AMENDED AND RESTATED AGENCY AGREEMENT

Exhibit 4.1

AMENDED AND RESTATED

AGENCY AGREEMENT

relating to

BANK OF AMERICA CORPORATION

U.S. $65,000,000,000

Euro Medium-Term Note Program

among

BANK OF AMERICA CORPORATION

and

THE BANK OF NEW YORK MELLON

as Principal Agent

and

THE BANK OF NEW YORK (LUXEMBOURG) S.A.

as Transfer Agent and Registrar

DATED AS OF JULY 25, 2008

INDEX

 

 

 

i

 

ii

THIS AMENDED AND RESTATED AGENCY AGREEMENT (this “Agreement”) dated as of July 25, 2008 is made by and among:

 

(i)

Bank of America Corporation, a Delaware corporation (the “Issuer”);

 

(ii)

The Bank of New York Mellon (the “Principal Agent”); and

 

(iii)

The Bank of New York (Luxembourg) S.A. (the “Transfer Agent” and “Registrar” and, together with the Principal Agent, the “Agents”, and each of them individually, an “Agent”).

WHEREAS, the Issuer and the Principal Agent wish to update the arrangements originally agreed among them pursuant to an Amended and Restated Agency Agreement dated August 21, 2006, as supplemented by a Supplemental Agreement dated July 26, 2007 (the “Prior Amended Agency Agreement”);

WHEREAS, the Issuer proposes to issue up to U.S. $65,000,000,000 (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 herewith, among the Issuer, the Arranger and the Dealers named therein (as amended and supplemented from time to time, the “Program Agreement”) and as described in an Offering Circular (as defined in the Program Agreement);

WHEREAS, Notes will be issued in the denominations specified in the applicable Final Terms;

WHEREAS, the Issuer and the Principal Agent wish to amend and restate the Prior Amended Agency Agreement and the Issuer, the Principal Agent, the Registrar and Transfer Agent wish to make provisions for the issuance of Notes in registered form, all in accordance with the terms of this Agreement, with respect to the Notes to be issued by the Issuer under this Agreement on and after the date hereof;

WHEREAS, unless otherwise determined by the Issuer and specified in the applicable Final Terms, beneficial interests in each Tranche of Notes in bearer form (“Bearer Notes”) will initially be represented by a Bearer Temporary Global Note, exchangeable, as provided in such Bearer Temporary Global Note, for beneficial interests in a Bearer Permanent Global Note and, beneficial interests in a Bearer Global Note may under certain circumstances be exchangeable for Bearer Definitive Notes, in each case, as further described herein and in accordance with the terms of the Bearer Global Notes; and

WHEREAS, ownership interests in each Tranche of Notes in registered form (“Registered Notes”) will be constituted by an entry on the Register (as defined herein) and unless otherwise determined by the Issuer and specified in the applicable Final Terms, beneficial interests in each Registered Global Note shall be exchangeable, only in the limited circumstances as provided in such Registered Global Certificate, for Registered Definitive Notes, as further described herein and in accordance with the terms of the Registered Global Note.

NOW, THEREFORE, it is agreed as follows:

 

1.

Definitions and Interpretation

(1) Terms and expressions defined or specifically interpreted in the Program Agreement or the Notes or used in the applicable Final Terms shall have the same meanings or interpretations in this Agreement, except where the context requires otherwise.

(2) Without prejudice to the foregoing in this Agreement:

“Affiliate” means, in relation to any person, any entity controlled, directly or indirectly, by the person, any entity that controls, directly or indirectly, the person or any entity directly or indirectly under common control with the person. For this purpose, “control” of any entity or person means ownership of a majority of the voting power of the entity or person;

 

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“CGN” and “Classic Global Note” mean a Bearer Temporary Global Note in the form set out in Schedule 1 hereto or a Bearer Permanent Global Note in the form set out in Schedule 2 hereto, in either case where the applicable Final Terms specify the Notes as being in CGN form;

“Eurosystem-eligible NGN” means a NGN which is intended to be held in a manner which would allow Eurosystem eligibility, as stated in the applicable Final Terms;

“NGN” and “New Global Note” mean a Bearer Temporary Global Note in the form set out in Schedule 1 hereto or a Bearer Permanent Global Note in the form set out in Schedule 2 hereto, in either case where the applicable Final Terms specify the Notes as being in NGN form;

“outstanding” means, in relation to the Notes, all the Notes issued other than (a) those which have been redeemed in accordance with the Terms and Conditions, (b) those in respect of which the redemption date in accordance with the Terms and Conditions has occurred and the redemption consideration (including any interest accrued on such Notes to the date for such redemption and any interest or other amounts payable or deliverable under the Terms and Conditions after such date) have been duly paid to the Agents as provided in this Agreement or delivered pursuant to any Delivery Agency Agreement and remain available for payment or delivery against presentation and surrender of Registered Certificates or Bearer Notes, and/or Receipts and/or Coupons, as the case may be, (c) those which have become void under Condition 9, (d) those which have been purchased and cancelled as provided in Condition 6 (or as provided in the Global Notes), (e) those mutilated or defaced Bearer Notes or Registered Certificates which have been surrendered in exchange for replacement Bearer Notes or Registered Certificates respectively pursuant to Condition 11, (f) (for purposes only of determining how many Notes are outstanding and without prejudice to their status for any other purpose) those Bearer Notes alleged to have been lost, stolen or destroyed and in respect of which replacement Bearer Notes have been issued pursuant to Condition 11, (g) any Bearer Temporary Global Note to the extent that it shall have been exchanged for a Bearer Permanent Global Note, and any Bearer Global Note to the extent that it shall have been exchanged for one or more Bearer Definitive Notes, 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 9 hereto, those Notes which are beneficially held by, or are held on behalf of, the 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 Principal Agent and such other paying agent or paying agents as may be appointed from time to time hereunder;

“Regulations” means the regulations referred to in Clause 17;

“Restricted Period” shall be determined as set forth in Clause 6(2), unless otherwise indicated; and

(3) The term “Notes” as used in this Agreement shall include the Bearer Notes and the Registered Notes. With respect to the Bearer Notes, it shall include the Bearer Temporary Global Note and the Bearer Permanent Global Note, Bearer Definitive Notes and Coupons. With respect to the Registered Notes, it shall include the Registered Global Note and the Registered Definitive Notes. The term “Global Note” as used in this Agreement shall include the Bearer Temporary Global Note, the Bearer Permanent Global Note and the Registered 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, (a) with respect to the Bearer Notes, while the Notes are represented by a Bearer Global Note, shall mean (except with respect to the payment of principal, premium, if any, interest, or any other amounts payable on, or deliveries in respect of, the Notes, the right to which shall be vested as against the Issuer solely in the bearer of such Bearer Global Note in accordance with and subject to its terms) the persons for the time being shown in the records of Euroclear Bank S.A./N.V., as operator of the Euroclear System (“Euroclear”) or Clearstream Banking, société anonyme (“Clearstream, Luxembourg”) (other than Clearstream, Luxembourg, if Clearstream, Luxembourg shall be an accountholder of Euroclear, and Euroclear, if Euroclear shall be an accountholder of Clearstream, Luxembourg) as the Noteholders of particular principal amounts of Notes (in which regard any certificate or other document issued by Euroclear or Clearstream, Luxembourg as to the principal amount of Notes standing to the credit of the account of any person shall be conclusive and binding for all purposes), and (b) with respect to the Registered Notes, while the Notes are represented by a Registered Global Certificate, shall mean, (except with respect to the payment of principal,

 

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premium, if any, interest, or any other amounts payable on, or deliveries in respect of, the Notes, the rights to which shall be vested as against the Issuer solely in the person or persons for the time being shown in the Register (as defined below) maintained by the Registrar pursuant to Clause 3 below (“Register”) as the Noteholder or Noteholders of particular principal amounts of the Notes), the persons for the time being shown in the records of Euroclear or Clearstream, Luxembourg (other than Clearstream, Luxembourg, if Clearstream, Luxembourg shall be an accountholder of Euroclear, and Euroclear, if Euroclear shall be an accountholder of Clearstream, Luxembourg) as the Noteholders of particular principal amounts of Notes (in which regard any certificate or other document issued by Euroclear or Clearstream, Luxembourg as to the principal amount of Notes standing to the credit of the account of any person shall be conclusive and binding for all purposes).

(4) All references to Condition or Conditions shall be a reference to the corresponding conditions set out in the Terms and Conditions of the Notes.

(5) 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.

(6) The Issuer may create the Registered Notes by executing the applicable Final Terms and directing the Registrar to enter the details of the Registered Notes in the Register. The terms and conditions of the Registered Notes shall be constituted by the Terms and Conditions of the Notes, in the form attached to the Registered Certificate representing such Registered Notes.

(7) All references in this Agreement to principal and/or interest or both in respect of the Notes or to any monies payable or amounts deliverable by the Issuer in respect of the Notes under this Agreement shall have the meaning set out in Condition 4.

(8) 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).

(9) 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.

(10) All references in this Agreement to an agreement, instrument or other document (including, without limitation, this Agreement, the Program Agreement, any Delivery Agency Agreement, any Calculation Agency 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.

(11) Any references herein to Euroclear or Clearstream, Luxembourg shall be deemed to include, whenever the context permits, a reference to any additional or alternative clearance system approved by the Issuer and the Principal Agent. References to the “records” of Euroclear and Clearstream, Luxembourg shall be to the records that each of such entities holds for its customers, which reflect the amount of such customer’s interest in the Notes.

 

2.

Appointments of Principal Agent, Paying Agents, Delivery Agent and Calculation Agent

(1) The Issuer hereby continues the appointment of The Bank of New York Mellon, as principal agent, and The Bank of New York Mellon, hereby acknowledges its continued acceptance of such appointment as principal agent of the Issuer, upon the terms and subject to the conditions set out below, for the purposes of:

 

3

(a) subject to Clause 5(1)(a) below, completing, authenticating and delivering Bearer Global Notes and Registered Global Certificates and (if required) authenticating and delivering Bearer Definitive Notes and Registered Definitive Certificates;

(b) giving effectuation instructions in respect of each Global Note which is an Eurosystem-eligible NGN;

(c) exchanging Bearer Temporary Global Notes for Bearer Permanent Global Notes or Bearer Definitive Notes, as the case may be, in accordance with the terms of such Bearer Temporary Global Notes and, in respect of such exchange, (i) making all notations on Bearer Global Notes which are CGNs as required by their terms and (ii) instructing Euroclear and Clearstream, Luxembourg to make appropriate entries in their records in respect of all Bearer Global Notes which are NGNs;

(d) under certain circumstances, exchanging Bearer Permanent Global Notes for Bearer Definitive Notes in accordance with the terms of such Bearer Permanent Global Notes and, in respect of such exchange, (i) making all notations on Bearer Permanent Global Notes which are CGNs as required by their terms and (ii) instructing Euroclear and Clearstream, Luxembourg to make appropriate entries in their records in respect of all Bearer Permanent Global Notes which are NGNs;

(e) paying sums due on Global Notes, Bearer Definitive Notes, Registered Definitive Notes, Receipts and Coupons and instructing Euroclear and Clearstream, Luxembourg to make appropriate entries in their records in respect of all Bearer Global Notes which are NGNs (as provided in this Agreement);

(f) determining the end of the Restricted Period applicable to each Tranche of Bearer Notes;

(g) arranging on behalf of the Issuer for notices with respect to Bearer Notes to be communicated to the Noteholders;

(h) preparing and sending any required periodic reports to the Ministry of Finance of Japan (the “MoF”), or any other appropriate regulatory authority and, subject to confirmation from the 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 Bearer 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 Final Terms which relate to Notes which are to be listed on that stock exchange as it may reasonably require;

(j) receiving, on behalf of the Issuer, notice from Euroclear or Clearstream, Luxembourg relating to the certifications of non-United States beneficial ownership of Bearer Notes and providing copies of such notices to the Issuer;

(k) performing all other obligations and duties imposed upon it by the Terms and Conditions, this Agreement or as may be agreed between the Issuer and the Principal Agent in connection with a particular Series or Tranche of Notes;

(l) taking responsibility for compliance with all U.S. tax requirements with respect to the Notes, including those specified in Clause 11.

(2) The Issuer, in its discretion, may 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

 

4

regulations) of the principal of, any interest, other amounts payable and Additional Amounts, if any, (as defined in Condition 8) on the Bearer Notes. 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 Issuer as the Issuer hereafter may 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 the Issuer as provided elsewhere herein. As used herein, “possessions” shall include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.

(3) The Issuer will appoint one or more agents to make certain calculations with respect to the Notes (each, a “Calculation Agent”) pursuant to the Terms and Conditions, pursuant to an agreement (each, a “Calculation Agency Agreement”) substantially in the form of Schedule 11 hereto, and will promptly provide to the Agents and each Paying Agent full details of each such agent appointed in respect of a particular Series of Notes.

(4) The Issuer may appoint one or more agents to deliver relevant Physical Delivery Amount(s) with respect to Physical Delivery Notes (each, a “Delivery Agent”) pursuant to the Terms and Conditions, pursuant to an agreement (each, a “Delivery Agency Agreement”) substantially in the form of Schedule 12 hereto, and will promptly provide to the Agents and each Paying Agent full details of each such agent appointed in respect of a particular Series of Notes.

(5) In relation to each issue of Eurosystem-eligible NGNs, the Issuer hereby authorizes and instructs the Principal Agent to elect, as directed by the Issuer, Euroclear or Clearstream, Luxembourg, as common safekeeper. From time to time, the Issuer and the Principal Agent may agree to vary this election. The Issuer acknowledges that any such election is subject to the right of Euroclear and Clearstream, Luxembourg to jointly determine that the other shall act as common safekeeper in relation to any such issue and agrees that no liability shall attach to the Principal Agent in respect of any such election made by it.

(6) The obligations of the Paying Agents under this Agreement shall be several and not joint.

 

3.

Appointments of Registrar and Transfer Agent

(1) The Issuer hereby appoints The Bank of New York (Luxembourg) S.A. as Transfer Agent and Registrar in respect of the Registered Notes, and The Bank of New York (Luxembourg) S.A. hereby accepts such appointment, upon the terms and subject to the conditions set out below, for the purposes of:

(a) maintaining a Register (as defined in Clause 4 (1)(a)) and making appropriate entries in the Register in respect of all Registered Notes;

(b) arranging on behalf of the Issuer for notices with respect to Registered Notes to be communicated to the Noteholders;

(c) performing all other obligations and duties imposed upon it by the Terms and Conditions of the Registered Notes and this Agreement or as may be agreed between the Issuer and the Transfer Agent or Registrar (as applicable) in connection with the Registered Notes; and

(d) delegating such functions to the Principal Agent as may be reasonably required in order to fulfill its obligations pursuant to (b) and (c) above.

 

4.

Duties of the Registrar and Transfer Agent

(1) The Registrar shall, subject to Clause 4(2), so long as any Registered Note is outstanding:

(a) maintain a register at an office or agency in Luxembourg (the “Register”) for the purpose of recording (i) the number of issued Registered Certificates, (ii) their nominal amounts, (iii) the date or dates of issue of all Registered Notes and their certificate numbers (which shall be

 

5

unique for each Registered Certificate of a Series), (iv) all subsequent transfers and changes of ownership of Registered Notes, (v) the names, addresses and bank account details of the holders of the Registered Notes for payments on the Registered Notes, and (vi) all cancellations of Registered Notes, whether because of their redemption (whether in full or in part and whether at maturity or otherwise), purchase by the Issuer, or otherwise;

(b) subject to Clause 4(1)(c) below, upon its receipt of any request for the registration of transfer of any Registered Note, the Registrar will, within one business day (being for this purpose a day on which banks are open for business in the city where the specified office of the Registrar is located) of such receipt (or such longer period as may be required to comply with any applicable fiscal or other laws or regulations), update the Register to reflect the relevant transfer or transfers;

(c) provided that it has express knowledge thereof, give the Issuer prompt notice of any proposed transfer of any Registered Notes to any United States resident including, without limitation, any agency or branch of a foreign entity located in the United States, any corporation, partnership, or other entity created or organized under the laws of the United States or any political subdivision thereof, prior to effecting such transfer or the registration of such transfer and will act in accordance with the Issuer’s instructions with respect to the transfer or the registration of transfer of such Registered Notes;

(d) receive any document in relation to or affecting the title to any of the Registered Notes, including all forms of transfer, probates, letters of administration and powers of attorney;

(e) maintain proper records of the details of all documents received by it with respect to its obligations hereunder;

(f) prepare all such lists of holders of the Registered Notes as may be required by the Issuer or the Principal Agent or any person authorized by either of them;

(g) subject to applicable laws and regulations at all reasonable times during normal office hours in Luxembourg make the Register available (i) to the Issuer or any persons authorized by it for inspection and for the taking of copies or extracts, and (ii) to the Noteholder or Noteholders for inspection of, and for the taking of copies or extracts of, entries in the Register relating directly to such Noteholder or Noteholder’s holdings; and

(h) comply with the reasonable requests of the Issuer with respect to the maintenance of the Register and give to the Principal Agent such information as may be reasonably required by it for the proper performance of its duties. This includes, on or before each Record Date (as defined in the Terms and Conditions) or on any other date so requested by the Principal Agent, providing the Principal Agent with a complete copy of the Register.

(2) Upon its receipt of any request for the registration of transfer of any Registered Note to the Transfer Agent, the Transfer Agent shall forward a copy of such request to the Registrar (to the extent that the Transfer Agent and the Registrar are separate entities) within one business day (being for this purpose a day on which banks are open for business in the city where the specified office of the Transfer Agent is located) of such receipt.

(3) No Noteholder may require the transfer of a Registered Note of a particular Series to be registered:

(a) during the period commencing on the Record Date (as defined in the Terms and Conditions for the relevant Series) and ending on (and including) the due date for redemption of, or payment of any installment amount, or amount of interest, in respect of that Registered Note;

 

6

(b) during the period commencing on the Record Date and ending on any date on which Registered Notes may be called for redemption by the Issuer at its option pursuant to Condition 6(d);

(c) after any such Registered Note has been called for redemption;

(d) during the period commencing on the Record Date and ending on the date fixed for any meeting of Noteholders of that Series, or any adjourned meeting of Noteholders of that Series; or

(e) during the period of seven days ending on (and including) any Record Date.

 

5.

Issue of Bearer Temporary Global Notes or Registered Global Notes

(1) Subject to sub-clause (2), following receipt of a notification from the Issuer in respect of an issue of Notes (such notification being by receipt of a confirmation (a “Confirmation”), substantially in the applicable form set out in the Procedures Memorandum), the Principal Agent and the Registrar will take the steps required of the Principal Agent and the Registrar, respectively, in the Procedures Memorandum. For this purpose, the Principal Agent is hereby authorized on behalf of the Issuer:

(a) to prepare a Bearer Temporary Global Note in accordance with such Confirmation by attaching a copy of the applicable Final Terms to a copy of the relevant master Bearer Temporary Global Note and authenticate (or cause to be authenticated) such Bearer Temporary Global Note or, in the case of Registered Notes, to notify the Registrar of all relevant information, whereupon the Registrar shall prepare a Registered Global Certificate in an aggregate nominal amount equal to that of the Tranche to be issued (unless the Principal Agent is to do so in its capacity as agent for the Registrar), and deliver it to the Principal Agent not later than the time specified by the Principal Agent (which shall be no earlier than one Business Day after receipt by the Registrar of such instructions);

(b) to deliver the Bearer Temporary Global Note or Registered Global Certificate to the specified common depositary (if the Bearer Temporary Global Note is a CGN) or specified common safekeeper (if the Bearer Temporary Global Note is a NGN) for Euroclear and Clearstream, Luxembourg and (i) in the case of an issue of a Registered Global Certificate or a Bearer Temporary Global Note which is a CGN, to instruct Euroclear or Clearstream, Luxembourg, as the case may be, unless otherwise agreed in writing between the Principal Agent and the Issuer, (A) in the case of an issue of Notes on a non-syndicated basis, to credit such Notes to the Principal Agent’s distribution account, and (B) in the case of an issue of Notes on a syndicated basis, to hold such Notes pursuant to the Issuer’s order, and (ii) in the case of a Bearer Temporary Global Note which is a Eurosystem-eligible NGN, to instruct the common safekeeper to effectuate the same;

(c) to ensure that the Notes of each Tranche are assigned a common code (“Common Code”) and International Security Identification Number (“ISIN”) by Euroclear and Clearstream, Luxembourg which are different from the Common Code and ISIN assigned to Notes of any other Tranche of the same Series until 40 calendar days after the completion of the distribution of the Notes of such Tranche as notified by the Principal Agent to the relevant Dealer; and

(d) if the Bearer Temporary Global Note is a NGN, instruct Euroclear and Clearstream, Luxembourg to make the appropriate entries in their records to reflect the initial outstanding aggregate principal amount of the relevant Tranche of Notes.

(2) Each of the Principal Agent and the Registrar shall only be required to perform their respective obligations under sub-clause (1) if it holds:

 

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(a) master Bearer Temporary Global Notes, duly executed by a person or persons authorized to execute the same on behalf of the Issuer, which may be used by the Principal Agent for the purpose of preparing Bearer Temporary Global Notes in accordance with Clause 5(1)(a); and

(b) master Bearer Permanent Global Notes, duly executed by a person or persons authorized to execute the same on behalf of the Issuer, which may be used by the Principal Agent for the purpose of preparing Bearer Permanent Global Notes in accordance with Clause 6 below.

(3) The Principal Agent will provide Euroclear and/or Clearstream, Luxembourg with the notifications, instructions, or other information to be given by the Principal Agent to Euroclear and/or Clearstream, Luxembourg in accordance with the standard procedures of Euroclear and/or Clearstream, Luxembourg.

 

6.

Determination of Exchange Date, Issue of Bearer Permanent Global Notes or Bearer Definitive Notes and Determination of Restricted Period

(1)    (a) The Principal Agent shall determine the Exchange Date for each Bearer Temporary Global Note, or portion thereof, in accordance with the terms thereof. Forthwith upon determining the Exchange Date in respect of any Tranche, the Principal Agent shall notify such determination to the Issuer, the relevant Dealer, Euroclear and Clearstream, Luxembourg.

(b) The Principal Agent shall deliver, upon notice from Euroclear or Clearstream, Luxembourg, a Bearer Permanent Global Note or Bearer Definitive Notes, as the case may be, in accordance with the terms of the Bearer Temporary Global Note, provided that in each case the Principal Agent has received certification of non-U.S. beneficial ownership as required by U.S. Treasury Regulations unless such certification has already been given. Upon any such exchange of a portion of a Bearer Temporary Global Note for an interest in a Bearer Permanent Global Note, the Principal Agent is hereby authorized on behalf of the Issuer:

(i) for the first Tranche of any Series of Notes, to prepare and complete a Bearer Permanent Global Note in accordance with the terms of the Bearer Temporary Global Note applicable to such Tranche by attaching a copy of the applicable Final Terms to a copy of the relevant master Bearer Permanent Global Note;

(ii) for the first Tranche of any Series of Notes where the Bearer Permanent Global Note is a CGN, to authenticate such Bearer Permanent Global Note;

(iii) for the first Tranche of any Series of Notes where the Bearer Permanent Global Note is a CGN, to deliver such Bearer Permanent Global Note to the common depositary which is holding the Bearer Temporary Global Note applicable to such Tranche for the time being on behalf of Euroclear and/or Clearstream, Luxembourg either in exchange for such Bearer Temporary Global Note or, in the case of a partial exchange, on entering details of such partial exchange of the Bearer Temporary Global Note in the relevant spaces in Schedule 2 of both the Bearer Temporary Global Note and the Bearer Permanent Global Note, and in either case against receipt from the common depositary of confirmation that such common depositary is holding the Bearer Permanent Global Note in safe custody for the account of Euroclear and/or Clearstream, Luxembourg;

(iv) for the first Tranche of any Series of Notes where the Bearer Permanent Global Note is a NGN, to deliver such Bearer Permanent Global Note to the common safekeeper, which is holding the Bearer Temporary Global Note representing the Tranche for the time being on behalf of Euroclear and/or Clearstream, Luxembourg, to effectuate (in the case of a Bearer Permanent Global Note which is a Eurosystem-eligible NGN) and to hold on behalf of the Issuer pending its exchange for the Bearer Temporary Global Note;

 

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(v) in the case of a subsequent Tranche of any Series of Notes where the Bearer Permanent Global Note is a CGN, to attach a copy of the applicable Final Terms to the Bearer Permanent Global Note applicable to the relevant Series and to enter details of any exchange in whole or part as stated above; and

(vi) in the case of a subsequent Tranche of any Series of Notes where the Bearer Permanent Global Note is a NGN, to deliver the applicable Final Terms to the specified common safekeeper for attachment to the Bearer Permanent Global Note applicable to the relevant Series.

(c) The certifications of non-U.S. beneficial ownership received pursuant to paragraph (b) above shall contain all certifications and information set forth in the form set out in Schedule 7 hereto and shall be retained by the Principal Agent for the period specified in the U.S. Treasury Regulations. A copy of such certification shall upon request by the Issuer be promptly furnished to the Issuer, in no event later than 10 calendar days after receipt of such request. The Principal Agent shall confirm that any such certification by electronic transmission satisfies the Requirements set forth in U.S. Treasury Regulation Section 1.163-5(c)(2)(i)(D)(3)(ii).

(2)    (a) For a Tranche of Bearer Notes in respect of which there is only one Dealer, the Principal Agent will determine the end of the Restricted Period in respect of such Tranche as being the fortieth calendar day following the date certified by the relevant Dealer to the Principal Agent as being the date as of which distribution of the Notes of that Tranche was completed.

(b) For a Tranche of Bearer Notes in respect of which there is more than one Dealer but which is not issued on a syndicated basis, the Principal Agent will determine the end of the Restricted Period in respect of such Tranche as being the fortieth calendar day following the latest of the dates certified by all the relevant Dealers to the Principal 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 of Bearer Notes issued on a syndicated basis, the Principal Agent will determine the end of the Restricted Period in respect of such Tranche as being the fortieth calendar day following the date certified by the Lead Manager to the Principal 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 of Bearer Notes, the Principal Agent shall notify such determination to the Issuer and the relevant Dealer or the Lead Manager in the case of a syndicated issue.

(3) Upon any exchange of all or a part of an interest in a Bearer Temporary Global Note for an interest in a Bearer Permanent Global Note or upon any exchange of all or a part of an interest in either a Bearer Temporary Global Note or a Bearer Permanent Global Note for Bearer Definitive Notes, the Principal Agent shall (i) procure that the relevant Global Note shall, if it is a CGN, be endorsed by or on behalf of the Principal Agent to reflect the reduction of its nominal amount by the aggregate nominal amount so exchanged and, where applicable, the Bearer Permanent Global Note shall be endorsed by or on behalf of the Principal Agent to reflect the increases in its nominal amount as a result of any exchange for an interest in the Bearer Temporary Global Note or (ii) in the case of any Bearer Global Note which is a NGN, instruct Euroclear and Clearstream, Luxembourg to make appropriate entries in their records to reflect such exchange. Until exchanged in full, the holder of an interest in any Bearer Global Note shall in all respects be entitled to the same benefits under this Agreement as the holder of Bearer Definitive Notes, Receipts and Coupons authenticated and delivered under this Agreement, subject as set out in the Terms and Conditions. The Principal Agent is authorized on behalf of the Issuer and instructed (a) in the case of any Global Note which is a CGN, to endorse or to arrange for the endorsement of the relevant Global Note to reflect the reduction in the nominal amount represented by it by the amount so exchanged and, if appropriate, to endorse the Bearer Permanent Global Note to reflect any increase in the nominal amount represented by it and, in either case, to sign in the relevant space on the relevant Global Note recording the exchange and reduction or increase, (b) in the case of any Global Note which is a NGN, to instruct Euroclear and Clearstream to make

 

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appropriate entries in their records to reflect such exchange and (c) in the case of a total exchange, to cancel or arrange for the cancellation of the relevant Global Note.

(4) Where the Principal Agent delivers any authenticated Global Note to a common safekeeper for effectuation using electronic means, it is authorized and instructed to destroy the Global Note retained by it following its receipt of confirmation from the common safekeeper that the relevant Global Note has been effectuated.

(5) Any exchange of all or a part of an interest in a Bearer Temporary Global Note for an interest in a Bearer Permanent Global Note, any exchange of all or a part of an interest in either a Bearer Temporary Global Note or a Bearer Permanent Global Note for Bearer Definitive Notes, and any delivery of a Bearer Note shall be made only outside the United States and its possessions.

 

7.

Issue of Definitive Notes and Registered Definitive Certificates

(1) Unless otherwise provided in the applicable Final Terms, on or after the Exchange Date interests in a Bearer Global Note will be exchangeable for Bearer Definitive Notes with Coupons attached: (i) as to Bearer Permanent Global Notes, on not less than 60 calendar days’ written notice from Euroclear and/or Clearstream, Luxembourg (acting on the instructions of any holder of an interest in the applicable Bearer Permanent Global Note), (ii) if an Event of Default (as defined in the Terms and Conditions) occurs and is continuing, (iii) if the Issuer is notified that either Euroclear or Clearstream, Luxembourg has been closed for business for a continuous period of 14 calendar days (other than by reason of holiday, statutory or otherwise) after the original issuance of the Bearer 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 (iv) if the Issuer, after notice to the Principal Agent, determines to issue the applicable Bearer Notes in definitive form. Upon the occurrence of these events, the Principal Agent shall deliver the relevant Bearer Definitive Note(s) in accordance with the terms of the relevant Bearer Global Note. For this purpose, the Principal Agent is hereby authorized on behalf of the Issuer:

(a) to authenticate such Bearer Definitive Note(s) in accordance with the provisions of this Agreement; and

(b) to deliver such Bearer Definitive Note(s) to or to the order of Euroclear or Clearstream, Luxembourg in exchange for such Bearer Global Note.

The Principal Agent shall notify the Issuer forthwith upon receipt of a request for issue of Bearer Definitive Note(s) in accordance with the provisions of a Bearer Global Note and this Agreement (and the aggregate principal amount of such Bearer Temporary Global Note or Bearer Permanent Global Note, as the case may be, to be exchanged in connection therewith).

(2) Unless otherwise provided in the applicable Final Terms, interests in a Registered Global Note will be exchangeable for Registered Definitive Notes: (i) if the Issuer is notified that Euroclear or Clearstream, Luxembourg has been closed for business for a continuous period of 14 calendar days (other than by reason of holiday, statutory or otherwise) after the issuance of the Registered Global Note 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, (ii) if an Event of Default (as defined in the Terms and Conditions) occurs and is continuing, or (iii) if the Issuer, after notice to the Principal Agent, determines to issue the applicable Registered Notes in definitive form. Upon the occurrence of these events, the Principal Agent shall deliver the relevant Registered Definitive Certificates in accordance with the terms of the relevant Registered Global Note. For this purpose, the Registrar is hereby authorized on behalf of the Issuer:

(a) to authenticate such Registered Definitive Certificates in accordance with the provisions of this Agreement; and

 

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(b) to deliver such Registered Definitive Certificates to or to the order of Euroclear, Clearstream, Luxembourg or any alternative clearing system in exchange for such Registered Global Certificate.

(3) The Issuer undertakes to deliver to the Principal Agent and the Registrar sufficient numbers of executed Bearer Definitive Notes with, if applicable, Receipts, Coupons and Talons attached, and sufficient numbers of Registered Definitive Certificates to enable the Principal Agent and the Registrar to comply with their respective obligations under this Clause 7.

Notwithstanding the foregoing, the Principal Agent shall not deliver a Bearer Definitive Note unless a certification of non-U.S. beneficial ownership is furnished or has previously been received. Any such certification shall contain all certifications and information set forth in the form set out in Schedule 7 hereto, and shall be retained by the Principal Agent, and a copy shall be furnished to the Issuer, in accordance with Clause 6(1)(c) above.

 

8.

Terms of Issue

(1) The Principal Agent and Registrar shall cause all Bearer Temporary Global Notes, Bearer Permanent Global Notes, Bearer Definitive Notes, Registered Global Certificates and Registered Definitive Certificates that are 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, the relevant Global Note and the Terms and Conditions.

(2) Subject to the procedures set out in the Procedures Memorandum, for the purposes of Clause 5(1), the Principal Agent and Registrar are entitled to treat a telephone, , email or facsimile communication from a person purporting to be (and who the Principal Agent or Registrar believes in good faith to be) the authorized representative of the Issuer named in the lists referred to in, or notified pursuant to, Clause 21(7) as sufficient instructions and authority of the Issuer for the Principal Agent or Registrar, as applicable, to act in accordance with Clause 5(l).

(3) If a person who has signed on behalf of the Issuer any Bearer Note or Registered Certificate not yet issued but held by the Principal Agent or Registrar in accordance with Clause 5(1) ceases to be authorized as described in Clause 21(7), the Principal Agent or Registrar, as applicable (unless the Issuer gives notice to the Principal Agent or Registrar, as applicable, that Notes signed by that person do not constitute valid and binding obligations of the Issuer or otherwise until replacements have been provided to the Principal Agent or Registrar, as applicable), shall continue to have authority to issue any such Notes, and the Issuer hereby warrants to the Principal Agent and Registrar that such Notes shall be, unless notified as aforesaid, valid and binding obligations of the Issuer. Promptly upon such person ceasing to be authorized, the Issuer shall provide the Principal Agent with replacement Bearer Notes or Registered Certificates (as applicable). Upon receipt of such replacement Bearer Notes or Registered Certificates, the Principal Agent or Registrar, as applicable, shall cancel and destroy the Bearer Notes or Registered Certificates held by it which are signed by such person and upon written request shall provide to the Issuer a confirmation of destruction in respect thereof specifying the Bearer Notes or Registered Certificates so cancelled and destroyed.

(4) If the Principal Agent pays an amount (the “Advance”) to the 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 Principal Agent on the date the Principal Agent pays the Issuer, the Principal Agent shall notify the Issuer by tested facsimile or email that the Payment has not been received and the Issuer shall repay to the Principal 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 Principal Agent of the Payment (at a rate quoted at that time by the Principal Agent as its cost of funding the Advance).

(5) Except in the case of issues where the Principal Agent does not act as receiving bank for the 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 Principal Agent’s distribution account with Euroclear and/or Clearstream, Luxembourg after such Issue Date, the Principal Agent will continue to hold the Defaulted Note pursuant to the order of the Issuer.

 

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The Principal Agent shall notify the 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 the Issuer forthwith upon receipt from the Dealer of the full purchase price in respect of such Defaulted Note and to pay to the Issuer the amount so received.

 

9.

Payments

(1) Subject to sub-clause 12 below, the Principal Agent shall advise the Issuer, as soon as shall be practicable preceding the date on which any payment is to be made to the Principal Agent pursuant to this sub-clause (1) of the payment amount, value date and payment instructions and the Issuer will before 10:00 a.m. (London 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 Principal 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 Principal Agent and the Issuer may agree.

(2) The 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 Principal Agent pursuant to sub-clause (1), the Principal Agent shall receive from the paying bank of the Issuer an irrevocable confirmation in the form of an authenticated SWIFT message that such payment shall be made. For the purposes of this Clause 9, “Business Day” means a day which is both:

(a) a day (other than a Saturday or Sunday) on which commercial banks and foreign exchange markets settle payments and are open for general business (including dealing in foreign exchange and foreign currency deposits) in London and New York and any additional business center(s) specified in the applicable Final Terms (“Additional Business Center(s)”); and

(b) either (1) for any sum payable in a Specified Currency other than euro, a day on which commercial banks and foreign exchange markets settle payments and are open for general business (including dealing in foreign exchange and foreign currency deposits) in the principal financial centers (as defined below) of the country of the relevant Specified Currency (if other than London) or (2) for any sum payable in euro, a day on which the Trans-European Automated Real-Time Gross Settlement Express Transfer System (“TARGET2 System”) or any successor thereto is operating.

Unless otherwise specified in the applicable Final Terms, the principal financial center of any country for the purpose of this Clause 9 shall be the relevant financial centers (if any) specified for the relevant Specified Currency in Section 1.5 or Section 1.6 of the ISDA Definitions, except that the principal financial center for Australian Dollars shall be Melbourne and Sydney, the principal financial center for Canadian Dollars shall be Toronto, and the principal financial center for New Zealand Dollars shall be Wellington.

(3) The Principal Agent shall ensure that payments of principal, interest and any other amount in respect of any Bearer Temporary Global Note will be made only to the extent that certification of non-U.S. beneficial ownership as required by U.S. Treasury regulations has been received from Euroclear and/or Clearstream, Luxembourg in accordance with the terms thereof. Any such certification shall contain all certifications and information set forth in the form set out in Schedule 7, and be retained by the Principal Agent, and a copy shall be furnished to the Issuer, in accordance with Clause 6(1)(c) above.

(4) Subject to the receipt by the Principal Agent of payment as provided in sub-clause (1) above, the Principal 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 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 Principal 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 Principal Agent considers in its sole discretion that the amounts to be received by the Principal 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

 

12

Notes, neither the Principal Agent nor any Paying Agent shall be obliged to pay any such claims until the Principal Agent has received the full amount of all such payments. Should the Principal 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 Issuer of any such decision as soon as practicable by telephone with confirmation by facsimile or e-mail.

(6) Without prejudice to sub-clauses (4) and (5), if the Principal 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 Issuer will, in addition to paying amounts due under sub-clause (l), pay to the Principal Agent on demand interest (at a rate which represents the Principal Agent’s cost of funding the Shortfall) on the Shortfall (or the unreimbursed portion thereof) until the receipt in full by the Principal Agent of the Shortfall.

(7) The Principal 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 Principal 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 Principal Agent has to give payment instructions in respect of the due date of a payment in respect of the Notes, that the Principal Agent does not expect to receive sufficient funds to make payment of all amounts falling due in respect of such Notes.

(8) If the Principal Agent pays out on or after the due date therefor, or becomes liable to pay out, funds on the assumption that a corresponding payment by the Issuer has been or will be made and such payment has in fact not been made by the Issuer, then the Issuer shall on demand reimburse the Principal Agent for the relevant amount, and pay interest to the Principal 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 Principal Agent of funding the amount paid out, as certified by the Principal 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 Issuer’s obligations under this sub-clause (8).

(9) While any Notes are represented by a Bearer Global Note or a Registered Global Certificate, all payments or deliveries due in respect of such Notes shall be made to, or to the order of, the holder of the Bearer Global Note or with respect to the Registered Global Certificate, the person or persons for the time being shown in the Register maintained by the Registrar as the Noteholder or Noteholders, subject to, and in accordance with, the provisions of the Bearer Global Note or Registered Global Certificates. In the case of a CGN, the Paying Agent to which any Bearer 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, interest or other amounts, as applicable. In the case of any Bearer Global Note which is a NGN, the Principal Agent shall instruct Euroclear and Clearstream, Luxembourg to make appropriate entries in their records to reflect such payment.

(10) All payments in respect of any Bearer Note shall be made outside the United States and its possessions and shall not be made by transfer to an account at a bank, or delivered to an address, located inside the United States or its possessions by any office or agency of the Issuer, the Principal Agent, or any Paying Agent. Terms used in this sub-clause shall have the meanings given to them by the U.S. Internal Revenue Code of 1986, as amended, and regulations thereunder.

(11) If the amount of principal, interest or other amounts then due for payment is not paid in full (otherwise than by reason of a deduction required by law to be made therefrom), (i) the Paying Agent to which a Bearer Note is presented for the purpose of making such payment shall, unless the Bearer Note is a NGN, make a record of such shortfall on the Bearer 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 or (ii) in the case of any Bearer Global Note which is a NGN, the Principal Agent shall instruct Euroclear and Clearstream, Luxembourg to make appropriate entries in their records to reflect such shortfall in payment.

 

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(12) If any payments or deliveries due on any Physical Delivery Notes, as defined in the Terms and Conditions, including pursuant to sub-clause 10 above, are required to be paid by delivery of any asset other than cash, then neither the Principal Agent nor any Paying Agent shall be responsible hereunder for the delivery of such non-cash consideration. Instead, the delivery of such non-cash consideration shall be effected or procured by the Delivery Agent in the manner provided by the Delivery Agency Agreement upon receipt of an Asset Transfer Notice from the relevant Noteholder in the manner contemplated by the Terms and Conditions. No Physical Delivery Amount shall be delivered in the United States or its possessions, transferred to an account at a bank or delivered to an address located inside the United States or its possessions, or to, or for the account or benefit of a U.S. person (as defined in Regulation S of the Securities Act of 1933, as amended). For purposes of taking any action required to be taken by the Principal Agent hereunder, including, but not limited to, any notations required to be made on the Notes, the Principal Agent may rely upon any notification delivered to it by the Delivery Agent pursuant to the Delivery Agency Agreement as to the amounts delivered by the Delivery Agent thereunder (or any shortfall, as the case may be) on any Interest Payment Date, Maturity Date, or any other relevant payment date.

 

10.

Determinations and Notifications in Respect of Notes and Interest Determination

(1) The Principal 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 relevant Calculation Agent in accordance with the relevant Calculation Agency Agreement.

(2) For the purposes of monitoring the aggregate principal amount of Notes issued under the Program, the Principal Agent shall determine the U.S. Dollar equivalent of the principal amount of each issue of Notes denominated in another currency, each issue of Partly Paid Notes, Index Linked Notes, Share Linked Notes, Inflation Linked Notes, Commodity Linked Notes, FX Linked Notes, Hybrid Notes, Notes Linked to other Underlying Assets and Dual Currency 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 Issuer on the relevant day of calculation;

(b) the U.S. Dollar equivalent of Index Linked Notes, Share Linked Notes, Inflation Linked Notes, Commodity Linked Notes, FX Linked Notes, Hybrid Notes, Dual Currency Notes, and Notes Linked to other Underlying Assets shall be calculated as specified above by reference to the original nominal amount of such Notes;

(c) the U.S. Dollar equivalent of Partly Paid Notes shall be determined as specified above by reference to the original principal amount of such Notes regardless of the amount paid on the Notes; and

(d) the U.S. Dollar equivalent of Zero Coupon Notes and other Notes that are issued at a discount or premium (other than a de minimis discount in the ordinary course), shall be calculated as specified above by reference to the net proceeds received by the Issuer for the relevant issue.

 

11.

Withholding Taxes

(1) Prior to the first payment on any Note, the Principal Agent shall have submitted to the Issuer, or shall have on file with the Issuer, a properly executed Internal Revenue Service (“IRS”) Form W-9, and any Paying Agent with respect to such Note shall have submitted to the Issuer, or shall have on file with the Issuer, such IRS form as the Issuer shall determine to be necessary or advisable.

 

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(2) In respect of all Notes the payments on which are specified in the applicable Final Terms as being subject to United States withholding taxes, the Principal Agent and any Paying Agent with respect to such Note shall, unless otherwise notified by the Issuer, withhold United States federal income tax in accordance with U.S. law on all payments as specified in the applicable Final Terms, forward the amount withheld to the IRS, and comply with any U.S. tax reporting requirements.

(3) If the Issuer, in respect of any payment not described in Clause 11(2) above, is required to withhold or deduct any amount for or on account of taxes, duties, assessments or governmental charges, the Issuer shall give written notice thereof to the Principal Agent and any Paying Agent with respect to such Note as soon as it becomes aware of the requirement to make such withholding or deduction and shall give to the Principal Agent and such Paying Agent such information as the Principal Agent or such Paying Agent shall require to enable it to comply with such requirement, and the Principal Agent and Paying Agent shall comply with such requirement.

(4) Notwithstanding anything to the contrary, in respect of all Registered Notes, the Principal Agent and any Paying Agent with respect to the Notes shall collect IRS Forms W-8BEN, W-8IMY, W-9 (or any successor forms thereto) or other appropriate tax forms from the Noteholders and withhold taxes to the extent required by law.

(5) The Principal Agent and any Paying Agent with respect to a Note shall report payments to the Noteholders and the IRS as appropriate under U.S. law.

(6) The Principal Agent and any Paying Agent with respect to a Note shall provide the Issuer with any information required by the Issuer in connection with the Principal Agent’s compliance with the tax requirements of this Clause 11.

 

12.

Duties of the Principal Agent in Connection with Early Redemption, Put Notices and Asset Transfer Notices

(1) If so permitted by the applicable Final Terms, and subject to the provisions of the Terms and Conditions, if the 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, the Issuer shall give 7 calendar days written notice of such decision to the Principal Agent on or prior to the date on which the Issuer will give notice of such redemption to the Noteholders in accordance with the Terms and Conditions in order to enable the Principal 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 Principal Agent shall make the required drawing in accordance with the Terms and Conditions but shall give the 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 Principal 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 Principal Agent to be appropriate and fair. 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 (to be reflected in the records of Euroclear and Clearstream, Luxembourg as either a pool factor or a reduction in nominal amount, at their discretion). Notice of any partial redemption and, when there are Definitive Notes outstanding, of the serial numbers of the Bearer Definitive Notes or Registered Definitive Certificates so drawn, will be given by the Principal Agent to the Noteholders in accordance with the terms of the Notes and this Agreement.

(3) On behalf of and at the expense of the Issuer, the Principal Agent shall publish the notice required in connection with any such redemption and shall at the same time also publish a separate list of the serial numbers of any Bearer Definitive Notes or Registered Definitive Certificates previously drawn and not presented for redemption. Such notice shall specify the date fixed for redemption, the redemption amount, the record date, 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 and the nominal amounts of the Notes to be redeemed. Such notice will be published in accordance with the Terms and Conditions. The Principal Agent also will notify the other Paying Agents of any

 

15

date fixed for redemption of any Notes. In addition, the Principal Agent shall send to each holder of Registered Notes that are called in whole or in part for redemption or exercise of any option, at its address shown in the Register, a copy of such notice together with details of such Noteholder’s Registered Notes called for redemption or subject to any option and the extent of such redemption or the terms of the exercise of such option.

(4) Immediately prior to the date on which any notice of redemption is to be given to the Noteholders, the Issuer shall deliver to the Principal Agent a certificate stating that the 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, with respect to Bearer Notes, and each Transfer Agent, with respect to Registered Notes, will keep a stock of Put Notices for Bearer Definitive Notes or Registered Definitive Notes in the form set out in Schedule 10 hereto, and will make such notices available on demand to Noteholders of such Notes for which the Terms and Conditions provide for redemption at the option of Noteholders. Each Paying Agent, with respect to Bearer Notes, or Transfer Agent, with respect to Registered Notes, shall promptly transfer a copy of any valid Put Notice that it receives to the Issuer and the Principal Agent. Upon receipt of any Bearer Definitive Note or Registered Definitive Certificate deposited in the exercise of such option in accordance with the Terms and Conditions, the Paying Agent, with respect to Bearer Notes, or Transfer Agent, with respect to Registered Notes, with which such Bearer Note or Registered Certificate is deposited shall hold such Bearer Note (together with any Coupons, if any, relating to it and deposited with it) or Registered Certificate 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 and Clause 9(12) above, it shall present such Bearer Note (and any such Coupons, if any) to itself and the Issuer for payment of the amount due thereon together with any interest and any other amounts due on such date in accordance with the Terms and Conditions and shall pay such amounts in accordance with Condition 6, and if applicable, the directions of such Noteholder contained in the Put Notice. In the event of exercise of any other option, each Paying Agent, with respect to Bearer Notes or Transfer Agent, with respect to Registered Notes, shall take steps required of it in the Terms and Conditions and, in the case of Registered Notes, Clause 17. 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 monies is improperly withheld or refused, the applicable Paying Agent or Transfer Agent shall post such Bearer Note (together with any such Coupons, if any) or such Registered Certificate 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 Bearer Notes or Registered Certificates at such address outside the United States and its possessions as may have been given by the Noteholder in the Put Notice or, in the case of Registered Notes where no address has been given, to the address appearing in the Register. At the end of each period for the exercise of such option, each Paying Agent and each Transfer Agent shall promptly notify the Principal Agent of the principal amount of the Notes in respect of which such option has been exercised with it, together with their serial numbers (or those of the Registered Certificates representing them), and the Principal Agent shall promptly notify such details to the Issuer.

(6) Each Paying Agent and Transfer Agent will keep a stock of Asset Transfer Notices for (in the case of the Paying Agents) Bearer Definitive Notes and (in the case of the Transfer Agent) Registered Definitive Notes which are Physical Delivery Notes in the form set out in Schedule 13, and will make such notices available on demand to holders of such Notes. Each Paying Agent, with respect to Bearer Notes, and the Transfer Agent, with respect to Registered Notes, shall promptly transfer a copy of any valid Asset Transfer Notice that it receives to the Issuer and the Principal Agent. Upon receipt of any Note deposited in connection with the delivery of any Physical Delivery Amount as to a Physical Delivery Note, the Paying Agent or Transfer Agent with which such Bearer Note or Registered Certificate is deposited shall hold such Bearer Note (together with any Coupons, if any, relating to it and deposited with it) or Registered Certificate on behalf of the depositing Noteholder of such Bearer Note or Registered Certificate (but shall not, except as provided below, release it) until the due date for delivery of the applicable Physical Delivery Amount of the relevant Note, when, subject as provided below and Clause 9(12) above, it shall present such Bearer Note (and any such Coupons, if any) or Registered Certificate , together with the serial numbers of the applicable Bearer Notes or Registered Certificates, to itself, the Issuer and the Delivery Agent for delivery of the Physical Delivery Amount due thereon in accordance with the Terms and Conditions. If, prior to such due date for delivery, such Note becomes immediately due and payable or if upon due

 

16

presentation, delivery or payment of the Physical Delivery Amount or any monies is improperly withheld or refused, the Paying Agent shall post such Bearer Note (together with any such Coupons, if any) or Registered Certificate by uninsured post to, and at the risk of, the relevant Noteholder of such Note unless such Noteholder has otherwise requested and paid the costs of such insurance to the relevant Paying Agent at the time of depositing the Bearer Notes or Registered Certificate at such address outside the United States and its possessions as may have been given by such Noteholder in the Asset Transfer Notice.

(7) The Principal Agent shall as promptly as practicable (and in any event not later than 3:00 p.m. (local time) on the following Business Day on which a duly completed Asset Transfer Notice is delivered to it), notify the Issuer, the Calculation Agent (if applicable), and the Delivery Agent of details of the Notes in respect of which an Asset Transfer Notice has been delivered by any holder of Notes (such notification to be in such form and in such manner as the Issuer, the relevant Dealer, the Calculation Agent, and (if applicable) the Delivery Agent may reasonably request from time to time).

(8) The Principal Agent shall keep a full and complete record of all Notes and of their exercise, redemption and cancellation in accordance with this Clause 12 and make such records available at all reasonable times to the Issuer and any persons authorized by it for inspection and for the taking of copies thereof or extracts therefrom.

(9) The Principal Agent shall, as soon as practicable after the date on which all the Notes represented by any Bearer Global Note or by any Registered Global Certificate have been exercised or redeemed or have expired or have become null and void and upon delivery by or on behalf of the common depositary (in the case of a Global Note issued in CGN form or a Registered Global Certificate) or the common safekeeper (in the case of a Bearer Global Note issued in NGN form) of the relevant Bearer Global Note or Registered Global Certificate to the Principal Agent, cancel the relevant Bearer Global Note or Registered Global Certificate or cause it to be cancelled and thereafter, unless otherwise instructed by the Issuer, destroy the relevant Bearer Global Note or Registered Global Certificate and upon written request by the Issuer certify such destruction to the Issuer.

 

13.

Receipt and Publication of Notices

(1) Upon the receipt by the Principal Agent of a demand or notice from any Noteholder in accordance with the Terms and Conditions, the Principal Agent shall forward a copy thereof to the Issuer.

(2) On behalf of and at the request and expense of the Issuer, the Principal Agent shall cause to be published all notices required to be given by the Issuer to the Noteholders in accordance with the Terms and Conditions.

(3) The Principal Agent shall have no responsibility to obtain the certificate of the Issuer delivered by the Issuer to the Principal Agent pursuant to Condition 6 if such a certificate is required to be issued, nor shall the Principal Agent have any responsibility to notify the Issuer if such a certificate is required to be issued.

 

14.

Cancellation of Notes, Receipts, Coupons and Talons

(1) All Bearer Notes which are redeemed, all Receipts or Coupons which are paid, all Talons which are exchanged, and all Registered Certificates representing Registered Notes that are redeemed, shall be delivered outside the United States and its possessions to the Principal Agent, and shall be cancelled by the Principal Agent or Transfer Agent through which they are redeemed, paid or exchanged. In addition, the Issuer shall notify the Principal Agent or Transfer Agent, as applicable, in writing of all Notes which are purchased by or on behalf of the Issuer or any of its subsidiaries and all such Notes (or Registered Certificates in respect of Registered Notes) surrendered to the Principal Agent for cancellation, together (in the case of Bearer Definitive Notes) with all unmatured Receipts, Coupons or Talons (if any) attached thereto or surrendered therewith, shall be cancelled by the Principal Agent.

(2) The Issuer shall have the right to request that the Principal Agent in the case of Bearer Notes, or the Registrar, in the case of Registered Notes, provide, without limitation, the following information:

 

17

(a) the aggregate principal amount of Notes which have been redeemed and the aggregate amount paid in respect thereof;

(b) the number of Notes cancelled 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 cancelled; and

(e) in the case of Bearer Definitive Notes, if any, the serial numbers of such Notes, or in the case of Registered Notes, the serial numbers of the Registered Certificates representing them, which shall be given to the Issuer by the Principal Agent or Registrar, as applicable, 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 Principal Agent shall destroy all cancelled Notes, Receipts, Coupons, Talons and Certificates.

(4) The Principal Agent shall keep a full and complete record of all cancelled Bearer Notes, Receipts, Coupons, Talons and Registered Certificates (other than serial numbers of Coupons, except those which have been replaced pursuant to Condition 11) and of all replacement Notes, Receipts, Coupons, Talons or Registered Certificates issued in substitution for mutilated, defaced, destroyed, lost or stolen Notes, Receipts, Coupons, Talons or Registered Certificates. The Principal Agent shall at all reasonable times make such record available to the 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 14 and Clause 15 shall make a distinction between Bearer Notes, Receipts, Coupons, Talons and Registered Certificates of each Series.

(6) The Principal Agent is authorized by the Issuer and instructed to (a) in the case of any Bearer Global Note which is a CGN, to endorse or to arrange for the endorsement of the relevant Bearer Global Note to reflect the reduction in the nominal amount represented by it by the amount so redeemed or purchased and cancelled and (b) in the case of any Bearer Global Note which is a NGN, to instruct Euroclear and Clearstream, Luxembourg to make appropriate entries in their records to reflect such redemption or purchase and cancellation, as the case may be.

 

15.

Issue of Replacement Notes, Certificates, Receipts, Coupons and Talons

(1) The Issuer will cause a sufficient quantity of additional forms of Notes, Receipts, Coupons, Talons and Registered Certificates to be available, upon request to the Principal Agent or Registrar, respectively (in such capacity, the “Replacement Agent”), at its specified office for the purpose of issuing replacement Notes, Receipts, Coupons, Talons and Registered Certificates 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 15, authenticate (or in the case of a Bearer Global Note that is a Eurosystem-eligible NGN, instruct the common safekeeper to effectuate the same) and cause to be delivered any replacement Bearer Notes, Receipts, Registered Certificates, Coupons and Talons which the Issuer may determine to issue in place of Bearer Notes, Receipts, Registered Certificates, Coupons and Talons which have been lost, stolen, mutilated, defaced or destroyed.

(3) In the case of a mutilated or defaced Bearer Note, the Replacement Agent shall ensure that (unless otherwise covered by such indemnity as the Issuer may reasonably require) any replacement Bearer

 

18

Note will only have attached to it Receipts, Coupons and Talons corresponding to those (if any) attached to the mutilated or defaced Bearer Note which is presented for replacement.

(4) The Replacement Agent shall not issue any replacement Note, Receipt, Registered Certificate, Coupon or Talon unless and until the applicant therefor shall have:

(a) paid such reasonable costs and expenses as may be incurred in connection therewith, including any tax or other governmental charge that may be imposed in relation thereto;

(b) furnished it with such evidence and indemnity as the Issuer may reasonably require; and

(c) in the case of any mutilated or defaced Note, Receipt, Registered Certificates, Coupon or Talon, surrendered it to the Replacement Agent.

(5) The Replacement Agent shall cancel any mutilated or defaced Bearer Notes, Receipts, Registered Certificates, Coupons and Talons in respect of which replacement Bearer Notes, Receipts, Registered Certificates, Coupons and Talons have been issued pursuant to this Clause 15 and shall furnish the Issuer with a certificate stating the serial numbers of the Bearer Notes, Receipts, Registered Certificates, Coupons and Talons so cancelled and, unless otherwise instructed by the Issuer in writing, shall destroy such cancelled Bearer Notes, Receipts, Registered Certificates, Coupons and Talons and furnish the Issuer with a destruction certificate (to be provided only upon written request) stating the serial number of the Bearer Notes (in the case of Registered Definitive Notes) (or the Registered Certificates (in the case of Registered Notes)) and the number by maturity date of Receipts, Coupons and Talons so destroyed, in each case distinguishing between Bearer Notes of each Series and denomination (and any Receipts, Coupons and Talons relating to them) and Registered Notes of each series.

(6) The Replacement Agent, on issuing any replacement Bearer Note, Receipt, Registered Certificate, Coupon or Talon, forthwith shall inform the Issuer, the Principal Agent, the other Paying Agents and the Registrar of the serial number of such replacement Bearer Note, Receipt, Registered Certificates, Coupon or Talon issued and (if known) of the serial number of the Bearer Note, Receipt, Registered Certificates, Coupon or Talon in place of which such replacement Bearer Note, Receipt, Registered Certificate, Coupon or Talon has been issued. Whenever replacement Receipts, Registered Certificate, Coupons or Talons are issued pursuant to the provisions of this Clause 15, the Replacement Agent also shall notify the Principal Agent, the other Paying Agents and the Registrar of the maturity dates of the lost, stolen, mutilated, defaced or destroyed Receipts, Registered Certificate, Coupons or Talons and of the replacement Receipts, Registered Certificate, Coupons or Talons issued.

(7) The Principal Agent and the Registrar, as applicable, shall keep a full and complete record of all replacement Bearer Notes, Receipts, Registered Certificates, Coupons and Talons issued and shall make such record available at all reasonable times to the Issuer and any persons authorized by it for inspection and for the taking of copies thereof or extracts therefrom.

(8) Whenever any Bearer Note, Receipt, Registered Certificate, Coupon or Talon for which a replacement Bearer Note, Receipt, Registered Certificate, Coupon or Talon has been issued and in respect of which the serial number is known is presented to the Principal Agent or any of the Paying Agents for payment, the Principal Agent or, as the case may be, the relevant Paying Agent shall immediately send notice thereof to the Issuer and the other Paying Agents and the relevant Paying Agent shall not make payment in respect thereto, until instructed by the Issuer.

 

16.

Additional Duties of the Transfer Agent and Registrar

(1) The Transfer Agent with which a Registered Certificate is presented for the transfer of, or exercise of any Noteholders’ option relating to, Registered Notes represented by it shall forthwith notify the Registrar of (a) the name and address of the holder of the Registered Notes(s) appearing on such Registered Certificate, (b) the number of such Registered Certificate and nominal amount of the Registered Notes(s) represented by it, (c) (in the case of a transfer of, or exercise of an option relating to, part only) the nominal amount

 

19

of the Registered Note(s) to be transferred or in respect of which such option is exercised, and (d) (in the case of a transfer) the name and address of the Transferee to be entered on the Register and shall cancel such Registered Certificate and forward it to the Registrar.

(2) In the case of an exercise of an Issuer’s or Noteholder’s option in respect of, or a partial redemption of, a holding of Registered Notes, the Registrar shall issue a new Registered Certificate to the Noteholder to reflect the exercise of such option or in respect of the balance of the holding not redeemed. In the case of a partial exercise of an option resulting in Registered Notes of the same holding having different terms, the Registrar shall issue separate Registered Certificates in respect of those Notes of that holding that have the same terms. The Registrar shall only issue new Registered Certificates against surrender of the existing Registered Certificates to the Registrar or any Transfer Agent. In the case of a transfer of Registered Notes to a person who is already a holder of Registered Notes, the Registrar shall only issue a new certificate representing the enlarged holding against surrender of the existing Registered Certificate.

(3) The Registrar shall deliver each new Registered Certificate to be issued pursuant to Condition 2(b) or (c) within three business days after receipt of the request for exchange, form of transfer or surrender of the Registered Certificate for exchange. Delivery of the new Registered Certificate(s) shall be made at the specified office of the Transfer Agent or of the Registrar (as the case may be) to whom delivery or surrender of such request for exchange, form of transfer or Registered Certificate shall have been made or, at the option of the Noteholder making such delivery or surrender as aforesaid and as specified in the relevant request for exchange, form of transfer, or otherwise in writing, be mailed by uninsured mail at the risk of the Noteholder entitled to the new Registered Certificate to such address as may be so specified, unless such Noteholder requests otherwise and pays in advance to the Transfer Agent or Registrar the costs of such other method of delivery and/or such insurance as it may specify. In this Clause 16(3), “business day” means a day, other than a Saturday or Sunday, on which banks are open for business in the location of the specified office of the Registrar or the relevant Transfer Agent (as the case may be).

 

17.

Regulations Concerning Registered Notes

(1) The Issuer may, subject to the Terms and Conditions, from time to time with approval of the Principal Agent, the Transfer Agent and the Registrar (such approval not to be unreasonably withheld) promulgate regulations concerning the carrying out of transactions relating to Registered Notes and the forms and evidence to be provided. All such transactions shall be made subject to the regulations. The initial Regulations are set out in Schedule 14 hereto.

 

18.

Copies of Documents Available for Inspection

The Principal Agent, the Paying Agents and the Transfer Agent shall hold available for inspection copies of:

(1) the organizational documents of the Issuer;

(2) the latest available audited consolidated financial statements of the Issuer and its consolidated subsidiaries, beginning with such financial statements for the fiscal year ended December 31, 2006;

(3) the Program Agreement, this Agreement, each Calculation Agency Agreement and each Delivery Agency Agreement, if any;

(4) the Offering Circular; and

(5) any future offering circulars, information memoranda and supplements (except that the Final Terms 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).

 

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For this purpose, the Issuer shall furnish the Principal Agent, the Paying Agents and the Transfer Agent with sufficient copies of each of such documents.

 

19.

Meetings of Noteholders

(1) The provisions of Schedule 9 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 Principal Agent, the Paying Agents and Transfer Agent on the request of any Noteholder shall issue voting certificates and block voting instructions in accordance with Schedule 9 hereto and shall forthwith give notice to the Issuer in writing of any revocation or amendment of a block voting instruction. Each of the Principal Agent, Paying Agents and the Transfer Agent 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 Principal 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.

 

20.

Repayment by the Principal Agent

Upon the Issuer being discharged from its obligation to make payments or other deliveries 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 Principal Agent shall forthwith on written demand pay to the Issuer sums equivalent to any amounts paid to it by the Issuer for the purposes of such payments.

 

21.

Conditions of Appointment

(1) The Principal Agent shall be entitled to deal with money paid to it by the 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 Issuer for any interest thereon.

(2) In acting hereunder and in connection with the Notes, the Principal Agent, the Paying Agents, the Registrar and the Transfer Agent shall act solely as agents of the Issuer 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 Principal Agent, the Paying Agents, the Registrar and the Transfer Agent hereby undertake to the Issuer 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 Principal Agent, the Paying Agents, the Registrar and the Transfer Agent, other than the duty to act honestly and in good faith and to exercise the diligence of a reasonably prudent agent in comparable circumstances.

(4) The Agents 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 Principal Agent, the Paying Agents, the Registrar and the Transfer Agent, 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 Issuer or any notice, resolution, direction, consent, certificate,

 

21

affidavit, statement, cable 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 Issuer.

(6) Any of the Principal Agent, Paying Agents, Registrar and Transfer Agent 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 Principal Agent or the relevant Paying Agent, Registrar or Transfer Agent, as the case may be, were not appointed hereunder, and may engage or be interested in any financial or other transactions with the Issuer and may act on, or as depositary, safekeeper, trustee or agent for, any committee or body of Noteholders or Couponholders or in connection with any other obligations of the Issuer as freely as if the Principal Agent or the relevant Paying Agent, Registrar and Transfer Agent, as the case may be, were not appointed hereunder.

(7) The Issuer shall provide the Agents 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 Agents 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 Principal Agent that such person has been so authorized, provided, however, that the Agents shall not incur any liability for any losses, claims or damages resulting from the Issuer’s failure to provide such notification to the Agents.

 

22.

Communication Between the Parties

A copy of all communications relating to the subject matter of this Agreement between the Issuer and the Noteholders, Receiptholders or Couponholders and any of the Paying Agents or the Transfer Agent shall be sent to the Principal Agent by the relevant Paying Agent or the relevant Transfer Agent.

 

23.

Changes in Principal Agent, Paying Agents, Registrar and Transfer Agent

(1) The Issuer agrees that, for so long as any Note is outstanding, or until monies for the payment of all amounts in respect of all outstanding Notes have been made available to the Principal Agent or to the Delivery Agent, as applicable, or have been returned to the Issuer as provided herein:

(a) so long as the 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;

(c) there will at all times be a Principal Agent;

(d) the Issuer will maintain a Paying Agent in a member state of the European Union that will not be obliged to withhold or deduct tax pursuant to Directive (as defined in Condition 8) or any law implementing or complying with, or introduced in order to conform to, such Directive; and

(e) there will at all times be a Transfer Agent and Registrar with a specified office in continental Europe (outside the United Kingdom).

In addition, the Issuer shall immediately appoint a Paying Agent having a specified office in New York City in the circumstances described in Condition 5(c). Any variation, termination, appointment or change only shall take effect (other than in the case of insolvency (as provided in sub-clause (5)), when it shall be of immediate effect) after not less than 30 nor more than 45 calendar days’ prior notice thereof shall have been given to the Noteholders in accordance with the Terms and Conditions.

 

22

(2) The Principal Agent may (subject as provided in sub-clause (4)) at any time resign as Principal Agent by giving at least 90 calendar days’ written notice to the Issuer 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 Issuer unless the Issuer agrees to accept less notice.

(3) The Principal Agent may (subject as provided in sub-clause (4)) be removed at any time on at least 45 calendar days’ notice by the filing with it of an instrument in writing signed on behalf of the 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 Issuer as hereinafter provided, of a successor Principal Agent, and (other than in cases of insolvency of the Principal Agent) on the expiration of the notice to be given under Clause 25. The Issuer agrees with the Principal Agent that if, by the day falling ten calendar days before the expiration of any notice under sub-clause (2), the Issuer has not appointed a successor Principal Agent, then the Principal Agent, shall be entitled, on behalf of the Issuer, to appoint as a successor Principal 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 Principal Agent, hereunder.

(5) In case at any time the Principal 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 Principal Agent, which shall be a reputable financial institution of good standing, may be appointed by the Issuer by an instrument in writing filed with the successor Principal Agent. Upon the appointment as aforesaid of a successor Principal Agent and acceptance by the latter of such appointment and (other than in the case of insolvency of the Principal Agent) upon expiration of the notice to be given under Clause 25, the Principal Agent, so superseded shall cease to be the Principal Agent, hereunder.

(6) Subject to sub-clause (l):

(a) the Issuer may, after prior consultation (other than in the case of insolvency of any Paying Agent, Registrar or Transfer Agent) with the Principal Agent, terminate the appointment of any of the Paying Agents, Registrar or Transfer Agent at any time; or

(b) the Issuer may in respect of the Program, or in respect of any Series of Notes, if so required by the relevant Stock Exchange or regulatory body, appoint one or more additional Paying Agents, Registrars or Transfer Agent by giving to the Principal Agent, and to the relevant Paying Agent, Registrar or Transfer Agent at least 10 calendar days’ notice in writing to that effect.

(7) Subject to sub-clause (l), all or any of the Agents may resign their respective appointments hereunder at any time by giving the Issuer and the Principal Agent at least 45 calendar days’ written notice to that effect.

(8) Upon its resignation or removal becoming effective, the Principal Agent or the relevant Agent:

(a) shall, in the case of the Principal Agent, forthwith transfer all monies held by it hereunder and the records referred to in Clause 14(4) to the successor Principal Agent hereunder; and

 

23

(b) shall be entitled to the payment by the Issuer of its commissions, fees and expenses for the services theretofore rendered hereunder in accordance with the terms of Clause 29.

(9) Upon its appointment becoming effective, a successor Principal Agent and any new Paying Agent, Registrar or Transfer 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, Registrar or Transfer Agent with like effect as if originally named as Principal Agent or (as the case may be) a Paying Agent, Registrar or Transfer Agent hereunder.

 

24.

Merger and Consolidation

Any entity into which the Principal Agent, any Paying Agent, Registrar or Transfer Agent may be merged or converted, or any entity with which the Principal Agent, any of the Paying Agents, the Registrar or Transfer Agent may be consolidated or any entity resulting from any merger, conversion or consolidation to which the Principal Agent or any of the Paying Agents, Registrar or Transfer Agent shall be a party, or any entity to which the Principal Agent or any of the Paying Agents, the Registrar or Transfer Agent shall sell or otherwise transfer all or substantially all the assets or the corporate trust business of the Principal Agent, any Paying Agent, Registrar or Transfer 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 Principal Agent or, as the case may be, Transfer Agent, Registrar or 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 Issuer, and after the said effective date all references in this Agreement to the Principal Agent or, as the case may be, such Paying Agent, Registrar or Transfer Agent shall be deemed to be references to such entity. Written notice of any such merger, conversion, consolidation or transfer forthwith shall be given to the Issuer by the relevant Principal Agent, Paying Agent, Registrar or Transfer Agent.

 

25.

Notification of Changes to Principal Agent, Paying Agents, Registrar or Transfer Agent

Following receipt of notice of resignation from the Principal Agent, any Paying Agents, Registrar or Transfer Agent and forthwith upon appointing a successor Principal Agent or, as the case may be, other Paying Agents, Registrars or Transfer Agent or on giving notice to terminate the appointment of any Principal Agent or, as the case may be, Paying Agent, Registrars or Transfer Agent, the Principal Agent (on behalf of and at the expense of the Issuer) shall give or cause to be given not more than 60 calendar days’ nor less than 30 calendar days’ notice thereof to the Noteholders in accordance with the Terms and Conditions.

 

26.

Change of Specified Office

If the Principal Agent, any Paying Agent, Registrar or Transfer Agent determines to change its specified office, it shall give to the Issuer and (if applicable) the Principal 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 calendar days thereafter. The Principal Agent, any Paying Agent, Registrar or Transfer Agent (on behalf and at the expense of the Issuer) shall within 15 calendar days of receipt of such notice (unless the appointment of the Principal Agent or the relevant Paying Agent, Registrar or Transfer Agent, as the case may be, is to terminate pursuant to Clause 24 on or prior to the date of such change) give or cause to be given not more than 45 calendar days’ nor less than 30 calendar days’ notice thereof to the Noteholders in accordance with the Terms and Conditions.

 

27.

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, or postage prepaid, addressed to any party hereto as follows:

 

24

or at any other address of which any of the foregoing shall have notified the others in writing.

(1) if delivered in person to the relevant address specified in the signature pages hereof and if so delivered, shall be deemed to have been delivered at the time of receipt;

(2) if sent by facsimile to the relevant number specified above and, if so sent, shall be deemed to have been delivered immediately after transmission provided the sending facsimile machine prints a successful confirmation of transmission; or

(3) if sent by email to the relevant email address specified above, and if so sent, shall be deemed to have been delivered at the time of receipt.

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.

 

25

28.

Taxes and Stamp Duties

The Issuer agrees 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.

 

29.

Commissions, Fees and Expenses

(1) The Issuer undertakes to pay in respect of the services of the Principal Agent, the Paying Agents, Transfer Agent and Registrar, 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 Principal Agent to, and countersigned by, the Issuer.

(2) The Issuer will promptly pay on demand all reasonable out-of-pocket expenses (including legal, advertising, facsimile and postage expenses) properly incurred by the Principal Agent, the Paying Agents, the Registrar and Transfer Agent in connection with their services hereunder, including, without limitation, the expenses contemplated in this Clause 29(2).

 

30.

Indemnity

(1) The Issuer undertakes to indemnify and hold harmless each of the Principal Agent, the Paying Agents, Registrar and Transfer Agent against all losses, liabilities, costs (including, without limitation, legal fees and expenses), expenses, claims, actions or demands which the Principal Agent, Paying Agent, Registrar and Transfer Agent as the case may be, may reasonably incur or which may be made against the Principal Agent, Paying Agent, Registrar and Transfer 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 Principal Agent, Paying Agent, Registrar and Transfer 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. In no event shall the Issuer be liable for any loss of profits, goodwill, reputation, business opportunity or anticipated saving, or for special or consequential damages, whether or not the Issuer has been advised of the possibility of such loss or damages.

(2) The Principal Agent shall indemnify and hold harmless the Issuer 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 Principal Agent’s, or any Paying Agent’s, Registrar’s or Transfer Agent’s negligence, bad faith or material failure to comply with its obligations under this Agreement or that of its officers, employees or agents. In no event shall the Principal Agent be liable for any loss of profits, goodwill, reputation, business opportunity or anticipated saving, or for special or consequential damages, whether or not the Principal Agent has been advised of the possibility of such loss or damages.

(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 30, “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.

 

26

(4) The provisions of this Clause 30 shall continue in full force and effect notwithstanding the termination or expiry of this Agreement or the resignation or removal of any Agent.

 

31.

Reporting

(1) Each Principal Agent shall upon receipt of a written request therefor from the Issuer and after the payment of any further remuneration agreed between the Issuer and such Principal Agent (on behalf of the Issuer and on the basis of the information and documentation the Principal 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 Principal Agent will notify the MoF or other regulatory body of such details relating to Yen Notes or other currency in which Notes are denominated and provide such other information about the Program to the MoF or other regulatory body as may be required.

 

32.

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 Issuer and the Agents 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 Issuer and the Agents 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 Issuer and the Agents each agree that final judgment in the Proceedings brought in such a court shall be conclusive and binding upon the Issuer or the Agents, as the case may be, and may be enforced in any court of the jurisdiction to which the Issuer or the Agents is subject by a suit upon such judgment, provided that the service of process is effected upon the Issuer and the Agents 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 Issuer and the Registrar 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 the Issuer or the Registrar at its offices or upon such agent with written notice of such service mailed or delivered to the Issuer or the Registrar, respectively shall, to the fullest extent permitted by law, be deemed in every respect effective service of process upon the Issuer or the Registrar, respectively, in the Proceedings. Each of the Issuer and the Registrar hereby appoints the New York office of CT Corporation System, presently situated at 111 Eighth Avenue, New York, New York 10011, U.S.A., as its respective 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 Issuer or the Registrar, respectively, may designate by written notice to the Agents and the Issuer, respectively) and prior to any termination of such agencies for any reason, it will so appoint a successor thereto as agent hereunder.

 

33.

Amendments

Without the consent of the Noteholders, Receiptholders or Couponholders, the Principal Agent, the Transfer Agent, the Registrar and the Issuer may agree to modifications of or amendments to this Agreement, the Notes, the Receipts or the Coupons solely set forth in Condition 15.

 

27

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 14 as soon as practicable thereafter.

 

34.

Descriptive Headings

The descriptive headings in this Agreement are for convenience of reference only and shall not define or limit the provisions hereof.

 

35.

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.

 

28

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.

 

 

29

Schedule 1 to

Amended and Restated Agency Agreement

FORM OF BEARER TEMPORARY GLOBAL NOTE

[THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION IN THIS NOTE MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES OF AMERICA (INCLUDING THE STATES AND THE DISTRICT OF COLUMBIA), ITS TERRITORIES, ITS POSSESSIONS AND OTHER AREAS SUBJECT TO ITS JURISDICTION OR TO ANY PERSON DEEMED A U.S. PERSON UNDER REGULATION S UNDER THE SECURITIES ACT, UNLESS THIS NOTE IS REGISTERED UNDER THE SECURITIES ACT OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT IS AVAILABLE.

THIS NOTE MAY NOT BE OFFERED, SOLD, OR DELIVERED WITHIN THE UNITED STATES OR ITS POSSESSIONS OR TO ANY CITIZEN, NATIONAL OR RESIDENT OF THE UNITED STATES, ANY CORPORATION, PARTNERSHIP OR OTHER ENTITY CREATED OR ORGANIZED IN OR UNDER THE LAWS OF THE UNITED STATES OR ANY POLITICAL SUBDIVISION THEREOF, OR TO ANY ESTATE THE INCOME OF WHICH IS SUBJECT TO UNITED STATES FEDERAL INCOME TAXATION REGARDLESS OF ITS SOURCE OR ANY TRUST WITH RESPECT TO WHICH A COURT WITHIN THE UNITED STATES IS ABLE TO EXERCISE PRIMARY SUPERVISION OVER ITS ADMINISTRATION, AND ONE OR MORE UNITED STATES PERSONS HAVE THE AUTHORITY TO CONTROL ALL OF ITS SUBSTANTIAL DECISIONS, EXCEPT AS PERMITTED UNDER APPLICABLE UNITED STATES TREASURY REGULATIONS.

THIS NOTE IS A TEMPORARY GLOBAL NOTE IN BEARER FORM, WITHOUT COUPONS, EXCHANGEABLE FOR A BEARER NOTE IN PERMANENT GLOBAL FORM. THE RIGHTS ATTACHING TO THIS BEARER TEMPORARY GLOBAL NOTE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR A BEARER PERMANENT GLOBAL NOTE, ARE AS SPECIFIED IN THE AGENCY AGREEMENT (AS DEFINED HEREIN).

THIS NOTE IS NOT A SAVINGS ACCOUNT OR A DEPOSIT, IS NOT AN OBLIGATION OF OR GUARANTEED BY ANY BANKING OR NONBANKING AFFILIATE OF THE ISSUER AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.

NEITHER THE HOLDER NOR THE BENEFICIAL OWNER OF THIS GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON EXCEPT PURSUANT TO THE PROVISIONS HEREOF.

ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.

[BY ACCEPTING THIS OBLIGATION, THE HOLDER REPRESENTS AND WARRANTS THAT IT IS NOT A UNITED STATES PERSON (OTHER THAN AN EXEMPT RECIPIENT DESCRIBED IN SECTION 6049(b)(4) OF THE INTERNAL REVENUE CODE AND THE REGULATIONS THEREUNDER) AND THAT IT IS NOT ACTING FOR OR ON BEHALF OF A UNITED STATES PERSON (OTHER THAN AN EXEMPT RECIPIENT DESCRIBED IN SECTION 6049(b)(4) OF THE INTERNAL REVENUE CODE AND THE REGULATIONS THEREUNDER.)] ¹ ]

1	[This language is applicable only to Bearer Temporary Global Notes representing Notes with maturities of 183 days or less from the date of original issue.]

 

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This Global Note is a Temporary Global Note in bearer form without interest coupons in respect of a duly authorized Series of Euro Medium-Term Notes (the “Notes”) of Bank of America Corporation (the “Issuer”) described, and having the provisions specified, in the applicable Final Terms (the “Final Terms”), which provisions are incorporated herein. References herein to the Terms and Conditions shall be to the Terms and Conditions of the Notes as set out in Schedules 6-1 and 6-2 to the Agency Agreement (as defined below) as modified and supplemented by the information set out in the Final Terms and which are incorporated herein by reference, but in the event of any conflict between the provisions of those Schedules and the information set out in the Final Terms, the Final Terms will prevail.

Words and expressions defined or set out in the Terms and Conditions and/or the Final Terms shall bear the same meaning when used herein.

This Global Note is issued subject to, and with the benefit of, the Terms and Conditions and an Amended and Restated Agency Agreement (the “Agency Agreement,” which expression shall be construed as a reference to that agreement as the same may be amended or supplemented from time to time) dated as of July 25, 2008, and made among Bank of America Corporation, The Bank of New York Mellon (the “Principal Agent”), The Bank of New York (Luxembourg) S.A., and the other agents named therein.

For value received, the Issuer, subject to and in accordance with the Terms and Conditions, promises to pay to the bearer hereof on each Installment Date the amount payable on such Installment Date in respect of the Notes represented by this Global Note (if the Notes represented by this Global Note are Installment Notes) and on the Maturity Date, on the Interest Payment Date, or on the Delivery Date, as the case may be, or on such earlier date as any of the Notes represented by this Global Note may become due and payable in accordance with the Terms and Conditions, the amount payable or deliverable, as the case may be, on redemption of such Notes then represented by this Global Note becoming so due and payable, and to pay interest (if any) or to deliver any Physical Delivery Amount (if any) on the Notes from time to time represented by this Global Note calculated and payable as provided in the Terms and Conditions together with any other sums payable under the Terms and Conditions, upon presentation and following the delivery of an Asset Transfer Notice (in the case of Physical Delivery Notes) as provided in the Agency Agreement, and, at maturity, surrender of this Global Note to or to the order of the Principal Agent or any of the other paying agents located outside the United States and its possessions (except as provided in the Terms and Conditions) from time to time appointed by the Issuer in respect of the Notes, but in each case subject to the requirements as to certification provided herein.

If the applicable Final Terms indicate that this Global Note is intended to be a New Global Note, the nominal amount of Notes represented by this Global Note shall be the aggregate amount from time to time entered in the records of both Euroclear Bank S.A./N.V. (“Euroclear”) and Clearstream Banking, société anonyme (“Clearstream, Luxembourg” and, together with Euroclear, the “Relevant Clearing Systems”). The records of the Relevant Clearing Systems (which expression in this Global Note means the records that each Relevant Clearing System holds for its customers which reflect the amount of such customer’s interest in the Notes) shall be conclusive evidence of the nominal amount of Notes represented by this Global Note and, for these purposes, a statement issued by a Relevant Clearing System (which statement shall be made available to the bearer upon request) stating the nominal amount of Notes represented by this Global Note at any time shall be conclusive evidence of the records of the Relevant Clearing System at that time.

If the applicable Final Terms indicate that this Global Note is intended to be a Classic Global Note, the nominal amount of the Notes represented by this Global Note shall be the amount stated in the applicable Final

 

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Terms or, if lower, the nominal amount most recently recorded by or on behalf of the Issuer, in the relevant column in Part II, III or IV of Schedule 1 or in Schedule 2.

On any redemption, payment of an Installment Amount, delivery or purchase and cancellation of any of the Notes represented by this Global Note, the Issuer shall procure that:

(a) if the applicable Final Terms indicate that this Global Note is intended to be a New Global Note, details of such redemption, payment, delivery or purchase and cancellation (as the case may be) shall be entered pro rata in the records of the Relevant Clearing Systems and, upon any such entry being made, the nominal amount of the Notes recorded in the records of the Relevant Clearing Systems and represented by this Global Note shall be reduced by the principal amount of the Notes so redeemed or purchased and cancelled or by the amount of such installment so paid; or

(b) if the applicable Final Terms indicate that this Global Note is intended to be a Classic Global Note, details of such redemption, payment, delivery or purchase and cancellation (as the case may be) shall be entered in the relevant column in Part II, III or IV of Schedule 1 or Schedule 2 hereto recording any such redemption, payment, delivery or purchase and cancellation (as the case may be) and shall be signed by or on behalf of the Issuer. Upon any such redemption, payment of an Installment Amount, delivery or purchase and cancellation, the principal amount of such Notes represented by this Global Note shall be reduced by the principal amount of the Notes so redeemed or purchased and cancelled.

Prior to the Exchange Date (as defined below), all payments (if any) on this Global Note will only be made to the bearer hereof to the extent that there is presented to the Principal Agent by Clearstream, Luxembourg or Euroclear, a certificate, substantially in the form set out in Schedule 7 to the Agency Agreement, to the effect that it has received from or in respect of a person entitled to a particular principal amount of the Notes (as shown by its records) a certificate in or substantially in the form of the certificate as set out in Schedule 8 to the Agency Agreement. Payments or deliveries due in respect of Notes for the time being represented by this Global Note shall be made to the bearer of this Global Note and each payment so made will discharge the Issuer’s obligations in respect thereof. Any failure to make the entries referred to in sub-paragraphs (a) and (b) above shall not affect such discharge. After the Exchange Date, the bearer of this Global Note will not be entitled to receive any payment of interest hereon.

On or after the Exchange Date (as defined below) this Global Note may be exchanged in whole or in part (free of charge) for, as specified in the Final Terms, either (a) if the applicable Final Terms indicate that this Global Note is intended to be a New Global Note, interests recorded in the records of the Relevant Clearing Systems in a Bearer Permanent Global Note or, if the applicable Final Terms indicate that this Global Note is intended to be a Classic Global Note, a Bearer Permanent Global Note, which, in either case, is in or substantially in the form set out in Schedule 2 to the Agency Agreement (together with the Final Terms attached to it), in each case upon notice being given by a Relevant Clearing System acting on the instructions of any holder of an interest in this Global Note or, (b) under certain limited circumstances, security printed Definitive Notes and, (if applicable) Coupons, Receipts and/or Talons in the form set out in Parts I, II, III, and IV respectively of Schedule 3 to the Agency Agreement (on the basis that all the appropriate details have been included on the face of such Definitive Notes and (if applicable) Coupons, Receipts and/or Talons and the Final Terms have been incorporated on such Definitive Notes) and subject to such notice period as is specified in the Final Terms. The “Exchange Date” for this Global Note will normally be the 40th calendar day after the later of the date on which the Issuer receives the proceeds of the sale of the Global Note and the closing date for the Global Note. However, if the Issuer, a Dealer or any distributor, as defined in Treasury Regulation Sec. 1.163-5(c)(2)(i)(D)(4), holds a Note represented by this Global Note as part of an unsold allotment or subscription for more than 40 calendar days after the later of the date on which the Issuer receives the proceeds of the sale of the Global Note and the closing date for the Global Note, the Exchange Date with respect to such Note will be the day after the date on which the Issuer, Dealer or distributor sells such Note.

This Global Note may be exchanged by the bearer hereof on any day (other than a Saturday or Sunday) on which banks are open for business in London. The Issuer shall procure that Definitive Notes and interests in the Bearer Permanent Global Note shall be so issued and delivered and (in the case of the Bearer Permanent Global

 

32

Note where the applicable Final Terms indicate that this Global Note is intended to be a New Global Note) recorded in the records of the Relevant Clearing System in exchange for only that portion of this Global Note in respect of which there shall have been presented to the Principal Agent by Euroclear or Clearstream, Luxembourg a certificate, substantially in the form set out in Schedule 7 to the Agency Agreement, to the effect that it has received from or in respect of a person entitled to a beneficial interest in a particular principal amount of the Notes (as shown by its records) a certificate from such person in or substantially in the form of the certificate set out in Schedule 8 to the Agency Agreement, unless such certificate has already been given in accordance with the above provisions. The aggregate principal amount of interests in a Bearer Permanent Global Note issued upon an exchange of this Global Note subject to the terms hereof, will be equal to the aggregate principal amount of this Global Note submitted by the bearer hereof for exchange (to the extent that such principal amount does not exceed the aggregate principal amount of this Global Note).

On an exchange of the whole of this Global Note, this Global Note shall be surrendered to the Principal Agent. On an exchange of only part of this Global Note, the Issuer shall procure that:

(a) if the applicable Final Terms indicate that this Global Note is intended to be a New Global Note, details of such exchange shall be entered pro rata in the records of the Relevant Clearing Systems; or

(b) if the applicable Final Terms indicate that this Global Note is intended to be a Classic Global Note, details of such exchange shall be entered in the relevant space in Schedule 2 hereto recording such exchange and shall be signed by or on behalf of the Issuer and the principal amount of this Global Note and the Notes represented by this Global Note shall be reduced by the principal amount so exchanged.

If, following the issue of a Bearer Permanent Global Note in exchange for some of the Notes represented by this Global Note, further Notes represented by this Global Note are to be exchanged for interests in a Bearer Permanent Global Note, such exchange may be effected, subject as provided herein, without the issue of a new Bearer Permanent Global Note, (i) if the applicable Final Terms indicate that this Global Note is intended to be a New Global Note, recording the details of such increase in the records of the Relevant Clearing Systems, or (ii) if the applicable Final Terms indicate that this Global Note is not intended to be a New Global Note, by the Issuer or its agent endorsing Schedule 2 of the Bearer Permanent Global Note previously issued to reflect an increase in the aggregate principal amount of such Bearer Permanent Global Note by an amount equal to the aggregate principal amount of the Bearer Permanent Global Note which would otherwise have been issued on such exchange. –

Until the exchange of the whole of this Global Note as aforesaid, the bearer hereof shall in all respects (except as otherwise provided herein) be entitled to the same benefits as if such bearer were the bearer of Definitive Notes and (if applicable) Coupons, Receipts and/or Talons in the form set out in Parts I, II, III and Part IV, respectively, of Schedule 3 to the Agency Agreement.

Notwithstanding any provision to the contrary contained in this Bearer Temporary Global Note, the Issuer irrevocably agrees, for the benefit of such Noteholders and their successors and assigns, that each Noteholder or its successors or assigns may file without the consent and to the exclusion of the bearer hereof, any claim, take any action or institute any proceeding to enforce, directly against the Issuer, the obligation of the Issuer hereunder to pay any amount due or to become due in respect of each Note represented by this Bearer Temporary Global Note which is credited to such Noteholder’s securities account with Euroclear or Clearstream, Luxembourg without the production of this Bearer Temporary Global Note; provided that the bearer hereof shall not theretofore have filed a claim, taken action or instituted proceedings to enforce the same in respect of such Note.

Until exchanged in full for the Bearer Permanent Global Note, this Bearer Temporary Global Note in all respects shall be entitled to the same benefits under, and subject to the same terms and conditions of, the Agency Agreement as the Bearer Permanent Global Note authenticated and delivered thereunder, except that neither the Holder hereof nor the beneficial owners of this Bearer Temporary Global Note shall be entitled to receive payment hereon on or after the Exchange Date.

This Bearer Temporary Global Note 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.

 

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This Bearer Temporary Global Note shall not become valid or obligatory for any purpose until the certificate of authentication hereon shall have been duly signed by or on behalf of the Principal Agent acting in accordance with the Agency Agreement. If the applicable Final Terms indicate that this Global Note is intended to be held in a manner which would allow Eurosystem eligibility, this Global Note shall not become valid or obligatory for any purpose until it is duly effectuated by the entity appointed as common safekeeper by the Relevant Clearing Systems.

 

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IN WITNESS WHEREOF the Issuer has caused this Bearer Temporary Global Note to be duly signed on its behalf.

 

BANK OF AMERICA CORPORATION
By:
		Duly authorized officer

CERTIFICATE OF AUTHENTICATION OF THE PRINCIPAL AGENT

This Bearer Temporary Global Note is authenticated by or on behalf of the Principal Agent.

 

THE BANK OF NEW YORK MELLON
As Principal Agent
By:
		Authorized Signatory
		For the purposes of authentication only.

CERTIFICATE OF EFFECTUATION

This Bearer Temporary Global Note is effectuated by or on behalf of the common safekeeper.

 

Clearstream Banking, société anonyme
As common safekeeper
By:
		Authorized Signatory
		For the purposes of effectuation only.

 

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Schedule 1 to the

Bearer Temporary Global Note ²

PART I

INTEREST PAYMENTS

 

2	Schedule 1 should only be completed where the applicable Final Terms indicates that this Global Note is intended to be a Classic Global Note.

 

3	Including Physical Delivery Amount(s) if applicable.

 

*	Continue numbering until the appropriate number of interest payment dates for the particular Tranche of Notes is reached.

 

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PART II

INSTALLMENT PAYMENTS

 

4	Including Physical Delivery Amount(s), if applicable.

 

5	See most recent entry in Part II, III or IV of Schedule 1 or Schedule 2 in order to determine this amount.

 

*	Continue numbering until the appropriate number of installment payment dates for the particular Tranche of Notes is reached.

 

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PART III

REDEMPTIONS

 

6	Including Physical Delivery Amount(s), if applicable.

 

7	See most recent entry in Part II, III or IV of Schedule 1 or Schedule 2 in order to determine this amount.

 

38

PART IV

PURCHASES AND CANCELLATIONS

 

8	See most recent entry in Part II, III or IV of Schedule 1 or Schedule 2 in order to determine this amount.

 

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Schedule 2 to the

Bearer Temporary Global Note ⁹

SCHEDULE OF EXCHANGES

FOR DEFINITIVE NOTES OR BEARER PERMANENT GLOBAL NOTE

The following exchanges of a part of this Global Note for Bearer Definitive Notes or Bearer Notes represented by a Bearer Permanent Global Note have been made:

 

9	Schedule 2 should only be completed where the applicable Final Terms indicates that this Global Note is intended to be a Classic Global Note.

 

10	See most recent entry in Part II, III or IV of Schedule 1 or Schedule 2 in order to determine this amount.

 

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Schedule 2 to

Amended and Restated Agency Agreement

FORM OF BEARER PERMANENT GLOBAL NOTE

[THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION IN THIS NOTE MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES OF AMERICA (INCLUDING THE STATES AND THE DISTRICT OF COLUMBIA), ITS TERRITORIES, ITS POSSESSIONS AND OTHER AREAS SUBJECT TO ITS JURISDICTION OR TO ANY PERSON DEEMED A U.S. PERSON UNDER REGULATION S UNDER THE SECURITIES ACT, UNLESS THIS NOTE IS REGISTERED UNDER THE SECURITIES ACT OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT IS AVAILABLE.

THIS NOTE MAY NOT BE OFFERED, SOLD, OR DELIVERED WITHIN THE UNITED STATES OR ITS POSSESSIONS OR TO ANY CITIZEN, NATIONAL OR RESIDENT OF THE UNITED STATES, ANY CORPORATION, PARTNERSHIP OR OTHER ENTITY CREATED OR ORGANIZED IN OR UNDER THE LAWS OF THE UNITED STATES OR ANY POLITICAL SUBDIVISION THEREOF, OR TO ANY ESTATE THE INCOME OF WHICH IS SUBJECT TO UNITED STATES FEDERAL INCOME TAXATION REGARDLESS OF ITS SOURCE OR ANY TRUST WITH RESPECT TO WHICH A COURT WITHIN THE UNITED STATES IS ABLE TO EXERCISE PRIMARY SUPERVISION OVER ITS ADMINISTRATION, AND ONE OR MORE UNITED STATES PERSONS HAVE THE AUTHORITY TO CONTROL ALL OF ITS SUBSTANTIAL DECISIONS, EXCEPT AS PERMITTED UNDER APPLICABLE UNITED STATES TREASURY REGULATIONS.

THIS NOTE IS NOT A SAVINGS ACCOUNT OR A DEPOSIT, IS NOT AN OBLIGATION OF OR GUARANTEED BY ANY BANKING OR NONBANKING AFFILIATE OF THE ISSUER AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.

NEITHER THE HOLDER NOR THE BENEFICIAL OWNER OF THIS BEARER NOTE SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON EXCEPT PURSUANT TO THE PROVISIONS HEREOF.

ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.

[BY ACCEPTING THIS OBLIGATION, THE HOLDER REPRESENTS AND WARRANTS THAT IT IS NOT A UNITED STATES PERSON (OTHER THAN AN EXEMPT RECIPIENT DESCRIBED IN SECTION 6049(b)(4) OF THE INTERNAL REVENUE CODE AND THE REGULATIONS THEREUNDER) AND THAT IT IS NOT ACTING FOR OR ON BEHALF OF A UNITED STATES PERSON (OTHER THAN AN EXEMPT RECIPIENT DESCRIBED IN SECTION 6049(b)(4) OF THE INTERNAL REVENUE CODE AND THE REGULATIONS THEREUNDER).] ¹ ]

1	[This language is applicable only to Bearer Permanent Global Notes representing Notes with maturities of 183 days or less from the date of original issue.]

 

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This Global Note is a Permanent Global Note in bearer form without interest coupons in respect of a duly authorized Series of Euro Medium-Term Notes (the “Notes”) of Bank of America Corporation (the “Issuer”) described, and having the provisions specified, in the applicable Final Terms (the “Final Terms”), which provisions are incorporated herein. References herein to the Terms and Conditions shall be to the Terms and Conditions of the Notes as set out in Schedules 6-1 and 6-2 to the Agency Agreement (as defined below) as modified and supplemented by the information set out in the Final Terms and which are incorporated herein by reference, but in the event of any conflict between the provisions of those Schedules and the information set out in the Final Terms, the Final Terms will prevail.

Words and expressions defined or set out in the Terms and Conditions and/or the Final Terms shall bear the same meaning when used herein.

This Global Note is issued subject to, and with the benefit of, the Terms and Conditions and an Amended and Restated Agency Agreement (the “Agency Agreement,” which expression shall be construed as a reference to that agreement as the same may be amended or supplemented from time to time) dated as of July 25, 2008, and made among Bank of America Corporation, The Bank of New York Mellon (the “Principal Agent”), The Bank of New York (Luxembourg) S.A., and the other agents named therein.

For value received, the Issuer, subject to and in accordance with the Terms and Conditions, promises to pay to the bearer hereof on each Installment Date the amount payable on such Installment Date in respect of the Notes represented by this Global Note (if the Notes represented by this Global Note are Installment Notes) and on the Maturity Date, on the Interest Payment Date or on the Delivery Date, as the case may be, or on such earlier date as any of the Notes represented by this Global Note may become due and payable in accordance with the Terms and Conditions, the amount payable or deliverable, as the case may be, on redemption of such Notes then represented by this Global Note becoming so due and payable, and to pay interest (if any) or to deliver any Physical Delivery Amount (if any) on the Notes from time to time represented by this Global Note calculated and payable as provided in the Terms and Conditions together with any other sums payable under the Terms and Conditions, upon presentation and following the delivery of an Asset Transfer Notice (in the case of Physical Delivery Notes) as provided in the Agency Agreement, and, at maturity, surrender of this Global Note to or to the order of the Principal Agent or any of the other paying agents located outside the United States and its possessions (except as provided in the Terms and Conditions) from time to time appointed by the Issuer in respect of the Notes, but in each case subject to the requirements as to certification provided herein.

If the applicable Final Terms indicate that this Global Note is intended to be a New Global Note, the nominal amount of Notes represented by this Global Note shall be the aggregate amount from time to time entered in the records of both Euroclear Bank S.A./N.V. (“Euroclear”) and Clearstream Banking, société anonyme (“Clearstream, Luxembourg” and, together with Euroclear, the “Relevant Clearing Systems”). The records of the Relevant Clearing Systems (which expression in this Global Note means the records that each Relevant Clearing System holds for its customers which reflect the amount of such customer’s interest in the Notes) shall be conclusive evidence of the nominal amount of Notes represented by this Global Note and, for these purposes, a statement issued by a Relevant Clearing System (which statement shall be made available to the bearer upon request) stating the nominal amount of Notes represented by this Global Note at any time shall be conclusive evidence of the records of the Relevant Clearing System at that time.

 

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If the applicable Final Terms indicate that this Global Note is intended to be a Classic Global Note, the nominal amount of the Notes represented by this Global Note shall be the amount stated in the applicable Final Terms or, if lower, the nominal amount most recently envisaged by or on behalf of the Issuer, in the relevant column in Part II, III or IV of Schedule 1 or in Schedule 2.

On any redemption, payment of an Installment Amount, delivery or purchase and cancellation of, any of the Notes represented by this Global Note, the Issuer shall procure that:

(a) if the applicable Final Terms indicate that this Global Note is intended to be a New Global Note, details of such redemption, payment, delivery or purchase and cancellation (as the case may be) shall be entered pro rata in the records of the Relevant Clearing Systems and, upon any such entry being made, the nominal amount of the Notes recorded in the records of the Relevant Clearing Systems and represented by this Global Note shall be reduced by the principal amount of the Notes so redeemed or purchased and cancelled or by the amount of such installment so paid; or

(b) if the applicable Final Terms indicate that this Global Note is intended to be a Classic Global Note, details of such redemption, payment, delivery or purchase and cancellation (as the case may be) shall be entered in the relevant column in Part II, III or IV of Schedule 1 or Schedule 2 hereto recording any such redemption, payment, delivery or purchase and cancellation (as the case may be) and shall be signed by or on behalf of the Issuer. Upon any such redemption, payment of an Installment Amount, delivery or purchase and cancellation, the principal amount of such Notes represented by this Global Note shall be reduced by the principal amount of the Notes so redeemed or purchased and cancelled.

The Notes represented by this Global Note were represented originally by one or more Bearer Temporary Global Notes (each Tranche of Notes comprised in the Series of Notes to which this Global Note relates having been represented originally by one Bearer Temporary Global Note). Unless any such Bearer Temporary Global Note was exchanged in whole on the issue hereof, an interest in such Bearer Temporary Global Note may be further exchanged, on the terms and conditions set out therein, for an interest in this Global Note. The Issuer shall procure that:

(a) if the applicable Final Terms indicate that this Global Note is intended to be a New Global Note, details of such exchange shall be entered in the records of the Relevant Clearing Systems; or

(b) if the applicable Final Terms indicate that this Global Note is intended to be a Classic Global Note, details of such exchange shall be entered in Schedule 2 hereto to reflect the increase in the aggregate principal amount of this Global Note due to each such exchange, whereupon the principal amount hereof shall be increased for all purposes by the amount so exchanged and endorsed.

In certain circumstances, further notes may be issued which are intended on issue to be consolidated and form a single Series with the Notes. In such circumstances, the Issuer shall procure that:

(a) if the applicable Final Terms indicate that this Global Note is intended to be a New Global Note, details of such further notes may be entered in the records of the Relevant Clearing Systems such that the nominal amount of Notes represented by this Global Note may be increased by the amount of such further notes so issued; or

(b) if the applicable Final Terms indicate that this Global Note is intended to be a Classic Global Note, details of such further notes shall be entered in the relevant column in Part II, III or IV of Schedule 1 or Schedule 2 hereto recording such exchange and shall be signed by or on behalf of the Issuer, whereupon the nominal amount of the Notes represented by this Global Note

 

43

shall be increased by the nominal amount of any such Bearer Temporary Global Note so exchanged.

This Global Note may be exchanged in whole, but not in part (free of charge), for security-printed Definitive Notes, in the circumstances provided for in the Terms and Conditions, and (if applicable) Coupons, Receipts and/or Talons in the form set out in Parts I, II, III and IV, respectively, of Schedule 3 to the Agency Agreement (on the basis that all the appropriate details have been included on the face of such Definitive Notes and (if applicable) Coupons, Receipts and/or Talons and the Final Terms have been incorporated on such Definitive Notes). Subject as aforesaid, this exchange will be made upon presentation of this Global Note by the bearer hereof on any day (other than a Saturday or Sunday) on which banks are open for business in London at the office of the Principal Agent specified above. The aggregate principal amount of Definitive Notes issued upon an exchange of this Global Note will be equal to the aggregate principal amount of this Global Note submitted by the bearer hereof for exchange (to the extent that such principal amount does not exceed the aggregate principal amount of this Global Note entered in the records of the Relevant Clearing Systems (if the applicable Final Terms indicate that this Global Note is intended to be a New Global Note) or most recently entered in the relevant column in Part II, III or IV of Schedule 1 or Schedule 2 hereto (if the applicable Final Terms indicate that this Global Note is not intended to be a New Global Note).

On an exchange of the whole of this Global Note, this Global Note shall be surrendered to the Principal Agent.

Until the exchange of the whole of this Global Note as aforesaid, the bearer hereof in all respects shall be entitled to the same benefits as if such bearer were the bearer of Definitive Notes and (if applicable) Coupons, Receipts and/or Talons in the form set out in Parts I, II, III and IV, respectively, or Schedule 3 to the Agency Agreement (on the basis that all appropriate, details have been included on the face of such Definitive Notes and (if applicable) Coupons, Receipts and/or Talons and the Final Terms have been incorporated on such Definitive Notes).

Notwithstanding any provision to the contrary contained in this Bearer Permanent Global Note, the holder of this Bearer Permanent Global Note shall be the only person entitled to receive payments in respect to the Notes represented by this Bearer Permanent Global Note and the Issuer will be discharged by payment to, or to the order of, the holder of this Bearer Permanent Global Note in respect of each amount so paid. Any failure to make the entries referred to in above shall not affect such discharge. Each of the persons shown in the records of Euroclear or Clearstream, Luxembourg as the beneficial holder of a particular principal amount of Notes represented by this Bearer Permanent Global Note must look solely to Euroclear or Clearstream, Luxembourg, as the case may be, for such holder’s share of each payment so made by the Issuer to, or to the order of, the holder of this Bearer Permanent Global Note. No person other than the holder of this Bearer Permanent Global Note shall have any claim against the Issuer in respect of any payments or deliveries due on this Bearer Permanent Global Note.

This Bearer Permanent Global Note 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.

This Bearer Permanent Global Note shall not become valid or obligatory for any purpose until the certificate of authentication hereon shall have been duly signed by or on behalf of the Principal Agent acting in accordance with the Agency Agreement. If the applicable Final Terms indicate that this Global Note is intended to be held in a manner which would allow Eurosystem eligibility, this Global Note shall not become valid or obligatory for any purpose until it is duly effectuated by the entity appointed as common safekeeper by the Relevant Clearing Systems.

 

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IN WITNESS WHEREOF the Issuer has caused this Bearer Permanent Global Note to be duly signed on its behalf.

 

BANK OF AMERICA CORPORATION
By:
		Duly authorized officer

CERTIFICATE OF AUTHENTICATION OF THE PRINCIPAL AGENT

This Bearer Permanent Global Note is authenticated by or on behalf of the Principal Agent.

 

THE BANK OF NEW YORK MELLON
as Principal Agent
By:
		Authorized Signatory
		For the purposes of authentication only.

CERTIFICATE OF EFFECTUATION

This Bearer Permanent Global Note is effectuated by or on behalf of the common safekeeper.

 

Clearstream Banking, société anonyme
As common safekeeper
By:
		Authorized Signatory
		For the purposes of effectuation only.

 

45

Schedule 1 to the

Bearer Permanent Global Note ²

PART I

INTEREST PAYMENTS

 

2	Schedule 1 should only be completed where the applicable Final Terms indicate that this Global Note is intended to be a Classic Global Note.

 

3	Including Physical Delivery Amount(s), if applicable.

 

*	Continue numbering until the appropriate number of interest payment dates for the particular Tranche of Notes is reached.

 

46

PART II

INSTALLMENT PAYMENTS

 

4	Including Physical Delivery Amount(s), if applicable.

 

5	See most recent entry in Part II, III or IV of Schedule 1 or Schedule 2 in order to determine this amount.

 

*	Continue numbering until the appropriate number of installment payment dates for the particular Tranche of Notes is reached.

 

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PART III

REDEMPTIONS

 

6	Including Physical Delivery Amount(s), if applicable.

 

7	See most recent entry in Part II, III or IV of Schedule 1 or Schedule 2 in order to determine this amount.

 

48

PART IV

PURCHASES AND CANCELLATIONS

 

8	See most recent entry in Part II, III or IV of Schedule 1 or Schedule 2 in order to determine this amount.

 

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Schedule 2 to the

Bearer Permanent Global Note ⁹

SCHEDULE OF EXCHANGES

The following exchanges of a part of this Global Note for Bearer Definitive Notes have been made: