Common use of Defaulted Securities Clause in Contracts

Defaulted Securities. If one or more of the Underwriters shall fail at the Settlement Date to purchase the Warrants which it or they are obligated to purchase under this Agreement (the “Defaulted Securities”), then the Representatives shall have the right, within 24 hours thereafter, to make arrangements for one of them or one or more other underwriters to purchase all, but not less than all, of the Defaulted Securities in such amounts as may be agreed upon and upon the terms herein set forth; provided, however, that if such arrangements shall not have been completed within such 24-hour period, then: (i) if the aggregate principal amount of Defaulted Securities does not exceed 10% of the aggregate principal amount of Warrants to be purchased on such date, the non-defaulting Underwriters shall be obligated, severally and not jointly, to purchase the full amount thereof in the proportions that their respective initial underwriting obligations bear to the underwriting obligations of all non-defaulting Underwriters; or (ii) if the aggregate principal amount of Defaulted Securities exceeds 10% of the aggregate principal amount of Warrants to be purchased on such date, this Agreement shall terminate without liability on the part of any non-defaulting Underwriter. No action taken pursuant to this paragraph shall relieve any defaulting Underwriter from liability in respect of its default. In the event of any such default which does not result in a termination of this Agreement, either the Representatives or the Company shall have the right to postpone the Settlement Date for a period not exceeding seven days in order to effect any required changes in the Registration Statement or the Prospectus or in any other documents or arrangements. As used herein, the term “Underwriter” includes any person substituted for an Underwriter under this Section 9.

Defaulted Securities. To the extent that a Terms Agreement is entered into with more than one Agent, the following shall apply: (a) If one or more of the Underwriters any Agent shall fail at the Settlement Date Time of Delivery to purchase the Warrants Securities which it or they are is obligated to purchase under this Agreement (the “Defaulted Securities”), then the Representatives non-defaulting Agent or Agents shall have the rightright with the consent of the Company, but not the obligation, within 24 48 hours thereafter, to purchase, or to make arrangements for one the appointment of them or one or more other underwriters another Agent to purchase allpurchase, but not less than all, of the Defaulted Securities in such amounts as may be agreed upon and upon the terms herein set forth; providedif, however, that if such arrangements shall not have been completed within such 24-hour period, then: (i) if the aggregate principal amount of Defaulted Securities does not exceed 10% of the aggregate principal amount of Warrants to be purchased on such date, the non-defaulting Underwriters Agent or Agents shall be obligatednot have completed such arrangements within such 48 hour period, severally and not jointly, to purchase the full amount thereof in the proportions that their respective initial underwriting obligations bear to the underwriting obligations of all non-defaulting Underwriters; or (ii) if the aggregate principal amount of Defaulted Securities exceeds 10% of the aggregate principal amount of Warrants to be purchased on such date, then this Agreement shall terminate without liability on the part of any the non-defaulting UnderwriterAgent or Agents. No action taken pursuant to this paragraph hereto shall relieve any defaulting Underwriter Agent from liability in respect of its default. In the event of any such default which does not result in a termination of this Agreement, a Terms Agreement either the Representatives non-defaulting Agent or Agents or the Company shall have the right to postpone the Settlement Date Time of Delivery for a period not exceeding seven 7 days in order to effect any required changes in the Registration Statement or the Prospectus Disclosure Package or in any other documents or arrangementsarrangements used in connection with the offer and sale of the Defaulted Securities. As used herein, the The term “UnderwriterAgent” includes any such person substituted for the defaulting Agent. (b) If, after giving effect to any arrangements for the purchase of the Defaulted Securities by the non-defaulting Agent or Agents as provided in subsection (a) above, the aggregate principal amount of such Securities which remains unpurchased does not exceed one-tenth of the aggregate principal amount of all the Securities, then the Company shall have the right to require the non-defaulting Agent or Agents to purchase the principal amount of Securities which such Agent agreed to purchase hereunder and, in addition, to require each non-defaulting Agent to purchase its pro rata share (based on the principal amount of Securities which such Agent agreed to purchase hereunder) of the Defaulted Securities for which such arrangements have not been made; but nothing herein shall relieve a defaulting Agent from liability for its default. (c) If, after giving effect to any arrangements for the purchase of the Defaulted Securities by the non-defaulting Agent or Agents as provided in subsection (a) above, the aggregate principal amount of Securities which remains unpurchased exceeds one-tenth of the aggregate principal amount of all the Securities, or if the Company shall not exercise the right described in subsection (b) above to require the non-defaulting Agent or Agents to purchase Defaulted Securities, then this Agreement shall thereupon terminate with respect to such Securities, without liability on the part of the non-defaulting Agent or the Company; but nothing herein shall relieve a defaulting Agent from liability for its default. If the foregoing is in accordance with your understanding, please sign and return to us four counterparts hereof, whereupon this letter and the acceptance by each of you thereof shall constitute a binding agreement between the Company and each of you in accordance with its terms. Very truly yours, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ CORPORATION By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Title: Vice President Accepted as of the date first above written. ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. & ▇▇▇▇▇ INCORPORATED INCORPORATED By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇ Title: Authorized Signatory Title: Vice President CITIGROUP GLOBAL MARKETS, INC. UBS SECURITIES LLC By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇. By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇. Name: ▇▇▇▇▇▇ ▇▇▇▇▇ Title: Managing Director Title: Managing Director ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & CO., L.P. By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Title: General Partner Title: Director—Debt Capital Markets INCAPITAL LLC WACHOVIA CAPITAL MARKETS, LLC By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇ Title: Secretary Title: Vice President MINOTESSM , 20 [Agent] Dear Sirs: ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Corporation (the “Company”) proposes, subject to the terms and conditions stated herein and in the Distribution Agreement, dated January 23, 2008 (the “Distribution Agreement”), between the Company on the one hand and Merrill, Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, Citigroup Global Markets, Inc., ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co., L.P., InCapital LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, UBS Securities LLC and Wachovia Capital Markets, LLC (collectively, the “Agents”) on the other, to issue and sell to [Agent] the securities specified in the Schedule hereto (the “Purchased Securities”). Each of the provisions of the Distribution Agreement not specifically related to the solicitation by the Agents, as agents of the Company, of offers to purchase Securities is incorporated herein by reference in its entirety, and shall be deemed to be part of this Terms Agreement to the same extent as if such provisions had been set forth in full herein. Nothing contained herein or in the Distribution Agreement shall make any party hereto an Underwriter under agent of the Company or make such party subject to the provisions therein relating to the solicitation of offers to purchase securities from the Company, solely by virtue of its execution of this Terms Agreement. Each of the representations and warranties set forth in the Distribution Agreement shall be deemed to have been made at and as of the date of this Terms Agreement, except that each representation and warranty in Section 92 of the Distribution Agreement which makes reference to the Prospectus shall be deemed to be a representation and warranty as of the date of the Distribution Agreement in relation to the Prospectus (as therein defined) or the Disclosure Package, and also a representation and warranty as of the date of this Terms Agreement in relation to the Prospectus as amended and supplemented as it relates to the Purchased Securities and the Disclosure Package for the Purchased Securities. An amendment to the Registration Statement, or a supplement to the Prospectus, as the case may be, relating to the Purchased Securities, in the form heretofore delivered to you is now proposed to be filed with the Commission. Subject to the terms and conditions set forth herein and in the Distribution Agreement incorporated herein by reference, the Company agrees to issue and sell to [Agent(s)] and the latter agree[s] to purchase [severally but not jointly] from the Company the Purchased Securities, at the time and place, in principal amount and at the purchase price set forth in the Schedule hereto. If the foregoing is in accordance with your understanding, please sign and return to us five counterparts hereof, and upon acceptance hereof by you this letter and such acceptance hereof, including those provisions of the Distribution Agreement incorporated herein by reference, shall constitute a binding agreement between you and the Company. ▇▇▇▇▇▇▇▇ & ILSLEY CORPORATION By: Name: Title: Accepted as of the date hereof: [Agent] Title of Purchased Securities: [ %] [Senior/Subordinated] MiNotesSM Aggregate Principal Amount: $ [Price to Public:] Purchase Price by [Agent(s)]: % of the principal amount of the Purchased Securities, plus accrued interest from to [and accrued amortization, if any, from to ] Method of and Specified Funds for Payment of Purchase Price: [By wire transfer to a bank account specified by the Company in [next day] [immediately available] funds] Indenture (check one): ¨ Senior Indenture ¨ Subordinated Indenture Closing Location for Delivery of Securities: Maturity: Interest Rate: [ %] Interest Payment Dates: [months and dates] Documents to be Delivered: The following documents referred to in the Distribution Agreement shall be delivered as a condition to the Closing: (1) The opinion or opinions of counsel to the Agents referred to in Section 4(h). Required ¨ Waived ¨ (2) The opinion of counsel to the Company referred to in Section 4(i). Required ¨ Waived ¨ (3) The accountants’ letter referred to in Section 4(j). Required ¨ Waived ¨ (4) The officers’ certificate referred to in Section 4(k). Required ¨ Waived ¨ (5) Agent Counsel fees, disbursements and expenses will be paid by: Company ¨ Agents ¨ Time of Sale: The Pricing Supplement for the Purchased Securities is attached hereto as Exhibit A or filed with the Commission on (the “Pricing Supplement”) and the Term Sheet for the Purchased Securities is attached hereto as Exhibit B (the “Term Sheet”). The parties agree that for purposes of the Distribution Agreement, the Prospectus, including any documents incorporated by reference therein, the Pricing Supplement, any preliminary Pricing Supplement and the Term Sheet constitute the Disclosure Package and neither the Company nor any Agent has produced or issued any other Free Writing Prospectus [ other than ]. Other Provisions (including Syndicate Provisions, if applicable): Pricing Supplement Dated: Rule 424(b)(3) (To Prospectus Supplement Dated January 23, 2008 and Prospectus Dated November 6, 2007) File No. 333- Pricing Supplement No. MINOTESSM Trade Date: Issue Date: Lead Manager: Agents: Other Terms: MINOTESSM ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Corporation (the “Corporation”) may offer its medium-term senior or subordinated notes (the “Securities”) on a continuing basis. The Securities will be offered by ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, Citigroup Global Markets, Inc., ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co., L.P., InCapital LLC, ▇▇▇▇▇▇ Stanely& Co. Incorporated, UBS Securities LLC and Wachovia Capital Markets, LLC (each an “Agent” and, collectively, the “Agents”) pursuant to a Distribution Agreement among the Company and the Agents dated as of the date hereof (the “Distribution Agreement”) and one or more terms agreements substantially in the form attached to the Distribution Agreement as Annex I (each a “Terms Agreement”). The Securities are being resold by the Agents directly to customers of the Agents. The Securities have been registered with the Securities and Exchange Commission (the “Commission”). The Securities may be senior or subordinated obligations of the Company and will be issued, in the case of senior notes, pursuant to the provisions of an indenture, dated as of November 5, 2007, as supplemented from time to time (the “Senior Indenture”), between the Company and The Bank of New York as Trustee (the “Trustee”) or, in the case of subordinated notes, pursuant to an indenture, dated as of November 5, 2007 (the “Subordinated Indenture,” and collectively with the Senior Indenture, the “Indentures”), between the Company and the Trustee. Pursuant to the terms of the Indenture, M&I ▇▇▇▇▇▇▇▇ & Ilsley Bank will serve as authenticating agent, issuing agent and paying agent. Unless otherwise agreed by the Agents and the Company, Securities will be purchased by the Agents as principal as set forth herein. Such purchases will be made in accordance with terms agreed upon by the Agents and the Company (which terms, unless otherwise agreed, shall be agreed upon orally, with written confirmation prepared by the Agents and mailed to the Company). Each offering of Securities will be issued in book-entry form only and represented by one or more fully registered global notes without coupons (each, a “Global Note”) held by the Trustee, as agent for The Depository Trust Company (“DTC”) and recorded in the book-entry system maintained by DTC. Each Global Note will have the annual interest rate, maturity and other terms set forth in the relevant Pricing Supplement (as defined in the Selling Agent Agreement). Owners of beneficial interests in a Global Note will be entitled to physical delivery of Securities issued in certificated form equal in principal amount to their respective beneficial interests only upon certain limited circumstances described in the Indenture. Administrative procedures and specific terms of the offering are explained below. Administrative and record-keeping responsibilities will be handled for the Company by its Corporate Treasury. The Company will advise the Agents and the Trustee in writing of those persons handling administrative responsibilities with whom the Agents and the Trustee are to communicate regarding offers to purchase Securities and the details of their delivery. Securities will be issued in accordance with the administrative procedures set forth herein. To the extent the procedures set forth below conflict with or omit certain of the provisions of the Securities, the Indenture, the Distribution Agreement or information set forth in the Prospectus (as defined in the Distribution Agreement) and the Pricing Supplement (together referred to herein as the “Prospectus”), the relevant provisions of the Securities, the Indenture, the Distribution Agreement and the information set forth in Prospectus shall control. Capitalized terms used herein that are not otherwise defined shall have the meanings ascribed thereto in the Disribution Agreement, the Prospectus in the form most recently filed with the Commission pursuant to Rule 424 of the 1933 Act, or in the Indenture.