Exhibit 4(l)
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AMENDED AND RESTATED
AGENCY AGREEMENT
relating to
BANK OF AMERICA CORPORATION
and
BANK OF AMERICA, X.X.
X.X. $20,000,000,000
Euro Medium-Term Note Program
among
BANK OF AMERICA CORPORATION
and
BANK OF AMERICA, N.A.
as Issuers
and
THE CHASE MANHATTAN BANK, London Branch
as Issuing and Principal Paying Agent
and
CHASE MANHATTAN BANK LUXEMBOURG S.A.
as Paying Agent
Dated as of August 1, 2000
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INDEX
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Clause Page
------ ----
1. Definitions and Interpretation......................................... 1
2. Appointments of Agent, Paying Agents and
Calculation Agents..................................................... 2
3. Issue of Temporary Global Notes........................................ 3
4. Determination of Exchange Date, Issue of
Permanent Global Notes or Definitive Notes
and Determination of Restricted Period................................. 4
5. Issue of Definitive Notes.............................................. 5
6. Terms of Issue......................................................... 6
7. Payments............................................................... 6
8. Determinations and Notifications in
Respect of Notes and Interest Determination............................ 8
9. Notice of any Withholding or Deduction................................. 10
10. Duties of the Agent in Connection with
Early Redemption....................................................... 10
11. Receipt and Publication of Notices;
Receipt of Certificates................................................ 11
12. Cancellation of Notes, Receipts, Coupons
and Talons............................................................. 11
13. Issue of Replacement Notes, Receipts,
Coupons and Talons..................................................... 12
14. Copies of Documents Available for
Inspection............................................................. 13
15. Meetings of Noteholders................................................ 14
16. Repayment by the Agent................................................. 14
17. Conditions of Appointment.............................................. 14
18. Communication Between the Parties...................................... 15
19. Changes in Agent and Paying Agents..................................... 15
20. Merger and Consolidation............................................... 16
21. Notification of Changes to Paying Agents............................... 17
22. Change of Specified Office............................................. 17
23. Notices................................................................ 17
24. Taxes and Stamp Duties................................................. 18
25. Commissions, Fees and Expenses......................................... 18
26. Indemnity.............................................................. 18
27. Reporting.............................................................. 19
28. Governing Law.......................................................... 19
29. Amendments............................................................. 20
30. Descriptive Headings................................................... 20
31. Counterparts........................................................... 21
Schedule 1 - Form of Temporary Global Note
----------
Schedule 2 - Form of Permanent Global Note
----------
Schedule 3 - Form of Definitive Note, Coupon, Receipt and Talon
----------
Schedule 4 - Terms and Conditions
----------
Schedule 5 - Form of Certificate to be Presented by Euroclear or
Clearstream, Luxembourg
----------
Schedule 6 - Form of Certificate of Beneficial Owner
----------
Schedule 7 - Provision for Meetings of Noteholders
----------
Schedule 8 - Form of Put Notice
----------
Schedule 9 - Form of Calculation Agency Agreement
----------
i
THIS AMENDED AND RESTATED AGENCY AGREEMENT dated as of August 1, 2000 among:
(i) Bank of America Corporation, a Delaware corporation (the
"Corporation"), and Bank of America, N.A., a national banking
association (the "Bank"; the Bank and the Corporation are each
an "Issuer" and collectively, "Issuers");
(ii) The Chase Manhattan Bank, London Branch (the "Agent" and the
"Issuing and Principal Paying Agent"); and
(iii) Chase Manhattan Bank Luxembourg S.A. (the "Paying Agent").
WHEREAS, the Corporation, the Agent and the Paying Agent wish to
update the arrangements originally agreed among them pursuant to that certain
Agency Agreement dated November 8, 1995, as amended and restated to the date
hereof, including the amendment and restatement dated July 30, 1999 (the
"Original Agency Agreement");
WHEREAS, the Issuers propose to issue up to U.S. $10,000,000,000 with
respect to the Corporation and U.S. $10,000,000,000 with respect to the Bank (or
its equivalent in other currencies) in aggregate principal amount of Euro
Medium-Term Notes (the "Notes") outstanding at any one time as provided in an
Amended and Restated Program Agreement of even date among the Issuers, the
Arranger and the Dealers named therein (the "Program Agreement") and as
described in an Offering Circular of even date (the "Offering Circular");
WHEREAS, Notes will be issued in the denominations specified in the
relevant Pricing Supplement issued in connection with each Series and each
Tranche of Notes; and
WHEREAS, unless otherwise determined by an Issuer and specified in the
applicable Pricing Supplement, beneficial interests in each Tranche of Notes
initially will be represented by a Temporary Global Note, exchangeable, as
provided in such Temporary Global Note, for beneficial interests in a Permanent
Global Note and, only under limited circumstances, beneficial interests in a
Global Note may be exchangeable for Definitive Notes, in each case in accordance
with the terms of the Global Notes.
NOW, THEREFORE, it is agreed as follows:
1. Definitions and Interpretation
------------------------------
(1) Terms and expressions defined in the Program Agreement or the
Notes or used in the applicable Pricing Supplement shall have the same meanings
in this Agreement, except where the context requires otherwise.
(2) Without prejudice to the foregoing in this Agreement:
"outstanding" means, in relation to the Notes, all the Notes issued
other than (a) those which have been redeemed in accordance with the Terms and
Conditions, (b) those in respect of which the date for redemption in accordance
with the Terms and Conditions has occurred and the redemption moneys (including
all interest accrued on such Notes to the date for such redemption and any
interest or other amounts payable under the Terms and Conditions after such
date) have been duly paid to the Agent as provided in this Agreement and remain
available for payment against presentation and surrender of Notes and/or
Receipts and/or Coupons, as the case may be, (c) those which have become void
under Condition 8, (d) those which have been purchased and canceled as provided
in Condition 5 (or as provided in the Global Notes), (e) those mutilated or
defaced Notes which have been surrendered in exchange for replacement Notes
pursuant to Condition 10, (f) (for purposes only of determining how many Notes
are outstanding and without prejudice to their status for any other purpose)
those Notes alleged to have been lost, stolen or destroyed and in respect of
which replacement Notes have been issued pursuant to Condition 10, (g) any
Temporary Global Note to the extent that it shall have been exchanged for a
Permanent Global Note, in each case pursuant to their respective provisions;
provided that for the purposes of (i) ascertaining the right to attend and vote
at any meeting of the Noteholders and (ii) the determination of how many Notes
are outstanding for the
purposes of Schedule 7, those Notes which are beneficially held by, or are held
on behalf of, an Issuer or any of its affiliates shall (unless and until ceasing
to be so held) be deemed not to remain outstanding;
"Paying Agents" means the Issuing and Principal Paying Agent and the
Paying Agent referred to above and such other Paying Agent or Agents as may be
appointed from time to time hereunder; and
(3) The term "Notes" as used in this Agreement shall include the
Temporary Global Note and the Permanent Global Note, Definitive Notes and
Coupons. The term "Global Note" as used in this Agreement shall include both the
Temporary Global Note and the Permanent Global Note, each of which is a "Global
Note." The term "Noteholders" as used in this Agreement shall mean the several
persons who are for the time being the holders of the Notes, which expression,
while the Notes are represented by a Global Note, shall mean (other than with
respect to the payment of principal and interest on the Notes, the right to
which shall be vested as against the relevant Issuer solely in the bearer of
such Global Note in accordance with and subject to its terms) the persons for
the time being shown in the records of Euroclear (as defined below) or
Clearstream, Luxembourg (as defined below) (other than Clearstream, Luxembourg,
if Clearstream, Luxembourg shall be an accountholder of Euroclear, and
Euroclear, if Euroclear shall be an accountholder of Clearstream, Luxembourg) as
the Noteholders of particular principal amounts of Notes (in which regard any
certificate or other document issued by Euroclear or Clearstream, Luxembourg as
to the principal amount of Notes standing to the credit of the account of any
person shall be conclusive and binding for all purposes).
(4) For purposes of this Agreement, the Notes of each Series shall
form a separate series of Notes and the provisions of this Agreement shall apply
mutatis mutandis separately and independently to the Notes of each Series and in
such provisions the expressions "Notes", "Noteholders", "Receipts",
"Receiptholders", "Coupons", "Couponholders", "Talons" and "Talonholders" shall
be construed accordingly.
(5) All references in this Agreement to principal and/or interest or
both in respect of the Notes or to any moneys payable by an Issuer under this
Agreement shall have the meaning set out in Condition 4.
(6) All references in this Agreement to the "relevant currency" shall
be construed as references to the currency in which the relevant Notes and/or
Coupons are denominated (or payable in the case of Dual Currency Notes).
(7) In this Agreement, Clause headings are inserted for convenience
and ease of reference only and shall not affect the interpretation of this
Agreement. All references in this Agreement to the provisions of any statute
shall be deemed to be references to that statute as from time to time modified,
extended, amended or re-enacted or to any statutory instrument, order or
regulation made thereunder or under such re-enactment.
(8) All references in this Agreement to an agreement, instrument or
other document (including, without limitation, this Agreement, the Program
Agreement, the Notes and any Terms and Conditions appertaining thereto) shall be
construed as a reference to that agreement, instrument or document as the same
may be amended, modified, varied or supplemented from time to time.
(9) Any references herein to Euroclear and/or Clearstream, Luxembourg
shall be deemed to include, whenever the context permits, a reference to any
additional or alternative clearance system approved by the Issuers and the
Agent.
2. Appointments of Agent, Paying Agents and Calculation Agents
-----------------------------------------------------------
(1) The Issuers hereby continue the appointment of The Chase Manhattan
Bank, London Branch, as agent, and The Chase Manhattan Bank, London Branch,
hereby acknowledges its continued acceptance of such appointment as agent of the
Issuers, upon the terms and subject to the conditions set out below, for the
purposes of:
(a) completing, authenticating and delivering Global Notes and
(if required) authenticating and delivering Definitive Notes;
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(b) exchanging Temporary Global Notes for Permanent Global Notes
or Definitive Notes, as the case may be, in accordance with the terms
of such Temporary Global Notes;
(c) under limited circumstances, exchanging Permanent Global
Notes for Definitive Notes in accordance with the terms of such
Permanent Global Notes;
(d) paying sums due on Global Notes and Definitive Notes,
Receipts and Coupons;
(e) determining the end of the Restricted Period applicable to
each Tranche;
(f) unless otherwise specified in the applicable Pricing
Supplement, determining the interest and/or other amounts payable in
respect of the Notes in accordance with the Terms and Conditions;
(g) arranging on behalf of the Issuers for notices to be
communicated to the Noteholders;
(h) preparing and sending any required periodic reports to the
Ministry of Finance of Japan (the "MoF"), the Bank of England or other
appropriate authority and, subject to confirmation from the relevant
Issuer for the need for such further reporting, ensuring that all
necessary action is taken to comply with any reporting requirements of
any competent authority of any relevant currency as may be in force
from time to time with respect to the Notes to be issued under the
Program;
(i) subject to the Procedures Memorandum, submitting to the
appropriate stock exchange such number of copies of each Pricing
Supplement which relates to Notes which are to be listed on that stock
exchange as it may reasonably require;
(j) receiving notice from Euroclear and/or Clearstream,
Luxembourg relating to the certificates of non-U.S. beneficial
ownership of the Notes; and
(k) performing all other obligations and duties imposed upon it
by the Terms and Conditions, this Agreement or as may be agreed
between the relevant Issuer and the Agent in connection with a
particular Series or Tranche of Notes..
(2) The relevant Issuer may, in its discretion, appoint (or remove)
one or more agents outside the United States and its possessions (each a "Paying
Agent") for the payment (subject to applicable laws and regulations) of the
principal of and any interest and Additional Amounts, if any, (as defined in
Section 6 of the Terms and Conditions) on the Notes. Each Issuer hereby appoints
Chase Manhattan Bank Luxembourg S.A., at its office in Luxembourg at 0 xxx
Xxxxxxx, X-0000 Xxxxxxxxxx-Xxxxx, as its Paying Agent in Luxembourg. Upon its
written acceptance of such appointment or execution of a copy of this Agreement,
each Paying Agent shall have the powers and authority granted to and conferred
upon it herein and in the Notes, and such further powers and authority,
acceptable to it, to act on behalf of the relevant Issuer as such Issuer may
hereafter grant to or confer upon it in writing. As used herein, "paying
agencies" shall mean paying agencies maintained by a Paying Agent on behalf of
an Issuer as provided elsewhere herein.
(3) The Issuers will appoint an agent to make certain calculations
with respect to the Notes (the "Calculation Agent") pursuant to the Terms and
Conditions.
3. Issue of Temporary Global Notes
-------------------------------
(1) Subject to sub-clause (2), following receipt of a notification
from an Issuer in respect of an issue of Notes (such notification being by
receipt of a confirmation (a "Confirmation"), substantially in the
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applicable form set out in the Procedures Memorandum) the Agent will take the
steps required of the Agent in the Procedures Memorandum. For this purpose the
Agent is hereby authorized on behalf of such Issuer:
(a) to prepare a Temporary Global Note in accordance with such
Confirmation by attaching a copy of the applicable Pricing Supplement
to a copy of the relevant master Temporary Global Note;
(b) to authenticate (or cause to be authenticated) such Temporary
Global Note;
(c) to deliver such Temporary Global Note to the specified common
depositary of Euroclear and/or Clearstream, Luxembourg in accordance
with the Confirmation against receipt from the common depositary of
confirmation that such common depositary is holding the Temporary
Global Note in safe custody for the account of Euroclear and/or
Clearstream, Luxembourg and to instruct Euroclear or Clearstream,
Luxembourg or both of them (as the case may be) unless otherwise
agreed in writing between the Agent and the relevant Issuer (i) in the
case of an issue of Notes on a non-syndicated basis, to credit the
Notes represented by such Temporary Global Note to the Agent's
distribution account, and (ii) in the case of Notes issued on a
syndicated basis, to hold the Notes represented by such Temporary
Global Note pursuant to the relevant Issuer's order; and
(d) to ensure that the Notes of each Tranche are assigned a
Common Code and ISIN by Euroclear and Clearstream, Luxembourg which
are different from the Common Code and ISIN assigned to Notes of any
other Tranche of the same Series until 40 days after the completion of
the distribution of the Notes of such Tranche as notified by the Agent
to the relevant Dealer.
(2) The Agent shall only be required to perform its obligations under
sub-clause (1) if it holds:
(a) master Temporary Global Notes, duly executed by a person or
persons authorized to execute the same on behalf of the relevant
Issuer, which may be used by the Agent for the purpose of preparing
Temporary Global Notes in accordance with paragraph (a) of that sub-
clause; and
(b) master Permanent Global Notes, duly executed by a person or
persons authorized to execute the same on behalf of the relevant
Issuer, which may be used by the Agent for the purpose of preparing
Permanent Global Notes in accordance with Clause 4 below.
(3) The Agent will provide Euroclear and/or Clearstream, Luxembourg
with the notifications, instructions or other information to be given by the
Agent to Euroclear and/or Clearstream, Luxembourg in accordance with the
standard procedures of Euroclear and/or Clearstream, Luxembourg.
4. Determination of Exchange Date, Issue of Permanent Global Notes
---------------------------------------------------------------
or Definitive Notes and Determination of Restricted Period
----------------------------------------------------------
(1) (a) The Agent shall determine the Exchange Date for each
Temporary Global Note in accordance with the terms thereof. Forthwith
upon determining the Exchange Date in respect of any Tranche, the
Agent shall notify such determination to the relevant Issuer, the
relevant Dealer, Euroclear and Clearstream, Luxembourg.
(b) The Agent shall deliver, upon notice from Euroclear or
Clearstream, Luxembourg, a Permanent Global Note or Definitive Notes,
as the case may be, in accordance with the terms of the Temporary
Global Note. Upon any such exchange of a portion of a Temporary
Global Note for an interest in a Permanent Global Note the Agent is
hereby authorized on behalf of the relevant Issuer:
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(i) for the first Tranche of any Series of Notes, to
prepare and complete a Permanent Global Note in accordance with
the terms of the Temporary Global Note applicable to such Tranche
by attaching a copy of the applicable Pricing Supplement to a
copy of the relevant master Permanent Global Note;
(ii) for the first Tranche of any Series of Notes, to
authenticate such Permanent Global Note;
(iii) for the first Tranche of any Series of Notes, to
deliver such Permanent Global Note to the common depositary which
is holding the Temporary Global Note applicable to such Tranche
for the time being on behalf of Euroclear and/or Clearstream,
Luxembourg either in exchange for such Temporary Global Note or,
in the case of a partial exchange, on entering details of such
partial exchange of the Temporary Global Note in the relevant
spaces in Schedule 2 of both the Temporary Global Note and the
Permanent Global Note, and in either case against receipt from
the common depositary of confirmation that such common depositary
is holding the Permanent Global Note in safe custody for the
account of Euroclear and/or Clearstream, Luxembourg; and
(iv) in any other case, to attach a copy of the applicable
Pricing Supplement to the Permanent Global Note applicable to the
relevant Series and enter details of any exchange in whole or
part as aforesaid.
(2) (a) For a Tranche in respect of which there is only one Dealer,
the Agent will determine the end of the Restricted Period in respect
of such Tranche as being the fortieth day following the date certified
by the relevant Dealer to the Agent as being the date as of which
distribution of the Notes of that Tranche was completed.
(b) For a Tranche in respect of which there is more than one
Dealer but is not issued on a syndicated basis, the Agent will
determine the end of the Restricted Period in respect of such Tranche
as being the fortieth day following the latest of the dates certified
by all the relevant Dealers to the Agent as being the respective dates
as of which distribution of the Notes of that Tranche purchased by
each such dealer was completed.
(c) For a Tranche issued on a syndicated basis, the Agent will
determine the end of the Restricted Period in respect of such Tranche
as being the fortieth day following the date certified by the Lead
Manager to the Agent as being the date as of which distribution of the
Notes of that Tranche was completed.
(d) Forthwith upon determining the end of the Restricted Period
in respect of any Tranche, the Agent shall notify such determination
to the relevant Issuer and the relevant Dealer or the Lead Manager in
the case of a syndicated issue.
5. Issue of Definitive Notes
-------------------------
(1) Interests in a Global Note will be exchangeable for Definitive
Notes with Coupons attached only if: (i) an Event of Default (as defined in the
Terms and Conditions) occurs and is continuing, or (ii) the relevant Issuer is
notified that either Euroclear or Clearstream, Luxembourg has been closed for
business for a continuous period of 14 days (other than by reason of holiday,
statutory or otherwise) after the original issuance of the Notes or has
announced an intention permanently to cease business or has in fact done so and
no alternative clearance system approved by the Noteholders is available, or
(iii) the relevant Issuer, after notice to the Agent, determines to issue Notes
in definitive form. Upon the occurrence of these events, the Agent shall deliver
the relevant Definitive Note(s) in accordance with the terms of the relevant
Global Note. For this purpose the Agent is hereby authorized on behalf of the
relevant Issuer:
(a) to authenticate such Definitive Note(s) in accordance with
the provisions of this Agreement; and
5
(b) to deliver such Definitive Note(s) to or to the order of
Euroclear and/or Clearstream, Luxembourg in exchange for such Global
Note.
The Agent shall notify the relevant Issuer forthwith upon receipt of a request
for issue of (a) Definitive Note(s) in accordance with the provisions of a
Global Note and this Agreement (and the aggregate principal amount of such
Temporary Global Note or Permanent Global Note, as the case may be, to be
exchanged in connection therewith).
(2) The relevant Issuer undertakes to deliver to the Agent sufficient
numbers of executed Definitive Notes with, if applicable, Receipts, Coupons and
Talons attached to enable the Agent to comply with its obligations under this
Clause 5.
6. Terms of Issue
--------------
(1) The Agent shall cause all Temporary Global Notes, Permanent
Global Notes and Definitive Notes delivered to and held by it under this
Agreement to be maintained in safe custody and shall ensure that such Notes are
issued only in accordance with the provisions of this Agreement and the relevant
Global Note and Terms and Conditions.
(2) Subject to the procedures set out in the Procedures Memorandum,
for the purposes of Clause 3(1) the Agent is entitled to treat a telephone,
telex or facsimile communication from a person purporting to be (and who the
Agent believes in good faith to be) the authorized representative of the
relevant Issuer named in the lists referred to in, or notified pursuant to,
Clause 17(7) as sufficient instructions and authority of such Issuer for the
Agent to act in accordance with Clause 3(l).
(3) If a person who has signed on behalf of the relevant Issuer any
Note not yet issued but held by the Agent in accordance with Clause 3(1) ceases
to be authorized as described in Clause 17(7), the Agent shall (unless such
Issuer gives notice to the Agent that Notes signed by that person do not
constitute valid and binding obligations of such Issuer or otherwise until
replacements have been provided to the Agent) continue to have authority to
issue any such Notes, and the relevant Issuer hereby warrants to the Agent that
such Notes shall, unless notified as aforesaid, be valid and binding obligations
of such Issuer. Promptly upon such person ceasing to be authorized, the relevant
Issuer shall provide the Agent with replacement Notes and upon receipt of such
replacement Notes the Agent shall cancel and destroy the Notes held by it which
are signed by such person and shall provide to the relevant Issuer a
confirmation of destruction in respect thereof specifying the Notes so canceled
and destroyed.
(4) If the Agent pays an amount (the "Advance") to an Issuer on the
basis that a payment (the "Payment") has been, or will be, received from a
Dealer and if the Payment is not received by the Agent on the date the Agent
pays such Issuer, the Agent shall notify such Issuer by tested telex or
facsimile that the Payment has not been received and such Issuer shall repay to
the Agent the Advance and shall pay interest on the Advance (or the unreimbursed
portion thereof) from (and including) the date such Advance is made to (but
excluding) the earlier of repayment of the Advance and receipt by the Agent of
the Payment (at a rate quoted at that time by the Agent as its cost of funding
the Advance).
(5) Except in the case of issues where the Agent does not act as
receiving bank for the relevant Issuer in respect of the purchase price of the
Notes being issued, if on the relevant Issue Date a Dealer does not pay the full
purchase price due from it in respect of any Note (the "Defaulted Note") and, as
a result, the Defaulted Note remains in the Agent's distribution account with
Euroclear and/or Clearstream, Luxembourg) after such Issue Date, the Agent will
continue to hold the Defaulted Note pursuant to the order of the relevant
Issuer. The Agent shall notify the relevant Issuer forthwith of the failure of
the Dealer to pay the full purchase price due from it in respect of any
Defaulted Note and, subsequently, shall notify such Issuer forthwith upon
receipt from the Dealer of the full purchase price in respect of such Defaulted
Note.
7. Payments
--------
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(1) The Agent shall advise the relevant Issuer, no later than 10
Business Days (as defined below) immediately preceding the date on which any
payment is to be made to the Agent pursuant to this sub-clause (1) of the
payment amount, value date and payment instructions and the relevant Issuer will
before 10:00 a.m. New York time on each date on which any payment in respect of
any Notes issued by it becomes due, transfer to an account specified by the
Agent such amount in the relevant currency as shall be sufficient for the
purposes of such payment in funds settled through such payment system as the
Agent and the relevant Issuer may agree.
(2) The relevant Issuer will ensure that no later than 4:00 p.m.
(London time) on the second Business Day (as defined below) immediately
preceding the date on which any payment is to be made to the Agent pursuant to
sub-clause (1), the Agent shall receive from the paying bank of the relevant
Issuer an irrevocable confirmation in the form of a SWIFT message or tested
telex that such payment shall be made. For the purposes of this Clause 7
"Business Day" means a day which is both:
(a) a day (other than a Saturday or a Sunday) on which commercial
banks and foreign exchange markets settle payments in London and in
Charlotte, North Carolina and any other place specified in the
applicable Pricing Supplement; and
(b) in relation to a payment to be made in a Specified Currency,
a day on which commercial banks and foreign exchange markets settle
payments in the principal financial center of the country of the
relevant Specified Currency (if other than London).
(3) The Agent shall ensure that payments of both principal and
interest in respect of any Temporary Global Note will be made only to the extent
that certification of non-U.S. beneficial ownership as required by U.S.
securities laws and U.S. Treasury regulations (in the form set out in the
Temporary Global Note) has been received from Euroclear and/or Clearstream,
Luxembourg in accordance with the terms thereof.
(4) Subject to the receipt by the Agent of the payment confirmation as
provided in sub-clause (2) above, the Agent or the relevant Paying Agent shall
pay or cause to be paid all amounts due in respect of the Notes on behalf of the
relevant Issuer in the manner provided in the Terms and Conditions. If any
payment provided for in sub-clause (l) is made late but otherwise in accordance
with the provisions of this Agreement, the Agent and each Paying Agent shall
nevertheless make payments in respect of the Notes as aforesaid following
receipt by it of such payment.
(5) If for any reason the Agent considers in its sole discretion that
the amounts to be received by the Agent pursuant to sub-clause (1) will be, or
the amounts actually received by it pursuant thereto are, insufficient to
satisfy all claims in respect of all payments then falling due in respect of the
Notes, neither the Agent nor any Paying Agent shall be obliged to pay any such
claims until the Agent has received the full amount of all such payments. Should
the Agent or any Paying Agent elect not to make payment of amounts falling due
in respect of the Notes as aforesaid, it shall advise the relevant Issuer of any
such decision as soon as practicable by telephone with confirmation by telefax.
(6) Without prejudice to sub-clauses (4) and (5), if the Agent pays
any amounts to the holders of Notes, Receipts or Coupons or to any Paying Agent
at a time when it has not received payment in full in respect of the relevant
Notes in accordance with sub-clause (1) (the excess of the amounts so paid over
the amounts so received being the "Shortfall"), the relevant Issuer will, in
addition to paying amounts due under sub-clause (l), pay to the Agent on demand
interest (at a rate which represents the Agent's cost of funding the Shortfall)
on the Shortfall (or the unreimbursed portion thereof) until the receipt in full
by the Agent of the Shortfall.
(7) The Agent shall on demand promptly reimburse each Paying Agent for
payments in respect of Notes properly made by such Paying Agent in accordance
with this Agreement and the Terms and Conditions unless the Agent has notified
the Paying Agent, prior to the opening of business in the location of the office
of the Paying Agent through which payment in respect of the Notes can be made
prior to the day on which such Agent has to give payment instructions in respect
of the due date of a payment in respect of the Notes, that the Agent does not
expect to receive sufficient funds to make payment of all amounts falling due in
respect of such Notes.
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(8) If the Agent pays out on or after the due date therefor, or
becomes liable to pay out, funds on the assumption that the corresponding
payment by the relevant Issuer has been or will be made and such payment has in
fact not been so made by such Issuer, then such Issuer shall on demand reimburse
the Agent for the relevant amount, and pay interest to the Agent on such amount
from the date on which it is paid out to the date of reimbursement at a rate per
annum equal to the cost to the Agent of funding the amount paid out, as
certified by the Agent and expressed as a rate per annum. For the avoidance of
doubt, the provisions of the Terms and Conditions as to subordination shall not
apply to the relevant Issuer's obligations under this sub-clause (8).
(9) While any Notes are represented by a Global Note or Global Notes,
all payments due in respect of such Notes shall be made to, or to the order of,
the holder of the Global Note or Global Notes, subject to and in accordance with
the provisions of the Global Note or Global Notes. On the occasion of any such
payment the Paying Agent to which any Global Note was presented for the purpose
of making such payment shall cause the appropriate Schedule to the relevant
Global Note to be annotated so as to evidence the amounts and dates of such
payments of principal and/or interest as applicable.
(10) If the amount of principal and/or interest then due for payment
is not paid in full (otherwise than by reason of a deduction required by law to
be made therefrom), the Paying Agent to which a Note is presented for the
purpose of making such payment shall make a record of such shortfall on the Note
and such record shall, in the absence of manifest error, be prima facie evidence
that the payment in question has not to that extent been made.
8. Determinations and Notifications in Respect of Notes
----------------------------------------------------
and Interest Determination
--------------------------
(a) Determinations and Notifications
--------------------------------
(1) The Agent shall make all such determinations and calculations
(howsoever described) as it is required to do under the Terms and Conditions,
all subject to and in accordance with the Terms and Conditions, provided that
certain calculations with respect to the Notes, and associated publication or
notification, shall be made by the Calculation Agent in accordance with the
Terms and Conditions.
(2) The Agent or the Calculation Agent, as the case may be, shall not
be responsible to the relevant Issuer or to any third party (except in the event
of gross negligence, default or bad faith of the Agent or the Calculation Agent)
as a result of the Agent or the Calculation Agent having acted in good faith on
any quotation given by any Reference Bank which subsequently may be found to be
incorrect.
(3) The Agent or the Calculation Agent, as the case may be, shall
promptly notify (and confirm in writing to) the relevant Issuer, the other
Paying Agents and (in respect of a Series of Notes listed on a stock exchange)
the relevant stock exchange of, inter alia, each Rate of Interest, Interest
Amount and Interest Payment Date and all other amounts, rates and dates which it
is obliged to determine or calculate under the Terms and Conditions as soon as
practicable after the determination thereof (and in any event no later than the
tenth Business Day as defined in Clause 7(2) immediately preceding the date on
which payment is to be made to the Agent pursuant to Clause 7(l)) and of any
subsequent amendment thereto pursuant to the Terms and Conditions.
(4) The Agent or the Calculation Agent, as the case may be, shall use
its best efforts to cause each Rate of Interest, Interest Amount and Interest
Payment Date and all other amounts, rates and dates which it is obliged to
determine or calculate under the Terms and Conditions to be published as
required in accordance with the Terms and Conditions as soon as possible after
their determination or calculation.
(5) If the Agent or the Calculation Agent, as the case may be, does
not at any material time for any reason determine and/or calculate and/or
publish the Rate of Interest, Interest Amount and/or Interest Payment Date in
respect of any Interest Period or any other amount, rate or date as provided in
this Clause 8, it shall forthwith notify the relevant Issuer and the Paying
Agents of such fact.
(6) Determinations with regard to Notes (including, without
limitation, Indexed Notes and Dual Currency Notes) shall be made by the
Calculation Agent specified in the applicable Pricing Supplement in the
8
manner specified in the applicable Pricing Supplement. Unless otherwise agreed
between the relevant Issuer and the relevant Dealer, such determinations shall
be made on the basis of a Calculation Agency Agreement substantially in the form
of Schedule 9 to this Agreement.
(7) For the purposes of monitoring the aggregate principal amount of
Notes issued under the Program, the Agent shall determine the U.S. Dollar
equivalent of the principal amount of each issue of Notes denominated in another
currency, each issue of Dual Currency Notes, each Issue of Partly Paid Notes and
each issue of Indexed Notes as follows:
(A) the U.S. Dollar equivalent of Notes denominated in a currency
other than U.S. Dollars shall be determined as of the Agreement Date
for such Notes on the basis of the spot rate for the sale of the U.S.
Dollar against the purchase of the relevant currency quoted by a
foreign exchange dealer selected by the relevant Issuer on the
relevant day of calculation; and
(B) the U.S. Dollar equivalent of Dual Currency Notes and Indexed
Notes (other than Indexed Redemption Amount Notes) shall be calculated
in the manner specified above by reference to the original nominal
amount of such Notes; and
(C) the U.S. Dollar equivalent of Zero Coupon Notes, other Notes
issued at a discount or premium and Indexed Redemption Amount Notes
shall be calculated in the manner specified above by reference to the
net proceeds received by the relevant Issuer for the relevant issue;
and
(D) the U.S. Dollar equivalent of Partly Paid Notes shall be
determined in the manner specified above by reference to the original
principal amount of such Notes regardless of the amount paid on the
Notes.
(b) Interest Determination, Screen Rate Determination including
-----------------------------------------------------------
Fallback Provisions
-------------------
(1) Where screen rate determination ("Screen Rate Determination") is
specified in the applicable Pricing Supplement as the manner in which the Rate
of Interest is to be determined, the Rate of Interest for each Interest Period,
subject as provided below, will be either:
(A) the offered quotation (if there is only one quotation on the
relevant screen page (the "Relevant Screen Page")); or
(B) the arithmetic mean (rounded if necessary to the fifth
decimal place, with 0.000005 being rounded upwards) of the offered
quotations,
(expressed as a percentage rate per annum), for the reference rate ("Reference
Rate") which appears or appear, as the case may be, on the Relevant Screen Page
at approximately 11:00 a.m. (London time) on the interest determination date
("Interest Determination Date") in question plus or minus (as indicated in the
applicable Pricing Supplement) the Margin (if any), all as determined by the
Calculation Agent. If five or more such offered quotations are available on the
Relevant Screen Page, the highest (or, if there is more than one such highest
quotation, one only of such quotations) and the lowest (or, if there is more
than one such lowest quotation, one only of such quotations) shall be
disregarded by the Calculation Agent for the purpose of determining the
arithmetic mean (rounded as provided above) of such offered quotations.
(2) If the Relevant Screen Page is not available or if, in the case
of sub-clause (b)(1)(A) above, no such offered quotation appears or, in the case
of sub-clause (b)(1)(B) above, fewer than three such offered quotations appear,
in each case as at the time specified in the preceding paragraph, the
Calculation Agent shall at its sole discretion request the principal London
office of each of the Reference Banks (defined below) to provide the Calculation
Agent with its offered quotation (expressed as a percentage rate per annum) for
deposits in the Specified Currency for the relevant Interest Period to leading
banks in the London inter-bank market at approximately 11:00 a.m. (London time)
on the Interest Determination Date in question. If two or more of the Reference
Banks provide the Calculation Agent with such offered quotations, the Rate of
Interest for such Interest Period shall be the
9
arithmetic mean (rounded if necessary to the fifth decimal place with 0.000005
being rounded upwards) of such offered quotations plus or minus (as appropriate)
the Margin (if any), all as determined by the Calculation Agent.
(3) If on any Interest Determination Date one only or none of the
Reference Banks provides the Calculation Agent with such offered quotations as
provided in the preceding paragraph, the Rate of Interest for the relevant
Interest Period shall be the rate per annum which the Calculation Agent
determines as being the arithmetic mean (rounded if necessary to the fifth
decimal place, with 0.000005 being rounded upwards) of the rates, as
communicated to (and at the request of) the Calculation Agent by the Reference
Banks or any two or more of them, at which such banks offered, at approximately
11:00 a.m. (London time) on the relevant Interest Determination Date, deposits
in the Specified Currency for the relevant Interest Period by leading banks in
the London inter-bank market plus or minus (as appropriate) the Margin (if any).
If fewer than two of the Reference Banks provide the Calculation Agent with such
offered quotations, the Rate of Interest shall be the offered quotation for
deposits in the Specified Currency for the relevant Interest Period, or the
arithmetic mean (rounded as provided above) of the offered quotations for
deposits in the Specified Currency for the relevant Interest Period, at which,
at approximately 11:00 a.m. (London time) on the relevant Interest Determination
Date, any one or more banks informs the Calculation Agent it is quoting to
leading banks in the London inter-bank market plus or minus (as appropriate) the
Margin (if any), provided that, if the Rate of Interest cannot be determined in
accordance with the foregoing provisions of this paragraph, the Rate of Interest
shall be determined as at the last preceding Interest Determination Date (though
substituting, where a different Margin is to be applied to the relevant Interest
Period from that which applied to the last preceding Interest Period, the Margin
relating to the relevant Interest Period, in place of the Margin relating to
that last preceding Interest Period).
(4) If the Reference Rate from time to time in respect of Floating
Rate Notes is specified in the applicable Pricing Supplement as being other than
the London inter-bank offered rate, the Rate of Interest in respect of such
Notes will be determined as provided in the applicable Pricing Supplement.
In this Clause 8, the expression "Reference Banks" means, in the case
of sub-clause (b)(1)(A) above, those banks whose offered rates were used to
determine such quotation when such quotation last appeared on the Relevant
Screen Page and in the case of sub-clause (b)(1)(B) above, those banks whose
offered quotations last appeared on the Relevant Screen Page when no fewer than
three such offered quotations appeared.
9. Notice of any Withholding or Deduction
--------------------------------------
If the relevant Issuer, in respect of any payment, is compelled to
withhold or deduct any amount for or on account of taxes, duties, assessments or
governmental charges as specifically contemplated under the Terms and
Conditions, the relevant Issuer shall give notice thereof to the Agent as soon
as it becomes aware of the requirement to make such withholding or deduction and
shall give to the Agent such information as it shall require to enable it to
comply with such requirement.
10. Duties of the Agent in Connection with Early Redemption
-------------------------------------------------------
(1) If the relevant Issuer decides to redeem any outstanding Notes
(in whole or in part) for the time being outstanding prior to their Maturity
Date or the Interest Payment Date falling in the Redemption Month (as the case
may be) in accordance with the Terms and Conditions, such Issuer shall give
notice of such decision to the Agent not less than seven London Business Days
before the date on which such Issuer will give notice to the Noteholders in
accordance with the Terms and Conditions of such redemption in order to enable
the Agent to undertake its obligations herein and in the Terms and Conditions.
(2) If only some of the Notes of like tenor and of the same Series
are to be redeemed on such date, the Agent shall make the required drawing in
accordance with the Terms and Conditions but shall give the relevant Issuer
reasonable notice of the time and place proposed for such drawing. Where partial
redemptions are to be effected when there are Definitive Notes outstanding, the
Issuing and Principal Paying Agent will select by lot the Notes to be redeemed
from the outstanding Notes in compliance with all applicable laws and stock
exchange requirements and deemed by the Agent to be appropriate and fair; and
where partial redemptions are to be effected when there are no Definitive Notes
outstanding, the rights of Noteholders will be governed by the standard
provisions of Euroclear and Clearstream, Luxembourg. Notice of any partial
redemption and, when there are
10
Definitive Notes outstanding, of the serial numbers of the Notes so drawn, will
be given by the Agent to the Noteholders in accordance with the terms of the
Notes and this Agreement.
(3) The Agent shall publish the notice on behalf of and at the expense
of the relevant Issuer required in connection with any such redemption and shall
at the same time also publish a separate list of the serial numbers of any Notes
previously drawn and not presented for redemption. Such notice shall specify the
date fixed for redemption, the redemption amount, the manner in which redemption
will be effected and, in the case of a partial redemption, the serial numbers of
the Notes to be redeemed. Such notice will be published in accordance with the
Terms and Conditions. The Agent will also notify the other Paying Agents of any
date fixed for redemption of any Notes.
(4) Immediately prior to the date on which any notice of redemption is
to be given to the Noteholders, the relevant Issuer shall deliver to the Agent a
certificate stating that such Issuer is entitled to effect such redemption and
setting forth in reasonable detail a statement of facts showing that all
conditions precedent to such redemption have occurred or been satisfied and
shall comply with all notice requirements provided for in the Terms and
Conditions.
(5) Each Paying Agent will keep a stock of notices (each a "Put
Notice") in the form set out in Schedule 8 and will make such notices available
on demand to holders of Notes, the Terms and Conditions of which provide for
redemption at the option of Noteholders. Upon receipt of any Note deposited in
the exercise of such option in accordance with the Terms and Conditions, the
Paying Agent with which such Note is deposited shall hold such Note (together
with any Coupons, if any, relating to it and deposited with it) on behalf of the
depositing Noteholder (but shall not, save as provided below, release it) until
the due date for redemption of the relevant Note consequent upon the exercise of
such option, when, subject as provided below, it shall present such Note (and
any such Coupons, if any) to itself for payment of the amount due thereon
together with any interest due on such date in accordance with the Terms and
Conditions and shall pay such moneys in accordance with the directions of the
Noteholder contained in the Put Notice. If, prior to such due date for its
redemption, such Note becomes immediately due and payable or if upon due
presentation payment of such redemption moneys is improperly withheld or
refused, the Paying Agent concerned shall post such Note (together with any such
Coupons, if any) by uninsured post to, and at the risk of, the relevant
Noteholder unless the Noteholder has otherwise requested and paid the costs of
such insurance to the relevant Paying Agent at the time of depositing the Notes
at such address as may have been given by the Noteholder in the Put Notice. At
the end of each period for the exercise of such option, each Paying Agent shall
promptly notify the Agent of the principal amount of the Notes in respect of
which such option has been exercised with it together with their serial numbers
and the Agent shall promptly notify such details to the relevant Issuer.
11. Receipt and Publication of Notices; Receipt of Certificates
-----------------------------------------------------------
(1) Upon the receipt by the Agent of a demand or notice from any
Noteholder in accordance with the Terms and Conditions, the Agent shall forward
a copy thereof to the relevant Issuer.
(2) On behalf of and at the request and expense of the relevant
Issuer, the Agent shall cause to be published all notices required to be given
by such Issuer to the Noteholders in accordance with the Terms and Conditions.
(3) The Agent shall have no responsibility to obtain the certificate
of the relevant Issuer delivered by such Issuer to the Agent pursuant to
Condition 9 if such a certificate is required to be issued, nor shall the Agent
have any responsibility to notify the relevant Issuer that the Agent has not
obtained such a certificate from such Issuer if such a certificate is required
to be issued.
12. Cancellation of Notes, Receipts, Coupons and Talons
---------------------------------------------------
(1) All Notes which are redeemed, all Receipts or Coupons which are
paid and all Talons which are exchanged shall be delivered outside the United
States to the Agent, and shall be canceled by the Agent. In addition, all Notes
which are purchased by or on behalf of the relevant Issuer or any of its
subsidiaries and are
11
surrendered to the Agent for cancellation, together (in the case of Notes in
definitive form) with all unmatured Receipts, Coupons or Talons (if any)
attached thereto or surrendered therewith, shall be canceled by the Agent.
(2) The relevant Issuer shall have the right to request that the
Agent provide, without limitation, the following information:
(a) the aggregate principal amount of Notes which have been
redeemed and the aggregate amount paid in respect thereof;
(b) the number of Notes canceled together (in the case of
Definitive Notes, if any) with details of all unmatured Receipts,
Coupons or Talons (if any) attached thereto or delivered therewith;
(c) the aggregate amount paid in respect of interest on the
Notes;
(d) the total number by maturity date of Receipts, Coupons and
Talons so canceled; and
(e) (in the case of Definitive Notes, if any) the serial numbers
of such Notes,
which shall be given to the relevant Issuer by the Agent as soon as reasonably
practicable and in any event within three months after the date of such
repayment or, as the case may be, payment or exchange.
(3) The Agent shall destroy all canceled Notes, Receipts, Coupons and
Talons.
(4) The Agent shall keep a full and complete record of all Notes,
Receipts, Coupons and Talons (other than serial numbers of Coupons, except those
which have been replaced pursuant to Condition 10) and of all replacement Notes,
Receipts, Coupons or Talons issued in substitution for mutilated, defaced,
destroyed, lost or stolen Notes, Receipts, Coupons or Talons. The Agent shall at
all reasonable times make such record available to the relevant Issuer and any
persons authorized by it for inspection and for the taking of copies thereof or
extracts therefrom.
(5) All records and certificates made or given pursuant to this
Clause 12 and Clause 13 shall make a distinction between Notes, Receipts,
Coupons and Talons of each Series.
13. Issue of Replacement Notes, Receipts, Coupons and Talons
--------------------------------------------------------
(1) The Issuers will cause a sufficient quantity of additional forms
of Notes, Receipts, Coupons and Talons to be available, upon request to the
Agent in Luxembourg (in such capacity, the "Replacement Agent") at its specified
office for the purpose of issuing replacement Notes, Receipts, Coupons and
Talons as provided below.
(2) The Replacement Agent will, subject to and in accordance with the
Terms and Conditions and the following provisions of this Clause 13,
authenticate and cause to be delivered any replacement Notes, Receipts, Coupons
and Talons which the relevant Issuer may determine to issue in place of Notes,
Receipts, Coupons and Talons which have been lost, stolen, mutilated, defaced or
destroyed.
(3) In the case of a mutilated or defaced Note, the Replacement Agent
shall ensure that (unless otherwise covered by such indemnity as the relevant
Issuer may reasonably require) any replacement Note will only have attached to
it Receipts, Coupons and Talons corresponding to those (if any) attached to the
mutilated or defaced Note which is presented for replacement.
(4) The Replacement Agent shall not issue any replacement Note,
Receipt, Coupon or Talon unless and until the applicant therefor shall have:
12
(a) paid such reasonable costs and expenses as may be incurred
in connection therewith, including any tax or other governmental
charge that may be imposed in relation thereto;
(b) furnished it with such evidence and indemnity as the
relevant Issuer may reasonably require; and
(c) in the case of any mutilated or defaced Note, Receipt,
Coupon or Talon, surrendered it to the Replacement Agent.
(5) The Replacement Agent shall cancel any mutilated or defaced
Notes, Receipts, Coupons and Talons in respect of which replacement Notes,
Receipts, Coupons and Talons have been issued pursuant to this Clause 13 and
shall furnish the relevant Issuer with a certificate stating the serial numbers
of the Notes, Receipts, Coupons and Talons so canceled and, unless otherwise
instructed by such Issuer in writing, shall destroy such canceled Notes,
Receipts, Coupons and Talons and furnish such Issuer with a destruction
certificate stating the serial number of the Notes (in the case of Definitive
Notes) and the number by maturity date of Receipts, Coupons and Talons so
destroyed.
(6) The Replacement Agent shall, on issuing any replacement Note,
Receipt, Coupon or Talon, forthwith inform the relevant Issuer, the Agent and
the other Paying Agents of the serial number of such replacement Note, Receipt,
Coupon or Talon issued and (if known) of the serial number of the Note, Receipt,
Coupon or Talon in place of which such replacement Note, Receipt, Coupon or
Talon has been issued. Whenever replacement Receipts, Coupons or Talons are
issued pursuant to the provisions of this Clause 13, the Replacement Agent shall
also notify the Agent and the other Paying Agents of the maturity dates of the
lost, stolen, mutilated, defaced or destroyed Receipts, Coupons or Talons and of
the replacement Receipts, Coupons or Talons issued.
(7) The Agent shall keep a full and complete record of all
replacement Notes, Receipts, Coupons and Talons issued and shall make such
record available at all reasonable times to the relevant Issuer and any persons
authorized by it for inspection and for the taking of copies thereof or extracts
therefrom.
(8) Whenever any Note, Receipt, Coupon or Talon for which a
replacement Note, Receipt, Coupon or Talon has been issued and in respect of
which the serial number is known is presented to the Agent or any of the Paying
Agents for payment, the Agent or, as the case may be, the relevant Paying Agent
shall immediately send notice thereof to the relevant Issuer and the other
Paying Agents and shall not make payment in respect thereto, until instructed by
such Issuer.
14. Copies of Documents Available for Inspection
--------------------------------------------
The Agent and the Paying Agents shall hold available for inspection
copies of:
(i) the organizational documents of the Issuers;
(ii) the latest available audited consolidated financial
statements of the Corporation and its consolidated subsidiaries,
beginning with such financial statements for the fiscal years ended
December 31, 1999 and the publicly available portions of the Call
Reports with respect to the Bank beginning with the period ending
December 31, 1999;
(iii) the Program Agreement and this Agreement;
(iv) the Offering Circular; and
(v) any future offering circulars, information memoranda and
supplements (except that a Pricing Supplement relating to any unlisted
Note will only be available for inspection by a holder of such Note
and such holder must produce evidence satisfactory to the Paying Agent
as to ownership) to the Offering Circular and any other documents
incorporated therein by reference and in the case of a syndicated
issue of listed Notes, the syndication agreement (or equivalent
document).
13
For this purpose, the Issuers shall furnish the Agent and the Paying
Agents with sufficient copies of each of such documents.
15. Meetings of Noteholders
-----------------------
(1) The provisions of Schedule 7 hereto shall apply to meetings of
the Noteholders and shall have effect in the same manner as if set out in this
Agreement.
(2) Without prejudice to sub-clause (l), each of the Agent and the
Paying Agents on the request of any Noteholder shall issue voting certificates
and block voting instructions in accordance with Schedule 7 and shall forthwith
give notice to the relevant Issuer in writing of any revocation or amendment of
a block voting instruction. Each of the Agent and the Paying Agents will keep a
full and complete record of all voting certificates and block voting
instructions issued by it and, not less than 24 hours before the time appointed
for holding a meeting or adjourned meeting, will deposit at such place as the
Agent shall designate or approve, full particulars of all voting certificates
and block voting instructions issued by it in respect of such meeting or
adjourned meeting.
16. Repayment by the Agent
----------------------
Upon the relevant Issuer being discharged from its obligation to make
payments in respect of any Notes pursuant to the relevant Terms and Conditions,
and provided that there is no outstanding, bona fide and proper claim in respect
of any such payments, the Agent shall forthwith on written demand pay to the
relevant Issuer sums equivalent to any amounts paid to it by such Issuer for the
purposes of such payments.
17. Conditions of Appointment
-------------------------
(1) The Agent shall be entitled to deal with money paid to it by an
Issuer for the purpose of this Agreement in the same manner as other money paid
to a banker by its customers except:
(a) that it shall not exercise any right of set-off, lien or
similar claim in respect thereof; and
(b) as provided in sub-clause (2) below; and
(c) that it shall not be liable to account to the relevant
Issuer for any interest thereon.
(2) In acting hereunder and in connection with the Notes, the Agent
and the Paying Agents shall act solely as agents of the Issuers and will not
thereby assume any obligations towards or relationship of agency or trust for or
with any of the owners or holders of the Notes, Receipts, Coupons or Talons.
(3) The Agent and the Paying Agents hereby undertake to the Issuers
to perform such obligations and duties, and shall be obliged to perform such
duties and only such duties as are herein, in the Terms and Conditions and in
the Procedures Memorandum specifically set forth and no implied duties or
obligations shall be read into this Agreement or the Notes against the Agent and
the Paying Agents, other than the duty to act honestly and in good faith.
(4) The Agent may consult with legal and other professional advisers
and the opinion of such advisers shall be full and complete protection in
respect of any action taken, omitted or suffered hereunder in good faith and in
accordance with the opinion of such advisers.
(5) Each of the Agent and the Paying Agents shall be protected and
shall incur no liability for or in respect of any action taken, omitted or
suffered in reliance upon any instruction, request or order from the relevant
Issuer or any notice, resolution, direction, consent, certificate, affidavit,
statement, cable, telex or other paper or document which it reasonably believes
to be genuine and to have been delivered, signed or sent by the proper party or
parties or upon written instructions from the relevant Issuer.
14
(6) Any of the Agent and the Paying Agents and their officers,
directors and employees may become the owner of, or acquire any interest in any
Notes, Receipts, Coupons or Talons with the same rights that it or he would have
if the Agent or the relevant Paying Agent, as the case may be, concerned were
not appointed hereunder, and may engage or be interested in any financial or
other transactions with the relevant Issuer and may act on, or as depositary,
trustee or agent for, any committee or body of Noteholders or Couponholders or
in connection with any other obligations of the relevant Issuer as freely as if
the Agent or the relevant Paying Agent, as the case may be, were not appointed
hereunder.
(7) The relevant Issuer shall provide the Agent with a certified copy
of the list of persons authorized to execute documents and take action on its
behalf in connection with this Agreement and shall notify the Agent immediately
in writing if any of such persons ceases to be so authorized or if any
additional person becomes so authorized together, in the case of an additional
authorized person, with evidence satisfactory to the Agent that such person has
been so authorized, provided, however, that the Agent shall not incur any
liability for any losses, claims or damages resulting from the relevant Issuer's
failure to provide such notification to the Agent.
18. Communication Between the Parties
---------------------------------
A copy of all communications relating to the subject matter of this
Agreement between any Issuer and the Noteholders, Receiptholders or
Couponholders and any of the Paying Agents shall be sent to the Agent by the
relevant Paying Agent.
19. Changes in Agent and Paying Agents
----------------------------------
(1) The Issuers agree that, for so long as any Note is outstanding,
or until moneys for the payment of all amounts in respect of all outstanding
Notes have been made available to the Agent or have been returned to the
relevant Issuer as provided herein:
(a) so long as any Notes are listed on any stock exchange, there
will at all times be a Paying Agent with a specified office in such
place as may be required by the rules and regulations of the relevant
stock exchange;
(b) there will at all times be a Paying Agent with a specified
office in a city in continental Europe; and
(c) there will at all times be an Agent.
In addition, the Issuers shall appoint a Paying Agent having a
specified office in New York City in the circumstances described in the final
paragraph of Condition 4(b). Any variation, termination, appointment or change
shall only take effect (other than in the case of insolvency (as provided in
sub-clause (5)), when it shall be of immediate effect) after not less than 30
nor more than 45 days' prior notice thereof shall have been given to the
Noteholders in accordance with the Terms and Conditions.
(2) The Agent may (subject as provided in sub-clause (4)) at any time
resign as Agent by giving at least 90 days' written notice to the Issuers of
such intention on its part, specifying the date on which its desired resignation
shall become effective, provided that such date shall never be less than three
months after the receipt of such notice by the Issuers unless the Issuers agree
to accept less notice.
(3) The Agent may (subject as provided in sub-clause (4)) be removed
at any time on at least 45 days' notice by the filing with it of an instrument
in writing signed on behalf of each Issuer specifying such removal and the date
when it shall become effective.
(4) Any resignation under sub-clause (2) or removal under sub-clause
(3) shall only take effect upon the appointment by the Issuers as hereinafter
provided, of a successor Agent and (other than in cases of insolvency of the
Agent) on the expiration of the notice to be given under Clause 21. The Issuers
agree with the Agent that if, by the day falling ten days before the expiration
of any notice under sub-clause (2), the Issuers have
15
not appointed a successor Agent, then the Agent shall be entitled, on behalf of
the Issuers, to appoint as a successor Agent in its place a reputable financial
institution of good standing as it may reasonably determine to be capable of
performing the duties of the Agent hereunder.
(5) In case at any time the Agent resigns, or is removed, or becomes
incapable of acting or is adjudged bankrupt or insolvent, or files a voluntary
petition in bankruptcy or makes an assignment for the benefit of its creditors
or consents to the appointment of an administrator, liquidator or administrative
or other receiver of all or a substantial part of its property, or admits in
writing its inability to pay or meet its debts as they mature or suspends
payment thereof, or if any order of any court is entered approving any petition
filed by or against it under the provisions of any applicable bankruptcy or
insolvency law or if a receiver of it or of all or a substantial part of its
property is appointed or any officer takes charge or control of it or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, a successor Agent, which shall be a reputable financial institution
of good standing, may be appointed by the Issuers by an instrument in writing
filed with the successor Agent. Upon the appointment as aforesaid of a successor
Agent and acceptance by the latter of such appointment and (other than in case
of insolvency of the Agent) upon expiration of the notice to be given under
Clause 21 the Agent so superseded shall cease to be the Agent hereunder.
(6) Subject to sub-clause (l):
(A) the Issuers may, after prior consultation (other than in the
case of insolvency of any Paying Agent) with the Agent, terminate the
appointment of any of the Paying Agents at any time; and/or
(B) the Issuers may in respect of the Program or the relevant
Issuer may in respect of any Series of Notes, if so required by the
relevant Stock Exchange or regulatory body, appoint one or more
further Paying Agents by giving to the Agent, and to the relevant
Paying Agent, at least 45 days' notice in writing to that effect.
(7) Subject to sub-clause (l), all or any of the Paying Agents may
resign their respective appointments hereunder at any time by giving the Issuers
and the Agent at least 45 days' written notice to that effect.
(8) Upon its resignation or removal becoming effective the Agent or
the relevant Paying Agent:
(a) shall, in the case of the Agent, forthwith transfer all
moneys held by it hereunder and the records referred to in Clause
12(4) to the successor Agent hereunder; and
(b) shall be entitled to the payment by the Issuers of its
commissions, fees and expenses for the services theretofore rendered
hereunder in accordance with the terms of Clause 25.
(9) Upon its appointment becoming effective, a successor Agent and
any new Paying Agent, without further act, deed or conveyance, shall become
vested with all the authority, rights, powers, trusts, immunities, duties and
obligations of its predecessor or, as the case may be, a Paying Agent with like
effect as if originally named as Agent or (as the case may be) a Paying Agent
hereunder.
20. Merger and Consolidation
------------------------
Any corporation into which the Agent or any Paying Agent may be merged
or converted, or any corporation with which the Agent or any of the Paying
Agents may be consolidated or any corporation resulting from any merger,
conversion or consolidation to which the Agent or any of the Paying Agents shall
be a party, or any corporation to which the Agent or any of the Paying Agents
shall sell or otherwise transfer all or substantially all the assets of the
Agent or any Paying Agent shall, on the date when such merger, conversion,
consolidation or transfer becomes effective and to the extent permitted by any
applicable laws, become the successor Agent or, as the case may be, Paying Agent
under this Agreement without the execution or filing of any paper or any further
act on the part of the parties hereto, unless otherwise required by the Issuers,
and after the said effective date all references
16
in this Agreement to the Agent or, as the case may be, such Paying Agent shall
be deemed to be references to such corporation. Written notice of any such
merger, conversion, consolidation or transfer shall forthwith be given to the
Issuers by the relevant Agent or Paying Agent.
21. Notification of Changes to Paying Agents
----------------------------------------
Following receipt of notice of resignation from the Agent or any
Paying Agent and forthwith upon appointing a successor Agent or, as the case may
be, other Paying Agents or on giving notice to terminate the appointment of any
Agent or, as the case may be, Paying Agent, the Agent (on behalf of and at the
expense of the Issuers) shall give or cause to be given not more than 60 days'
nor less than 30 days' notice thereof to the Noteholders in accordance with the
Terms and Conditions.
22. Change of Specified Office
--------------------------
If the Agent or any Paying Agent determines to change its specified
office it shall give to the Issuers and (if applicable) the Agent written notice
of such determination giving the address of the new specified office which shall
be in the same city and stating the date on which such change is to take effect,
which shall not be less than 45 days thereafter. The Agent (on behalf and at the
expense of the Issuers) shall within 15 days of receipt of such notice (unless
the appointment of the Agent or the relevant Paying Agent, as the case may be,
is to terminate pursuant to Clause 19 on or prior to the date of such change)
give or cause to be given not more than 45 days' nor less than 30 days' notice
thereof to the Noteholders in accordance with the Terms and Conditions.
23. Notices
-------
All notices hereunder shall be deemed to have been given when
deposited in the mail as first class mail, registered or certified, return
receipt requested, postage prepaid, addressed to any party hereto as follows:
Address
-------
The Corporation: Bank of America Corporation
Bank of America Corporate Center
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 28255-0065
Attn: Xxxx X. Xxxx
Senior Vice President
Telecopy: (000) 000-0000
with a copy to:
Bank of America Corporation
Bank of America Corporate Center
000 Xxxxx Xxxxx Xxxxxx
Legal Department
NC1-007-56-11
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxx X. Xxxxxxx, Esq.
General Counsel
Telecopy: (000) 000-0000
The Bank: Bank of America, N.A.
Bank of America Corporate Center
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxx
17
Senior Vice President
Telecopy: (000) 000-0000
The Agent: The Chase Manhattan Bank, London Branch
Trinity Tower
9 Xxxxxx Xxxx Street
Xxxxxx X0 0XX
Xxxxxx Xxxxxxx
Attn: Manager, Corporate Trust Operations
Telecopy: 00-0000-000000
The Paying Agent: Chase Manhattan Bank Luxembourg S.A.
0 xxx Xxxxxxx
X-0000 Xxxxxxxxxx - Xxxxx
Attn: Manager, Corporate Trust Operations
Telecopy: 000-000000-000
or at any other address of which any of the foregoing shall have notified the
others in writing.
(a) if delivered in person to the relevant address specified in
the signature pages hereof and if so delivered, shall be deemed to
have been delivered at the time of receipt; or
(b) if sent by facsimile or telex to the relevant number
specified on the signature pages hereof and, if so sent, shall be
deemed to have been delivered immediately after transmission provided
such transmission is confirmed by the answerback of the recipient (in
the case of telex) or when an acknowledgment of receipt is received
(in the case of facsimile).
Where a communication is received after business hours it shall be
deemed to be received and become effective on the next business day. Every
communication shall be irrevocable save in respect of any manifest error
therein.
24. Taxes and Stamp Duties
----------------------
The Issuers agree to pay any and all stamp and other documentary taxes
or duties which may be payable in connection with the execution, delivery,
performance and enforcement of this Agreement.
25. Commissions, Fees and Expenses
------------------------------
(1) The Issuers undertake to pay in respect of the services of the
Agent and the Paying Agents under this Agreement such fees and expenses as may
be agreed between them from time to time, the initial such fees being set out in
a letter of even date herewith from the Agent to, and countersigned by, the
Issuers.
(2) The Issuers will promptly pay on demand all out-of-pocket
expenses (including legal, advertising, facsimile, telex and postage expenses)
properly incurred by the Agent and the Paying Agents in connection with their
services hereunder, including, without limitation, the expenses contemplated in
Clause 24.
26. Indemnity
---------
(1) The relevant Issuer (or Issuers, as the case may be) undertakes
to indemnify and hold harmless each of the Agent and the Paying Agents against
all losses, liabilities, costs (including, without limitation, legal fees and
expenses), expenses, claims, actions or demands which the Agent or any Paying
Agent, as the case may be, may reasonably incur or which may be made against the
Agent or any Paying Agent, as a result of or in connection with the appointment
or the exercise of or performance of the powers, discretions, authorities and
duties of the Agent or any Paying Agent under this Agreement except such as may
result from its own gross negligence, bad faith or failure to comply with its
obligations hereunder or that of its officers, employees or agents.
18
(2) Each of the Agent and the Paying Agents shall severally indemnify
and hold harmless the relevant Issuer (or Issuers, as the case may be) against
any loss, liability, costs (including, without limitation, legal fees and
expenses), expense, claim, action or demand which it may reasonably incur or
which may be made against it as a result of such Agent's or Paying Agent's own
negligence, bad faith or material failure to comply with its obligations under
this Agreement or that of its officers, employees or agents.
(3) If, under any applicable law and whether pursuant to a judgment
being made or registered or in the liquidation, insolvency or analogous process
of any party hereto or for any other reason, any payment under or in connection
with this Agreement is made or fails to be satisfied in a currency (the "Other
Currency") other than that in which the relevant payment is expressed to be due
(the "Required Currency") under this Agreement, then, to the extent that the
payment (when converted into the Required Currency at the rate of exchange on
the date of payment or, if it is not practicable for the payee to purchase the
Required Currency with the Other Currency on the date of payment, at the rate of
exchange as soon thereafter as it is practicable for it to do so or, in the case
of a liquidation, insolvency or analogous process, at the rate of exchange on
the latest date permitted by applicable law for the determination of liabilities
in such liquidation, insolvency or analogous process) actually received by the
payee falls short of the amount due under the terms of this Agreement, the payor
shall, as a separate and independent obligation, indemnify and hold harmless the
payee against the amount of such shortfall. For the purpose of this Clause 26,
"rate of exchange" means the rate at which the payee is able on the relevant
date to purchase the Required Currency with the Other Currency and shall take
into account any premium and other costs of exchange.
27. Reporting
---------
(1) The Agent shall upon receipt of a written request therefor from
an Issuer and after the payment of any further remuneration agreed between such
Issuers and the Agent (on behalf of such Issuers and on the basis of the
information and documentation the Agent had in its possession) use all
reasonable efforts to submit such reports or information as may be required from
time to time by any applicable law, regulation or guideline promulgated by (i)
any relevant United States governmental regulatory authority in respect of the
issue and purchase of Notes or (ii) any other relevant governmental regulatory
authority in respect of the issue and purchase of Notes denominated in the
applicable currency of such governmental regulatory authority.
(2) The Agent will notify the MoF of such details relating to Yen
Notes and provide such other information about the Program to the MoF as may be
required.
(3) The Agent will notify the German Bundesbank of such details
relating to DM-denominated Notes issued during the month in question and provide
such other information about the Program to the German Bundesbank as may be
required.
(4) The Agent will notify the Bank of England of such details
relating to Sterling Notes and provide such other information about the Program
to the Bank of England as may be required.
28. Governing Law
-------------
(1) This Agreement, the Notes, and any Receipts, Coupons or Talons
appertaining thereto shall be governed by and construed in accordance with the
laws of the State of New York, United States of America, without regard to
principles of conflicts of laws.
(2) The Issuers and the Agent each hereby irrevocably submit to the
non-exclusive jurisdiction of any United States Federal court sitting in New
York City, the Borough of Manhattan over any suit, action or proceeding arising
out of or related to this Agreement, any Note, Receipt, Coupon or Talon, as the
case may be (together, the "Proceedings"). The Issuers and the Agent each
irrevocably waive, to the fullest extent permitted by law, any objection which
it may have to the laying of the venue of the Proceedings brought in such a
court and any claim that the Proceedings have been brought in an inconvenient
forum. The Issuers and the Agent each agree that final judgment in the
Proceedings brought in such a court shall be conclusive and binding upon the
Issuers or the Agent, as the case may be, and may be enforced in any court of
the jurisdiction to which the relevant Issuer (or Issuers, as the case may be)
or the Agent is subject by a suit upon such judgment, provided that the
--------
19
service of process is effected upon such Issuers and the Agent in the manner
specified in subsection (3) below or as otherwise permitted by law.
(3) As long as any of the Notes, Receipts, Coupons or Talons
remains outstanding, the relevant Issuer shall at all times either maintain an
office or have an authorized agent in New York City upon whom process may be
served in the Proceedings. Service of process upon either Issuer at its offices
or upon such agent with written notice of such service mailed or delivered to
the relevant Issuer shall, to the fullest extent permitted by law, be deemed in
every respect effective service of process upon such Issuer in the Proceedings.
Each Issuer hereby appoints CT Corporation System located at 0000 Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 as its agent for such purposes, and covenants and agrees
that service of process in the Proceedings may be made upon it at its office or
at the specified offices of such agent (or such other addresses or at the
offices of any other authorized agents which the relevant Issuer may designate
by written notice to the Agent) and prior to any termination of such agencies
for any reason, it will so appoint a successor thereto as agent hereunder.
29. Amendments
----------
Without the consent of the Noteholders, Receiptholders or
Couponholders, the Agent and the Issuers may agree to modifications of or
amendments to this Agreement, the Notes, the Receipts or the Coupons for any of
the following purposes:
(i) to evidence the succession of another corporation to an Issuer
and the assumption by any such successor of the covenants of
such Issuer in this Agreement, the Notes, Receipts or Coupons;
(ii) to add to the covenants of an Issuer for the benefit of the
Noteholders, the Receiptholders or the Couponholders, or to
surrender any right or power herein conferred upon such
Issuer;
(iii) to relax or eliminate the restrictions on payment of principal
and interest in respect of the Notes, Receipts or Coupons in
the United States, provided that such payment is permitted by
United States tax laws and regulations then in effect and
provided that no adverse tax consequences would result to the
Noteholders, the Receiptholders or the Couponholders;
(iv) to cure any ambiguity, to correct or supplement any defective
provision herein or any provision which may be inconsistent
with any other provision herein;
(v) to make any other provisions with respect to matters or
questions arising under the Notes, the Receipts, the Coupons
or this Agreement, provided such action pursuant to this sub-
clause (v) shall not adversely affect the interests of the
Noteholders, the Receiptholders or the Couponholders;
(vi) to authorize or facilitate the issuance of Notes in registered
form;
(vii) to facilitate the issuance of Notes in accordance with the
laws of a particular country; and
(viii) to permit further issuances of Notes in accordance with the
terms of the Program Agreement.
Any such modification or amendment shall be binding on the
Noteholders, the Receiptholders and the Couponholders and any such modification
or amendment shall be notified to the Noteholders, the Receiptholders or the
Couponholders in accordance with Condition 13 as soon as practicable thereafter.
30. Descriptive Headings
--------------------
The descriptive headings in this Agreement are for convenience of
reference only and shall not define or limit the provisions hereof.
20
31. Counterparts
------------
This Agreement may be executed in any number of counterparts, all of
which shall constitute one and the same instrument. Any party may enter into
this Agreement by signing such a counterpart.
21
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed in their respective corporate names by their respective officers
thereunder duly authorized as of the date and year first above written.
BANK OF AMERICA CORPORATION
as Issuer
By /s/
----------------------------------
Name: Xxxx X. Xxxx
------------------------------
Title: Senior Vice President
-----------------------------
BANK OF AMERICA, N.A.
as Issuer
By /s/
----------------------------------
Name: Xxxx X. Xxxx
------------------------------
Title: Senior Vice President
-----------------------------
THE CHASE MANHATTAN BANK,
LONDON BRANCH
as Agent and
Principal Paying Agent
By /s/
----------------------------------
Name: X. Xxxxxxx
------------------------------
Title: Assistant Treasurer
-----------------------------
CHASE MANHATTAN BANK LUXEMBOURG S.A.
as Paying Agent
By /s/
----------------------------------
Name: X. Xxxxxxx
------------------------------
Title: Assistant Treasurer
-----------------------------
22
