AMENDED AND RESTATED ISSUING AND PAYING AGENCY AGREEMENT

Exhibit 4(n)

 

AMENDED AND RESTATED

 

ISSUING AND PAYING AGENCY AGREEMENT

 

between

 

BANK OF AMERICA, N.A.,

as Issuer

 

and

 

DEUTSCHE BANK TRUST COMPANY AMERICAS,

as Issuing and Paying Agent

 

Dated as of January 15, 2004

 

 

Senior Bank Notes and Subordinated Bank Notes

Due Seven Days or More From Date of Issue

 

 

Table of Contents

 

 

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BANK OF AMERICA, N.A.

 

AMENDED AND RESTATED

ISSUING AND PAYING AGENCY AGREEMENT

 

THIS AMENDED AND RESTATED ISSUING AND PAYING AGENCY AGREEMENT dated as of January 15, 2004 is made between BANK OF AMERICA, N.A., a national banking association organized under the laws of the United States (the “Issuer”), as Issuer and as successor to NationsBank, N.A., and DEUTSCHE BANK TRUST COMPANY AMERICAS, a New York banking corporation (the “Issuing and Paying Agent”), as Issuing and Paying Agent and as successor to Bankers Trust Company, and amends and restates that certain Issuing and Paying Agency Agreement dated as of May 19, 1998, between NationsBank, N.A., and Bankers Trust Company, as amended by an Amended and Restated Issuing and Paying Agency Agreement dated as of July 30, 1999 between Bank of America, N.A. and Bankers Trust Company, and as further amended by Amendment to Short-Term and Medium-Term Notes Amended and Restated Issuing and Paying Agency Agreement dated as of May 24, 2000 between Bank of America, N.A. and Bankers Trust Company, and as further amended by an Amended and Restated Issuing and Paying Agency Agreement dated as of August 1, 2000 between Bank of America, N.A. and Bankers Trust Company.

 

SECTION 1. Statement of Purpose . Subject to the limitations described herein, the Issuer proposes to issue up to U.S. $60,000,000,000 in aggregate principal amount of bank notes (the “Notes”) outstanding at any one time as provided in an Amended and Restated Distribution Agreement of even herewith date between the Issuer and the agents named therein (the “Distribution Agreement”) and as described in an Offering Circular of even date herewith (the “Offering Circular”). The Offering Circular replaces the Offering Circular dated August 1, 2000 for Notes issued on or after January 15, 2004, and no additional Notes may be issued under the Offering Circular dated August 1, 2000. The Notes will be issued in the denominations specified in the applicable Pricing Supplement (as defined below) issued in connection with each series and tranche of Notes. Unless otherwise determined by the Issuer and specified in the applicable Pricing Supplement, beneficial interests in each tranche of Notes will be represented by a Global Note (as defined below) and may be exchangeable for a Certificated Note (as defined below) only under limited circumstances.

 

SECTION 2. Definitions . Except as otherwise expressly provided herein or in the applicable Note or unless the context otherwise requires: (1) the words and phrases with initial capitals used herein have the meanings specified in this Section, Section 1 or the preamble; and (2) the words “herein,” “hereof” and “hereunder” and other words of similar impact refer to this Issuing and Paying Agency Agreement as a whole and not to any particular section or other subdivision. Capitalized terms used herein, but not otherwise defined herein, shall have the same meanings specified in the applicable Note.

 

Additional Responsibilities - Has the meaning given such term in Section 28 .

 

Administrative Procedures - The Administrative Procedures applicable to the Notes, as set forth in Exhibit B , as amended and supplemented from time to time.

 

Agent or Agents - Any of the Issuing and Paying Agent, any paying agent, any Transfer Agent, any Calculation Agent, or the Registrar, as the context indicates.

 

Agreement - This Issuing and Paying Agency Agreement, including the exhibits hereto, as amended or supplemented from time to time.

 

Amortizing Note - Any Note in which payments are based on an amortization table.

 

Authorized Denomination - Has the meaning given such term in Section 4(a)(v) .

 

Authorized Representative - With respect to the Issuer, any duly authorized representative of the Issuer as set forth in Exhibit G , and any other representative of the Issuer which the Issuer may certify in writing to the Issuing and Paying Agent.

 

Business Day - Unless otherwise specified in a Pricing Supplement relating to a particular Note, with respect to any Note, any day that is not a Saturday or Sunday and that is not a day on which banking institutions in New York City or Charlotte, North Carolina or any other place of payment with respect to the applicable Note are authorized or obligated by law to close. “Business Day” also means, with respect to Notes where the base rate is LIBOR (as defined in the Note), a London Banking Day.

 

Calculation Agent - With respect to the Notes, such Person appointed by the Issuer to calculate the interest rates, amounts of payments due, and other fixed amounts payable, and performing any other duties specified in the applicable Pricing Supplement as being duties required to be performed by the Calculation Agent, as further described in Section 3(e) .

 

Certificate of Authentication - Has the meaning given such term in Section 4(a)(vi) .

 

Certificated Notes - Any Notes issued in fully registered, certificated form.

 

Depository - With respect to Notes issued in the form of one or more Global Notes, the Person designated as depository by the Issuer, which Depository at all times shall be a trust company validly existing and in good standing (at the time of its appointment) under the laws of the United States or any state thereof and shall be a clearing agency duly registered under the Securities Exchange Act.

 

Distribution Agreement - The Amended and Restated Distribution Agreement, dated as of January 15, 2004, among the Issuer, Banc of America Securities LLC, Bear, Stearns & Co. Inc., Citigroup Global Markets Inc., Credit Suisse First Boston LLC, Lehman Brothers Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, and Morgan Stanley & Co. Incorporated, as amended and supplemented from time to time.

 

DTC - The Depository Trust Company or its successors and assigns.

 

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Event of Default - Has the meaning given such term in Section 14 .

 

Extension Period(s) – The period or periods by which the Issuer may extend the Stated Maturity of Notes which provide for such extension.

 

FDIC – Federal Deposit Insurance Corporation.

 

Final Maturity Date - The latest date designated on the face of a Note which provides for the maturity thereof.

 

Fixed Rate Notes - Any Notes bearing interest at one or more designated rates of interest payable in arrears and substantially in the form of Exhibit C-1 , if such Note is a Senior Note, or Exhibit C-2 , if such Note is a Subordinated Note.

 

Floating Rate Notes - Any Notes that bear interest at a rate that is determined by reference to an interest rate basis or by one or more interest rate formulas, as specified by the Issuer in the applicable Pricing Supplement and on the related Floating Rate Note, and substantially in the form of Exhibit D-1 , if such Note is a Senior Note, or Exhibit D-2 , if such Note is a Subordinated Note.

 

Global Note - A Note, in the form provided by Section 4(a) , issued to the Depository or its nominee, and registered in the Register in the name of the Depository or its nominee.

 

Holder - The Person in whose name a Note is registered in the Register.

 

Indexed Notes - Any Notes for which the amount of principal, premium, if any, interest, or other amounts payable is determined, either directly or indirectly, by reference to the price or performance of one or more (a) securities, (b) debt obligations or basket of debt obligations; (c) currencies or composite currencies, (d) commodities, (e) interest rates, (f) stock indices, or (g) other indices or formulae, as specified by the Issuer on the related Indexed Note and substantially in the form of Exhibit E . Subject to compliance with all applicable legal, regulatory and clearing system settlement requirements, the Issuer may issue Indexed Notes which may be settled by delivery of non-cash payments such as securities, loans or other instruments.

 

Initial Redemption Date - With respect to a Note that is subject to an Optional Redemption, the date specified as the Initial Redemption Date on such Note and after which, but prior to the Stated Maturity, an Optional Redemption of such Note may occur as specified in such Note.

 

Interest Payment Date - A date for payment of interest on a Note, as provided in the Note.

 

Issuer – Has the meaning given such term in the preamble.

 

Issuing and Paying Agent – Has the meaning given such term in the preamble.

 

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Letters of Representations - The letters from the Issuing and Paying Agent and Issuer, as appropriate, to be furnished to DTC in accordance with Section 3(a) , substantially in the forms set forth in Exhibit A .

 

London Banking Day - Any day on which commercial banks are open for business (including dealings in U.S. dollars) in London, England.

 

Note or Notes - Any of the Issuer’s Senior Notes or Subordinated Notes, each with maturities of seven days or more from their respective dates of issue, which may be issued, authenticated and delivered under this Agreement.

 

OCC - Office of the Comptroller of the Currency.

 

Offering Circular - The Offering Circular of the Issuer relating to the Notes dated January 15, 2004, as the same may be amended or supplemented from time to time.

 

Officer’s Certificate - A certificate of the Issuer signed by an Authorized Representative and delivered to the Issuing and Paying Agent.

 

Optional Redemption - A redemption of a Note on or after the date designated on such Note as the Initial Redemption Date at the option of the Issuer as set forth in such Note at a Redemption Price as set forth in such Note.

 

Original Issue Date - As to any Note, the date on which the Note was issued and the purchase price was paid by the related Holder; except that with respect to a Reopened Note, the Original Issue Date for all portions of that Note shall be the date on which the first portion of that Note was issued and the purchase price was paid by the related Holder.

 

Original Issue Discount Note - Any Note issued at an issue price representing more than a de minimis discount from the principal amount payable at its Stated Maturity for United States federal income tax purposes.

 

Outstanding - For purposes of the provisions of this Agreement and the Notes, any Note authenticated and delivered pursuant to this Agreement, as of any date of determination, shall be deemed to be “Outstanding,” except: (i) Notes that have been canceled or delivered to the Issuing and Paying Agent for cancellation; (ii) Notes that have become due and payable on their Principal Payment Date and with respect to which monies sufficient to pay the principal or Redemption Price, as the case may be, and interest thereon shall have been made available to the Issuing and Paying Agent; or (iii) Notes in lieu of or in substitution for which other Notes shall have been authenticated and delivered pursuant to this Agreement.

 

Payment Date - A date for payment of principal of and interest on an Amortizing Note as provided in the Note.

 

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Person - Any legal person, including any individual, corporation, limited liability company, partnership, joint venture, association, joint stock company, trust, unincorporated organization or government or any agency, instrumentality or political subdivision.

 

Predecessor Notes - With respect to any particular Note, every previous Note evidencing all or a portion of the same debt as that evidenced by such particular Note; and, for the purpose of this definition, any Note authenticated and delivered under Section 17 or the terms of a Note in lieu of or in exchange for a mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same debt as the mutilated, lost, destroyed or stolen Note, and any Note issued upon registration of transfer of or in exchange for any other Note shall be deemed to evidence all or a portion of the same debt evidenced by such other Note.

 

Prepayment Option Price – With respect to any Note subject to prepayment at the option of the Holder, the amount payable to the Holder upon prepayment of the Note together with any accrued interest to the date of prepayment, as specified in the applicable Note.

 

Pricing Supplement - A supplement to the Offering Circular for a particular Note or Notes containing the particular terms and conditions of that series of Notes.

 

Principal Office - Subject to the right of each to change its office, by advance written notice to the Issuer, such term means, (1) for the Issuing and Paying Agent, its principal corporate trust office at 60 Wall Street, 27 ^th Floor, Mail Stop, NYC 60-2710, New York, New York 10005, Attention: Corporate Trust and Agency Group; and (2) for any successor or additional Agents, their offices specified in writing to the Issuer and the Issuing and Paying Agent.

 

Principal Payment Date - The date provided on the face of the Note on which the principal, or Redemption Price of the Note, as the case may be, becomes due and payable.

 

Redemption Price - With respect to any Note subject to an Optional Redemption, the amount specified in such Note as payable, when such Note is redeemed on or after the Initial Redemption Date.

 

Register - The register for the registration and transfer of the Notes maintained pursuant to Section 15 .

 

Registrar – Deutsche Bank Trust Company Americas, or any successor or successors as Registrar, appointed by the Issuer, who shall perform the duties as Registrar under this Agreement.

 

Regular Record Date – Unless otherwise specified in the Note, the date on which a Holder must hold a Note in order to receive an interest payment on the next Interest Payment Date or Payment Date, as applicable. Unless otherwise specified in the Note, the Regular Record Date for any Interest Payment Date or Payment Date is the date that is 15 calendar days (whether or not a Business Day) prior to that Interest Payment Date or Payment Date, as the case may be.

 

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Renewable Note - A Note the maturity of which may be renewed at the option of the Holder in accordance with the terms of the Note.

 

Reopened Note - A Note issued after the Original Issue Date of a series of Notes with the same terms as the original Note and which makes up a single series of Notes with the previously issued Note and increases the total principal amount of that series of Notes.

 

Securities Exchange Act - The Securities Exchange Act of 1934, as amended.

 

Selling Agent - Any party, other than the Issuer, to the Distribution Agreement, including any party added to such agreement after its initial date of execution. The initial Selling Agents are: Banc of America Securities LLC, Bear, Stearns & Co. Inc., Citigroup Global Markets Inc., Credit Suisse First Boston LLC, Lehman Brothers Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, and Morgan Stanley & Co. Incorporated.

 

Senior Note - A Note evidencing the senior obligations of the Issuer, which shall be substantially in the form of Exhibit C-1 (if such Note is a Fixed Rate Note) or Exhibit D-1 (if such Note is a Floating Rate Note).

 

Stated Maturity - The date specified as the fixed date on which the principal of any Note, or any installment of principal and interest of an Amortizing Note, is due and payable.

 

Subordinated Note - A Note evidencing the subordinated obligations of the Issuer, which shall be substantially in the form of Exhibit C-2 (if such Note is a Fixed Rate Note) or Exhibit D-2 (if such Note is a Floating Rate Note).

 

Transfer Agent - Any Person or Persons appointed by the Issuer to exchange or transfer Notes issued by the Issuer.

 

SECTION 3. Appointment of Agents .

 

(a) Issuing and Paying Agent . The Issuer hereby confirms its continued appointment of Deutsche Bank Trust Company Americas, as Issuing and Paying Agent of the Issuer in respect to the Notes upon the terms and subject to the conditions herein set forth, and Deutsche Bank Trust Company Americas hereby confirms its acceptance of such appointment, upon and subject to the terms and conditions set forth below, for the purposes of:

 

(i) completing, authenticating and delivering Global Notes and (if required) authenticating and delivering Certificated Notes;

 

(ii) paying sums due on Global Notes and Certificated Notes;

 

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(iii) unless otherwise specified in the applicable Pricing Supplement, determining the interest or other amounts payable in respect of the Notes in accordance with the terms and conditions of the Notes;

 

(iv) arranging on behalf of the Issuer for notices to be communicated to the Holders; and

 

(v) performing all other obligations and duties imposed upon it by the terms and conditions of the Notes, this Agreement or as may be agreed between the Issuer and the Issuing and Paying Agent in connection with a particular series or tranche of Notes.

 

The Issuer further appoints and authorizes Deutsche Bank Trust Company Americas as Issuing and Paying Agent to act as its Issuing and Paying Agent in executing the Letters of Representations to be delivered to the Depository, in substantially the forms set forth in Exhibit A .

 

The Issuing and Paying Agent shall at all times be a bank or trust company organized under the laws of the United States or any jurisdiction in the United States and authorized and empowered under such laws to fulfill and perform all the duties and obligations of the Issuing and Paying Agent hereunder.

 

The Issuing and Paying Agent represents that it is a bank or trust company meeting the foregoing requirements and that it promptly shall notify the Issuer of any occurrence or event that renders it unable to continue to make the representations in this Agreement.

 

(b) Selling Agents . The Issuer has appointed Banc of America Securities LLC, Bear, Stearns & Co. Inc., Citigroup Global Markets Inc., Credit Suisse First Boston LLC, Lehman Brothers Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, and Morgan Stanley & Co. Incorporated, as Selling Agents for the Notes by and under the terms of the Distribution Agreement, under which the Issuer may, from time to time, appoint other Selling Agents.

 

(c) Registrar . The Issuer hereby appoints Deutsche Bank Trust Company Americas as Registrar of the Issuer in respect of the Notes upon the terms and conditions set forth herein, and Deutsche Bank Trust Company Americas hereby accepts such appointment. The Registrar will keep the Register and otherwise act as Registrar in accordance with the terms of this Agreement.

 

The Registrar will keep a record of all Notes, at its Principal Office or at such other location as it may choose and as to which it will give advance notice to the Issuer. The Registrar will include in such record a notation as to whether such Notes have been paid or cancelled or, in the case of mutilated, destroyed, stolen or lost Notes, whether such Notes have been replaced. In the case of the replacement of any of the Notes, the

 

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Registrar will keep a record of the Notes so replaced and the Notes issued in replacement thereof.

 

(d) Transfer Agents . The Issuer (at its sole cost and expense) may appoint from time to time one or more Transfer Agents for one or more of the Notes. The Issuer shall solicit written acceptance of the appointment from any entity so appointed as Transfer Agent. Such written acceptance shall be in a form satisfactory to the Issuing and Paying Agent and shall state that by the Transfer Agent’s acceptance of such appointment, it agrees to act as a Transfer Agent pursuant to the terms and conditions of this Agreement. The Issuer hereby confirms its continued appointment of Deutsche Bank Trust Company Americas as the initial Transfer Agent for the Notes, and Deutsche Bank Trust Company Americas hereby confirms its acceptance of such appointment.

 

(e) Calculation Agents .

 

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Appointment of Calculation Agent : The Issuer (at its sole cost and expense) may appoint from time to time one or more Calculation Agents for one or more of the Notes. The Issuer shall solicit written acceptance of the appointment from any entity so appointed as Calculation Agent. Such written acceptance shall be in a form satisfactory to the Issuing and Paying Agent and shall state that by the Calculation Agent’s acceptance of such appointment, it agrees to act as a Calculation Agent pursuant to the terms and conditions of this Agreement.

 

(a)

Floating Rate Notes : Except as otherwise specified in a Pricing Supplement relating to a particular Note, the Issuer hereby appoints Deutsche Bank Trust Company Americas as the initial Calculation Agent for the Floating Rate Notes, and Deutsche Bank Trust Company Americas hereby accepts such appointment.

 

(b)

Indexed Notes : Before issuing an Indexed Note, the Issuer shall appoint a Calculation Agent for the purpose of calculating the principal payable at maturity, the rate of interest or other amounts payable on the Indexed Notes, all in accordance with the terms of the Indexed Notes. With respect to Indexed Notes, at such times as shall be specified in the Indexed Note and the related Pricing Supplement, the Calculation Agent shall determine the index (if required), principal, premium, if any, rate of interest, interest payable or other amounts payable. Upon the request of the Holder of any Indexed Note, the Calculation Agent will provide, if applicable, the current index, principal, premium, if any,

 

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rate of interest, interest payable or other amounts payable in connection with such Indexed Note.

 

2.

Duties and Responsibilities : The duties and responsibilities of the Calculation Agent shall be as specified herein, in the Administrative Procedures attached as Exhibit B , in the applicable Note and in a calculation agency agreement between the Issuer and the Calculation Agent. As promptly as practicable after each Interest Determination Date for a Floating Rate Note or an Indexed Note, the Calculation Agent will notify the Issuer of the interest rate, if any, which will become effective on the next Interest Reset Date (as such terms are defined in the Floating Rate Note or Indexed Note). Upon the request of the Holder of a Floating Rate Note or an Indexed Note, the Calculation Agent will provide to the Holder the interest rate then in effect and, if determined, the interest rate which will become effective on the next Interest Reset Date with respect to such Floating Rate Note or such Indexed Note.

 

SECTION 4. The Notes .

 

(a) Note Form . Except as otherwise provided in Section 4(d) and except with respect to a Reopened Note, and subject to any maximum principal amount of a Global Note required by the Depository, each Note issued by the Issuer with the same Original Issue Date and otherwise having identical terms shall be represented by a single master Global Note certificate. Fixed Rate Notes will be substantially in the form of Exhibit C-1 or Exhibit C-2 ; Floating Rate Notes will be substantially in the form of Exhibit D-1 or Exhibit D-2 ; and Indexed Notes will be substantially in the form of Exhibit E . The Notes may contain such insertions, omissions, substitutions and other variations as the Issuer determines to be required or permitted by this Agreement and may have such letters, numbers or other marks of identification and such legend or legends or endorsements placed thereon as any officer of the Issuer executing such Notes may determine to be necessary or appropriate, as evidenced by such officer’s execution of such Notes by manual or facsimile signature, including, without limitation, any legends or endorsements that may be required to comply with any law or with any rules or regulations pursuant thereto, or with any rules of any securities exchange on which the Notes may be listed or to conform to general usage.

 

(i) Global Note Legend . Any Global Note issued hereunder, in addition to the provisions contained in Exhibits C-1, C-2, D-1, D-2 or E , as the case may be, shall bear a legend in substantially the following form:

 

“This Note is a Global Note within the meaning of the Issuing and Paying Agency Agreement hereinafter referred to and is registered in the name of a Depository or a nominee of a Depository. This Note is not exchangeable for Notes registered in the name of a

 

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person other than the Depository or its nominee except in the limited circumstances described in the Issuing and Paying Agency Agreement, and no transfer of this Note (other than a transfer as a whole by the Depository to a nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository) may be registered except in the limited circumstances described in the Issuing and Paying Agency Agreement.”

 

(ii) Depository Legend . Furthermore, each Global Note issued hereunder to DTC or its nominee shall bear a legend in substantially the following form:

 

“Unless this Note is presented by an authorized representative of The Depository Trust Company to the Issuer or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of CEDE & CO. or such other name as requested by an authorized representative of The Depository Trust Company and any payment is made to CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner hereof, CEDE & CO., has an interest herein.”

 

(iii) Subordinated Note Legends . Each Global Note representing a Subordinated Note issued hereunder shall contain on its face the legends substantially in the form of Exhibit C-2 or Exhibit D-2 , as applicable.

 

(iv) Original Issue Discount Notes . Each Original Issue Discount Note shall contain on its face a legend substantially in the form of Exhibit F .

 

(v) Denominations . Unless otherwise indicated in the applicable Notes and the applicable Pricing Supplement, except as provided in Section 4(d) or if the Issuer elects to issue Notes in certificated form, the Notes shall be issuable only in book-entry form, without coupons. The Notes will be issued in minimum denominations of $250,000 and integral multiples of $1,000 in excess of $250,000 (the “Authorized Denominations”).

 

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(vi) Certificate of Authentication . Only Notes that bear thereon a certificate of authentication substantially in a form set forth below (a “Certificate of Authentication”), executed by the Issuing and Paying Agent by its manual signature, and dated the date of authentication, will be valid:

 

Certificate of Authentication

 

This is one of the Notes referred to in the within-mentioned Issuing and Paying Agency Agreement.

 

Dated:		DEUTSCHE BANK TRUST COMPANY AMERICAS as Issuing and Paying Agent
		By:
				Authorized Signatory

 

(vii) Signature . Each Note will be signed manually or by facsimile by an Authorized Representative. The Notes will have a Stated Maturity of not less than seven days from date of issue and will be issued in the respective order of the serial numbers imprinted thereon. The Issuing and Paying Agent shall maintain in safe custody all blank Notes that the Issuer delivers to it and that it holds hereunder, and in accordance with its customary practices and procedures. The Issuing and Paying Agent shall complete and issue such Notes only in accordance with the terms of this Agreement.

 

(viii) Certificated Notes . The Issuer from time to time and upon request will furnish the Issuing and Paying Agent with an adequate supply of Certificated Notes (senior and subordinated), without coupons, serially numbered, which will have the applicable terms which may be specified with respect to such Notes in accordance with the Administrative Procedures left blank.

 

(b) Issuance of Global Notes .

 

(i) Following receipt of a notification from the Issuer in respect of an issue of Notes, the Issuing and Paying Agent will take the steps required of the Issuing and Paying Agent in the Administrative Procedures to issue the Global Note. For this purpose, the Issuing and Paying Agent is authorized on behalf of the Issuer:

 

(A) to prepare a Global Note in accordance with such notification by attaching a copy of the applicable Pricing Supplement to the relevant master Global Note;

 

(B) to authenticate (or cause to be authenticated) such Global Note;

 

(C) to deliver such Global Note to the specified Depository (or such Global Note may be held by the Issuing and Paying Agent as custodian for such Depository) in accordance with the notification against receipt from the Depository of confirmation that such Depository is holding the Global Note in safe custody for the account of the participants and to credit the Notes against appropriate accounts; and

 

(D) to ensure that the Notes of each series are assigned a CUSIP number, which will be provided to the Issuing and Paying Agent by the Issuer.

 

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(ii) Notwithstanding the foregoing, any Global Note issued by the Issuer shall be exchangeable for Certificated Notes registered in the name of Persons other than the Depository for such Note or its nominee only if (i) such Depository notifies the Issuing and Paying Agent that it is unwilling or unable to continue as Depository for such Global Note or if at any time such Depository ceases to be a clearing agency registered under the Securities Exchange Act and in either such case a successor Depository is not appointed by the Issuer within 90 calendar days, or (ii) the Issuer, in its sole discretion, executes and delivers to the Issuing and Paying Agent a written notification that such Global Note shall be so exchangeable or (iii) an Event of Default occurs and is continuing with respect to such Global Note. Any Global Note that is exchangeable pursuant to the preceding sentence shall be exchangeable for Certificated Notes registered in such names as such Depository shall direct. Notwithstanding any other provision in this Agreement, a Global Note may not be transferred except as a whole by the Depository with respect to such Global Note to a nominee of such Depository or by a nominee of such Depository to such Depository or another nominee of such Depository.

 

(c) Aggregate Principal Amount Outstanding . As of the date hereof, the Issuer has authorized the offer and issuance from time to time of Notes with maturities of seven days or more up to a maximum principal amount at any one time outstanding of $60,000,000,000. In order to comply with the registration and prospectus regulations of the OCC, not more than $60,000,000,000 aggregate principal amount of Notes with maturities of more than 270 days may be issued under this Agreement. However, Notes with maturities of 270 days or less are exempt from the registration and prospectus regulations of the OCC. Accordingly, the Issuer is selling the Notes subject to the following limitations: (a) under the program, the Issuer may not issue more than $60,000,000,000 aggregate principal amount of Notes with maturities of more than 270 days from their respective issue dates; and (b) not more than $60,000,000,000 aggregate principal amount of all Notes may be issued and outstanding at any one time. Notwithstanding the foregoing, if the Issuer authorizes the offer and issuance of additional Notes and, to the extent necessary, registers such Notes with the OCC, such additional Notes may be sold to or through the Agents pursuant to the terms of this Agreement and the Distribution Agreement, all as though the offer and issuance of such notes were authorized as of the date hereof.

 

(d) Certificated Notes . If at any time the Depository notifies the Issuer or the Issuing and Paying Agent that it is unwilling or unable to continue to act as Depository for any of the Global Notes, or if at any time such Depository ceases to be a clearing agency registered under the Securities Exchange Act and in either such case a successor Depository is not appointed by the Issuer within 90 calendar days, the Issuer will execute and the Issuing and Paying Agent, upon the receipt of procedures for certificated securities in form and substance satisfactory to the Issuer and the Issuing and Paying Agent and upon receipt of instructions in writing from the Issuer, will authenticate and deliver to the Holder or the Holder’s designee Notes of

 

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like tenor and terms in definitive form in an aggregate principal amount equal to the Global Notes then outstanding in exchange for such Global Notes.

 

(e) Ranking . The Senior Notes will be unsecured and will rank equally with all of the Issuer’s other unsecured and unsubordinated indebtedness, except obligations, including deposits, that are subject to any priorities or preferences by law. In the event of the Issuer’s insolvency, the holders of the Senior Notes could receive a significantly lesser proportion of the claims evidenced by their Notes than holders of the Issuer’s deposit obligations. The Subordinated Notes are subordinated and rank junior in right of payment to the extent described in Section 12 . The Subordinated Notes are unsecured and are ineligible as collateral for a loan by the Issuer.

 

SECTION 5. Authorized Representatives . The Issuer hereby certifies that each person named in Exhibit G hereto and designated as affiliated with the Issuer is a duly Authorized Representative of the Issuer and that the signature set forth opposite such representative’s name is his or her true and genuine signature. The Issuing and Paying Agent shall be entitled to rely on the information set forth in Exhibit G for purposes of determining an Authorized Representative until such time as the Issuing and Paying Agent receives a subsequent Officer’s Certificate from the Issuer deleting or amending any of the information set forth therein. The Issuing and Paying Agent shall not have any responsibility to the Issuer to determine whether any signature on a Note purporting to be that of an Authorized Representative named in Exhibit G with respect to the Issuer is genuine, so long as such signature resembles the specimen signature set forth in Exhibit G or in a subsequent certificate delivered to the Issuing and Paying Agent by the Issuer. Any Note bearing the signature of a person who is an Authorized Representative named in Exhibit G with respect to the Issuer on the date he or she signs such Note shall be a binding obligation of the Issuer upon the completion and authentication thereof by the Issuing and Paying Agent, notwithstanding that such person shall have ceased to be an Authorized Representative on the date such Note is completed, authenticated or delivered by the Issuing and Paying Agent.

 

SECTION 6. Completion, Authentication and Delivery of Notes .

 

(a) Upon the issuance of Notes hereunder, the Issuer shall deliver instructions as to the completion of the Notes (as described below) to a duly authorized representative of the Issuing and Paying Agent named in Exhibit H hereto, or to any additional authorized representative which may be named by the Issuing and Paying Agent (of which the Issuer shall be notified in writing). Such instructions shall be delivered from time to time through the use of a facsimile transmission (confirmed by guaranteed delivery of overnight courier) from any Authorized Representative. Such instructions shall