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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 August 1, 2000
___________________________
SHORT-TERM AND MEDIUM-TERM NOTES
Due 7 Days or More From Date of Issue
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Table of Contents
Page
SECTION 1. Definitions............................................................................................... 3
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SECTION 2. Appointment of Agents..................................................................................... 9
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(a) Issuing and Paying Agent.................................................................................. 9
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(b) Selling Agents............................................................................................ 9
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(c) Registrar................................................................................................. 10
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(d) Transfer Agents........................................................................................... 10
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(e) Calculation Agents........................................................................................ 10
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SECTION 3. The Notes................................................................................................. 11
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(a) Note Form; Signature...................................................................................... 11
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(b) Denominations............................................................................................. 14
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(c) Completion of Notes....................................................................................... 14
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(d) Date...................................................................................................... 14
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(e) Certificate of Authentication............................................................................. 14
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(f) Original Issue Discount Notes............................................................................. 14
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(g) Custody of Notes.......................................................................................... 14
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(h) Certificated Notes........................................................................................ 14
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SECTION 4. Authorized Representatives................................................................................ 15
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SECTION 5. Completion, Authentication and Delivery of Notes.......................................................... 15
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SECTION 6. Procedure Upon Sale of the Notes.......................................................................... 18
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SECTION 7. Payment of Interest; Actions on Days Other than Business Days; Payment of
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Other Amounts............................................................................................. 18
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SECTION 8. Payment of Principal...................................................................................... 20
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SECTION 9. Designation of Accounts to Receive Payment................................................................ 20
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SECTION 10. Information Regarding Amounts Due......................................................................... 20
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SECTION 11. Specified Currency Notes.................................................................................. 20
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SECTION 12. Deposit of Funds.......................................................................................... 21
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SECTION 13. Optional Redemption....................................................................................... 21
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(a) Optional Redemption....................................................................................... 21
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(b) Optional Repayment........................................................................................ 21
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(c) Optional Extension of Maturity............................................................................ 22
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(d) Optional Renewal.......................................................................................... 23
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SECTION 14. Events of Default......................................................................................... 24
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SECTION 15. Registration; Transfer.................................................................................... 25
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SECTION 16. Persons Deemed Owners..................................................................................... 26
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SECTION 17. Mutilated, Lost, Stolen or Destroyed Notes................................................................ 26
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SECTION 18. Return of Unclaimed Funds................................................................................. 26
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SECTION 19. Amendment or Supplement................................................................................... 27
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SECTION 20. Resignation or Removal of Agents; Appointment of Successors to Agents..................................... 28
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(a) Resignation or Removal of Agent........................................................................... 28
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(b) Appointment of Successor to Agent......................................................................... 28
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(c) Successor of Agent........................................................................................ 29
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(d) Merger, Etc. of Agent..................................................................................... 29
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(e) Change in Duties of an Agent.............................................................................. 29
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(f) Additional Agents......................................................................................... 29
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SECTION 21. Reliance on Instructions.................................................................................. 30
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SECTION 22. Cancellation of Unissued Notes............................................................................ 30
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SECTION 23. Representation and Warranties of the Issuer; Instructions by Certificate.................................. 30
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SECTION 24. Fees...................................................................................................... 30
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SECTION 25. Notices................................................................................................... 31
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SECTION 26. Information Furnished by the Issuing and Paying Agent..................................................... 32
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SECTION 27. Liability................................................................................................. 32
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SECTION 28. Additional Responsibilities; Attorneys Fees............................................................... 32
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SECTION 29. Transfer of Notes and Moneys.............................................................................. 33
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SECTION 30. Indemnity................................................................................................. 34
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SECTION 31. Limitation of Liability; Reliance on Opinions and Certificates............................................ 34
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SECTION 32. Benefit of Agreement...................................................................................... 35
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SECTION 33. Governing Law............................................................................................. 35
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SECTION 34. Headings and Table of Contents............................................................................ 35
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SECTION 35. Counterparts.............................................................................................. 35
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SECTION 36. Termination of Prior Issuing and Paying Agent Agreements.................................................. 35
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EXHIBIT A Forms of DTC Letters of Representations................................................................... 37
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EXHIBIT B Administrative Procedures................................................................................. 38
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EXHIBIT C Form of Face of Fixed Rate Note........................................................................... 39
EXHIBIT D Form of Face of Floating Rate Note........................................................................ 40
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EXHIBIT E Form of Face of Indexed Note.............................................................................. 41
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EXHIBIT F Form of Legend for Original Issue Discount Notes.......................................................... 42
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EXHIBIT G Bank of America, N.A. Authorized Representatives.......................................................... 43
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EXHIBIT H See Tab 19 Form of Issuing and Paying Agent's Officer's Certificate
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Referencing Authorized Representatives.................................................................... 44
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BANK OF AMERICA, N.A.
SHORT-TERM AND MEDIUM-TERM NOTES
AMENDED AND RESTATED
ISSUING AND PAYING AGENCY AGREEMENT
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AMENDED AND RESTATED ISSUING AND PAYING AGENCY AGREEMENT dated as of August
1, 2000 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 as amended by an Amended and Restated Issuing and Paying Agency
Agreement dated as of July 30, 1999 between Bank of America, N.A. and Bankers
Trust Company and as further amended by Amendment To Short-Term and Medium-Term
Notes Amended and Restated Issuing and Paying Agency Agreement dated as of May
24, 2000 between Bank of America, N.A. and Bankers Trust Company.
SECTION 1. Definitions. Except as otherwise expressly provided herein or
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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 G 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 August 1, 2000, 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.
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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, loans, stocks, debt obligations or other
securities, or credit events, 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.
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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 August 1, 2000 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, except
that with respect to a Reopened Note, the Original Issue Date for all portions
of such Note shall be the date on which the first portion of 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.
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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.
Reference Asset Payable Notes - An Indexed Note which may provide for
interest payments, payments at maturity or other payments by delivery of the
stocks, loans or other instruments reference to which is made in determining the
amount of principal, premium, if any, or interest payable on such Note.
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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).
Reopened Note - A Note which is reopened after the date on which such Note
was issued and the purchase price therefore was paid, through the subsequent
issuance of additional principal amount of such Note having the same CUSIP
number and all other terms of the Note originally issued.
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.
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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.
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(a) Issuing and Paying Agent. The Issuer hereby appoints Bankers
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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; provided, however,
that Bankers Trust Company shall not be required to act as Issuing and
Paying Agent with respect to any Reference Asset Payable Note and Bankers
Trust Company's acceptance of such appointment with respect to any
Reference Asset Payable Note is expressly conditioned upon its prior
written approval of the Pricing Supplement to such Reference Asset Payable
Note, which Pricing Supplement shall include Administrative procedures
relating to such Reference Asset Payable Note. 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
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Securities LLC, Credit Suisse First Boston Corporation, ▇▇▇▇▇▇ Brothers
Inc. (Including its affiliate ▇▇▇▇▇▇ Commercial Paper Inc.), ▇▇▇▇▇▇▇ ▇▇▇▇▇
& Co., ▇▇▇▇▇▇▇, Lynch, Pierce,
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▇▇▇▇▇▇ & ▇▇▇▇▇ 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
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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
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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.
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1. Appointment of Calculation Agent: The Issuer (at its sole
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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
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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.
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(b). Indexed Notes: Before issuing an Indexed Note, the
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Issuer shall appoint a Calculation Agent for the
purpose of calculating the principal at maturity, 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
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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.
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(a) Note Form; Signature. Except as otherwise provided in Section
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3(h) hereof and except with respect to a Reopened Note, 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
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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, Dor 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
12
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 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 offer and issuance
from time to time of Notes with maturities of 7 days or more up to a maximum
principal amount at any one time outstanding of $50,000,000,000. Since
$50,000,000,000 in aggregate principal amount of Bank Notes with maturities of
more than 270 days can be issued in compliance with the registration and
prospectus regulations of the Office of the Comptroller of the Currency (the
"OCC"), not more than $50,000,000,000 aggregate principal amount of such Bank
Notes may be offered and issued under the Issuing and Paying Agency Agreement.
Bank Notes with maturities of 270 days or less are exempt from the registration
and prospectus regulations of the OCC. Accordingly, the maximum aggregate
principal amount of such Bank Notes offered and issued under this Agreement is
limited only by the $50,000,000,000 limitation on the total aggregate principal
amount of Bank Notes outstanding at any one time. Notwithstanding the
foregoing, if the Issuer authorizes the offer and issuance of additional Notes
and, to the extent necessary,
13
registers such Notes with the OCC such additional Notes may be sold to or
through the Agents pursuant to the terms of this Agreement, all as though the
offer and 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
14
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 G 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 Exhibit G with respect
to the Issuer is genuine, so long as such signature resembles the specimen
signature set forth in 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 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 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.
15
(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.
16
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), if
any.
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
17
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 Bank Notes denominated in a
currency other than U.S. dollars shall be determined as of the
issue date for such Notes on the basis of the spot rate for the
sale of the U.S. dollar against the purchase of the relevant
currency quoted by a foreign exchange dealer selected by the
Issuer on the relevant day of calculation;
(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 U.S. dollar equivalent of Indexed Notes shall be calculated
in the manner specified above by reference to the original
nominal amount of such Bank Notes.
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.
------------------------
18
(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.
19
(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 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
20
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,
21
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
22
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.
23
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
24
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.
25
(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.
26
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
27
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
28
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
29
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.
30
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: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
31
If to the Issuing and Paying Agent:
Bankers Trust Company
Four ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇/6392
Attention: Corporate Trust and Agency Group
with a copy to:
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
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
32
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
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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
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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
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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).
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(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
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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).
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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/
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
Title: Senior Vice President
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BANKERS TRUST COMPANY, as
Issuing and Paying Agent
By: /s/
------------------------------
Name: ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇
----------------------------
Title: Associate
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