination of the foregoing, each to the
economic benefit of the Holder, by causing the Issuing and Paying Agent
to transmit notice of such higher interest rate, or higher spread or
spread multiplier, or other change, as the case may be, to the Holder
of such Note.
Such notice shall be irrevocable. All Notes with respect to which the
Stated Maturity is extended and with respect to which the Holders of
such Notes have not tendered such Notes for repayment (or have validly
revoked any such tender) pursuant to the succeeding paragraph will bear
such higher interest rate, or higher spread or spread multiplier, or
other change, as the case may be, for the Extension Period.
If the Issuer elects to extend the Stated Maturity of the
Note, the Holder thereof will have the option to elect repayment of the
Note by the Issuer thereof on the Original Stated Maturity at a price
equal to the aggregate principal amount thereof outstanding plus
interest accrued to such date. In order to obtain such repayment, the
Holder thereof must follow the procedures set forth in Section 13(b)
for optional repayment except that the period for delivery of the Note
or notification to the Issuing and Paying Agent shall be at least
twenty-five (25) but not more than thirty-five (35) days prior to the
Original Stated Maturity and except that, if the Holder thereof has
tendered the Note for repayment pursuant to an Extension Notice, such
Holder may, by written notice to the Issuing and Paying Agent, revoke
such tender for repayment until the close of business on the tenth day
prior to the Original Stated Maturity.
(d) OPTIONAL RENEWAL. If so provided in the applicable Note
and Pricing Supplement, such Note may be renewed by the Holder of the
Note on an Interest Payment Date (provided in the applicable Note)
occurring in or prior to the twelfth month following the Original Issue
Date (the "Initial Maturity Date") in accordance with the procedures
described below Unless a Special Election Interval is provided in the
applicable Note, on the Interest Payment Date occurring in the sixth
month prior to the Initial Maturity Date (as provided in the applicable
Note) of a Renewable Note (the "Initial Renewal Date") and on the
Interest Payment Date occurring in each sixth month (or in the last
month of each Special Election Interval) after such Initial Renewal
Date (each, together with the Initial Renewal Date, a "Renewal Date"),
the term of the Note may be extended to the Interest Payment Date
occurring in the twelfth month (or, if a Special Election Interval is
specified the last month in a period equal to twice the Special
Election Interval) after such Renewal Date, if the Holder of such Note
elects to extend the term of the Note or any portion thereof as
provided below. If the Holder of the Note does not elect to extend the
term of any portion of the principal amount of such Note during the
specified period prior to any Renewal Date, such portion will become
due and payable on the Interest Payment Date occurring in the sixth
month (or the last month in the Special Election Interval) after such
Renewal Date (the "New Maturity Date").
A Holder of such Note may elect to renew the term of the Note,
or if provided in the applicable Note and Pricing Supplement, any
portion constituting an Authorized Denomination thereof, by delivering
a notice to such effect to the Issuing and Paying Agent not less than
fifteen (15) nor more than thirty (30) days prior to such Renewal Date
(unless a different Special Election Period is provided in the
applicable Note). Such election will be irrevocable and will be binding
upon each subsequent Holder of the Note. An election to renew the term
of such Note may be exercised with respect to less than the entire
principal amount of the Note only if notice is provided as provided in
the applicable Note and only in such principal amount, or any integral
multiple in excess thereof, as specified in such notice.
Notwithstanding the foregoing, the term of such Note may not be
extended beyond the maturity provided in the applicable Note.
If the Holder of such Note does not elect to renew the term of
the Note, the Note must be presented to the Issuing and Paying Agent
(or any duly appointed paying agent) and, if the Note is issued in
definitive form, as soon as practicable following receipt of the Note,
the Issuing and Paying Agent (or any duly appointed paying agent) shall
issue in exchange herefor in the name of the Holder (i) a Note, in a
principal amount equal to the principal amount of such Note for which
no election to renew the term thereof was exercised, with terms
identical to those specified on the Note (except that such Note shall
have a fixed, nonrenewable maturity on the New Maturity Date) and (ii)
if an election to renew is made with respect to less than the full
principal amount of the Note, a replacement Note, in a principal amount
equal to the principal amount of such exchanged Note for which the
election to renew was made, with terms identical to such exchanged
Note.
SECTION 14. EVENTS OF DEFAULT.
Unless otherwise specified in the applicable Note and Pricing
Supplement, the following will constitute "Events of Default" and the
only Events of Default with respect to each Note: (a) default in the
payment of any interest or other amounts payable upon such Note when
due, which continues for thirty (30) days; (b) default in the payment
of any principal of or premium, if any, upon such Note when due; (c)
default in the performance of any covenant or agreement of the Issuer
thereof contained in such Note which, unless otherwise specified
therein, continues for 90 days; (d) the appointment of a conservator,
receiver, liquidator or similar official for the Issuer thereof or for
all or substantially all of its property, or the taking by the Issuer
of any action to seek relief under any applicable insolvency or
reorganization law.
If an Event of Default with respect to a Global Note shall
occur, the Issuer thereof shall promptly issue Certificated Notes in
exchange for such Global Note and the remedies provided in such Global
Note for any such Event of Default will be exercisable only after such
exchange has occurred, and only by the Holders of such Certificated
Notes. The Holder of each such Certificated Note will itself be solely
and entirely responsible for the exercise of any remedies provided
therein.
If an Event of Default with respect to a Certificated Note
shall occur and be continuing with respect thereto, the Holder thereof
may: (i) by written notice to the Issuing and Paying Agent declare the
entire outstanding principal amount thereof, together with any unpaid
interest, other amounts and premium accrued thereon, to be immediately
due and payable; (ii) institute a judicial proceeding of the
enforcement of the terms thereof including the collection of all sums
due and unpaid thereunder, prosecute such proceeding to judgment or
final decree, and enforce the same against the Issuer thereof and
collect monies adjudged or decreed to be payable in the manner provided
by law out of the property of the Issuer thereof; and (iii) take such
other action at law or in equity as may appear necessary or desirable
to collect and enforce such Certificated Note; provided, however, that
in the event that such Note is an Original Issue Discount Note or
Indexed Note the principal of which is determined by an index, unless
otherwise specified in such Note, the amount of principal that becomes
due and payable upon such declaration shall be equal to (a) with
respect to Original Issue Discount Notes, the
Amortized Face Amount as defined therein, and (b) with respect to
Indexed Notes the principal of which is determined by an index, as
specified in the relevant Pricing Supplement, and provided further,
that the Holder of a Certificated Note may waive any Event of Default
that occurs with respect thereto.
SECTION 15. REGISTRATION; TRANSFER.
(a) The Registrar shall maintain a Register in which it shall
register the names, addresses and taxpayer identification numbers of
the Holders of the Notes and shall register the transfer of Notes.
(b) Upon surrender for registration of transfer of any Note to
the Registrar or any Transfer Agent, the Issuer shall execute, and the
Issuing and Paying Agent shall complete, authenticate and deliver, in
the name of the designated transferee or transferees, one or more new
Notes, of any Authorized Denominations and having identical terms and
provisions and for a like aggregate principal amount.
(c) At the option of the Holder of a certificated Note,
certificated Notes may be exchanged for other certificated Notes of any
Authorized Denominations and having identical terms and provisions and
for a like aggregate principal amount, upon surrender of the Notes to
be exchanged at the Registrar or any Transfer Agent. Whenever any
certificated Notes are so surrendered for exchange, the Issuer thereof
shall execute, and the Issuing and Paying Agent shall complete,
authenticate and deliver, the certificated Notes which the Holder of
the certificated Note making the exchange is entitled to receive. Each
new Note issued upon presentment of any Note for registration of
transfer or exchange shall be issued as of the date of its
authentication. Except as provided herein or in the applicable Pricing
Supplement and Note, owners of beneficial interests in a Global Note
representing Book Entry Notes registered in their names, will not
receive or be entitled to receive physical delivery of Certificated
Notes and will not be considered the owners or Holders thereof under
this Agreement.
(d) Notwithstanding the foregoing neither the Registrar or any
Transfer Agent shall register the transfer of or exchange (i) any Note
that has been called for redemption in whole or in part, except the
unredeemed portion of Notes being redeemed in part, (ii) any Note
during the period beginning at the opening of business 15 days before
the mailing of a notice of such redemption and ending at the close of
business on the date of such mailing, or (iii) any Global Note in
violation of the legend contained on the face of such Global Note.
(e) All Notes issued upon any registration of transfer or
exchange of Notes shall be the valid obligations of the Issuer,
evidencing the same debt, and entitled to the same benefits as the
Notes surrendered upon such registration of transfer or exchange.
(f) Every Note presented or surrendered for registration of
transfer or for exchange shall be duly endorsed, or be accompanied by a
written instrument of transfer with such evidence of due authorization
and guaranty of signature as may reasonably be required by the
Registrar or any Transfer Agent, as applicable, in form satisfactory to
either of them, duly executed by the Holder thereof or his attorney
duly authorized in writing.
(g) No service charge shall be made to a Holder of Notes for
any transfer or exchange of Notes, but the Issuer may require the
payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection therewith.
SECTION 16. PERSONS DEEMED OWNERS. Prior to due presentment of a Note
for registration of transfer, the Issuer, the Issuing and Paying Agent and any
agent of the Issuer or the Issuing and Paying Agent may treat the Holder as the
owner of such Note for the purpose of receiving payment of Principal of,
interest and premium, if any, on such Note and for all other purposes
whatsoever, whether or not such Note be overdue, and neither the Issuer, the
Issuing and Paying Agent nor any agent of the Issuer or the Issuing and Paying
Agent shall be affected by notice to the contrary.
SECTION 17. MUTILATED, LOST, STOLEN OR DESTROYED NOTES. In case any
Note shall become mutilated, destroyed, lost or stolen, and upon the
satisfaction by the applicant of the requirements of this Section 17 for a
substituted Note, the Issuer shall execute, and upon its written request the
Issuing and Paying Agent shall authenticate and deliver, a new Note having
identical terms and provisions and having a number not contemporaneously
outstanding, in exchange and substitution for the mutilated Note or in lieu of
any substitution for the Note destroyed, lost or stolen. In the case of loss,
theft or destruction, the applicant for a substituted Note shall furnish to the
Issuer and to the Issuing and Paying Agent such security or indemnity as may be
required by them to save each of them harmless. Such applicant shall also
furnish to the Issuer and to the Issuing and Paying Agent evidence to their
satisfaction of the destruction, loss or theft of such Note and of the ownership
thereof. In the case of mutilation, the applicant for a substituted Note shall
surrender such mutilated Note to the Issuer or to the Issuing and Paying Agent
for cancellation thereof. The Issuing and Paying Agent may authenticate any such
substituted Note and deliver the same upon the written request or authorization
of any Authorized Representative. Upon the issuance of any substituted Note, the
Issuer may require the payment of a sum sufficient to cover any expense
connected therewith. In case any Note which has matured or is about to mature
shall become mutilated or be destroyed, lost or stolen, the Issuer may, instead
of issuing a substituted Note, pay or authorize the payment of the same (without
surrender thereof except in the case of a mutilated Note) if the applicant for
such payment shall furnish the Issuer and the Issuing and Paying Agent with such
security or indemnity as may be required by them to save each of them harmless,
and, in the case of destruction, loss or theft, evidence to the satisfaction of
the Issuer of the destruction, loss or theft of such Note and of the ownership
thereof. All applications under this Section shall be processed by the Issuing
and Paying Agent.
SECTION 18. RETURN OF UNCLAIMED FUNDS. Any money deposited with the
Issuing and Paying Agent and remaining unclaimed for two (2) years after the
date upon which the last payment of principal of or interest on any Note to
which such deposit relates shall have become due and payable, shall be repaid to
the Issuer of such Note by the Issuing and Paying Agent on written demand, and
the Holder of any Note to which such deposit related entitled to receive payment
shall thereafter look
only to the Issuer for the payment thereof and all liability of the Issuing and
Paying Agent with respect to such money shall thereupon cease.
SECTION 19. AMENDMENT OR SUPPLEMENT. The Issuer and the Issuing and
Paying Agent may modify, amend or supplement this Agreement without the consent
of any Holder. In addition, the Issuer may modify, amend or supplement the terms
and conditions of the Notes, without the consent of any Holder thereof: (i) to
evidence succession of another party to the Issuer, and such party's assumption
of the Issuer's obligations under the Notes, upon the occurrence of a merger or
consolidation, or transfer, sale or lease of assets as described below; (ii) to
add additional covenants, restrictions or conditions for the protection of the
Holder thereof; (iii) to cure ambiguities in the Notes, or correct defects or
inconsistencies in the provisions thereof; (iv) to reflect the replacement of
the Issuing and Paying Agent, or the assumption, by the Issuer or a substitute
Issuing and Paying Agent of some or all of the Issuing and Paying Agent's or
Calculation Agent's responsibilities under this Agreement; (v) to evidence the
replacement or change of address of the Depositary; (vi) in the case of any
extendible, redeemable, prepayable, amortizing or indexed amortizing Note, to
reduce the principal amount thereof to reflect the payment, prepayment and/or
redemption of a portion of the outstanding principal amount thereof; (vii) in
the case of any extendible, renewable or indexed amortizing Note, to reflect any
change in the maturity date thereof in accordance with the terms thereof; or
(viii) to reflect the issuance in exchange therefor, in accordance with the
terms thereof, of one or more Certificated Notes. However, the Notes may not be
modified or amended without the express written consent of the registered Holder
to: (i) change the Stated Maturity, except in the case of an extendible,
renewable or indexed amortizing note as provided therein; (ii) extend the time
of payment for the premium, if any, or interest on the Note, except in the case
of an extendible, renewable or indexed amortizing note as provided therein;
(iii) change the coin or currency in which the principal of, premium, if any, or
interest on the Note is payable; (iv) reduce the principal amount thereof or the
interest rate thereon, except in the case of an extendible, prepayable,
redeemable, amortizing or Indexed Note as provided therein; (v) change the
method of payment to other than wire transfer in immediately available funds;
(vi) impair the right of the Holder thereof to institute suit for the
enforcement of payments of principal of, premium, if any, or interest or other
amounts on the Note; (vii) change any Note's definition of "Event of Default" or
otherwise eliminate or impair any remedy available thereunder upon the
occurrence of any Event of Default (as defined in such Note) ; or (viii) modify
the provisions therein governing the amendment thereof.
Notes authenticated and delivered after the execution of any
agreement modifying, amending or supplementing this Agreement or the
Notes may bear a notation in form approved by the Issuer as to any
matter provided for in such modification, amendment or supplement to
this Agreement or the Notes. New Notes so modified as to conform, in
the opinion of the Issuer, to any provisions contained in any such
modification, amendment or supplement may be prepared by the Issuer,
authenticated by the Issuing and Paying Agent (or any Authenticating
Agent) and delivered in exchange for Outstanding Notes.
The Issuer may not consolidate or merge with or into any other
person, or convey, transfer or lease its properties and assets
substantially as an entirety to any person, unless
(i) the surviving entity in such consolidation or merger, or the person
that acquires by conveyance or transfer, or that leases, the properties
and assets of the Issuer substantially as an entirety, shall be a bank,
corporation or partnership organized and validly existing under the
laws of the United States, any State thereof or the District of
Columbia, and shall expressly assume the due and punctual payment of
the principal of, premium, if any, and interest or other amounts
payable on the Notes issued by the Issuer, and the performance or
observance of every provision of the Notes on the part of the Issuer to
be performed or observed; and (ii) immediately after giving effect to
such transaction, no Event of Default with respect to the Issuer, and
no event which, after notice or the lapse of time or both, would become
an Event of Default with respect to the Issuer, shall have happened and
be continuing.
If this Agreement is amended or modified pursuant to an
agreement by the parties hereto pursuant to this Section 19, the
Issuing and Paying Agent may require, and shall be fully protected in
relying upon, an opinion of counsel, which opinion may be rendered by
counsel to the Issuer, stating that the execution of such amendment or
modification is authorized or permitted by this Agreement, and that
such amendment or modification constitutes the legal, valid and binding
obligation of the Issuer enforceable in accordance with its terms and
subject to customary exceptions.
SECTION 20. RESIGNATION OR REMOVAL OF AGENTS; APPOINTMENT OF SUCCESSORS
TO AGENTS.
(a) RESIGNATION OR REMOVAL OF AGENT. Any Agent may at any time
resign as such by giving written notice to the Issuer and, except in
the case of the resignation of the Issuing and Paying Agent, to the
Issuing and Paying Agent of such intention on its part, specifying the
date on which its desired resignation shall become effective; provided
that such date shall not be less than thirty (30) days after the date
on which such notice is given unless the Issuer agrees to accept less
notice.
The Issuer may remove any Agent with respect to Notes issued
by the Issuer at any time by filing with it an instrument in writing
signed by or on behalf of the Issuer and specifying such removal and
the date when it shall become effective.
The resignation or removal of an Agent with respect to Notes
issued by the Issuer shall become effective on the date set forth in
the notice thereof and shall only be effective with respect to the
Issuer and Notes issued by the Issuer, except that any resignation or
removal of the Issuing and Paying Agent or the Registrar shall take
effect upon the Issuer's, appointment, as hereinafter provided, of a
successor Issuing and Paying Agent or Registrar, as the case may be,
and such Agent's acceptance of such appointment; provided, that if the
Issuer has not appointed a replacement Agent within 30 days after any
such removal or replacement, the affected Agent (at the expense of the
Issuer) may petition any court of competent jurisdiction for the
appointment of a successor Agent.
(b) APPOINTMENT OF SUCCESSOR TO AGENT. In case at any time the
Issuing and Paying Agent or the Registrar becomes incapable of acting,
or is adjudged bankrupt or insolvent, or files a petition for corporate
reorganization under any applicable federal,
state, or foreign bankruptcy, insolvency, or similar law or makes an
assignment for the benefit of its creditors, or consents to the
appointment of a receiver, custodian, or other similar official of all
or substantially all of its property, or admits in writing its
inability to pay or meet its debts as they mature, or if a receiver,
custodian, or other similar official of it or of all or substantially
all of its property is appointed, or if an order of any court is
entered for relief against it under the provisions of any applicable
federal, state or foreign bankruptcy, insolvency or similar law, or if
any public officer takes charge or control of any such Agent, or of its
property or affairs, for the purpose of rehabilitation, conservation or
liquidation, such Agent shall promptly notify the Issuer and the
Issuing and Paying Agent, in writing, of the occurrence of such event.
Either (i) following receipt of notice of resignation from,
(ii) upon the Issuer's removal of, or (iii) following the Issuer's
receipt of the notice referred to in the first paragraph of this
Section 20(b) from, the Issuing and Paying Agent or the Registrar, the
Issuer shall appoint a successor to such Agent by an instrument in
writing filed with the Issuing and Paying Agent (or its successor).
Upon the appointment as aforesaid of a successor Issuing and Paying
Agent or Registrar and acceptance by such successor of such
appointment, the Issuing and Paying Agent or Registrar hereunder so
superseded shall cease to be such Issuing and Paying Agent or Registrar
hereunder.
(c) SUCCESSOR OF AGENT. Any successor Issuing and Paying Agent
or Registrar appointed hereunder shall execute, acknowledge, and
deliver to its predecessor and to the Issuer an instrument accepting
such appointment hereunder, and thereupon such successor Issuing and
Paying Agent or Registrar without any further act, deed or conveyance,
shall become vested with all the authority, rights, powers, trusts,
immunities, duties, and obligations of such predecessor, with like
effect as if originally named as such Issuing and Paying Agent or
Registrar hereunder. Such predecessor, upon payment of any amount then
payable to it pursuant to Section 24, shall thereupon become obligated
to transfer, deliver and pay over, and such successor Issuing and
Paying Agent or Registrar shall be entitled to receive, all money,
securities and other property on deposit with or held by such
predecessor as such Issuing and Paying Agent or Registrar hereunder.
(d) MERGER, ETC. OF AGENT. Any corporation into which any
Agent hereunder may be merged, or converted, or any corporation with
which any Agent may be consolidated, or any corporation resulting from
any merger, conversion or consolidation to which any Agent shall be a
party, or a corporation to which any Agent shall sell or otherwise
transfer all or substantially all of the assets and business of such
Agent shall be the successor to such Agent under this Agreement
(provided that it shall be qualified as aforesaid) without the
execution or filing of any paper or any further act on the part of any
of the parties hereto. Each Agent will advise the Issuer promptly after
any public announcement of a proposal by such Agent to enter into any
such transaction.
(e) CHANGE IN DUTIES OF AN AGENT. The Issuer may vary the
appointment of any Agent other than the Issuing and Paying Agent.
(f) ADDITIONAL AGENTS. The Issuer may from time to time
appoint a paying agent for one or more Notes. In the event that (i) the
Issuing and Paying Agent shall be
removed or resign and any successor thereto shall not be located in The
City of New York or (ii) the Issuing and Paying Agent shall cease to
maintain an office in The City of New York at which amounts due on the
Notes are payable, then in either such case the Issuer, with respect to
Notes issued by it, shall appoint a paying agent with an office in The
City of New York at which such Notes may be paid.
SECTION 21. RELIANCE ON INSTRUCTIONS. The Issuing and Paying Agent
shall incur no liability to the Issuer in acting hereunder upon instructions
contemplated hereby which the Issuing and Paying Agent believed in good faith to
have been properly given. In the event a discrepancy exists between the
instructions as originally received by the Issuing and Paying Agent and any
subsequent written confirmation thereof, such original instructions will be
deemed controlling provided the Issuing and Paying Agent gives notice to the
Issuer of such discrepancy promptly upon receipt of such written confirmation.
SECTION 22. CANCELLATION OF UNISSUED NOTES. Promptly upon the written
request of the Issuer, the Issuing and Paying Agent shall cancel and return to
the Issuer all unissued Notes of the Issuer in its possession.
SECTION 23. REPRESENTATION AND WARRANTIES OF THE ISSUER; INSTRUCTIONS
BY CERTIFICATE.
(a) Each instruction given to the Issuing and Paying Agent in
accordance with Section 5 hereof shall constitute a representation and
warranty to the Issuing and Paying Agent by the Issuer that the
issuance and delivery of the Notes is in accordance with the terms and
conditions described in the Offering Circular and the applicable
Pricing Supplement, have been duly and validly authorized by the Issuer
and, when completed, authenticated and delivered pursuant hereto, the
Notes will constitute the valid and legally binding obligations of the
Issuer enforceable against the Issuer in accordance with its terms.
(b) Any instruction given by the Issuer to the Issuing and
Paying Agent under this Agreement shall be in the form of an Officer's
Certificate. For the purposes of this Agreement, "Officer's
Certificate" means a certificate signed by an Authorized Representative
and delivered to the Issuing and Paying Agent.
SECTION 24. FEES. For their services under this Agreement, the Agents,
including the Issuing and Paying Agent, shall be entitled to compensation, as
shall be mutually agreed upon in writing between each such Agent and the Issuer
from time to time and the Issuer agrees to reimburse the Issuing and Paying
Agent for all reasonable out of pocket disbursements and advances made or
incurred by the Issuing and Paying Agent incurred without negligence or willful
misconduct.
SECTION 25. NOTICES.
(a) All communications by or on behalf of the Issuer relating
to the completion, delivery or payment of the Notes are to be directed
to the Corporate Trust Agency Group of the Issuing and Paying Agent,
Four Albany Street, 4th floor, New York, New York 10006, Attention:
Corporate Trust and Agency Group (or such other department or division
as the Issuing and Paying Agent shall specify in writing to the
Issuer). The Issuer will send all Notes to be completed and delivered
by the Issuing and Paying Agent to such Corporate Trust and Agency
Group (or such other department or division as the Issuing and Paying
Agent shall specify in writing to the Issuer). The Issuing and Paying
Agent will, upon written request, advise the Issuer from time to time
of the individuals generally responsible for the administration of this
Agreement.
(b) Notices and other communications hereunder shall (except
to the extent otherwise expressly provided) be in writing and shall be
addressed as follows, or to such other address as the party receiving
such notice shall have previously specified:
If to the Issuer:
Bank of America, N.A.
Bank of America Corporate Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
6th Floor, NC1-007-06-07
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
With copies to:
Bank of America Corporation
Bank of America Corporate Center
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
and
▇▇▇▇▇ ▇▇▇▇▇ Mulliss & ▇▇▇▇▇, L.L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
If to the Issuing and Paying Agent:
Bankers Trust Company
Four ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇/6392
Attention: Corporate Trust and Agency
Group
with a copy to:
Kramer, Levin, Naftalis & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopies: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
SECTION 26. INFORMATION FURNISHED BY THE ISSUING AND PAYING AGENT. Upon
the reasonable request of the Issuer and from time to time, the Issuing and
Paying Agent shall promptly provide the Issuer with information with respect to
Notes issued by it hereunder to the extent such information is reasonably
available.
SECTION 27. LIABILITY. Neither the Issuing and Paying Agent nor its
officers or employees shall be liable to the Issuer for any act or omission
hereunder except in the case of negligence or willful misconduct. The duties and
obligations of the Issuing and Paying Agent, its officers and employees shall be
determined by the express provisions of this Agreement and they shall not be
liable except for the negligent performance of such duties and obligations as
are specifically set forth herein and no implied covenants shall be read into
this Agreement against them. Neither the Issuing and Paying Agent nor its
officers shall be required to ascertain whether any issuance or sale of Notes
(or any amendment or termination of this Agreement) is in compliance with any
other agreement to which the Issuer is a party (whether or not any of the Agents
is also a party to such other agreement).
SECTION 28. ADDITIONAL RESPONSIBILITIES; ATTORNEYS FEES.
(a) If the Issuer shall ask the Issuing and Paying Agent to
perform any duties not specifically set forth in the Agreement as
duties of the Issuing and Paying Agent (the "Additional
Responsibilities") and the Issuing and Paying Agent chooses to perform
such Additional Responsibilities, the Issuing and Paying Agent shall be
held to the same standard of care and shall be entitled to all the
protective provisions (including, but not limited to, indemnification)
set forth herein.
(b) In the event the Issuer shall default under any of the
provisions or obligations of this Agreement, the Notes or any
amendment, supplement or modification related hereto, affecting the
rights or duties of the Issuing and Paying Agent, and the Issuing and
Paying Agent shall employ attorneys or incur other expenses for the
enforcement of performance or observance of any such obligation or
agreement, the Issuer agrees that, in the absence of negligence or
willful misconduct on the part of the
Issuing and Paying Agent, it will on demand therefore pay to the
Issuing and Paying Agent the reasonable fees of such attorneys and such
other expenses incurred by the Issuing and Paying Agent.
SECTION 29. TRANSFER OF NOTES AND MONEYS.
(a) The Issuing and Paying Agent shall hold all Certificated
Notes delivered to it for payment solely for the benefit of the
respective Holders of the Notes which shall have so delivered such
Notes until moneys representing the payment for such Notes shall have
been delivered to or for the account of or to the order of such
Holders.
(b) The Issuing and Paying Agent shall hold all moneys
delivered to it pursuant to this Agreement for the payment of
Certificated Notes in trust solely for the benefit of the person or
entity which shall have so delivered such moneys until such Notes shall
have been delivered to or for the account of such person or entity, but
such moneys need not be segregated from other funds except to the
extent required by law.
(c) The Issuing and Paying Agent shall only make such payments
called for under this Agreement from funds transferred to it for
payment pursuant to this Agreement which funds are immediately
available and on deposit in an appropriate account maintained by the
Issuing and Paying Agent in The City of New York.
(d) Under no circumstances shall the Issuing and Paying Agent
be obligated to expend any of its own funds in connection with the
performance of its duties hereunder.
(e) The Issuing and Paying Agent may become a purchaser,
holder, transferor or otherwise own, hold or transfer any Notes and may
commence or join in any action which a Holder is entitled to take
without any conflict with its responsibilities pursuant to this
Agreement.
(f) The Issuing and Paying Agent shall not be required to
invest any moneys delivered to it.
(g) The Issuing and Paying Agent shall have no liability for
interest on any moneys received from the Issuer hereunder.
(h) The Issuing and Paying Agent shall not be responsible for
the correctness of any recital in the Notes or in any offering
materials and makes no representations as to the validity of the Notes
and shall incur no responsibility in respect thereto.
(i) The Issuing and Paying Agent shall be protected in acting
upon any notice, order, requisition, request, consent, certificate,
order, opinion (including an opinion of counsel), affidavit, letter,
telegram or other paper or document in good faith deemed by it to be
genuine and correct and to have been signed or sent by the proper
person or persons.
(j) Any action taken by the Issuing and Paying Agent pursuant
to this Agreement upon the request or authority or consent of any
person who at the time of making such request or giving such authority
or consent is the Holder of any Note shall be conclusive and binding
upon all future holders of the same Note and Notes issued in exchange
therefor or in place thereof.
(k) In paying Notes hereunder, the Issuing and Paying Agent
shall be acting as a conduit and shall not be paying Notes for its own
account, and in the absence of written notice from the Issuer to the
contrary and in the absence of gross negligence or wilful misconduct of
the Issuing and Paying Agent, the Issuing and Paying Agent shall be
entitled to assume that any Global Note presented to it, or deemed
presented to it, for payment, is entitled to be so paid.
SECTION 30. INDEMNITY. The Issuer covenants and agrees to
indemnify the Issuing and Paying Agent (including its directors, officers,
attorneys, employees and agents) for, and to hold it harmless against, any loss,
liability or expense (including reasonable attorneys fees and disbursements)
incurred without negligence or willful misconduct on its part, arising out of or
in connection with this Agreement or the Administrative Procedures and/or the
performance of the Issuing and Paying Agent's duties hereunder and the
Administrative Procedures, including the reasonable costs and expenses of
defending it against any claim of liability in the premises. The Issuing and
Paying Agent may refuse to perform any duty or exercise any right or power
unless it receives indemnity satisfactory to it against any related loss,
liability or expense. These indemnification obligations shall survive the
termination of this Agreement including any termination under state or federal
banking law or other insolvency law, to the extent enforceable under applicable
law, and shall survive the resignation or removal of the Issuing and Paying
Agent while remaining applicable to any action taken or omitted by the Issuing
and Paying Agent while acting pursuant to this Agreement.
SECTION 31. LIMITATION OF LIABILITY; RELIANCE ON OPINIONS AND
CERTIFICATES.
(a) THE ISSUING AND PAYING AGENT'S DUTIES ARE MINISTERIAL IN
NATURE AND IN NO EVENT SHALL THE ISSUING AND PAYING AGENT BE LIABLE,
DIRECTLY OR INDIRECTLY, TO ANY PERSON OR ENTITY FOR ANY (a) LOSS,
LIABILITY, DAMAGES OR EXPENSES (OTHER THAN, IN THE CASE OF THE ISSUER
ONLY, THOSE WHICH RESULT DIRECTLY FROM THE ISSUING AND PAYING AGENT'S
NEGLIGENCE OR WILLFUL MISCONDUCT) OR (b) SPECIAL, INCIDENTAL, INDIRECT,
PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST
PROFITS) , EVEN IF THE ISSUING AND PAYING AGENT HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY WILL APPLY
REGARDLESS OF THE FORM OF ACTION, INCLUDING WITHOUT LIMITATION FOR
BREACH OF THIS CONTRACT OR TORT (INCLUDING NEGLIGENCE).
(b) The Issuing and Paying Agent shall be entitled to consult
with counsel of its choosing and shall have no liability to the Issuer
in respect of an action taken or
omitted by the Issuing and Paying Agent in good faith in reliance on an
opinion of counsel or an Officer's Certificate, including in-house
counsel.
(c) Notwithstanding anything to the contrary herein, the
Issuing and Paying Agent shall not be responsible for any misconduct or
negligence on the part of any agent, correspondent, attorney or
receiver appointed with due care by it hereunder.
SECTION 32. BENEFIT OF AGREEMENT. This Agreement is solely for the
benefit of the parties hereto and the Holders and their successors and assigns
and no other person shall acquire or have any rights under or by virtue hereof.
SECTION 33. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York applicable to
agreements to be entered into and to be performed in such State.
SECTION 34. HEADINGS AND TABLE OF CONTENTS. The table of contents and
the section and subsection headings herein are for convenience only and shall
not affect the construction hereof.
SECTION 35. COUNTERPARTS. This Agreement may be signed in separate
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute but one and the same instrument.
SECTION 36. TERMINATION OF PRIOR ISSUING AND PAYING AGENT AGREEMENTS.
The Issuer and Bankers Trust Company agree that on the day on which no notes
issued by the Issuer and authenticated and delivered under the Issuing and
Paying Agent Agreement with an April 30, 1993 Effective Date entered into
between Bankers Trust Company and the Issuer remain outstanding, such agreement
shall terminate (other than the provisions contained therein which by their
terms survive termination).
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed on their behalf by their officers duly
authorized thereunto, as of the day and year first above written.
BANK OF AMERICA, N.A., as Issuer
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
BANKERS TRUST COMPANY, as
Issuing and Paying Agent
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Vice President