1
Exhibit 1.1
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ CORPORATION
$150,000,000
MEDIUM-TERM NOTES
DISTRIBUTION AGREEMENT
December 27, 1995
▇▇▇▇▇▇▇, Sachs & Co., ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Two ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Station ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Salomon Brothers Inc
Seven World Trade Center ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co.
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Incorporated
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc. ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ First Chicago Capital Markets
Inc.
▇▇▇▇▇▇ Brothers Equitable Building
▇▇▇▇▇▇ Brothers Inc. ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
3 World Financial Center New York, New York 10019
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇ Securities, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Ladies and Gentlemen:
▇▇▇▇▇▇▇▇ & Ilsley Corporation, a Wisconsin corporation (the
"Company"), proposes to issue and sell from time to time its Medium-Term Notes,
Series D (the "Securities") in an aggregate amount up to $150,000,000 and
agrees with each of you (individually, an "Agent", and collectively, the
"Agents") as set forth in this Agreement.
Subject to the terms and conditions stated herein and to the
reservation by the Company of the right to sell Securities directly on its own
behalf, the Company hereby (i) appoints each Agent as an agent of the Company
for the purpose of soliciting and receiving offers to purchase Securities from
the Company pursuant to Section 2(a) hereof and (ii) agrees that, except as
otherwise contemplated herein, whenever it determines to sell Securities
directly to any Agent as principal, it will enter into a separate agreement
(each a "Terms Agreement"), substantially in the form of Annex I hereto,
relating to such sale in accordance with Section 2(b) hereof.
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The Securities will be issued under an indenture, dated as of
November 15, 1985, as amended (the "Indenture"), between the Company and
Chemical Bank (successor to Manufacturers Hanover Trust Company), as Trustee
(the "Trustee"). The Securities shall have the maturity ranges, interest
rates, if any, redemption provisions and other terms set forth in the
Prospectus referred to below as it may be amended or supplemented from time to
time. The Securities will be issued, and the terms and rights thereof
established, from time to time by the Company in accordance with the Indenture.
1. The Company represents and warrants to, and agrees with, each
Agent that:
(a) A registration statement on Form S-3 in respect of $250,000,000
aggregate amount of debt securities of the Company, including the
Securities, has been filed with the Securities and Exchange Commission
(the "Commission"); such registration statement and any post-effective
amendment thereto, each in the form heretofore delivered or to be
delivered to such Agent and, excluding exhibits to such registration
statement, but including all documents incorporated by reference in the
prospectus contained therein, have been declared effective by the
Commission in such form; no other document with respect to such
registration statement or document incorporated by reference therein has
heretofore been filed or transmitted for filing with the Commission; and
no stop order suspending the effectiveness of such registration statement
has been issued and no proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary prospectus included in such
registration statement or filed with the Commission pursuant to Rule
424(a) of the rules and regulations of the Commission under the Securities
Act of 1933, as amended (the "Act"), being hereinafter called a
"Preliminary Prospectus"; the various parts of such registration
statement, including all exhibits thereto and the documents incorporated
by reference in the prospectus contained in the registration statement or
filed with the Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the Securities Act of 1933, as amended
(the "Act"), being hereinafter called a "Preliminary Prospectus"; the
various parts of such registration statement, including all exhibits
thereto and the documents incorporated by reference in the prospectus
contained in the registration statement at the time such part of the
registration statement became effective but excluding Form T-1 and, if
applicable, including the information contained in the form of final
prospectus filed with the Commission pursuant to Rule 424(b) under the
Act, each as amended at the time such part of the registration statement
became effective, being hereinafter called the "Registration Statement";
the
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prospectus (including, if applicable, any prospectus supplement) relating
to the Securities, in the form in which it has most recently been filed,
or transmitted for filing, with the Commission on or prior to the date of
this Agreement, being hereinafter called the "Prospectus"; any reference
herein to any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein
pursuant to the applicable form under the Act, as of the date of such
Preliminary Prospectus or Prospectus, as the case may be; any reference to
any amendment or supplement to any Preliminary Prospectus or the
Prospectus, including any supplement to the Prospectus that sets forth
only the terms of a particular issue of the Securities (a "Pricing
Supplement"), shall be deemed to refer to and include any documents filed
after the date of such Preliminary Prospectus or Prospectus, as the case
may be, under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and incorporated therein by reference; any reference to
any amendment to the Registration Statement shall be deemed to refer to
and include any annual report of the Company filed pursuant to Section
13(a) or 15(d) of the Exchange Act after the effective date of the
Registration Statement that is incorporated by reference in the
Registration Statement; and any reference to the Prospectus as amended or
supplemented shall be deemed to refer to and include the Prospectus as
amended or supplemented (including by the applicable Pricing Supplement
filed in accordance with Section 4(a) hereof) in relation to Securities
under the Act and in accordance with Section 4(a) hereof, including any
documents incorporated by reference therein as of the date of such
filing);
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus, or any further amendment or supplement
thereto, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects to
the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; provided, however, that this representation and warranty
shall not apply to any statements or
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omissions made in reliance upon and in conformity with information
furnished in writing to the Company by any Agent expressly for use in the
Prospectus as amended or supplemented to relate to a particular issuance
of Securities;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the rules and regulations of the Commission
thereunder and do not and will not, as of the applicable effective date as
to the Registration Statement and any amendment thereto and as of the
applicable filing date as to the Prospectus and any amendment or
supplement thereto, contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by any Agent expressly for use in the Prospectus as
amended or supplemented to relate to a particular issuance of Securities;
(d) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus; and, since the respective dates
as of which information is given in the Registration Statement and the
Prospectus, there has not been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries (other than
changes in connection with the redemption, conversion or exchange of the
Corporation's 8.5% Convertible Subordinated Note held by The Northwestern
Mutual Life Insurance Company (the "NML Note"), or in the principal amount
of the Corporation's outstanding Medium-Term Series B Notes (the "Series B
Notes"), the Corporation's outstanding Medium-Term Series C Notes (the
"Series C Notes"), or the notes issued by subsidiary banks (the "Bank
Notes"), or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
management, financial position, shareholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set
forth or contemplated in the Prospectus;
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(e) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the jurisdiction of
its incorporation, with power and authority (corporate and other) to own
its properties and conduct its business as described in the Prospectus,
and has been duly qualified as a foreign corporation for the transaction
of business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or conducts any
business so as to require such qualification, or is subject to no material
liability or disability by reason of the failure to be so qualified in any
such jurisdiction; M&I ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Bank ("M&I Bank") has been duly
incorporated and is validly existing as a banking corporation in good
standing under the laws of the State of Wisconsin;
(f) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are fully
paid and non-assessable (except to the extent provided in Section
180.0622(2)(b) of the Wisconsin Business Corporation Law); all of the
issued shares of capital stock of M&I Bank have been duly and validly
authorized and issued, are fully paid and non-assessable (except to the
extent provided in Section 220.07 of the Wisconsin Statute, respectively)
and are owned directly by the Company, free and clear of all liens,
encumbrances, equities or claims;
(g) The Securities have been duly authorized, and, when issued and
delivered pursuant to this Agreement and any Terms Agreement, will have
been duly executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the Company entitled
to the benefits provided by the Indenture, which will be substantially in
the form filed as an exhibit to the Registration Statement; the Indenture
has been duly authorized and duly qualified under the Trust Indenture Act
and constitutes a valid and legally binding instrument, enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and the Indenture conforms and the Securities of any
particular issuance of Securities will conform to the descriptions thereof
contained in the Prospectus as amended or supplemented to relate to such
issuance of Securities;
(h) The Company and each of its subsidiaries have conducted their
businesses and are in compliance in all material respects with all
applicable federal and state laws and regulations, including, without
limitation, all laws and
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regulations restricting activities of bank holding companies and banking
organizations, except for any noncompliance which would not have a
material adverse effect on the Company and its subsidiaries considered as
a whole.
(i) The issue and sale of the Securities, the compliance by the
Company with all of the provisions of the Securities, the Indenture, this
Agreement and any Terms Agreement, and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of
its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will such action result
in any violation of the provisions of the Amended and Restated Articles of
Incorporation or the By-Laws, as amended, of the Company or any statute or
any order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its properties; and no
consent, approval, authorization, order, registration or qualification of
or with any court or governmental agency or body is required for the
solicitation of offers to purchase Securities, the issue and sale of the
Securities or the consummation by the Company of the other transactions
contemplated by this Agreement, any Terms Agreement or the Indenture,
except such as have been, or will have been prior to the Commencement Date
(as defined in Section 3 hereof), obtained under the Act or the Trust
Indenture Act and such consents, approvals, authorizations, registrations
or qualifications as may be required under state securities or Blue Sky
laws in connection with the solicitation by such Agent of offers to
purchase Securities from the Company and with purchases of Securities by
such Agent as principal, as the case may be, in each case in the manner
contemplated hereby;
(j) Other than as set forth in the Prospectus, there are no legal
or governmental proceedings pending to which the Company or any of its
subsidiaries is a party or to which any property of the Company or any of
its subsidiaries is subject, which are of a character which are required
to be disclosed in the Prospectus which have not been properly disclosed
therein; and, to the best of the Company's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or threatened
by others; and
(k) Immediately after any sale of Securities by the Company
hereunder or under any Terms Agreement, the aggre-
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gate amount of Securities which shall have been issued and sold by the
Company hereunder or under any Terms Agreement and of any debt
securities of the Company (other than such Securities) that shall have
been issued and sold pursuant to the Registration Statement will not
exceed the amount of debt securities registered under the Registration
Statement.
2. (a) On the basis of the representations and warranties, and
subject to the terms and conditions herein set forth, each of the Agents hereby
severally and not jointly agrees, as agent of the Company, to use its
reasonable efforts to solicit and receive offers to purchase the Securities
from the Company upon the terms and conditions set forth in the Prospectus as
amended or supplemented from time to time. So long as this Agreement shall
remain in effect with respect to any Agent, the Company shall not, without the
consent of such Agent, solicit or accept offers to purchase, or sell, any of
the Company's debt securities with a maturity at the time of original issuance
of 9 months to 30 years except pursuant to this Agreement, any Terms Agreement,
or except pursuant to a private placement not constituting a public offering
under the Act or except in connection with a firm commitment underwriting
pursuant to an underwriting agreement that does not provide for a continuous
offering of medium-term debt securities. However, the Company reserves the
right to sell, and may solicit and accept offers to purchase, Securities
directly on its own behalf, and, in the case of any such sale not resulting
from a solicitation made by any Agent, no commission will be payable with
respect to such sale. These provisions shall not limit Section 4(f) hereof or
any similar provision included in any Terms Agreement.
Procedural details relating to the issue and delivery of Securities,
the solicitation of offers to purchase Securities and the payment in each case
therefor shall be as set forth in the Administrative Procedures attached hereto
as Annex II as they may be amended from time to time by written agreement
between the Agents and the Company (the "Administrative Procedures"). The
provisions of the Administrative Procedures shall apply to all transactions
contemplated hereunder other than those made pursuant to a Terms Agreement.
Each Agent and the Company agree to perform the respective duties and
obligations specifically provided to be performed by each of them in the
Administrative Procedures. The Company will furnish to the Trustee a copy of
the Administrative Procedures as from time to time in effect.
The Company reserves the right, in its sole discretion, to instruct
the Agents to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase the Securities. As soon as practicable, but
in any event not later than one business day in New York City, after receipt of
notice from the Company, the Agents will suspend solicitation of offers to
purchase Securities from the Company until such time as the
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Company has advised the Agents that such solicitation may be resumed.
The Company agrees to pay each Agent a commission (which may be in
the form of a discount), at the time of settlement of any sale of a Security by
the Company as a result of a solicitation made by such Agent, in an amount
equal to the following applicable percentage of the principal amount of such
Security sold:
Commission
(percentage of
aggregate
principal amount
Range of Maturities of Securities sold)
------------------- -------------------
From 9 months to less than 1 year . . . . .125%
From 1 year to less than 18 months. . . . .150%
From 18 months to less than 2 years . . . .200%
From 2 years to less than 3 years . . . . .250%
From 3 years to less than 4 years . . . . .350%
From 4 years to less than 5 years . . . . .450%
From 5 years to less than 6 years . . . . .500%
From 6 years to less than 7 years . . . . .550%
From 7 years to less than 10 years . . . .600%
From 10 years to less than 15 years . . . .625%
From 15 years to less than 20 years . . . .675%
From 20 years to less than 30 years . . . .750%
(b) Each sale of Securities to any Agent as principal shall be made
in accordance with the terms of this Agreement and (unless the Company and such
Agent shall otherwise agree) a Terms Agreement which will provide for the sale
of such Securities to, and the purchase thereof by, such Agent. A Terms
Agreement may also specify certain provisions relating to the reoffering of
such Securities by such Agent. The commitment of any Agent to purchase
Securities as principal, whether pursuant to any Terms Agreement or otherwise,
shall be deemed to have been made on the basis of the representations and
warranties of the Company herein contained and shall be subject to the terms
and conditions herein set forth. Each Terms Agreement shall specify the
principal amount of Securities to be purchased by any Agent pursuant thereto,
the price to be paid to the Company for such Securities, any provisions
relating to rights of, and default by, underwriters acting together with such
Agent in the reoffering of the Securities and the time and date and place of
delivery of and payment for such Securities. Such Terms Agreement shall also
specify any requirements for opinions of counsel, accountants' letters and
officers' certificates pursuant to Section 4 hereof.
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For each sale of Securities to an Agent as principal that is not
made pursuant to a Terms Agreement, the procedural details relating to the
issue and delivery of such Securities and payment therefor shall be as set
forth in the Administrative Procedures. For each such sale of Securities to an
Agent as principal that is not made pursuant to a Terms Agreement, the Company
agrees to pay such Agent a Commission (or grant an equivalent discount) as
provided in Section 2(a) hereof and in accordance with the schedule set forth
therein.
Each time and date of delivery of and payment for Securities to be
purchased by an Agent as principal, whether set forth in a Terms Agreement or
in accordance with the Administrative Procedures is referred to herein as a
"Time of Delivery".
(c) Each Agent agrees, with respect to any Security denominated in
a currency other than U.S. dollars, as agent, directly or indirectly, not to
solicit offers to purchase, and as principal under any Terms Agreement or
otherwise, directly or indirectly, not to offer, sell or deliver, such Security
in, or to residents of, the country issuing such currency, except as permitted
by applicable law.
3. The documents required to be delivered pursuant to Section 6
hereof on the Commencement Date (as defined below) shall be delivered to the
Agents at the offices of the Company, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ at 10:00 a.m., Milwaukee time, on the date of this Agreement,
which date and time of such delivery may be postponed by agreement between the
Agents and the Company but in no event shall be later than the day prior to the
date on which solicitation of offers to purchase Securities is commenced or on
which any Terms Agreement is executed (such time and date being referred to
herein as the "Commencement Date").
4. The Company covenants and agrees with each Agent:
(a) (i) To make no amendment or supplement to the Registration
Statement or the Prospectus (A) prior to the Commencement Date which shall
be disapproved by any Agent promptly after reasonable notice thereof or
(B) after the date of any Terms Agreement or other agreement by an Agent
to purchase Securities as principal and prior to the related Time of
Delivery which shall be disapproved by any Agent party to such Terms
Agreement or so purchasing as principal promptly after reasonable notice
thereof; (ii) to prepare, with respect to any Securities to be sold
through or to such Agent pursuant to this Agreement, a Pricing Supplement
with respect to such Securities in a form previously approved by such
Agent and to file such Pricing Supplement pursuant to Rule 424(b) within
the applicable time period prescribed for such filing by the rules and
regulations under the Act and
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in accordance with Section 5(a) hereof; (iii) to make no amendment or
supplement to the Registration Statement or Prospectus, other than any
Pricing Supplement, at any time prior to having afforded each Agent a
reasonable opportunity to review and comment; (iv) to file promptly all
reports and any definitive proxy or information statements required to be
filed by the Company with the Commission pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act for so long as the delivery of a
prospectus is required in connection with the offering or sale of the
Securities, and during such same period to advise such Agent, promptly
after the Company receives notice thereof, of the time when any amendment
to the Registration Statement has been filed or has become effective or
any supplement to the Prospectus or any amended Prospectus (other than any
Pricing Supplement that relates to Securities not purchased through or by
such Agent) has been filed with the Commission, of the issuance by the
Commission of any stop order or of any order preventing or suspending the
use of any prospectus relating to the Securities, of the suspension of the
qualification of the Securities for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such purpose,
or of any request by the Commission for the amendment or supplement of the
Registration Statement or Prospectus or for additional information; and
(v) in the event of the issuance of any such stop order or of any such
order preventing or suspending the use of any such prospectus or
suspending any such qualification, to use promptly its best efforts to
obtain its withdrawal;
(b) Promptly from time to time to take such action as such Agent
may reasonably request to qualify the Securities for offering and sale
under the securities laws of such jurisdictions as such Agent may request
and to comply with such laws so as to permit the continuance of sales and
dealings therein for as long as may be necessary to complete the
distribution or sale of the Securities; provided, however, that in
connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process in
any jurisdiction;
(c) To furnish such Agent with copies of the Registration Statement
and each amendment thereto, with copies of the Prospectus as each time
amended or supplemented, other than any Pricing Supplement (except as
provided in the Administrative Procedures), in the form in which it is
filed with the Commission pursuant to Rule 424 under the Act, and with
copies of the documents incorporated by reference therein, all in such
quantities as such Agent may reasonably request from time to time; and, if
the delivery of a prospectus is required at any time in connection with
the offering or sale of the Securities (including Securities
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purchased from the Company by such Agent as principal) and if at such time
any event shall have occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if for
any other reason it shall be necessary during such same period to amend or
supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the
Act, the Exchange Act or the Trust Indenture Act, to notify such Agent and
request such Agent, in its capacity as agent of the Company, to suspend
solicitation of offers to purchase Securities from the Company (and, if so
notified, such Agent shall cease such solicitations as soon as
practicable, but in any event not later than one business day later); and
if the Company shall decide to amend or supplement the Registration
Statement or the Prospectus as then amended or supplemented, to so advise
such Agent promptly by telephone (with confirmation in writing) and to
prepare and cause to be filed promptly with the Commission an amendment or
supplement to the Registration Statement or the Prospectus as then amended
or supplemented that will correct such statement or omission or effect
such compliance; provided, however, that if during such same period such
Agent continues to own Securities purchased from the Company by such Agent
as principal or such Agent is otherwise required to deliver a prospectus
in respect of transactions in the Securities, the Company shall promptly
prepare and file with the Commission such an amendment or supplement;
(d) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)),
an earning statement of the Company and its subsidiaries (which need not
be audited) complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including, at the option of the
Company, Rule 158);
(e) So long as any Securities are outstanding, to furnish to such
Agent copies of all reports or other communications (financial or other)
furnished to stockholders, and deliver to such Agent (i) as soon as they
are available, copies of any reports and financial statements furnished to
or filed with the Commission or any national securities exchange on which
any class of securities of the Company is listed; and (ii) such additional
information concerning the business and financial condition of the Company
as such Agent may from time to time reasonably request (such ▇▇▇▇▇-
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cial statements to be on a consolidated basis to the extent the accounts
of the Company and its subsidiaries are consolidated in reports
furnished to its stockholders generally or to the Commission);
(f) That, from the date of any Terms Agreement with such Agent or
other agreement by such Agent to purchase Securities as principal and
continuing to and including the earlier of (i) the termination of the
trading restrictions for the Securities purchased thereunder, as notified
to the Company by such Agent and (ii) the related Time of Delivery, not to
offer, sell, contract to sell or otherwise dispose of any debt securities
of the Company which both mature more than 9 months after such Time of
Delivery and are substantially similar to the Securities, without the
prior written consent of such Agent;
(g) That each acceptance by the Company of an offer to purchase
Securities hereunder (including any purchase by such Agent as principal
not pursuant to a Terms Agreement), and each execution and delivery by the
Company of a Terms Agreement with such Agent, shall be deemed to be an
affirmation to such Agent that the representations and warranties of the
Company contained in or made pursuant to this Agreement are true and
correct as of the date of such acceptance or of such Terms Agreement, as
the case may be, as though made at and as of such date, and an undertaking
that such representations and warranties will be true and correct as of
the settlement date for the Securities relating to such acceptance or as
of the Time of Delivery relating to such sale, as the case may be, as
though made at and as of such date (except that such representations and
warranties shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented relating to such Securities);
(h) That reasonably in advance of each time the Registration
Statement or the Prospectus shall be amended or supplemented (other than
by a Pricing Supplement) and each time a document filed under the Act or
the Exchange Act is incorporated by reference into the Prospectus, and
each time the Company sells Securities to such Agent as principal pursuant
to a Terms Agreement and such Terms Agreement specifies the delivery of an
opinion or opinions by Sidley & Austin, counsel to the Agents, as a
condition to the purchase of Securities pursuant to such Terms Agreement,
the Company shall furnish to such counsel such papers and information as
they may reasonably request to enable them to furnish to such Agent the
opinion or opinions referred to in Section 6(b) hereof;
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(i) That each time the Registration Statement or the Prospectus
shall be amended or supplemented (other than by a Pricing Supplement),
each time a document filed under the Act or the Exchange Act is
incorporated by reference into the Prospectus and each time the Company
sells Securities to such Agent as principal pursuant to a Terms Agreement
and such Terms Agreement specifies the delivery of an opinion under this
Section 4(i) as a condition to the purchase of Securities pursuant to such
Terms Agreement, the Company shall furnish or cause to be furnished
forthwith to such Agent a written opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇, S.C., counsel
for the Company, or other counsel for the Company satisfactory to such
Agent, dated the date of such amendment, supplement, incorporation or Time
of Delivery relating to such sale, as the case may be, in form
satisfactory to such Agent, to the effect that such Agent may rely on the
opinion of such counsel referred to in Section 6(c) hereof which was last
furnished to such Agent to the same extent as though it were dated the
date of such letter authorizing reliance (except that the statements in
such last opinion shall be deemed to relate to the Registration Statement
and the Prospectus as amended and supplemented to such date) or, in lieu
of such opinion, an opinion of the same tenor as the opinion of such
counsel referred to in Section 6(c) hereof but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented to
such date;
(j) That each time the Registration Statement or the Prospectus
shall be amended or supplemented and each time that a document filed under
the Act or the Exchange Act is incorporated by reference into the
Prospectus, in either case to set forth financial information included in
or derived from the Company's consolidated financial statements or
accounting records, and each time the Company sells Securities to such
Agent as principal pursuant to a Terms Agreement and such Terms Agreement
specifies the delivery of a letter under this Section 4(i) as a condition
to the purchase of Securities pursuant to such Terms Agreement, the
Company shall cause the independent certified public accountants who have
certified the financial statements of the Company and its subsidiaries
included or incorporated by reference in the Registration Statement
forthwith to furnish such Agent a letter, dated the date of such
amendment, supplement, incorporation or Time of Delivery relating to such
sale, as the case may be, in form satisfactory to such Agent, of the same
tenor as the letter referred to in Section 6(d) hereof but modified to
relate to the Registration Statement and the Prospectus as amended or
supplemented to the date of such letter, with such changes as may be
necessary to reflect changes in the financial statements and other
information derived from the accounting records of the Company, to the
extent such financial statements and other
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information are available as of a date not more than five business days
prior to the date of such letter; provided, however, that, with respect to
any financial information or other matter, such letter may reconfirm as
true and correct at such date as though made at and as of such date,
rather than repeat, statements with respect to such financial information
or other matter made in the letter referred to in Section 6(d) hereof
which was last furnished to such Agent;
(k) That each time the Registration Statement or the Prospectus
shall be amended or supplemented (other than by a Pricing Supplement),
each time a document filed under the Act or the Exchange Act is
incorporated by reference into the Prospectus, and each time the Company
sells Securities to such Agent as principal and the applicable Terms
Agreement specifies the delivery of a certificate under this Section 4(k)
as a condition to the purchase of Securities pursuant to such Terms
Agreement, the Company shall furnish or cause to be furnished forthwith to
such Agent a certificate of two executive officers of the Company, dated
the date of such supplement, amendment, incorporation or Time of Delivery
relating to such sale, as the case may be, in such form and executed by
such officers of the Company as shall be satisfactory to such Agent, to
the effect that the statements contained in the certificate referred to in
Section 6(g) hereof which was last furnished to such Agent are true and
correct at such date as though made at and as of such date (except that
such statements shall be deemed to relate to the Registration Statement
and the Prospectus as amended and supplemented to such date) or, in lieu
of such certificate, certificates of the same tenor as the certificates
referred to in said Section 6(g) but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented to
such date; and
(l) To offer to any person who has agreed to purchase Securities as
the result of an offer to purchase solicited by such Agent the right to
refuse to purchase and pay for such Securities if, on the related
settlement date fixed pursuant to the Administrative Procedures, any
condition set forth in Section 6(a), 6(e) or 6(f) hereof shall not have
been satisfied (it being understood that the judgment of such person with
respect to the impracticability or inadvisability of such purchase of
Securities shall be substituted, for purposes of this Section 4(1), for
the respective judgments of an Agent with respect to certain matters
referred to in such Sections 6(a), 6(e) and 6(f), and that such Agent
shall have no duty or obligation whatsoever to exercise the judgment
permitted under such Sections 6(a), 6(e) and 6(f) on behalf of any such
person).
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5. The Company covenants and agrees with each Agent that the
Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus, the Prospectus and any
Pricing Supplements and all other amendments and supplements thereto and the
mailing and delivering of copies thereof to such Agent; (ii) the fees,
disbursements and expenses of counsel for the Agents in connection with the
establishment of the program contemplated hereby, any opinions to be rendered
by such counsel hereunder and under any Terms Agreement and the transactions
contemplated hereunder and under any Terms Agreement; (iii) the cost of
printing, producing or reproducing this Agreement, any Terms Agreement, any
Indenture, any Blue Sky and Legal Investment Memoranda and any other documents
in connection with the offering, purchase, sale and delivery of the Securities;
(iv) all expenses in connection with the qualification of the Securities for
offering and sale under state securities laws as provided in Section 4(b)
hereof, including the fees and disbursements of counsel for the Agents in
connection with such qualification and in connection with the Blue Sky and
legal investment surveys; (v) any fees charged by securities rating services
for rating the Securities; (vi) any filing fees incident to any required review
by the National Association of Securities Dealers, Inc. of the terms of the
sale of the Securities; (vii) the cost of preparing the Securities; (viii) the
fees and expenses of any Trustee and any agent of any Trustee and any transfer
or paying agent of the Company and the fees and disbursements of counsel for
any Trustee or such agent in connection with any Indenture and the Securities;
(ix) any advertising expenses connected with the solicitation of offers to
purchase and the sale of Securities so long as such advertising expenses have
been approved by the Company; and (x) all other costs and expenses incident to
the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. Except as provided in Sections 7
and 8 hereof, each Agent shall pay all other expenses it incurs.
6. The obligation of any Agent, as agent of the Company, at any
time ("Solicitation Time") to solicit offers to purchase the Securities and the
obligation of any Agent to purchase Securities as principal, pursuant to any
Terms Agreement or otherwise, shall in each case be subject, in such Agent's
discretion, to the condition that all representations and warranties and other
statements of the Company herein (and, in the case of an obligation of an Agent
under a Terms Agreement, in or incorporated in such Terms Agreement by
reference) are true and correct at and as of the Commencement Date and any
applicable date referred to in Section 4(k) hereof that is prior to such
Solicitation Time or Time of Delivery, as the case may be, and at
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and as of such Solicitation Time or Time of Delivery, as the case may be, the
condition that prior to such Solicitation Time or Time of Delivery, as the case
may be, the Company shall have performed all of its obligations hereunder
theretofore to be performed, and the following additional conditions:
(a)(i) With respect to any Securities sold at or prior to such
Solicitation Time or Time of Delivery, as the case may be, the Prospectus
as amended or supplemented (including the Pricing Supplement) with respect
to such Securities shall have been filed with the Commission pursuant to
Rule 424(b) under the Act within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in accordance
with Section 4(a) hereof, (ii) no stop order suspending the effectiveness
of the Registration Statement shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by the Commission;
and (iii) all requests for additional information on the part of the
Commission shall have been complied with to the reasonable satisfaction of
such Agent;
(b) Sidley & Austin, counsel to the Agents, shall have furnished to
such Agent (i) such opinion or opinions, dated the Commencement Date, with
respect to the incorporation of the Company, this Agreement, the validity
of the Indenture, the Securities, the Registration Statement, the
Prospectus as amended or supplemented and other related matters as such
Agent may reasonably request, and (ii) if and to the extent requested by
such Agent, with respect to each applicable date referred to in Section
4(h) hereof that is on or prior to such Solicitation Time or Time of
Delivery, as the case may be, an opinion or opinions, dated such
applicable date, to the effect that such Agent may rely on the opinion or
opinions which were last furnished to such Agent pursuant to this Section
6(b) to the same extent as though it or they were dated the date of such
letter authorizing reliance (except that the statements in such last
opinion or opinions shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to such date) or,
in any case, in lieu of such an opinion or opinions, an opinion or
opinions of the same tenor as the opinion or opinions referred to in
clause (i) but modified to relate to the Registration Statement and the
Prospectus as amended and supplemented to such date; and in each case such
counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(c) ▇▇▇▇▇▇▇ & ▇▇▇▇, S.C., counsel for the Company, or other counsel
for the Company satisfactory to such Agent, shall have furnished to such
Agent their written opinions, dated the Commencement Date and each
applicable date
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referred to in Section 4(1) hereof that is on or prior to such
Solicitation Time or Time of Delivery, as the case may be, in form and
substance satisfactory to such Agent, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing (meaning it has filed its
most recent annual report and has not filed articles of dissolution)
under the laws of the State of Wisconsin, with power and authority
(corporate and other) to own its properties and conduct its business
as described in the Prospectus as amended or supplemented;
(ii) The Company has an authorized capitalization as set forth
in the Prospectus as amended or supplemented and all of the issued
shares of capital stock of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable (except
to the extent provided in Section 180.0622(2)(b) of the Wisconsin
Business Corporation Law);
(iii) The Company has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties, or conducts any business so as to require such
qualification or is subject to no material liability or disability
by reason of the failure to be so qualified in any jurisdiction;
(iv) M&I Bank has been incorporated and is validly existing as
a banking corporation in good standing under the laws of the State
of Wisconsin; all of the issued shares of capital stock of M&I Bank
have been duly and validly authorized and issued, are fully paid and
non-assessable (except to the extent provided in Section 220.07 of
the Wisconsin Statutes), and are owned directly by the Company, free
and clear of any perfected security interests and, to the knowledge
of such counsel, after due inquiry, any other liens, encumbrances,
equities or claims;
(v) To the best of such counsel's knowledge and other than as
set forth in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries
is a party or to which any property of the Company or any of its
subsidiaries is subject, which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the consolidated
financial position, shareholders'
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equity or results of operations of the Company and its subsidiaries
and, to the best of such counsel's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or
threatened by others;
(vi) This Agreement and any applicable Terms Agreement have
been duly authorized, executed and delivered by the Company;
(vii) The Securities have been duly authorized and, when duly
executed, authenticated, issued and delivered by the Company, will
constitute valid, legally binding and enforceable obligations of the
Company entitled to the benefits provided by the Indenture (subject,
however, as to enforcement of such obligations, to the limitation
set forth in the following paragraph); and the Indenture conforms
and the Securities will conform to the descriptions thereof in the
Prospectus as amended or supplemented;
(viii) The Indenture has been duly authorized, executed and
delivered by the parties thereto and constitutes a valid and legally
binding instrument, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to
or affecting creditors' rights and to general equity principles; and
the Indenture has been duly qualified under the Trust Indenture Act;
(ix) The issue and sale of the Securities, the compliance by
the Company with all of the provisions of the Securities, the
Indenture, this Agreement and any applicable Terms Agreement and the
consummation of the transactions herein and therein contemplated
will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the Company
is a party or by which the Company is bound or to which any of the
property or assets of the Company is subject, nor will such action
result in any violation of the provisions of the Amended and
Restated Articles of Incorporation of the Company or the By-Laws, as
amended, of the Company or any statute or any order, rule or
regulation known to such counsel of any court or governmental agency
or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties;
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(x) No consent, approval, authorization, order, registration
or qualification of or with any court or governmental agency or body
is required for the solicitation of offers to purchase Securities,
the issue and sale of the Securities or the consummation by the
Company of the other transactions contemplated by this Agreement,
any applicable Terms Agreement, or the Indenture, except such as
have been obtained under the Act and the Trust Indenture Act and
such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky
laws in connection with the solicitation by the Agents of offers to
purchase Securities from the Company and with purchases of
Securities by an Agent as principal, as the case may be, in each
case in the manner contemplated hereby;
(xi) The documents incorporated by reference in the Prospectus
(other than the financial statements and related schedules therein,
as to which such counsel need express no opinion), when they became
effective or were filed with the Commission, as the case may be,
complied as to form in all material respects with the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder; and they have no reason to
believe that any of such documents, when they became effective or
were so filed, as the case may be, contained, in the case of a
registration statement which became effective under the Act, an
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading, and, in the case of other
documents which were filed under the Act or the Exchange Act with
the Commission, an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made when such documents were so filed, not misleading; and
(xii) The Registration Statement and the Prospectus as amended
and supplemented and any further amendments and supplements thereto
made by the Company prior to the date of such opinion (other than
the financial statements and related schedules therein, as to which
such counsel need express no opinion) comply as to form in all
material respects with the requirements of the Act and the Trust
Indenture Act and the rules and regulations thereunder; they have no
reason to believe that, as of the effective date, the Registration
Statement or any further amendment or supplement thereto made by the
Company prior to the
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date of such opinion (other than the financial statements and
related schedules therein, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that, as of the
date of such opinion, the Prospectus as amended or supplemented or
any further amendment or supplement thereto made by the Company
prior to the date of such opinion (other than the financial
statements and related schedules therein, as to which such counsel
need express no opinion) contained an untrue statement of a material
fact or omitted to state a material fact necessary to make the
statements therein, in light of the circumstances in which they were
made, not misleading; and they do not know of any amendment to the
Registration Statement required to be filed or any contracts or
other documents of a character required to be filed as an exhibit to
the Registration Statement or required to be incorporated by
reference into the Prospectus as amended or supplemented or required
to be described in the Registration Statement or the Prospectus as
amended or supplemented which are not filed or incorporated by
reference or described as required.
In rendering its opinion, ▇▇▇▇▇▇▇ & ▇▇▇▇, S.C., shall be entitled to rely as to
matters involving subsidiaries of the Company on the opinions of local counsel
and as to matters of fact upon certificates of officers of the Company,
provided, in each case, that such counsel shall state that they believe that
both the Agents and they are justified in relying upon such opinions and
certificates.
(d) Not later than 10:00 a.m., New York City time, on the
Commencement Date and on each applicable date referred to in Section 4(j)
hereof that is on or prior to such Solicitation Time or Time of Delivery,
as the case may be, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Co. or such other independent
certified public accountants who have certified the financial statements
of the Company and its subsidiaries included or incorporated by reference
in the Registration Statement shall have furnished to such Agent a letter,
dated the Commencement Date or such applicable date, as the case may be,
in form and substance satisfactory to such Agent, to the effect set forth
in Annex III hereto.
(e)(i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended or
supplemented any loss or interference with its business from fire,
explosion, flood
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or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than
as set forth or contemplated in the Prospectus as amended or supplemented
and (ii) since the respective dates as of which information is given in
the Prospectus as amended or supplemented there shall not have been any
change in the capital stock or long-term debt of the Company or any of its
subsidiaries (other than changes in connection with the redemption,
conversion or exchange of the NML Note, or in the principal amount of the
outstanding Series B Notes, the outstanding Series C Notes, or the
outstanding Bank Notes, or any change, or any development involving a
prospective change, in or affecting the general affairs, management,
financial position, shareholders' equity or results of operations of the
Company and its subsidiaries, otherwise than as set forth or contemplated
in the Prospectus as amended or supplemented, the effect of which, in any
such case described in clause (i) or (ii), is in the judgment of such
Agent so material and adverse as to make it impracticable or inadvisable
to proceed with the solicitation by such Agent of offers to purchase
Securities from the Company or the purchase by such Agent of Securities
from the Company as principal, as the case may be, on the terms and in the
manner contemplated in the Prospectus as amended or supplemented;
(f) There shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on
the New York Stock Exchange; (ii) a general moratorium on commercial
banking activities in New York declared by either Federal or New York
State authorities; (iii) outbreak or escalation of hostilities involving
the United States or the declaration by the United States of a national
emergency or war, if the effect of any such event specified in this clause
(iii) in the judgment of such Agent makes it impracticable or inadvisable
to proceed with the solicitation of offers to purchase Securities or the
purchase of Securities from the Company as principal, pursuant to the
applicable Terms Agreement or otherwise, as the case may be, on the terms
and in the manner contemplated by the Prospectus as amended or
supplemented; (iv) any downgrading in the rating accorded the Company's
debt securities by any "nationally recognized statistical rating
organization", as that term is defined by the Commission for purposes of
Rule 436(g)(2) under the Act; or (v) no such organization shall have
publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Company's debt securities;
and
(g) The Company shall have furnished or caused to be furnished to
such Agent certificates of two executive officers of the Company dated the
Commencement Date and each
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applicable date referred to in Section 4(k) hereof that is on or prior to
such Solicitation Time or Time of Delivery, as the case may be, in such
form and executed by such officers of the Company as shall be satisfactory
to such Agent, as to the accuracy of the representations and warranties of
the Company herein at and as of the Commencement Date or such applicable
date, as the case may be, as to the performance by the Company of all of
its obligations hereunder to be performed at or prior to the Commencement
Date or such applicable date, as the case may be, as to the matters set
forth in subsections (a) and (e) of this Section 6, and as to such other
matters as such Agent may reasonably request.
7. (a) The Company will indemnify and hold harmless each Agent
against any losses, claims, damages or liabilities, joint or several, to which
such Agent may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement, the Prospectus, the Prospectus as amended or supplemented or any
other prospectus relating to the Securities, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse such Agent for
any legal or other expenses reasonably incurred by it in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration
Statement, the Prospectus, the Prospectus as amended or supplemented or any
other prospectus relating to the Securities, or any such amendment or
supplement, in reliance upon and in conformity with written information
furnished to the Company by such Agent expressly for use therein.
(b) Each Agent will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, the Registration Statement, the Prospectus, the
Prospectus as amended or supplemented or any other prospectus relating to the
Securities, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the
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statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in any Preliminary Prospectus, the Registration
Statement, the Prospectus, the Prospectus as amended or supplemented or any
other prospectus relating to the Securities, or any such amendment or
supplement, in reliance upon and in conformity with written information
furnished to the Company by such Agent expressly for use therein; and will
reimburse the Company for any legal or other expenses reasonably incurred by
the Company in connection with investigating or defending any such action or
claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation.
(d) If the indemnification provided for in this Section 7 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and each Agent on
the other from the offering of the Securities to which such loss, claim, damage
or liability (or action in respect thereof) relates. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnify-
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ing party shall contribute to such amount paid or payable by such indemnified
party in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand and each
Agent on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and each Agent on the other
shall be deemed to be in the same proportion as the total net proceeds from the
sale of Securities (before deducting expenses) received by the Company bear to
the total commissions or discounts received by such Agent in respect thereof.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact required to be stated
therein or necessary in order to make the statements therein not misleading
relates to information supplied by the Company on the one hand or by any Agent
on the other and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company
and each Agent agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by per capita allocation (even
if all Agents were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subsection (d), an Agent shall not be required to contribute any amount in
excess of the amount by which the total public offering price at which the
Securities purchased by or through it were sold exceeds the amount of any
damages which such Agent has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The obligations of each of the Agents
under this subsection (d) to contribute are several in proportion to the
respective purchases made by or through it to which such loss, claim, damage or
liability (or action in respect thereof) relates and are not joint.
(e) The obligations of the Company under this Section 7 shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Agent within the
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meaning of the Act; and the obligations of each Agent under this Section 7
shall be in addition to any liability which such Agent may otherwise have and
shall extend, upon the same terms and conditions, to each officer and director
of the Company and to each person, if any, who controls the Company within the
meaning of the Act.
8. Each Agent, in soliciting offers to purchase Securities from the
Company and in performing the other obligations of such Agent hereunder (other
than in respect of any purchase by an Agent as principal, pursuant to a Terms
Agreement or otherwise), is acting solely as agent for the Company and not as
principal. Each Agent will make reasonable efforts to assist the Company in
obtaining performance by each purchaser whose offer to purchase Securities from
the Company was solicited by such Agent and has been accepted by the Company,
but such Agent shall not have any liability to the Company in the event such
purchase is not consummated for any reason. If the Company shall default on
its obligation to deliver Securities to a purchaser whose offer it has
accepted, the Company shall (i) hold each Agent harmless against any loss,
claim or damage arising from or as a result of such default by the Company and
(ii) notwithstanding such default, pay to the Agent that solicited such offer
any commission to which it would be entitled in connection with such sale.
9. The respective indemnities, agreements, representations,
warranties and other statements by any Agent and the Company set forth in or
made pursuant to this Agreement shall remain in full force and effect
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Agent or any controlling person of any Agent, or
the Company, or any officer or director of any controlling person of the
Company, and shall survive each delivery of and payment for any of the
Securities.
10. The provisions of this Agreement relating to the solicitation
of offers to purchase Securities from the Company may be suspended or
terminated at any time by the Company as to any Agent or by any Agent as to
such Agent upon the giving of written notice of such suspension or termination
to such Agent or the Company, as the case may be. In the event of such
suspension or termination with respect to any Agent, (x) this Agreement shall
remain in full force and effect with respect to any Agent as to which such
suspension or termination has not occurred, (y) this Agreement shall remain in
full force and effect with respect to the rights and obligations of any party
which have previously accrued or which relate to Securities which are already
issued, agreed to be issued or the subject of a pending offer at the time of
such suspension or termination and (z) in any event, this Agreement shall
remain in full force and effect insofar as the
-25-
26
fourth paragraph of Section 2(a) and Sections 4(d), 4(e), 5, 7, 8 and 9 hereof
are concerned.
11. Except as otherwise specifically provided herein or in the
Administrative Procedure, all statements, requests, notices and advices
hereunder shall be in writing, or by telephone if promptly confirmed in
writing, shall be sufficient in all respects when delivered or sent by
facsimile transmission or registered mail to a party at the address shown on
Exhibit A hereto.
12. This Agreement and any Terms Agreement shall be binding upon,
and inure solely to the benefit of, each Agent and the Company, and to the
extent provided in Sections 7, 8 and 9 hereof, the officers and directors of
the Company and any person who controls any Agent or the Company, and their
respective personal representatives, successors and assigns, and no other
person shall acquire or have any right under or by virtue of this Agreement or
any Terms Agreement. No purchaser of any of the Securities through or from any
Agent hereunder shall be deemed a successor or assign by reason of such
purchase.
13. Time shall be of the essence in this Agreement and any Terms
Agreement. As used herein, the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
14. This Agreement and any Terms Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York.
15. This Agreement and any Terms Agreement may be executed by any
one or more of the parties hereto and thereto in any number of counterparts,
each of which shall be an original, but all of such respective counterparts
shall together constitute one and the same instrument.
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: Secretary
-26-
27
Accepted as of the date
hereof:
▇▇▇▇▇▇▇, Sachs & Co. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc.
/s/ ▇▇▇▇▇▇▇, Sachs & Co. By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------ ---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
Salomon Brothers, Inc ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co.
Incorporated
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President ---------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: First Vice President
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc.
First Chicago Capital
Markets Inc.
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By:/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director-Corporate Finance ---------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ Brothers Title: Vice President
▇▇▇▇▇▇ Brothers Inc.
By:/s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
▇.▇. ▇▇▇▇▇▇ Securities, Inc.
By:/s/ ▇▇▇▇▇▇ ▇. Post
---------------------------
Name: ▇▇▇▇▇▇ ▇. Post
Title: Vice President
-27-
28
EXHIBIT A
▇▇▇▇▇▇▇▇ & Ilsley Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: 414/▇▇▇-▇▇▇▇
Attention: Secretary
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Two ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Station 8566
Fax 212/▇▇▇-▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Credit Department Fax: ___________________
Attention: _____________
Salomon Brothers Inc
Seven World Trade Center ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co.
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Incorporated
Fax: ___________________ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇.
Attention: _____________ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ___________________
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc. Attention: _____________
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ First Chicago Capital Markets
Fax: ___________________ Inc.
Attention: _____________ Equitable Building
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Brothers Inc. Fax: ___________________
3 World Financial Center Attention: _____________
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax: ___________________
Attention: _____________
▇.▇. ▇▇▇▇▇▇ Securities, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax: ___________________
Attention: _____________
-28-
29
ANNEX I
▇▇▇▇▇▇▇▇ & ILSLEY CORPORATION
Medium-Term Notes
Terms Agreement
__________, 199
[▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. [▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇] Station ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇]
[Salomon Brothers Inc
Seven World Trade Center [▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & ▇▇.
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇] Incorporated
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇.
[▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc. ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇]
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇] [First Chicago Capital Markets
Inc.
[▇▇▇▇▇▇ Brothers Equitable Building
▇▇▇▇▇▇ Brothers Inc. ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
3 World Financial Center New York, New York 10019]
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇]
[▇.▇. ▇▇▇▇▇▇ Securities, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇]
Dear Sirs:
▇▇▇▇▇▇▇▇ & Ilsley Corporation (the "Company") proposes,
subject to the terms and conditions stated herein and in the Distribution
Agreement, dated December 27, 1995 (the "Distribution Agreement"), between the
Company on the one hand and ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., Salomon Brothers Inc, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc., ▇▇▇▇▇▇ Brothers Inc., ▇.▇. ▇▇▇▇▇▇ Securities, Inc.,
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc., ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated and First
Chicago Capital Markets Inc., and M & I Brokerage Services, Inc. (the "Agents")
on the other, to issue and sell to [▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., Salomon Brothers Inc,
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc., ▇▇▇▇▇▇ Brothers Inc., ▇.▇. ▇▇▇▇▇▇ Securities, Inc.,
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc., ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated and First
Chicago Capital Markets Inc.] 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
I-1
30
if such provisions had been set forth in full herein. Nothing contained herein
or in the Distribution Agreement shall make any party hereto an 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 therein 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 1 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), and also a representation and warranty as of the date of this Terms
Agreement in relation to the Prospectus as amended and supplemented to relate
to 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 from the
Company the Purchased Securities, at the time and place, in the principal
amount and at the purchase price set forth in the Schedule hereto.
I-2
31
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.
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ CORPORATION
By:________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
Title: Executive Vice President
Accepted as of the date
hereof:
[Agents]
I-3
32
Schedule to Annex I
Title of Purchased Securities:
[ %] Medium-Term Notes
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 certified or official bank check or checks, payable to the other
of the Company, in [[New York] Clearing House][immediately available] funds]
[By wire transfer to a bank account specified by the Company in [next
day] [immediately available] funds]
Indenture:
Indenture, dated as of November 15, 1985, as amended, between the
Company and Chemical Bank (successor to Manufacturers Hanover Trust Company),
as Trustee
Time of Delivery:
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:
I-4
33
[(1) The opinion or opinions of counsel to the Agents referred to in
Section 4(h).]
[(2) The opinion of counsel to the Company referred to in Section 4(i).]
[(3) The accountants' letter referred to in Section 4(j).]
[(4) The officers' certificate referred to in Section 4(k).]
Other Provisions (including Syndicate Provisions, if applicable):
I-5
34
ANNEX II
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Corporation
Administrative Procedures
This Administrative Procedure relates to the Securities
defined in the Distribution Agreement, dated December 27, 1995 (the
"Distribution Agreement"), between ▇▇▇▇▇▇▇▇ & Ilsley Corporation (the
"Company") and ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., Salomon Brothers Inc, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Inc., ▇▇▇▇▇▇ Brothers, ▇▇▇▇▇▇ Brothers Inc., ▇.▇. ▇▇▇▇▇▇ Securities, Inc.,
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc., ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated and First
Chicago Capital Markets Inc. (together, the "Agents"), to which this
Administrative Procedure is attached as Annex II. Defined terms used herein
and not defined herein shall have the meanings given such terms in the
Distribution Agreement, the Prospectus as amended or supplemented or the
Indenture.
The procedures to be followed with respect to the settlement
of sales of Securities directly by the Company to purchasers solicited by an
Agent, as agent, are set forth below. The terms and settlement details related
to a purchase of Securities by an Agent, as principal, from the Company will be
set forth in a Terms Agreement pursuant to the Distribution Agreement, unless
the Company and such Agent otherwise agree as provided in Section 2(b) of the
Distribution Agreement, in which case the procedures to be followed in respect
of the settlement of such sale will be as set forth below. An Agent, in
relation to a purchase of a Security by a purchaser solicited by such Agent, is
referred to herein as the "Selling Agent" and, in relation to a purchase of a
Security by such Agent as principal other than pursuant to a Terms Agreement,
as the "Purchasing Agent".
The Company will advise each Agent in writing of those persons
with whom such Agent is to communicate regarding offers to purchase Securities
and the related settlement details.
Each Security will be issued only in fully registered form and
will be represented by either a global security (a "Global Security") delivered
to the Trustee, as agent for The Depository Trust Company (the "Depositary")
and recorded in the book-entry system maintained by the Depositary (a
"Book-Entry Security") or a certificate issued in definitive form (a
"Certificated Security") delivered to a person designated by an Agent, as set
forth in the applicable Pricing Supplement. An owner of a Book-Entry Security
will not be entitled to receive a certificate representing such a Security,
except as provided in the Indenture.
Certificated Securities will be issued in accordance with the
Administrative Procedure set forth in Part I hereof, and
II-1
35
Book-Entry Securities will be issued in accordance with the Administrative
Procedure set forth in Part II hereof.
PART I: ADMINISTRATIVE PROCEDURE FOR CERTIFICATED SECURITIES
Posting Rates by Company:
The Company and the Agents will discuss from time to time the
rates of interest per annum to be borne by and the maturity of Certificated
Securities that may be sold as a result of the solicitation of offers by an
Agent. The Company may establish a fixed set of interest rates and maturities
for an offering period ("posting"). If the Company decides to change already
posted rates, it will promptly advise the Agents to suspend solicitation of
offers until the new posted rates have been established with the Agents.
Acceptance of Offers by Company:
Each Agent will promptly advise the Company by telephone or
other appropriate means of all reasonable offers to purchase Certificated
Securities, other than those rejected by such Agent. Each Agent may, in its
discretion reasonably exercised, reject any offer received by it in whole or in
part. Each Agent also may make offers to the Company to purchase Certificated
Securities as a Purchasing Agent. The Company will have the sole right to
accept offers to purchase Certificated Securities and may reject any such offer
in whole or in part.
The Company will promptly notify the Selling Agent or
Purchasing Agent, as the case may be, of its acceptance or rejection of an
offer to purchase Certificated Securities. If the Company accepts an offer to
purchase Certificated Securities, it will confirm such acceptance in writing to
the Selling Agent or Purchasing Agent, as the case may be, and the Trustee.
Communication of Sale Information to Company by Selling Agent:
After the acceptance of an offer by the Company, the Selling
Agent or Purchasing Agent, as the case may be, will communicate the following
details of the terms of such offer (the "Sale Information") to the Company by
telephone (confirmed in writing) or by facsimile transmission or other
acceptable written means:
(1) Principal amount of Certificated Securities to be
purchased;
(2) If a Fixed Rate Certificated Security, the interest rate
and the initial interest payment date;
(3) Maturity Date;
II-2
36
(4) Specified Currency and, if the Specified Currency is
other than U.S. dollars, the applicable Exchange Rate for such Specified
Currency;
(5) Indexed Currency, the Base Rate and the Exchange Rate
Determination Date, if applicable;
(6) Issue Price;
(7) Selling Agent's commission or Purchasing Agent's
discount, as the case may be;
(8) Net proceeds to the Company;
(9) Settlement Date;
(10) If a redeemable Certificated Security, such of the
following as are applicable:
(i) Redemption Commencement Date,
(ii) Initial Redemption Price (% of par), and
(iii) Amount (% of par) that the Redemption Price
shall decline (but not below par) on each
anniversary of the Redemption Commencement
Date;
(11) If a Floating Rate Certificated Security, such of the
following as are applicable:
(i) Interest Rate Basis,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Interest Rate,
(vii) Interest Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Interest Payment Dates,
(xi) Regular Record Dates, and
(xii) Calculation Agent;
(12) Name, address and taxpayer identification number of the
registered owner(s);
(13) Denomination of certificates to be delivered at
settlement; and
(14) Book-Entry Security or Certificated Security.
Preparation of Pricing Supplement by Company:
If the Company accepts an offer to purchase a Certificated
Security, it will prepare a Pricing Supplement. The
II-3
37
Company will supply at least ten copies of such Pricing Supplement to the
Selling Agent or Purchasing Agent, as the case may be, not later than 5:00
p.m., New York City time, on the business day following the date of acceptance
of such offer, or if the Company and the purchaser agree to settlement on the
date of such acceptance, not later than noon, New York City time, on such date.
The Company will arrange to have ten Pricing Supplements filed with the
Commission not later than the close of business of the Commission on the fifth
business day following the date on which such Pricing Supplement is first used.
Delivery of Confirmation and Prospectus to Purchaser by Selling Agent:
The Selling Agent will deliver to the purchaser of a
Certificated Security a written confirmation of the sale and delivery and
payment instructions. In addition, the Selling Agent will deliver to such
purchaser or its agent the Prospectus as amended or supplemented (including the
Pricing Supplement) in relation to such Certificated Security prior to or
together with the earlier of the delivery to such purchaser or its agent of (a)
the confirmation of sale or (b) the Certificated Security.
Date of Settlement:
All offers solicited by a Selling Agent or made by a
Purchasing Agent and accepted by the Company will be settled on a date (the
"Settlement Date") which is the third business day after the date of acceptance
of such offer, unless the Company and the purchaser agree to settlement (a) on
any other business day after the acceptance of such offer or (b) with respect
to an offer accepted by the Company prior to 10:00 a.m., New York City time, on
the date of such acceptance.
Instruction from Company to Trustee for Preparation of Certificated Securities:
After receiving the Sale Information from the Selling Agent or
Purchasing Agent, as the case may be, the Company will communicate such Sale
Information to the Trustee by telephone (confirmed in writing) or by facsimile
transmission or other acceptable written means.
The Company will instruct the Trustee by facsimile
transmission or other acceptable written means to authenticate and deliver the
Certificated Securities no later than 2:15 p.m., New York City time, on the
Settlement Date. Such instruction will be given by the Company prior to 3:00
p.m., New York City time, on the business day prior to the Settlement Date
unless the Settlement Date is the date of acceptance by the Company of the
offer to purchase Certificated Securities in which case such instruction will
be given by the Company by 11:00 a.m., New York City time.
II-4
38
Preparation and Delivery of Certificated Securities by Trustee and Receipt of
Payment Therefor:
The Trustee will prepare each Certificated Security and
appropriate receipts that will serve as the documentary control of the
transaction.
In the case of a sale of Certificated Securities to a
purchaser solicited by an Agent, the Trustee will, by 2:15 p.m., New York City
time, on the Settlement Date, deliver the Certificated Securities to the
Selling Agent for the benefit of the purchaser of such Certificated Securities
against delivery by the Selling Agent of a receipt therefor. On the Settlement
Date the Selling Agent will deliver payment for such Certificated Securities in
immediately available funds to the Company in an amount equal to the issue
price of the Certificated Securities less the Selling Agent's commission;
provided that the Selling Agent reserves the right to withhold payment for
which it has not received funds from the purchaser. The Company shall not use
any proceeds advanced by a Selling Agent to acquire securities.
In the case of a sale of Certificated Securities to a
Purchasing Agent, the Trustee will, by 2:15 p.m., New York City time, on the
Settlement Date, deliver the Certificated Securities to the Purchasing Agent
against delivery of payment for such Certificated Securities in immediately
available funds to the Company in an amount equal to the issue price of the
Certificated Securities less the Purchasing Agent's discount.
Failure of Purchaser to Pay Selling Agent:
If a purchaser (other than a Purchasing Agent) fails to make
payment to the Selling Agent for a Certificated Security, the Selling Agent
will promptly notify the Trustee and the Company thereof by telephone
(confirmed in writing) or by facsimile transmission or other acceptable written
means. The Selling Agent will immediately return the Certificated Security to
the Trustee. Immediately upon receipt of such Certificated Security by the
Trustee, the Company will return to the Selling Agent an amount equal to the
amount previously paid to the Company in respect of such Certificated Security.
The Company will reimburse the Selling Agent on an equitable basis for its loss
of the use of funds during the period when they were credited to the account of
the Company.
The Trustee will cancel the Certificated Security in respect
of which the failure occurred, make appropriate entries in its records and,
unless otherwise instructed by the Company, destroy the Certificated Security.
PART II: ADMINISTRATIVE PROCEDURE FOR BOOK-ENTRY SECURITIES
In connection with the qualification of the Book-Entry
Securities for eligibility in the book-entry system maintained by
II-5
39
the Depositary, the Trustee will perform the custodial, document control and
administrative functions described below, in accordance with its respective
obligations under a Letter of Representation from the Company and the Trustee
to the Depositary, dated the date hereof, and a Medium-Term Note Certificate
Agreement between the Trustee and the Depositary, dated as of ___________ (the
"Certificate Agreement"), and its obligations as a participant in the
Depositary, including the Depositary's Same-Day Funds Settlement System
("SDFS").
Posting Rates by the Company:
The Company and the Agents will discuss from time to time the
rates of interest per annum to be borne by and the maturity of Book-Entry
Securities that may be sold as a result of the solicitation of offers by an
Agent. The Company may establish a fixed set of interest rates and maturities
for an offering period ("posting"). If the Company decides to change already
posted rates, it will promptly advise the Agents to suspend solicitation of
offers until the new posted rates have been established with the Agents.
Acceptance of Offers by the Company:
Each Agent will promptly advise the Company by telephone or
other appropriate means of all reasonable offers to purchase Securities, other
than those rejected by such Agent. Each Agent may, in its discretion
reasonably exercised, reject any offer received by it in whole or in part.
Each Agent also may make offers to the Company to purchase Book-Entry
Securities as a Purchasing Agent. The Company will have the sole right to
accept offers to purchase Book-Entry Securities and may reject any such offer
in whole or in part.
The Company will promptly notify the Selling Agent or
Purchasing Agent, as the case may be, of its acceptance or rejection of an
offer to purchase Book-Entry Securities. If the Company accepts an offer to
purchase Book-Entry Securities, it will confirm such acceptance in writing to
the Selling Agent or Purchasing Agent, as the case may be, and the Trustee.
Communication of Sale Information to the Company by Selling Agent and
Settlement Procedures:
A. After the acceptance of an offer by the Company, the
Selling Agent or Purchasing Agent, as the case may be, will communicate
promptly, but in no event later than the time set forth under "Settlement
Procedure Timetable" below, the following details of the terms of such offer
(the "Sale Information") to the Company by telephone (confirmed in writing) or
by facsimile transmission or other acceptable written means:
(1) Principal amount of Book-Entry Securities to be purchased;
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(2) If a Fixed Rate Book-Entry Security, the interest rate
and initial interest payment date;
(3) Maturity Date;
(4) Specified Currency and, if the Specified Currency is
other than U.S. dollars, the applicable Exchange Rate for such Specified
Currency (it being understood that currently the Depositary accepts deposits of
Global Securities denominated in U.S. dollars only);
(5) Indexed Currency, the Base Rate and the Exchange Rate
Determination Date, if applicable;
(6) Issue Price;
(7) Selling Agent's commission or Purchasing Agent's discount
or commission, as the case may be;
(8) Net Proceeds to the Company;
(9) Settlement Date;
(10) If a redeemable Book-Entry Security, such of the
following as are applicable:
(i) Redemption Commencement Date,
(ii) Initial Redemption Price (% of par), and
(iii) Amount (% of par) that the Redemption Price
shall decline (but not below par) on each
anniversary of the Redemption Commencement
Date;
(11) If a Floating Rate Book-Entry Security, such of the
following as are applicable:
(i) Interest Rate Basis,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Interest Rate,
(vii) Interest Reset Dates,
(viii) Calculation Dates,
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(ix) Interest Determination Dates,
(x) Interest Payment Dates,
(xi) Regular Record Dates, and
(xii) Calculation Agent;
(12) Name, address and taxpayer identification number of the
registered owner(s);
(13) Denomination of certificates to be delivered at
settlement; and
(14) Book-Entry Security or Certificated Security.
B. After receiving the Sale Information from the Selling
Agent or Purchasing Agent, the Company will communicate such Sale Information
to the Trustee by facsimile transmission or other acceptable written means.
The Trustee will assign a CUSIP number to the Global Security from a list of
CUSIP numbers previously delivered to the Trustee by the Company representing
such Book-Entry Security and then advise the Company and the Selling Agent or
Purchasing Agent, as the case may be, of such CUSIP number.
C. The Trustee will enter a pending deposit message through
the Depositary's Participant Terminal System, providing the following
settlement information to the Depositary, and the Depositary shall forward such
information to such Agent and Standard & Poor's Corporation:
(1) The applicable Sale Information;
(2) CUSIP number of the Global Security representing such
Book-Entry Security;
(3) Whether such Global Security will represent any other
Book-Entry Security (to the extent known at such
time);
(4) Number of the Participant account maintained by the
Depositary on behalf of the Selling Agent or
Purchasing Agent, as the case may be;
(5) The interest payment period;
(6) Initial Interest Payment Date for such Book-Entry
Security, number of days by which such date succeeds
the record date for the Depositary's purposes (which,
in the case of Floating Rate Securities which reset
weekly shall be the date five calendar days
immediately preceding the applicable Interest Payment
Date and in the case
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of all other Book-Entry Securities shall be the
Regular Record Date, as defined in the Security)
and, if calculable at that time, the amount of
interest payable on such Interest Payment Date.
D. The Trustee will complete and authenticate the Global
Security previously delivered by the Company representing such Book-Entry
Security.
E. The Depositary will credit such Book-Entry Security to the
Trustee's participant account at the Depositary.
F. The Trustee will enter an SDFS deliver order through the
Depositary's Participant Terminal System instructing the Depositary to (i)
debit such Book-Entry Security to the Trustee's participant account and credit
such Book-Entry Security to such Agent's participant account and (ii) debit
such Agent's settlement account and credit the Trustee's settlement account for
an amount equal to the price of such Book-Entry Security less such Agent's
commission. The entry of such a deliver order shall constitute a
representation and warranty by the Trustee to the Depositary that (a) the
Global Security representing such Book-Entry Security has been issued and
authenticated and (b) the Trustee is holding such Global Security pursuant to
the Certificate Agreement.
G. Such Agent will enter an SDFS deliver order through
the Depositary's Participant Terminal System instructing the Depositary (i) to
debit such Book-Entry Security to such Agent's participant account and credit
such Book-Entry Security. to the participant accounts of the Participants with
respect to such Book-Entry Security and (ii) to debit the settlement accounts
of such Participants and credit the settlement account of such Agent for an
amount equal to the price of such Book-Entry Security.
H. Transfers of funds in accordance with SDFS deliver orders
described in Settlement Procedures "F" and "G" will be settled in accordance
with SDFS operating procedures in effect on the settlement date.
I. Upon confirmation of receipt of funds, the Trustee will
transfer to the account of the Company maintained at [ ], New York,
New York, or such other account as the Company may have previously specified to
the Trustee, in funds available for immediate use in the amount transferred to
the Trustee in accordance with Settlement Procedure "F".
J. Upon request, the Trustee will send to the Company a
statement setting forth the principal amount of Book-Entry Securities
outstanding as of that date under the Indenture.
K. Such Agent will confirm the purchase of such Book-Entry
Security to the purchaser either by transmitting to
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the Participants with respect to such Book-Entry Security a confirmation order
or orders through the Depositary's institutional delivery system or by mailing
a written confirmation to such purchaser.
L. The Depositary will, at any time upon request of the
Company or the Trustee, promptly furnish to the Company or the Trustee a list
of the names and addresses of the participants for whom the Depositary has
credited Book-Entry Securities.
Preparation of Pricing Supplement:
If the Company accepts an offer to purchase a Book-Entry
Security, it will prepare a Pricing Supplement reflecting the terms of such
Book-Entry Security and arrange to have delivered to the Selling Agent or
Purchasing Agent, as the case may be, at least ten copies of such Pricing
Supplement, not later than 5:00 p.m., New York City time, on the Business Day
following the receipt of the Sale Information, or if the Company and the
purchaser agree to settlement on the Business Day following the date of
acceptance, not later than noon, New York City time, on such date. The Company
will arrange to have Pricing Supplements filed with the Commission not later
than the close of business of the Commission on the fifth Business Day
following the date on which such Pricing Supplement is first used, or such
shorter period as prescribed by the rules and regulations under the Act.
Delivery of Confirmation and Prospectus to Purchaser by Selling Agent:
The Selling Agent will deliver to the purchaser of a
Book-Entry Security a written confirmation of the sale and delivery and payment
instructions. In addition, the Selling Agent will deliver to such purchaser or
its agent the Prospectus as amended or supplemented (including the Pricing
Supplement) in relation to such Book-Entry Security prior to or together with
the earlier of the delivery to such purchaser or its agent of (a) the
confirmation of sale or (b) the Book-Entry Security.
Date of Settlement:
The receipt by the Company of immediately available funds in
payment for a Book-Entry Security and the authentication and issuance of the
Global Security representing such Book-Entry Security shall constitute
"settlement" with respect to such Book-Entry Security. All orders accepted by
the Company will be settled on the third Business Day pursuant to the timetable
for settlement set forth below unless the Company and the purchaser agree to
settlement on another day which shall be no earlier than the next Business Day.
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Settlement Procedure Timetable:
For orders of Book-Entry Securities solicited by an Agent as
agent, and accepted by the Company for settlement on the first Business Day
after the sale date, Settlement Procedures "A" through "I" set forth above
shall be completed as soon as possible but not later than the respective times
(New York City time) set forth below:
Settlement
Procedure Time
---------- ----
A 5:00 p.m. on the Business Day following the acceptance of an offer by the Company to 10:00 a.m.
on the Business Day prior to the settlement date, whichever is earlier
B 12:00 noon on the sale date
C 2:00 p.m. on the sale date
Settlement
Procedure Time
---------- ----
D 9:00 a.m. on settlement date
E 10:00 a.m. on settlement date
F-G 2:00 p.m. on settlement date
H 4:45 p.m. on settlement date
I 5:00 p.m. on settlement date
If a sale is to be settled more than one Business Day after
the sale date, Settlement Procedures "B" and "C" shall be completed as soon as
practicable but not later than 2:00 p.m. on the first Business Day after the
sale date. If the initial interest rate for a Floating Rate Book-Entry
Security has not been determined at the time that Settlement Procedure "A" is
completed, Settlement Procedures "B" and "C" shall be completed as soon as such
rate has been determined but no later than 2:00 p.m. on the second Business Day
before the settlement date. Settlement Procedure "H" is subject to extension
in accordance with any extension of Fedwire closing deadlines and in the other
events specified in the SDFS operating procedures in effect on the settlement
date.
If settlement of a Book-Entry Security is rescheduled or
cancelled, the Trustee, upon obtaining knowledge thereof, will deliver to the
Depositary, through the Depositary's Participation Terminal System, a
cancellation message to such effect by no later than 2:00 p.m. on the Business
Day immediately preceding the scheduled settlement date.
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Failure to Settle:
If the Trustee fails to enter an SDFS deliver order with
respect to a Book-Entry Security pursuant to Settlement Procedure "F", the
Trustee may deliver to the Depositary, through the Depositary's Participant
Terminal System, as soon as practicable a withdrawal message instructing the
Depositary to debit such Book-Entry Security to the Trustee's participant
account, provided that the Trustee's participant account contains a principal
amount of the Global Security representing such Book-Entry Security that is at
least equal to the principal amount to be debited. If a withdrawal message is
processed with respect to all the Book-Entry Securities represented by a Global
Security, the Trustee will ▇▇▇▇ such Global Security "cancelled", make
appropriate entries in the Trustee's records and send such cancelled Global
Security to the Company. The CUSIP number assigned to such Global Security
shall, in accordance with CUSIP Service Bureau procedures, be cancelled and not
immediately reassigned. If a withdrawal message is processed with respect to
one or more, but not all, of the Book-Entry Securities represented by a Global
Security, the Trustee will exchange such Global Security for two Global
Securities, one of which shall represent such Book-Entry Security or Securities
and shall be cancelled immediately after issuance and the other of which shall
represent the remaining Book-Entry Securities previously represented by the
surrendered Global Security and shall bear the CUSIP number of the surrendered
Global Security.
If the purchase price for any Book-Entry Security is not
timely paid to the participants with respect to such Book-Entry Security by the
beneficial purchaser thereof (or a person, including an indirect participant in
the Depositary, acting on behalf of such purchaser), such participants and, in
turn, the Agent for such Book-Entry Security may enter deliver orders through
the Depositary's Participant Terminal System debiting such Book-Entry Security
to such participant's account and crediting such Book-Entry Security to such
Agent's account and then debiting such Book-Entry Security to such Agent's
participant account and crediting such Book-Entry Security to the Trustee's
participant account and shall notify the Company and the Trustee thereof.
Thereafter, the Trustee will (i) immediately notify the Company of such order
and the Company shall transfer to such Agent funds available for immediate use
in an amount equal to the price of such Book-Entry Security which was credited
to the account of the Company maintained at the Trustee in accordance with
Settlement Procedure I, and (ii) deliver the withdrawal message and take the
related actions described in the preceding paragraph. If such failure shall
have occurred for any reason other than default by the applicable Agent to
perform its obligations hereunder or under the Distribution Agreement, the
Company will reimburse such Agent on an equitable basis for the loss of its use
of funds during the period when the funds were credited to the account of the
Company.
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Notwithstanding the foregoing, upon any failure to settle with
respect to a Book-Entry Security, the Depositary may take any actions in
accordance with its SDFS operating procedures then in effect. In the event of
a failure to settle with respect to one or more, but not all, of the
Book-Entry Securities to have been represented by a Global Security, the
Trustee will provide, in accordance with Settlement Procedure "D" for the
authentication and issuance of a Global Security representing the other
Book-Entry Securities to have been represented by such Global Security and will
make appropriate entries in its records. The Company will, from time to time,
furnish the Trustee with a sufficient quantity of Securities.
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ANNEX III
ACCOUNTANTS' LETTER
Pursuant to Section 4(j) and Section 6(d), as the case may be,
of the Distribution Agreement, the Company's independent certified public
accountants shall furnish letters to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the
Act and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if applicable,
prospective financial statements and/or pro forma financial
information) examined by them and included or incorporated by
reference in the Registration Statement or the Prospectus comply as to
form in all material respects with the applicable accounting
requirements of the Act or the Exchange Act, as applicable, and the
related published rules and regulations thereunder; and, if
applicable, they have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the consolidated interim financial statements, selected financial
data, pro forma financial information and/or condensed financial
statements derived from audited financial statements of the Company
for the periods specified in such letter, as indicated in their
reports thereon, copies of which have been furnished to the Agents;
(iii) The unaudited selected financial information with
respect to the consolidated results of operations and financial
position of the Company for the five most recent fiscal years included
in the Prospectus and included or incorporated by reference in Item 6
of the Company's Annual Report on Form 1O-K for the most recent fiscal
year agrees with the corresponding amounts (after restatement where
applicable) in the audited consolidated financial statements for the
five such fiscal years which were included or incorporated by
reference in the Company's Annual Reports on Form 10-K for such fiscal
years;
(iv) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and
other information referred to below, a reading of the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, inquiries of officials of
the Company and its
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subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter or
may be required by Statement of Accounting Standards Nos. 71 and 72,
nothing came to their attention that caused them to believe that:
(A) the unaudited condensed consolidated statements
of income, consolidated balance sheets and consolidated
statements of cash flows included or incorporated by reference
in the Company's Quarterly Reports on Form 10-Q incorporated
by reference in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements
of the Exchange Act as it applies to Form 10-Q and the related
published rules and regulations thereunder or are not in
conformity with generally accepted accounting principles
applied on a basis substantially consistent with the basis for
the audited consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows
included or incorporated by reference in the Company's Annual
Report on Form 10-K for the most recent fiscal year;
(B) any other unaudited income statement data and
balance sheet items included in the Prospectus do not agree
with the corresponding items in the unaudited consolidated
financial statements from which such data and items were
derived, and any such unaudited data and items were not
determined on a basis substantially consistent with the basis
for the corresponding amounts in the audited consolidated
financial statements included or incorporated by reference in
the Company's Annual Report on Form 10-K for the most recent
fiscal year;
(C) the unaudited financial statements which were
not included in the Prospectus but from which were derived the
unaudited condensed financial statements referred to in Clause
(A) and any unaudited income statement data and balance sheet
items included in the Prospectus and referred to in Clause (B)
were not determined on a basis substantially consistent with
the basis for the audited financial statements included or
incorporated by reference in the Company's Annual Report on
Form 10-K for the most recent fiscal year;
(D) the financial information, schedules and
statistical data and other information set forth or
incorporated by reference under the captions "Capitalization,"
"Selected Consolidated Financial Data" and "Ratio of Earnings
to Fixed Charges" in the Prospectus, under the captions
"Selected Statistical Information," "Common Dividends
Declared," "Selected Financial Information," "Management's
Discussion and
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49
Analysis of Financial Position and Results of Operations,"
"Item 6-Selected Financial Data," "Item 8-Supplementary Data"
or in Exhibit 12-Computation of Ratios of Earnings to Fixed
Charges in the Company's Annual Report on Form 10-K for the
most recent fiscal year or under the captions "Summary
Compensation Table," "Aggregated Option/SAR Exercises in Last
Fiscal Year and Year End Value Table," and "Nonqualified
Retirement Plan" in the Company's Proxy Statement for the
Annual Meeting of Shareholders held on April 25, 1995 comply
as to form in all material respects with applicable disclosure
requirements of Regulation S-K of the Act;
(E) as of a specified date not more than five days
prior to the date of such letter, there have been any changes
in the consolidated capital stock (other than issuances of
capital stock upon exercise of options and stock appreciation
rights, upon earn-outs of performance shares and upon
conversions of convertible securities, in each case which were
outstanding on the date of the latest balance sheet included
or incorporated by reference in the Prospectus) or any
increase in the consolidated long-term debt of the Company and
its subsidiaries, or any decreases in consolidated net assets
or other items specified by the Agents, or any increases in
any items specified by the Agents, in each case as compared
with amounts shown in the latest balance sheet included or
incorporated by reference in the Prospectus, except in each
case for changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in
such letter; and
(F) for the period from the date of the latest
financial statements included or incorporated by reference in
the Prospectus to the specified date referred to in Clause (F)
there were any decreases in consolidated interest income,
consolidated net interest income or the total or per share
amounts of consolidated net income or other items specified by
the Agents, or any increases in any items specified by the
Agents, in each case as compared with the comparable period of
the preceding year and with any other period of corresponding
length specified by the Agents, except in each case for
increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter;
and
(v) In addition to the examination referred to in their
report(s) included or incorporated by reference in the Prospectus and
the limited procedures, inspection of minute books, inquiries and
other procedures referred to in paragraphs (iii) and (iv) above, they
have carried out certain
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specified procedures, not constituting an examination in accordance
with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the Agents
which are derived from the general accounting records of the Company
and its subsidiaries, which appear in the Prospectus (excluding
documents incorporated by reference), or in Part II of, or in exhibits
and schedules to, the Registration Statement specified by the Agents
or in documents incorporated by reference in the Prospectus specified
by the Agents, and have compared certain of such amounts, percentages
and financial information with the accounting records of the Company
and its subsidiaries and have found them to be in agreement.
All references in this Annex III to the Prospectus shall be
deemed to refer to the Prospectus (including the documents incorporated by
reference therein) as defined in the Distribution Agreement as of the
Commencement Date referred to in Section 6(d) thereof and to the Prospectus as
amended or supplemented (including the documents incorporated by reference
therein) as of the date of the amendment, supplement, incorporation or the Time
of Delivery relating to the Terms Agreement requiring the delivery of such
letter under Section 4(j) thereof.
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