<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY , 1997
333-
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- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
MARSHALL & ILSLEY CORPORATION M&I CAPITAL TRUST A
(EXACT NAME OF REGISTRANT AS (EXACT NAME OF REGISTRANT AS
SPECIFIED IN CHARTER) SPECIFIED IN DECLARATION OF TRUST)
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
WISCONSIN 6021 39-0968604 DELAWARE 6199 39-6643782
(STATE OF (PRIMARY STANDARD (I.R.S. EMPLOYER (STATE OF (PRIMARY STANDARD (I.R.S. EMPLOYER
INCORPORATION) INDUSTRIAL CLASSIFICATION IDENTIFICATION NO.) ORGANIZATION) INDUSTRIAL CLASSIFICATION IDENTIFICATION NO.)
CODE NO.) CODE NO.)
</TABLE>
770 NORTH WATER STREET
MILWAUKEE, WISCONSIN 53202
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
EACH REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
---------------
M.A. HATFIELD, SECRETARY
MARSHALL & ILSLEY CORPORATION, 770 NORTH WATER STREET, MILWAUKEE, WISCONSIN
53202
(414) 765-7801
(NAME, ADDRESS INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE OF EACH REGISTRANT)
COPIES TO:
LARRY D. LIEBERMAN
GODFREY & KAHN, S.C.
780 NORTH WATER STREET
MILWAUKEE, WISCONSIN 53202
(414) 273-3500
---------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance
with General Instruction G, please check the following box. [_].
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
PROPOSED
PROPOSED MAXIMUM
TITLE OF EACH AMOUNT MAXIMUM AGGREGATE AMOUNT OF
CLASS OF SECURITIES TO BE OFFERING PRICE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED PER UNIT(1) PRICE(1) FEE
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Capital Securities of M&I Capital Trust A.. $200,000,000 100% $200,000,000 $60,606.06
- -------------------------------------------------------------------------------------------------------
Junior Subordinated Deferrable Interest
Debentures due 2026 of Marshall & Ilsley
Corporation(2)............................ -- -- -- N/A
- -------------------------------------------------------------------------------------------------------
Marshall & Ilsley Corporation Guarantee
with respect to Capital Securities(3)..... -- -- -- N/A
- -------------------------------------------------------------------------------------------------------
Total(4)................................... $200,000,000(5) 100% $200,000,000(5) $60,606.06
- -------------------------------------------------------------------------------------------------------
</TABLE>
- -------------------------------------------------------------------------------
(1) Estimated solely for the purpose of computing the registration fee.
(2) The Junior Subordinated Deferrable Interest Debentures due 2026 (the
"Subordinated Debt Securities") were originally purchased by M&I Capital
Trust A with the proceeds of the sale of the Old Capital Securities. No
separate consideration will be received for the Subordinated Debt
Securities distributed upon any liquidation of M&I Capital Trust A.
(3) No separate consideration will be received for the Guarantee.
(4) This Registration Statement is deemed to cover the Subordinated Debt
Securities of Marshall & Ilsley Corporation, the rights of holders of
Subordinated Debt Securities of Marshall & Ilsley Corporation under the
Indenture, the rights of holders of Capital Securities of M&I Capital
Trust A under the Declaration, and the rights of holders of the Capital
Securities under the Guarantee.
(5) Such amount represents the liquidation amount of the M&I Capital Trust A
Capital Securities to be exchanged hereunder and the principal amount of
Subordinated Debt Securities that may be distributed to investors upon any
liquidation of M&I Capital Trust A.
---------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED JANUARY , 1997.
PROSPECTUS
M&I CAPITAL TRUST A
LOGO
OFFER TO EXCHANGE ITS 7.65% CAPITAL SECURITIES
WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 FOR ANY AND ALL OF
ITS OUTSTANDING 7.65% CAPITAL SECURITIES.
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
FULLY AND UNCONDITIONALLY GUARANTEED, AS DESCRIBED HEREIN, BY MARSHALL & ILSLEY
CORPORATION
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M.,
NEW YORK CITY TIME ON , 1997, UNLESS EXTENDED.
M&I Capital Trust A, a trust formed under the laws of the State of Delaware
(the "Trust"), hereby offers, upon the terms and subject to the conditions set
forth in this Prospectus (as the same may be amended or supplemented from time
to time, the "Prospectus") and in the accompanying Letter of Transmittal (which
together constitute the "Exchange Offer"), to exchange up to $200,000,000
aggregate Liquidation Amount of its 7.65% Capital Securities (the "New Capital
Securities") which have been registered under the Securities Act of 1933, as
amended (the "Securities Act"), pursuant to
(Continued on next page.)
-----------
SEE "RISK FACTORS" COMMENCING ON PAGE FOR CERTAIN INFORMATION THAT
SHOULD BE CONSIDERED BY HOLDERS WHO TENDER OLD CAPITAL SECURITIES IN THE
EXCHANGE OFFER.
-----------
THESE SECURITIES ARE NOT DEPOSITS OR OTHER OBLIGATIONS OF A BANK AND ARE
NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY
OTHER GOVERNMENTAL AGENCY.
-----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
-----------
The New Capital Securities (as herein defined) and the Old Capital Securities
(as herein defined) (together, the "Capital Securities"), represent beneficial
interests in the Trust. M&I is the owner of all of the beneficial interests
represented by common securities of the Trust (as herein defined) (the "Common
Securities" and, collectively with the Capital Securities, the "Trust
Securities"). The Chase Manhattan Bank is the Institutional Trustee of the
Trust. The Trust exists for the sole purpose of issuing the Trust Securities
and investing the proceeds thereof in the Old Subordinated Debt Securities and
New Subordinated Debt Securities (together, the "Subordinated Debt
Securities"). The Subordinated Debt Securities will mature on December 1, 2026.
The date of this Prospectus is , 1997.
<PAGE>
(continued from cover page)
a Registration Statement (as defined herein) of which this Prospectus
constitutes a part, for a like Liquidation Amount of its outstanding 7.65%
Capital Securities (the "Old Capital Securities"), of which $200,000,000
aggregate Liquidation Amount is outstanding. Pursuant to the Exchange Offer,
Marshall & Ilsley Corporation, a Wisconsin corporation ("M&I" or the
"Company"), is also exchanging its guarantee of the payment of Distributions
(as defined below) and payments on liquidation or redemption of the Old
Capital Securities (the "Old Guarantee") for a like guarantee of the New
Capital Securities (the "New Guarantee") and all of its 7.65% Junior
Subordinated Deferrable Interest Debentures due 2026 (the "Old Subordinated
Debt Securities"), of which $206,186,000 aggregate principal amount is
outstanding, for a like aggregate principal amount of its 7.65% Junior
Subordinated Deferrable Interest Debentures due 2026 (the "New Subordinated
Debt Securities"), which New Guarantee and New Subordinated Debt Securities
also have been registered under the Securities Act. The Old Capital
Securities, the Old Guarantee and the Old Subordinated Debt Securities are
collectively referred to herein as the "Old Securities" and the New Capital
Securities, the New Guarantee and the New Subordinated Debt Securities are
collectively referred to herein as the "New Securities."
The terms of the New Securities are identical in all material respects to
the respective terms of the Old Securities, except that (i) the New Securities
will have been registered under the Securities Act and therefore will not be
subject to certain restrictions on transfer applicable to the Old Securities
and (ii) holders of New Capital Securities will not be entitled to certain
rights of holders of Old Capital Securities under the Registration Rights
Agreement (as defined below) which will terminate upon consummation of the
offer made hereby. The New Capital Securities are being offered for exchange
in order to satisfy certain obligations of M&I and the Trust under the
Registration Rights Agreement dated as of December 2, 1996 (the "Registration
Rights Agreement") among M&I, the Trust and Salomon Brothers Inc, Goldman,
Sachs & Co. and Robert W. Baird & Co. Incorporated (the "Initial Purchasers").
In the event that the Exchange Offer is consummated, any Old Capital
Securities which remain outstanding after consummation of the Exchange Offer
and the New Capital Securities issued in the Exchange Offer will vote together
as a single class for purposes of determining whether holders of the requisite
percentage in outstanding Liquidation Amount thereof have taken certain
actions or exercised certain rights under the Declaration (as defined below).
The New Subordinated Debt Securities and the New Guarantee when issued will
be an unsecured obligation of the Company and will be subordinate and junior
in right of payment to other indebtedness of the Company, as described herein.
Upon an event of default under the Declaration (as defined herein) in respect
of the Trust, the holders of Capital Securities issued by the Trust will have
a preference over the holders of the Common Securities of the Trust with
respect to payments in respect of distributions and payments upon redemption,
liquidation and otherwise.
Holders of the Capital Securities are entitled to receive cumulative cash
distributions at an annual rate of 7.65% per annum of the liquidation amount
of $1,000 per Capital Security, accruing from December 9, 1996 and (subject to
the extensions of distribution payment periods described below) payable
semiannually in arrears on June 1 and December 1 of each year, commencing June
1, 1997 ("Distributions"). The payment of distributions on the Capital
Securities out of moneys held by the Trust and payments on liquidation of the
Trust or the redemption of Capital Securities, as set forth below, are
guaranteed by the Company (the "Guarantee") to the extent described herein.
The Guarantee covers payments of distributions and other payments on the
Capital Securities only if and to the extent that the Trust has funds
available therefor, which funds will not be available except to the extent the
Company has made payments of interest or principal (or premium, if any) or
other payments on the Subordinated Debt Securities held by the Trust.
The Guarantee, when taken together with the Company's obligations under the
Subordinated Debt Securities, the Declaration and the Indenture (as defined
below), including its obligations to pay costs,
2
<PAGE>
expenses, debts and other obligations of the Trust (other than with respect to
the Trust Securities), provide a full and unconditional guarantee on a
subordinated basis by the Company of amounts due on the Capital Securities.
See "Risk Factors--Guarantee Covers Distributions and Other Payments Only to
the Extent the Trust Has Available Funds; Related Remedies" herein. The
obligations of the Company under the Guarantee and Subordinated Debt
Securities are subordinate and junior in right of payment to all present and
future Senior Indebtedness (as defined herein) of the Company and are also
effectively subordinate to claims of creditors of the Company's subsidiaries.
As of September 30, 1996, the Company had approximately $295 million principal
amount of Senior Indebtedness (excluding indebtedness of the Company's
subsidiaries) and the Company's subsidiaries had in the aggregate
approximately $2.0 billion of indebtedness. There are no terms in the
Subordinated Debt Securities, the Capital Securities or the Guarantee that
limit the ability of the Company or its subsidiaries to incur additional
indebtedness, including indebtedness that ranks senior to the Subordinated
Debt Securities and the Guarantee.
The distribution rate and the distribution payment dates and other payment
dates for the Capital Securities will correspond to the interest rate and
interest rate payment dates and other payment dates on the Subordinated Debt
Securities held by the Trust, which are the sole assets of the Trust. As a
result, if no principal (or premium, if any) or interest is paid on the
Subordinated Debt Securities, the Trust will not have sufficient funds to make
distributions on the Capital Securities, and the Guarantee will not apply to
distributions for which the Trust has insufficient funds available.
The Company has the right, subject to the conditions set forth herein, to
defer payments of interest on the Subordinated Debt Securities by extending
the interest payment period on the Subordinated Debt Securities at any time
and from time to time for up to 10 consecutive semiannual periods (each such
extended interest payment period, an "Extension Period"), provided no
Extension Period may extend beyond the maturity of the Subordinated Debt
Securities. If interest payments are so deferred, distributions on the Capital
Securities issued by the Trust will also be deferred. During any such
Extension Period, distributions will continue to accrue at the distribution
rate equal to 7.65% per annum for Capital Securities, compounded semiannually
(to the extent permitted by applicable law), and holders of the Capital
Securities will be subject to United States federal income tax on the deferred
amounts in advance of receipt of cash distributions with respect to such
deferred interest payments. There could be multiple Extension Periods of
varying lengths, each up to 10 consecutive semiannual periods, throughout the
term of the Subordinated Debt Securities. See "Description of the Subordinated
Debt Securities--Option to Extend Interest Payment Period," "Risk Factors--
Option to Extend Interest Payment Period" and "United States Federal Income
Taxation--Original Issue Discount."
The Subordinated Debt Securities are redeemable by the Company at the Call
Price (as defined herein), plus accrued and unpaid interest to the date of
redemption, in whole or in part, at any time and from time to time, on or
after December 1, 2006 (the "Optional Redemptions"). In certain limited
circumstances, upon the occurrence of a Tax Event (as defined herein), the
Subordinated Debt Securities are also redeemable in whole or in part by the
Company at their full principal amounts, together with accrued and unpaid
interest thereon to the date of the redemption. Either redemption prior to
maturity is subject to the Company having received prior approval from the
Board of Governors of the Federal Reserve System (the "Federal Reserve") if
then required under applicable capital guidelines or policies of the Federal
Reserve. See "Description of the Capital Securities--Tax Event Redemption" and
"Description of the Subordinated Debt Securities." Upon redemption or maturity
of the Subordinated Debt Securities, the Trust must redeem on a pro rata basis
its Trust Securities, having an aggregate liquidation amount equal to the
aggregate principal amount of the Subordinated Debt Securities so redeemed or
matured, at a redemption price (the "Redemption Price") equal to (i) $1,000
per Trust Security redeemed upon maturity of the Subordinated Debt Securities
or upon the occurrence and continuation of a Tax Event under certain limited
circumstances as described herein
3
<PAGE>
or (ii) in the case of Optional Redemptions of Subordinated Debt Securities an
amount per Trust Security equal to the product of $1,000 and the applicable
percentage used to determine the Call Price for the Subordinated Debt
Securities being redeemed, plus in all cases accrued and unpaid distributions
on such Trust Securities to the date fixed for redemption. See "Description of
the Capital Securities--Redemption."
The Company, as the holder of all of the outstanding Common Securities of
the Trust, has the right at any time, subject to the receipt of prior approval
by the Federal Reserve, if then required under applicable capital guidelines
or policies of the Federal Reserve, to dissolve the Trust (including without
limitation upon the occurrence of a Tax Event). In any such dissolution, after
satisfaction of liabilities to creditors of the Trust, the Subordinated Debt
Securities must be distributed to the holders of the Trust Securities on a pro
rata basis in accordance with the aggregate stated liquidation amount thereof
in liquidation of the Trust.
In the event of the involuntary or voluntary dissolution of the Trust, other
than in connection with a redemption of Subordinated Debt Securities, after
satisfaction of liabilities to creditors of the Trust (to the extent not
satisfied by the Company), the holders of the Capital Securities will be
entitled to receive a Liquidation Amount (as defined herein) plus accumulated
and unpaid distributions thereon to the date of payment, unless, in connection
with such dissolution, the Subordinated Debt Securities held by the Trust are
distributed to the holders of the Trust Securities as would be required in
certain circumstances. See "Description of the Capital Securities--Liquidation
Distribution upon Dissolution."
The Capital Securities will be issued and may be transferred only in blocks
having a stated liquidation amount of not less than $100,000 (100 Capital
Securities). See "Description of Capital Securities--Restrictions on
Transfer." The Company and the Trust may apply for listing of the Capital
Securities issued in the Exchange Offer as debt securities on a securities
exchange or for quotation through the National Association of Securities
Dealers Automated Quotation System. If the Subordinated Debt Securities are
distributed to the holders of the Capital Securities, and the Capital
Securities are then listed on such exchange or for such quotation, the Company
will use its best efforts to have the Subordinated Debt Securities listed on
such exchange or for such quotation as the Capital Securities are then listed.
Based on interpretations by the staff of the Securities and Exchange
Commission (the "Commission"), as set forth in no-action letters issued to
third parties, the Company and the Trust believe that the New Capital
Securities issued pursuant to the Exchange Offer may be offered for resale,
resold or otherwise transferred by holders thereof (other than any holder that
is an "affiliate" of the Company or the Trust as defined under Rule 405 of the
Securities Act) without compliance with the registration and prospectus
delivery provisions of the Securities Act, provided that such New Capital
Securities are acquired in the ordinary course of such holders' business and
such holders are not engaged in, and do not intend to engage in, a
distribution of such New Capital Securities and have no arrangement or
understanding with any person to participate in the distribution of such New
Capital Securities. However, the staff of the Commission has not considered
the Exchange Offer in the context of a no-action letter, and there can be no
assurance that the staff of the Commission would make a similar determination
with respect to the Exchange Offer as in such other circumstances. By
tendering the Old Capital Securities in exchange for New Capital Securities,
each holder, other than a broker-dealer, will represent to the Company and the
Trust that: (i) it is not an affiliate of either the Company or the Trust (as
defined under Rule 405 of the Securities Act); (ii) any New Capital Securities
to be received by it were acquired in the ordinary course of its business; and
(iii) at the time of commencement of the Exchange Offer, it has no arrangement
with any person to participate in the distribution (within the meaning of the
Securities Act) of the New Capital Securities.
Each broker-dealer that receives New Capital Securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Capital Securities. The
Letter of Transmittal states that by so acknowledging and by
4
<PAGE>
delivering a prospectus, a broker-dealer will not be deemed to admit that it is
an "underwriter" within the meaning of the Securities Act. This Prospectus, as
it may be amended or supplemented from time to time, may be used by a broker-
dealer in connection with resales of Exchange Securities received in exchange
for Old Capital Securities where such Old Capital Securities were acquired by
such broker-dealer as a result of market-making activities or other trading
activities. The Company and the Trust have agreed that, starting on the date of
the original issuance of the Old Capital Securities and ending on the close of
business one year after such date, they will make this Prospectus available to
any broker-dealer for use in connection with any such resale. See "Plan of
Distribution."
THIS PROSPECTUS AND THE RELATED LETTER OF TRANSMITTAL CONTAIN IMPORTANT
INFORMATION. HOLDERS OF OLD CAPITAL SECURITIES ARE URGED TO READ THIS
PROSPECTUS AND THE RELATED LETTER OF TRANSMITTAL CAREFULLY BEFORE DECIDING
WHETHER TO TENDER THEIR OLD CAPITAL SECURITIES PURSUANT TO THE EXCHANGE OFFER.
Old Capital Securities may be tendered for exchange on or prior to 5:00 p.m.,
New York City time, on , 1997 (such time on such date being
hereinafter called the "Expiration Date"), unless the Exchange Offer is
extended by M&I and the Trust (in which case the term "Expiration Date" shall
mean the latest date and time to which the Exchange Offer is extended). Tenders
of Old Capital Securities may be withdrawn at any time on or prior to the
Expiration Date. The Exchange Offer is not
conditioned upon any minimum Liquidation Amount of Old Capital Securities being
tendered for exchange. However, the Exchange Offer is subject to certain events
and conditions which may be waived by M&I or the Trust and to the terms and
provisions of the Registration Rights Agreement. Old Capital Securities may be
tendered in whole or in part having a Liquidation Amount of not less than
$100,000 (100 Capital Securities) and any integral multiple of $1,000
Liquidation Amount (1 Capital Security) in excess thereof. M&I has agreed to
pay all expenses of the Exchange Offer. See "The Exchange Offer -- Fees and
Expenses." Each New Capital Security will pay cumulative Distributions from the
most recent Distribution Date (as defined below) on the Old Capital Securities
surrendered in exchange for such New Capital Securities or, if no Distributions
have been paid on such Old Capital Securities, from December 9, 1996. Holders
of the Old Capital Securities whose Old Capital Securities are accepted for
exchange will not receive accumulated Distributions on such Old Capital
Securities for any period from and after the last Distribution Date on such Old
Capital Securities prior to the original issue date of the New Capital
Securities or, if no such Distributions have been paid, will not receive any
accumulated Distributions on such Old Capital Securities, and will be deemed to
have waived the rights to receive any Distributions on such Old Capital
Securities accumulated from and after such Distribution Date or, if no such
Distributions have been paid or duly provided for, from and after December 9,
1996. This Prospectus, together with the Letter of Transmittal, is being sent
to all registered holders of Old Capital Securities as of , 1997.
Neither M&I nor the Trust will receive any cash proceeds from the issuance of
the New Capital Securities offered hereby. No dealer-manager is being used in
connection with this Exchange Offer. See "Use of Proceeds" and "Plan of
Distribution."
5
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith, files reports, proxy statements and other information with the
Commission. Such reports, proxy statements and other information can be
inspected and copied at the public reference facilities of the Commission at
Room 1024, 450 Fifth Street, N.W., Washington D.C. 20549 and at the regional
offices of the Commission located at 7 World Trade Center, 13th Floor, Suite
1300, New York, New York 10048 and Suite 1400, Citicorp Center, 14th Floor,
500 West Madison Street, Chicago, Illinois 60661. Copies of such material can
also be obtained at prescribed rates by writing to the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549.
Such information may also be accessed electronically by means of the
Commission's home page on the Internet (http://www.sec.gov). In addition, the
Company's common stock is included for quotation on the NASDAQ/NMS, and such
reports, proxy statements and other information concerning the Company is
available for inspection and copying at the offices of the National
Association of Securities Dealers, Inc., 1735 K Street, N.W., Washington, D.C.
20006.
No separate financial statements of the Trust have been included herein. The
Company and the Trust do not consider that such financial statements would be
material to holders of the Capital Securities because the Trust is a newly
formed special purpose entity, has virtually no operating history or
independent operations and is not engaged in and does not propose to engage in
any activity other than holding as trust assets the Subordinated Debt
Securities and issuing the Trust Securities. See "M&I Capital Trust A",
"Description of Capital Securities", "Description of Subordinated Debt
Securities" and "Description of Guarantee". In addition, the Company does not
expect that the Trust will file reports under the Exchange Act with the
Commission.
This Prospectus constitutes a part of a registration statement on Form S-4
(the "Registration Statement") filed by the Company and the Trust with the
Commission under the Securities Act. This Prospectus does not contain all the
information set forth in the Registration Statement, certain parts of which
are omitted in accordance with the rules and regulations of the Commission,
and reference is hereby made to the Registration Statement and to the exhibits
relating thereto for further information with respect to the Company and the
Capital Securities. Any statements contained herein concerning the provisions
of any document are not necessarily complete, and, in each instance, reference
is made to the copy of such document filed as an exhibit to the Registration
Statement or otherwise filed with the Commission. Each such statement is
qualified in its entirety by such reference.
6
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission are
incorporated into this Prospectus by reference:
1. The Company's Annual Report on Form 10-K for the year ended December
31, 1995;
2. The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1996, June 30, 1996 and September 30, 1996; and
3. The Company's current Report on Form 8-K dated as of December 19,
1996.
Each document or report filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date hereof and prior to the
termination of any offering of securities made by this Prospectus shall be
deemed to be incorporated by reference into this Prospectus and to be a part
of this Prospectus from the date of filing of such document. Any statement
contained herein, or in a document all or a portion of which is incorporated
or deemed to be incorporated by reference herein, shall be deemed to be
modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
superseded such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of
this Prospectus.
As used herein, the terms "Prospectus" and "herein" mean this Prospectus,
including such documents incorporated or deemed to be incorporated herein by
reference, as the same may be amended, supplemented or otherwise modified from
time to time. Statements contained in this Prospectus as to the contents of
any contract or other document referred to herein do not purport to be
complete, and where reference is made to the particular provisions of such
contract or other document, such provisions are qualified in all respects by
reference to all of the provisions of such contract or other document.
THIS PROSPECTUS INCORPORATES DOCUMENTS BY REFERENCE WHICH ARE NOT PRESENTED
OR DELIVERED HEREIN. THE COMPANY WILL PROVIDE WITHOUT CHARGE TO ANY PERSON TO
WHOM THIS PROSPECTUS IS DELIVERED, ON THE WRITTEN OR ORAL REQUEST OF SUCH
PERSON, A COPY OF ANY OR ALL OF THE FOREGOING DOCUMENTS INCORPORATED BY
REFERENCE HEREIN (OTHER THAN EXHIBITS NOT SPECIFICALLY INCORPORATED BY
REFERENCE INTO THE TEXTS OF SUCH DOCUMENTS). REQUESTS FOR SUCH DOCUMENTS
SHOULD BE ADDRESSED TO MARSHALL & ILSLEY CORPORATION, 770 NORTH WATER STREET,
MILWAUKEE, WISCONSIN 53202, TELEPHONE: (414) 765-7801, ATTENTION: SECRETARY.
IN ORDER TO ENSURE TIMELY DELIVERY OF THE DOCUMENTS, ANY REQUEST SHOULD BE
MADE BY , 1997.
7
<PAGE>
SUMMARY
The following summary is qualified in its entirety by the more detailed
information and the financial statements, including the notes thereto,
appearing elsewhere or incorporated by reference into this Prospectus.
Prospective investors should consider carefully the factors set forth herein
under "Risk Factors." As used in this Prospectus, "M&I" includes its respective
predecessors and subsidiaries, except as the context otherwise may require.
M&I CAPITAL TRUST A
The Trust is a statutory business trust formed under Delaware law pursuant to
(i) a Declaration of Trust executed by the Company, as Sponsor, and the M&I
Trustees (as defined herein), and (ii) the filing of a certificate of trust
with the Delaware Secretary of State on December 2, 1996. The Trust exists for
the exclusive purposes of (i) issuing the Trust Securities, (ii) investing the
gross proceeds from the sale of the Trust Securities to acquire the
Subordinated Debt Securities issued by the Company, and (iii) engaging in only
those other activities necessary or incidental thereto. Accordingly, the
Subordinated Debt Securities are the sole assets of the Trust, and payments
under the Subordinated Debt Securities will be the sole revenues of the Trust.
All of the Common Securities are owned by M&I. The principal place of business
is c/o Marshall & Ilsley Corporation, 770 North Water Street, Milwaukee,
Wisconsin 53202, and its telephone number is (414) 765-7801.
MARSHALL & ILSLEY CORPORATION
Marshall & Ilsley Corporation ("M&I" or "the Company"), is a registered bank
holding company headquartered in Milwaukee, Wisconsin. M&I's principal assets
are the stock of its bank and nonbank subsidiaries and the assets of its Data
Services Division ("M&I Data Services"). M&I's bank and savings association
subsidiaries provide a full range of banking services to individuals,
businesses and governments throughout Wisconsin and the Phoenix, Arizona
metropolitan area. M&I's nonbank subsidiaries operate a variety of bank-related
businesses, including investment management services, insurance services, trust
services, equipment lease financing, commercial and residential mortgage
banking, venture capital, brokerage services and financial advisory services.
M&I Data Services is a major supplier of financial and data processing services
and software to banking, financial and related organizations. As of September
30, 1996, M&I had consolidated total assets of approximately $14.4 billion and
consolidated total deposits of approximately $10.6 billion.
Because M&I is a holding company, the Subordinated Debt Securities and the
Guarantee are effectively subordinated to all existing and future liabilities
of M&I's subsidiaries, except to the extent that M&I is a creditor of the
subsidiaries recognized as such.
The principal executive offices of M&I are located at 770 North Water Street,
Milwaukee, Wisconsin 53202. M&I's telephone number is (414) 765-7801.
THE EXCHANGE OFFER
The Exchange Offer........ Up to $200,000,000 aggregate Liquidation Amount of
New Capital Securities are being offered in ex-
change for a like aggregate Liquidation Amount of
Old Capital Securities. Old Capital Securities may
be tendered for exchange in whole or in part in a
Liquidation Amount of $100,000 (100 Capital Securi-
ties) or any integral multiple of $1,000 in excess
thereof. M&I and the Trust are
8
<PAGE>
making the Exchange Offer in order to satisfy its
obligations under the Registration Rights Agreement
relating to the Old Capital Securities. For a de-
scription of the procedures for tendering Old Capi-
tal Securities, see "The Exchange Offer--Procedures
for Tendering Old Capital Securities."
Expiration Date........... 5:00 p.m., New York City time, on ,
1997 (such time on such date being hereinafter
called the "Expiration Date") unless the Exchange
Offer is extended by M&I and the Trust (in which
case the term "Expiration Date" shall mean the lat-
est date and time to which the Exchange Offer is
extended). See "The Exchange Offer--Expiration
Date; Extensions; Amendments."
Conditions to the The Exchange Offer is subject to certain condi-
Exchange.................. tions, which may be waived by M&I and the Trust in
their sole discretion. The Exchange Offer is not
conditioned upon any minimum Liquidation Amount of
Old Capital Securities being tendered. See "The
Exchange Offer--Conditions to the Exchange Offer."
M&I and the Trust reserve the right in their sole
and absolute discretion, subject to applicable law,
at any time and from time to time, (i) to delay the
acceptance of the Old Capital Securities, (ii) to
terminate the Exchange Offer if certain specified
conditions have not been satisfied, (iii) to extend
the Expiration Date of the Exchange Offer and re-
tain all Old Capital Securities tendered pursuant
to the Exchange Offer, subject, however, to the
right of holders of Old Capital Securities to with-
draw their tendered Old Capital Securities, or (iv)
to waive any condition or otherwise amend the terms
of the Exchange Offer in any respect. See "The Ex-
change Offer--Expiration Date; Extensions; Amend-
ments."
Listing................... The Company and the Trust may apply for listing of
the Capital Securities issued in the Exchange Offer
as debt securities on a securities exchange or for
quotation through the National Association of Secu-
rities Dealers Automated Quotation System. If the
Subordinated Debt Securities are distributed to the
holders of the Capital Securities, and the Capital
Securities are then listed on such exchange or for
such quotation, the Company will use its best ef-
forts to have the Subordinated Debt Securities
listed on such exchange or for such quotation as
the Capital Securities are then listed.
Withdrawal Rights......... Tenders of Old Capital Securities may be withdrawn
at any time on or prior to the Expiration Date by
delivering a written notice of such withdrawal to
the Exchange Agent in conformity with certain pro-
cedures as set forth below under "The Exchange Of-
fer--Withdrawal Rights."
Procedures for Tendering
Old Capital Securities....
Tendering holders of Old Capital Securities must
complete and sign a Letter of Transmittal in accor-
dance with the instructions contained therein and
forward the same by mail, facsimile transmission or
hand delivery, together with any other required
docu-
9
<PAGE>
ments, to the Exchange Agent, either with the Old
Capital Securities to be tendered or in compliance
with the specified procedures for guaranteed deliv-
ery of Old Capital Securities. Certain brokers,
dealers, commercial banks, trust companies and
other nominees may also effect tenders by book-en-
try transfer. Holders of Old Capital Securities
registered in the name of a broker, dealer, commer-
cial bank, trust company or other nominee are urged
to contact such person promptly if they wish to
tender Old Capital Securities pursuant to the Ex-
change Offer. See "The Exchange Offer--Procedures
for Tendering Old Capital Securities."
Letters of Transmittal and certificates represent-
ing Old Capital Securities should not be sent to
M&I or the Trust. Such documents should only be
sent to the Exchange Agent. Questions regarding how
to tender and requests for information should be
directed to the Exchange Agent. See "The Exchange
Offer--Exchange Agent."
Resales of New Capital
Securities................
Based on interpretations by the staff of the Com-
mission, as set forth in no-action letters issued
to third parties, the Company and the Trust believe
that holders of Old Capital Securities (other than
any holder that is an "affiliate" of the Company or
the Trust as defined under Rule 405 of the Securi-
ties Act) who exchange their Old Capital Securities
for New Capital Securities pursuant to the Exchange
Offer may offer such New Capital Securities for re-
sale, resell such New Capital Securities and other-
wise transfer such New Capital Securities without
compliance with the registration and prospectus de-
livery provisions of the Securities Act, provided
that such New Capital Securities are acquired in
the ordinary course of such holders' business and
such holders are not engaged in, and do not intend
to engage in, a distribution of such New Capital
Securities and have no arrangement or understanding
with any person to participate in the distribution
of such New Capital Securities. However, the staff
of the Commission has not considered the Exchange
Offer in the context of a no-action letter, and
there can be no assurance that the staff of the
Commission would make a similar determination with
respect to the Exchange Offer. Each broker-dealer
that receives New Capital Securities for its own
account in exchange for Old Capital Securities,
where such Old Capital Securities were acquired by
such broker-dealer as a result of market-making ac-
tivities or other trading activities, must acknowl-
edge that it will deliver a prospectus in connec-
tion with any resale of such New Capital Securi-
ties. See "Plan of Distribution."
Exchange Agent............ The exchange agent with respect to the Exchange Of-
fer is The Chase Manhattan Bank (the "Exchange
Agent"). The address, and telephone and facsimile
numbers of the Exchange Agent are set forth in "The
Exchange Offer--Exchange Agent" and in the Letter
of Transmittal.
10
<PAGE>
Use of Proceeds........... Neither M&I nor the Trust will receive any cash
proceeds from the issuance of the New Capital Secu-
rities offered hereby. See "Use of Proceeds."
Certain United States
Federal Income Tax
Considerations; ERISA
Considerations............
Holders of Old Capital Securities should review the
information set forth under "United States Federal
Income Taxation" and "ERISA Considerations" prior
to tendering Old Capital Securities in the Exchange
Offer.
THE CAPITAL SECURITIES
Securities Offered........ $200,000,000 aggregate liquidation amount of New
Capital Securities (liquidation amount $1,000 per
Capital Security). The terms of the New Capital Se-
curities are identical in all material respects to
the terms of the Old Capital Securities, except
that the New Capital Securities have been regis-
tered under the Securities Act and therefor are not
subject to certain restrictions on transfer appli-
cable to the Old Capital Securities and will not
provide for increase in the Distribution rate
thereon.
General................... The Capital Securities represent undivided benefi-
cial interests in the Trust's assets, which consist
solely of the Subordinated Debt Securities. The
Subordinated Debt Securities, in which the proceeds
of the Trust Securities are invested, mature on
December 1, 2026, unless the Subordinated Debt Se-
curities are redeemed by the Company prior to such
maturity as described under "Description of the
Capital Securities--Redemption" and "Description of
the Capital Securities--Tax Event Redemption."
Distributions............. The distributions payable on the Capital Securities
will be fixed at a rate per annum of 7.65% of the
stated liquidation amount of $1,000 per Capital Se-
curity and will be cumulative, will accrue from De-
cember 9, 1996, the date of issuance of the Old
Capital Securities, and (subject to the extension
of distribution payment periods described below)
will be payable semiannually, in arrears, on June 1
and December 1 of each year, commencing June 1,
1997. See "Description of the Capital Securities--
Distributions."
Option to Extend Interest
Payment Period............
The Company has the right, at any time, subject to
certain conditions, to defer payments of interest
on the Subordinated Debt Securities for Extension
Periods, each not exceeding 10 consecutive semian-
nual periods; provided, that no Extension Period
may extend beyond the maturity date of the Subordi-
nated Debt Securities. As a consequence of the
Company's extension of the interest payment period,
distributions on the Capital Securities would be
deferred (though such distributions would continue
to accrue interest thereon compounded semiannually
(to the extent
11
<PAGE>
permitted by law)), since interest would continue
to accrue with interest thereon compounded
semiannually on the Subordinated Debt Securities
during any such Extension Period. In the event the
Company exercises its right to extend an interest
payment period, then during any Extension Period,
subject to certain exceptions, (i) the Company
shall not declare or pay any dividend on, make any
distributions with respect to, or redeem, purchase,
acquire or make a liquidation payment with respect
to, any of its capital stock or rights to acquire
such capital stock or make any guarantee payments
with respect to the foregoing and (ii) the Company
shall not make any payment of interest on or prin-
cipal of (or premium, if any, on), or repay, repur-
chase or redeem, any debt securities issued by the
Company which rank pari passu with or junior to the
Subordinated Debt Securities. Upon the termination
of any Extension Period and the payment of all
amounts then due, the Company may commence a new
Extension Period, subject to certain requirements.
See "Description of the Subordinated Debt Securi-
ties--Option to Extend Interest Payment Period."
Should an Extension Period occur with respect to
the Capital Securities, holders of Capital Securi-
ties will continue to recognize interest income for
United States federal income tax purposes. As a re-
sult, such holders will be required to include such
interest in gross income for United States federal
income tax purposes in advance of the receipt of
cash, and such holders will not receive the cash
from the Trust related to such income if such hold-
ers dispose of Capital Securities prior to the rec-
ord date for payment of distributions. See "United
States Federal Income Taxation--US Holders--Origi-
nal Issue Discount."
Liquidation .............. The Company, as the holder of all of the Common Se-
curities, has the right at any time to dissolve the
Trust (including but not limited to the occurrence
of a Tax Event), subject to certain conditions,
with the result that, after satisfaction of liabil-
ities to creditors of the Trust (to the extent not
satisfied by the Company), the Subordinated Debt
Securities would be distributed to the holders of
the Trust Securities in liquidation of the holders'
interests in the Trust on a pro rata basis in ac-
cordance with its aggregate stated liquidation
amount thereof, in liquidation of the Trust. In ad-
dition, the Trust is required to be liquidated un-
der certain other circumstances. See "Description
of the Capital Securities--Liquidation Distribution
upon Dissolution."
Liquidation Amount........ In the event of the liquidation of the Trust, after
satisfaction of liabilities to creditors of the
Trust (to the extent not satisfied by the Company),
holders of Capital Securities issued by the Trust
will be entitled to receive $1,000 per Capital Se-
curity plus an amount equal to accrued and unpaid
distributions thereon to the date of payment, un-
less the Subordinated Debt Securities are distrib-
uted to holders of Trust Securities in the Trust.
See "Description of the Capital Securities--Liqui-
dation Distribution Upon Dissolution."
12
<PAGE>
Maturity.................. Upon the repayment of the Subordinated Debt Securi-
ties at maturity, the proceeds from such repayment
will be applied by the Institutional Trustee to re-
deem a like amount of Trust Securities, upon the
terms and conditions described herein. See "De-
scription of the Capital Securities--Redemption."
Optional Redemption....... The Company has the right to redeem the Subordi-
nated Debt Securities on or after December 1, 2006,
in whole or in part at any time, subject to the
conditions described in "Description of the Subor-
dinated Debt Securities--Redemption," at the Call
Price described herein, together with accrued and
unpaid interest to the date of redemption. Upon the
redemption of the Subordinated Debt Securities, the
proceeds of such redemption will be applied by the
Institutional Trustee to redeem a like amount of
Trust Securities at the applicable Redemption
Price, upon the terms and conditions described
herein. See "Description of the Capital Securi-
ties--Redemption."
Tax Event Redemption...... If at any time a Tax Event shall occur and would
continue despite liquidation of the Trust and dis-
tribution of the Subordinated Debt Securities to
the holders of the Trust Securities, the Company
may, within 90 days of the occurrence of such Tax
Event, redeem the Subordinated Debt Securities in
whole or in part at their full principal amounts,
plus any accrued and unpaid interest to the redemp-
tion date. See "Description of the Capital Securi-
ties--Tax Event Redemption." Upon the redemption of
the Subordinated Debt Securities, the proceeds of
such redemption will be applied by the Institu-
tional Trustee to redeem a like amount of Trust Se-
curities at the applicable Redemption Price, upon
the terms and conditions described herein. See "De-
scription of the Capital Securities--Redemption."
Voting Rights............. Generally, the holders of the Capital Securities
will not have any voting rights. See "Description
of the Capital Securities--Voting Rights."
The Guarantee............. The payment of distributions out of moneys held by
the Trust, payments on liquidation of the Trust and
payment upon the redemption of Capital Securities
of the Trust are guaranteed by the Company as de-
scribed herein under "Description of the Guaran-
tee." The guarantee covers payments of distribu-
tions and other payments on the Capital Securities
only if and to the extent that the Trust has funds
available therefor, which funds will not be avail-
able except to the extent the Company has made pay-
ments of interest (or premium, if any) or principal
or other payments on the Subordinated Debt Securi-
ties. The Guarantee, when taken together with the
Company's obligations under the Subordinated Debt
Securities and the Indenture, including its obliga-
tions to pay costs, expenses, debts and other lia-
bilities of the Trust (other than with respect to
the Trust Securities), provide a full and uncondi-
tional guarantee on a subordinated basis by the
Company of amounts due on the Capital Securities.
13
<PAGE>
Ranking................... The Common Securities of the Trust rank pari passu,
and payments thereon will be made pro rata, with
the Capital Securities issued by the Trust except
that upon the occurrence and during the continuance
of a Declaration Event of Default (as defined here-
in) under the Trust, the rights of the holders of
the Common Securities of the Trust to receive pay-
ment of periodic distributions and payments upon
liquidation, redemption or otherwise will be subor-
dinated to the rights of the holders of the Capital
Securities. See "Description of the Capital Securi-
ties--General." The Subordinated Debt Securities
are unsecured and subordinate and junior in right
of payment to the extent and in the manner set
forth in the Indenture to all Senior Indebtedness
(as defined herein). See "Description of Subordi-
nated Debt Securities." The Guarantee constitutes
an unsecured obligation of the Company and will
rank subordinate and junior in right of payment to
the extent and in the manner set forth in the Guar-
antee to all Senior Indebtedness. See "Description
of Guarantee."
Rating.................... The New Capital Securities are expected to be rated
"A-" by Standard & Poor's Rating Services and "a1"
by Moody's Investors Services, Inc. A security rat-
ing is not a recommendation to buy, sell or hold
securities and may be subject to revision or with-
drawal at any time by the assigning rating organi-
zation.
Use of Proceeds........... Neither M&I nor the Trust will receive any cash
proceeds from the issuance of the New Capital Secu-
rities offered hereby. M&I's proceeds from the sale
of the Old Subordinated Debt Securities were added
to the general funds of M&I and were and may be
used for general corporate purposes, including,
without limitation, funding the repurchase of
shares of its common stock, reduction of indebted-
ness (including the refinancing of M&I's outstand-
ing commercial paper), investments in or advances
to subsidiaries and possible future acquisitions of
bank and non-bank subsidiaries. See "Use of Pro-
ceeds."
Absence of Market for the
Capital Securities........
The New Capital Securities will be a new issue of
securities for which there is currently no market.
There can be no assurance as to the development of
liquidity of any market for the Capital Securities.
Trading Price............. The New Capital Securities are expected to trade at
a price per Capital Security plus accrued and un-
paid distributions, if any, to the date of settle-
ment.
For additional information with respect to the Capital Securities, see
"Description of the Capital Securities," "Description of the Subordinated Debt
Securities," "Description of the Guarantee," "United States Federal Income
Taxation" and "Notice to Investors."
RISK FACTORS
Prospective investors should carefully consider the matters set forth under
"Risk Factors."
14
<PAGE>
MARSHALL & ILSLEY CORPORATION
SELECTED CONSOLIDATED FINANCIAL DATA
The following table sets forth selected consolidated financial data and other
operating information for each of the five years in the period ended December
31, 1995, and for each of the nine month periods ended September 30, 1996 and
1995. Data relating to periods prior to 1994 has been restated to give effect
to the merger with Valley Bancorporation ("Valley") on May 31, 1994, which was
accounted for as a pooling of interests. Consolidated earnings and per share
data are taken from audited consolidated financial statements of M&I. The
financial information presented for the nine month periods ended September 30,
1996 and 1995 is unaudited. In the opinion of M&I, such unaudited financial
information contains all adjustments (consisting solely of normal recurring
adjustments) necessary to present fairly the financial information included
therein. Results for interim periods are not necessarily indicative of results
for the full year. The data and other operating information should be read in
conjunction with and are qualified in their entirety by the financial
statements and more detailed information incorporated herein by reference. See
"Incorporation of Certain Documents by Reference."
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30, YEARS ENDED DECEMBER 31,
------------------------ ---------------------------------------------------------------
1996 1995 1995 1994 1993 1992 1991
----------- ----------- ----------- ----------- ----------- ----------- -----------
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
SUMMARIZED INCOME
STATEMENT DATA:
Net Interest Income..... $ 372,821 $ 366,111 $ 491,477 $ 491,227 $ 480,279 $ 472,551 $ 429,498
Provisions for Loan
Losses................. 11,108 12,058 16,158 24,907 18,034 23,546 28,924
Other Income............ 356,824 308,874 424,182 361,481 371,926 328,411 276,748
Other Expense........... 501,856 443,051 599,622 584,770 569,587 545,624 490,584
Merger/Restructuring
Expense................ -- -- -- 75,228 -- -- --
Provision for Income
Taxes.................. 75,120 78,925 106,580 73,405 93,190 75,391 56,725
----------- ----------- ----------- ----------- ----------- ----------- -----------
Income Before
Extraordinary Items and
Cumulative Effect of
Changes in Accounting
Principles............. 141,561 140,951 193,299 94,398 171,394 156,401 130,013
Extraordinary Items, Net
of Income Taxes........ -- -- -- 11,542 -- -- --
Cumulative Effect of
Changes in Accounting
Principles, Net of
Income Taxes........... -- -- -- -- -- (9,134) --
----------- ----------- ----------- ----------- ----------- ----------- -----------
Net Income.............. $ 141,561 $ 140,951 $ 193,299 $ 105,940 $ 171,394 $ 147,267 $ 130,013
=========== =========== =========== =========== =========== =========== ===========
PER SHARE DATA:
Primary................. $ 1.43 $ 1.43 $ 1.96 $ 1.07 $ 1.67 $ 1.46 $ 1.33
Fully Diluted........... 1.40 1.38 1.90 1.04 1.60 1.40 1.27
Book Value.............. 13.13 12.47 12.92 11.01 11.35 10.76 9.74
Cash Dividends Per
Common Share........... 0.535 0.48 0.645 0.59 0.54 0.48 0.43
AVERAGE BALANCE SHEET
DATA:
Investment Securities... $ 3,292,121 $ 2,314,961 $ 2,400,873 $ 2,467,882 $ 2,636,940 $ 2,473,706 $ 2,297,229
Loans, Net of Unearned
Income................. 8,879,667 9,049,663 9,027,965 8,710,706 8,180,292 7,694,097 7,318,541
Total Earning Assets.... 12,372,371 11,590,894 11,661,963 11,379,769 11,002,235 10,539,984 10,050,498
Total Assets............ 13,449,060 12,646,166 12,725,511 12,432,461 12,039,468 11,525,409 11,015,325
Deposits................ 10,071,723 9,499,256 9,609,415 9,670,097 9,774,732 9,452,595 9,021,759
Long-term Debt.......... 712,742 794,741 801,176 447,254 272,041 284,333 290,724
Shareholders' Equity.... 1,274,865 1,157,258 1,177,825 1,097,963 1,121,314 1,010,667 900,665
SELECTED FINANCIAL
RATIOS:
Return on Average Assets
(Annualized)........... 1.41% 1.49% 1.52% 0.85% 1.42% 1.28% 1.18%
Return on Average Equity
(Annualized)........... 14.83 16.28 16.41 9.65 15.29 14.57 14.44
Taxable-Equivalent Net
Interest Income to
Average Earning Assets
(Annualized)........... 4.03 4.30 4.30 4.40 4.48 4.65 4.50
Common Dividend Payout.. 38.21 34.78 33.95 56.73 33.75 34.29 33.86
Average Shareholders'
Equity to Average Total
Assets................. 9.48 9.15 9.26 8.83 9.31 8.77 8.18
Tier 1 Risk-Based
Capital................ 11.31 11.61 11.71 11.15 11.47 -- --
Total Risk-Based
Capital................ 13.54 14.02 14.04 13.62 14.06 -- --
Tier 1 Leverage......... 8.62 8.89 9.07 8.39 8.74 -- --
Net Charge-offs to
Average Loans and
Leases Outstanding
(Annualized)........... 0.66 0.06 0.10 0.05 0.11 0.12 0.30
Allowance for Loan
Losses to Total Loans
and Leases Outstanding. 1.64 1.80 1.82 1.75 1.55 1.55 1.41
Allowance for Loan
Losses to Nonperforming
Loans and Leases(1).... 202 269 261 265 237 187 109
Nonperforming Loans and
Leases to Loans and
Leases Outstanding, End
of Period(1)........... 0.81 0.67 0.70 0.66 0.65 0.83 1.29
Nonperforming Assets to
Loans and Leases
Outstanding Plus Loan-
Related Assets at End
of Period(1)........... 0.88 0.76 0.79 0.80 0.80 1.07 1.53
RATIO OF EARNINGS TO
FIXED CHARGES(2)
Excluding Interest on
Deposits............... 3.64x 3.61x 3.76x 3.18x 6.52x 5.57x 3.80x
Including Interest on
Deposits............... 1.62x 1.67x 1.68x 1.50x 1.83x 1.60x 1.36x
</TABLE>
- ------
(1) Nonperforming loans include non-accrual loans, restructured loans and loans
90 days or more past due and still accruing interest. Nonperforming assets
include nonperforming loans plus assets acquired through foreclosure or
repossession.
(2) The ratio of earnings to fixed charges has been computed by dividing
earnings before income taxes and fixed charges by fixed charges. Fixed
charges, excluding interest on deposits, consists of interest on
indebtedness and one-third of rental expense (which is deemed
representative of the interest factor). Fixed charges, including interest
on deposits, consist of both the foregoing items plus interest on deposits.
15
<PAGE>
RISK FACTORS
Prior to making an investment decision, prospective purchasers of New
Capital Securities should carefully review the information contained elsewhere
or incorporated by reference in this Prospectus and should particularly
consider the following matters.
RANKING OF SUBORDINATE OBLIGATIONS UNDER THE GUARANTEE AND THE SUBORDINATED
DEBT SECURITIES
The obligations of M&I under the Guarantee and the Subordinated Debt
Securities are subordinate and junior in right of payment to all present and
future Senior Indebtedness (as defined herein) of M&I. No payment of principal
of (including redemption payments, if any) or premium, if any, or interest on
the Subordinated Debt Securities may be made if (i) any Senior Indebtedness of
M&I is not paid when due and any applicable grace period with respect to such
default has ended with such default not having been cured or waived or ceasing
to exist or (ii) the maturity of any Senior Indebtedness of M&I has been
accelerated because of a default. As of September 30, 1996, M&I had
approximately $295 million principal amount of Senior Indebtedness
outstanding, and the Company's subsidiaries had in the aggregate approximately
$2.0 billion of indebtedness. There are no terms in the Capital Securities,
the Subordinated Debt Securities, or the Guarantee that limit the ability of
M&I or its subsidiaries to incur additional indebtedness, including
indebtedness that ranks senior to the Subordinated Debt Securities and the
Guarantee. See "Description of the Guarantee--Status of the Guarantee" and
"Description of the Subordinated Debt Securities."
Because M&I is a bank holding company, the Subordinated Debt Securities and
the Guarantee are effectively subordinated to all existing and future
liabilities of M&I's subsidiaries, except to the extent that M&I is a creditor
of the subsidiaries recognized as such. There are also various legal
limitations on the extent to which M&I's depository subsidiaries may extend
credit, pay dividends or otherwise supply funds to M&I or various of its
affiliates.
GUARANTEE COVERS DISTRIBUTIONS AND OTHER PAYMENTS ONLY TO THE EXTENT THE TRUST
HAS AVAILABLE FUNDS: RELATED REMEDIES
The terms of the Guarantee are those set forth in an indenture and those
made part of such Guarantee by the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), under which The Chase Manhattan Bank will act as
trustee (the "Guarantee Trustee"). The Guarantee Trustee will hold the
Guarantee for the benefit of the holders of the Capital Securities.
The Guarantee guarantees to the holders of the Capital Securities the
following payments, to the extent not paid by the Trust: (i) any accrued and
unpaid distributions required to be paid on the Capital Securities, to the
extent the Trust has funds available therefor, (ii) the Redemption Price (as
defined herein), including all accrued and unpaid distributions with respect
to Capital Securities called for redemption by the Trust, to the extent the
Trust has funds available therefor, and (iii) upon a voluntary or involuntary
dissolution, winding-up or termination of the Trust (other than in connection
with the distribution of Subordinated Debt Securities to the holders of
Capital Securities upon a redemption of all the Capital Securities), the
lesser of (a) the aggregate of the liquidation amount and all accrued and
unpaid distributions on the Capital Securities to the date of the payment, to
the extent the Trust has funds available therefor or (b) the amount of assets
of the Trust remaining available for distribution to holders of the Capital
Securities in liquidation of the Trust. The Guarantee is subordinated as
described under "--Ranking of Subordinate Obligations under the Guarantee and
the Subordinated Debt Securities." The holders of a majority in liquidation
amount of the Capital Securities have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Guarantee
Trustee or to direct the exercise of any trust or power conferred upon the
Guarantee
16
<PAGE>
Trustee under the Guarantee. A holder of record of the Capital Securities may
institute a legal proceeding directly against M&I to enforce the Guarantee
Trustee's rights without first instituting any legal proceeding against the
Trust, the Guarantee Trustee or any other person or entity. Notwithstanding
the foregoing, any holder of record of Capital Securities may, after such
holder's written request to the Guarantee Trustee to pursue such trustee's
remedies under the Guarantee and any failure by such trustee to do so,
institute a legal proceeding directly against M&I, without first instituting a
legal proceeding against the Trust, the Guarantee Trustee or any other person
or entity, for enforcement of payment, on or after the respective due dates
specified in the Capital Securities, to such holder of distributions on the
Capital Securities of such holder. If M&I were to default on its obligation to
pay amounts payable on the Subordinated Debt Securities, the Trust would lack
available funds for the payment of distributions or amounts payable on
redemption of the Capital Securities or otherwise, and, in such event, holders
of the Capital Securities would not be able to rely upon the Guarantee for
payment of such amounts. Instead, each holder of Capital Securities would rely
on the enforcement (i) by the Institutional Trustee (as defined herein) of its
rights as registered holder of the Subordinated Debt Securities against M&I
pursuant to the terms of the Subordinated Debt Securities or (ii) by such
holder of Capital Securities of its right against M&I to enforce payments of
principal (and premium, if any) and interest on Subordinated Debt Securities
having an aggregate principal amount equal to the aggregate liquidation amount
of Capital Securities of such holder. See "Description of the Capital
Securities," "Description of the Guarantee" and "Description of the
Subordinated Debt Securities." The Declaration provides that each holder of
Capital Securities, by acceptance thereof, agrees to the provisions of the
Guarantee, including the subordination provisions thereof, and the Indenture.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF CAPITAL SECURITIES
If a Declaration Event of Default (as defined herein) with respect to the
Trust occurs and is continuing, then the holders of Capital Securities issued
by the Trust would, except as provided below, rely on the enforcement by the
Institutional Trustee of its rights as holder of the Subordinated Debt
Securities issued to the Trust against M&I. The holders of a majority in
liquidation amount of the Capital Securities issued by the Trust will have the
right to direct the time, method, and place of conducting any proceeding for
any remedy available to the Institutional Trustee with respect to such Capital
Securities or to direct the exercise of any trust or power conferred upon the
Institutional Trustee under the Declaration, including the rights to direct
the Institutional Trustee to exercise the remedies available to it as a holder
of the Subordinated Debt Securities. If the Institutional Trustee fails to
enforce its rights under the Subordinated Debt Securities after the holders of
a majority in liquidation amount of the Capital Securities have so directed
such Institutional Trustee, a holder of record of the Capital Securities may
institute a legal proceeding directly against M&I to enforce the rights of the
Institutional Trustee under the Subordinated Debt Securities, without first
instituting any legal proceeding against such Institutional Trustee or any
other person.
Notwithstanding the foregoing, if a Declaration Event of Default with
respect to the Trust has occurred and is continuing and such event is
attributable to the failure of the Company to pay interest or principal (or
premium, if any) on the Subordinated Debt Securities issued to the Trust on
the respective dates such interest or principal (or premium, if any) is
payable (or in the case of redemption, on the redemption date), then a holder
of record of such Capital Securities may institute directly against the
Company, a proceeding for enforcement of payment, on or after the respective
due dates specified in the Subordinated Debt Securities, to such holder
directly of the principal of (or premium, if any) or interest on Subordinated
Debt Securities having an aggregate principal amount equal to the aggregate
liquidation amount of the Capital Securities of such holder (a "Direct
Action"). In connection with such Direct Action, the Company will be
subrogated to the rights of such holder of Capital Securities under the
Declaration to the extent of any payment made by the Company to such holder of
Capital Securities in such Direct Action; provided, however, that no such
subrogation right may be
17
<PAGE>
exercised so long as a Declaration Event of Default has occurred and is
continuing. The holders of Capital Securities will not be able to exercise
directly any other remedy available to the holders of the Subordinated Debt
Securities.
OPTION TO EXTEND INTEREST PAYMENT PERIOD FOR UP TO TEN SEMIANNUAL PERIODS; TAX
CONSEQUENCES
M&I has the right under the Indenture to defer payments of interest on the
Subordinated Debt Securities by extending the interest payment period at any
time, and from time to time, subject to certain conditions, for Extension
Periods, each up to 10 consecutive semiannual periods. During each such
Extension Period, semiannual distributions on the Capital Securities would be
deferred (but would continue to accrue, despite such deferral, with interest
thereon compounded semiannually to the fullest extent permitted by law) by the
Trust. In the event that M&I exercises this right to defer interest payments,
then during any Extension Period (a) M&I shall not declare or pay dividends
on, or make a distribution with respect to, or redeem, purchase or acquire, or
make a liquidation payment with respect to, any of its capital stock or rights
to acquire capital stock (other than (i) purchases or acquisitions of shares
of any such capital stock or rights to acquire such capital stock in
connection with the satisfaction by M&I of its obligations under any employee
benefit plans, (ii) as a result of a reclassification of M&I's capital stock
or rights to acquire such capital stock or the exchange or conversion of one
class or series of M&I's capital stock or rights to acquire such capital stock
for another class or series of M&I's capital stock or rights to acquire such
capital stock, (iii) the purchase of fractional interests in shares of M&I's
capital stock pursuant to the conversion or exchange provisions of such
capital stock or the security being converted or exchanged or (iv) dividends
and distributions made on M&I's capital stock or rights to acquire such
capital stock with M&I's capital stock or rights to acquire such capital
stock) or make guarantee payments with respect to the foregoing and (b) M&I
shall not make any payment of interest, principal or premium if any, on or
repay, repurchase or redeem any debt securities issued by M&I that rank pari
passu with or junior to the Subordinated Debt Securities. Prior to the
termination of any such Extension Period, M&I may further extend the interest
payment period; provided that each such Extension Period, together with all
such previous and further extensions thereof, may not exceed 10 consecutive
semiannual periods or extend beyond the maturity of the Subordinated Debt
Securities. Upon the termination of any Extension Period and the payment of
all amounts then due, M&I may commence a new Extension Period, subject to the
terms set forth herein. See "Description of the Capital Securities" and
"Description of the Subordinated Debt Securities."
During each Extension Period, if any, each holder of Capital Securities will
continue to accrue income (as original issue discount ("OID")) in respect of
the deferred interest (see "United States Federal Income Taxation") allocable
to its Capital Securities for United States federal income tax purposes, which
will be allocated but not distributed. In such event, each holder of Capital
Securities will recognize income for United States federal income tax purposes
in advance of the receipt of cash, and will not receive cash related to such
income from the Trust if such holder disposes of its Capital Securities prior
to the record date for payment of such deferred interest. See "United States
Federal Income Taxation."
M&I has no current intention of exercising its right to defer payments of
interest on the Subordinated Debt Securities. However, should M&I determine to
exercise such right in the future, the market price of the Capital Securities
is likely to be affected. A holder that disposes of its Capital Securities
during an Extension Period, therefore, might not receive the same return on
its investment as a holder that continues to hold its Capital Securities. In
addition, as a result of the existence of M&I's right to defer interest
payments, the market price of the Capital Securities (which represent
undivided beneficial interests in the Subordinated Debt Securities) may be
more volatile than other securities on which OID accrues that do not have such
rights.
18
<PAGE>
PROPOSED TAX LEGISLATION
On March 19, 1996, President Clinton proposed certain tax law changes that
would, among other things, generally deny corporate issuers a deduction for
interest in respect of certain debt obligations issued on or after December 7,
1995 (the "Proposed Legislation") if such debt obligations have a maximum term
in excess of twenty years and are not shown as indebtedness on the issuer's
applicable consolidated balance sheet. On March 29, 1996, Senate Finance
Committee Chairman William V. Roth, Jr. and House Ways and Means Committee
Chairman Bill Archer issued a joint statement (the "Joint Statement")
indicating their intent that certain legislative proposals initiated by the
Clinton administration, including the Proposed Legislation, that may be
adopted by either of the tax-writing committees of Congress would have an
effective date that is no earlier than the date of "appropriate Congressional
action." Based upon the Joint Statement, it is expected that if the Proposed
Legislation were to be enacted, such legislation would not apply to the
Subordinated Debt Securities. There can be no assurance, however, that the
effective date guidance contained in the Joint Statement will be incorporated
into the Proposed Legislation, if enacted, or that other legislation enacted
after the date hereof will not otherwise adversely affect the ability of the
Company to deduct the interest payable on the Subordinated Debt Securities.
Accordingly, there can be no assurance that a Tax Event will not occur. See
"--Redemption," "Description of the Subordinated Debt Securities--Proposed Tax
Legislation."
EXCHANGE OF CAPITAL SECURITIES FOR SUBORDINATED DEBT SECURITIES; TAX EVENT
REDEMPTION
The Company, as the holder of all of the outstanding Common Securities of
the Trust, has the right at any time to dissolve the Trust (including but not
limited to the occurrence of a Tax Event) and, after satisfaction of
liabilities to creditors of the Trust, cause the Subordinated Debt Securities
to be distributed to the holders to the Trust Securities on a pro rata basis
in accordance with the aggregate stated liquidation amount thereof, in
liquidation of the Trust. See "Description of the Capital Securities--
Liquidation Distribution Upon Dissolution." Upon the occurrence of a Tax
Event, in certain circumstances described herein, the Company will have the
right to redeem the Subordinated Debt Securities, in whole or in part, in
which event the Trust will redeem the Trust Securities on a pro rata basis to
the same extent as such Subordinated Debt Securities are redeemed by the
Company. See "Description of the Capital Securities--Tax Event Redemption."
The exercise of such rights is subject to M&I having received prior approval
to do so from the Federal Reserve if then required under applicable guidelines
or policies of the Federal Reserve.
Under current United States federal income tax law, a distribution of
Subordinated Debt Securities upon the dissolution of the Trust would not be a
taxable event to holders of the Capital Securities. Upon the occurrence of a
Tax Event, however, a dissolution of the Trust in which holders of the Capital
Securities receive cash would be a taxable event to such holders. See "United
States Federal Income Taxation--US Holders--Receipt of Subordinated Debt
Securities or Cash upon Liquidation of Trust."
There can be no assurance as to the market prices for the Capital Securities
or the Subordinated Debt Securities that may be distributed in exchange for
Capital Securities if a dissolution or liquidation of the Trust were to occur.
Accordingly, the Capital Securities that an investor may purchase, whether in
the secondary market or otherwise, or the Subordinated Debt Securities that a
holder of Capital Securities may receive on dissolution and liquidation of the
Trust, may trade at a discount to the price paid to purchase the Capital
Securities. Because the ability of the Trust to pay amounts due on the Capital
Securities is wholly dependent upon M&I's making payments on the Subordinated
Debt Securities as and when required, and because holders of Capital
Securities may receive Subordinated Debt Securities upon liquidation of the
Trust, prospective purchasers of Capital Securities are also making an
investment decision with regard to the Subordinated Debt Securities and should
carefully review all the information regarding the Subordinated Debt
Securities contained herein and evaluate
19
<PAGE>
the credit risk of M&I. See "Description of the Capital Securities" and
"Description of the Subordinated Debt Securities."
CONSEQUENCES OF HIGHLY LEVERAGED TRANSACTION
The Indenture does not contain any provisions that afford holders of the
Subordinated Debt Securities protection in the event of a highly leveraged
transaction, including a change of control, or other similar transactions
involving M&I that may adversely affect such holders. See "Description of the
Subordinated Debt Securities."
LIMITED VOTING RIGHTS
Holders of Capital Securities will have limited voting rights and will not
be entitled to vote to appoint, remove or replace any M&I Trustee (as defined
herein), or to increase or decrease the number of M&I Trustees. Such voting
rights with respect to the M&I Trustees are vested exclusively in the holder
of the Common Securities which will be M&I. See "Description of the Capital
Securities."
TRADING PRICE
The Capital Securities are expected to trade at a price per Capital Security
plus accrued and unpaid distributions, if any to the date of settlement.
Because the Capital Securities pay distributions at a fixed rate based upon
the fixed interest rate payable on the Subordinated Debt Securities, the
trading price of the Capital Securities may decline if interest rates rise.
CONSEQUENCES OF A FAILURE TO EXCHANGE OLD CAPITAL SECURITIES
The Old Capital Securities have not been registered under the Securities Act
or any state securities laws and therefore may not be offered, sold or
otherwise transferred except in compliance with the registration requirements
of the Securities Act and any other applicable securities laws, or pursuant to
an exemption therefrom or in a transaction not subject thereto, and in each
case in compliance with certain other conditions and restrictions. Old Capital
Securities which remain outstanding after consummation of the Exchange Offer
will continue to bear a legend reflecting such restrictions on transfer. In
addition, upon consummation of the Exchange Offer, holders of Old Capital
Securities which remain outstanding will not be entitled to any rights to have
such Old Capital Securities registered under the Securities Act or to any
similar rights under the Registration Rights Agreement. M&I and the Trust do
not intend to register under the Securities Act any Old Capital Securities
which remain outstanding after consummation of the Exchange Offer.
To the extent that Old Capital Securities are tendered and accepted in the
Exchange Offer, any trading market for Old Capital Securities which remain
outstanding after the Exchange Offer could be adversely affected.
The New Capital Securities and any Old Capital Securities which remain
outstanding after consummation of the Exchange Offer will constitute a single
series of Capital Securities under the Declaration and, accordingly, will vote
together as a single class for purposes of determining whether holders of the
requisite percentage in outstanding Liquidation Amount thereof have taken
certain actions or exercised certain rights under the Declaration.
The Old Capital Securities provide that, if the Exchange Offer is not
consummated within 180 days of the original issuance of the Old Capital
Securities, the Distribution rate borne by the Old Capital Securities will
increase by 0.25% per annum commencing on the 181st day after the original
issuance of the Old Capital Securities, until the Exchange Offer is
consummated. Following consummation of the Exchange Offer, the Old Capital
Securities will not be entitled to any increase in the Distribution
20
<PAGE>
rate thereon. The New Capital Securities will not be entitled to any such
increase in the interest rate thereon.
ABSENCE OF PUBLIC MARKET
The Old Capital Securities were issued to, and the Company believes are
currently owned by, a relatively small number of beneficial owners. The Old
Capital Securities have not been registered under the Securities Act and will
continue to be subject to restrictions on transferability to the extent that
they are not exchanged for the New Capital Securities. Although the New
Capital Securities will generally be permitted to be resold or otherwise
transferred by the holders (who are not affiliates of M&I or the Trust)
without compliance with the registration requirements under the Securities
Act, they will constitute a new issue of securities with no established
trading market. Capital Securities may be transferred by the holders thereof
only in blocks having a Liquidation Amount of not less than $100,000 (100
Capital Securities). Accordingly, no assurance can be given that an active
public or other market will develop for the New Capital Securities or the Old
Capital Securities. If an active public market does not develop, the market
price and liquidity of the New Capital Securities may be adversely affected.
If a public trading market develops for the New Capital Securities, future
trading prices of such securities will depend on many factors, including,
among other things, prevailing interest rates, results of operations and the
market for similar securities. Depending on prevailing interest rates, the
market for similar securities and other factors, including the financial
condition of M&I, the New Capital Securities may trade at a discount. The
Company and the Trust may apply for listing of the Capital Securities issued
in the Exchange Offer as debt securities on a securities exchange or for
quotation through the National Association of Securities Dealers Automated
Quotation System. If the Subordinated Debt Securities are distributed to the
holders of the Capital Securities, and the Capital Securities are then listed
on such exchange or for such quotation, the Company will use its best efforts
to have the Subordinated Debt Securites listed on such exchange or for such
quotation as the Capital Securities are then listed.
Notwithstanding the registration of the New Capital Securities in the
Exchange Offer, holders who are "affiliates" (as defined under Rule 405 of the
Securities Act) of M&I or the Trust may publicly offer for sale or resell the
New Notes only in compliance with the provisions of Rule 144 under the
Securities Act or any other available exemptions under the Securities Act.
Each broker-dealer that receives New Capital Securities for its own account
in exchange for Old Capital Securities, where such Old Capital Securities were
acquired by such broker-dealer as a result of market-making activities or
other trading activities, must acknowledge that it will deliver a prospectus
in connection with any resale of such New Capital Securities. See "Plan of
Distribution."
EXCHANGE OFFER PROCEDURES
Issuance of the New Capital Securities in exchange for Old Capital
Securities pursuant to the Exchange Offer will be made only after a timely
receipt by the Exchange Agent of such Old Capital Securities, a properly
completed and duly executed Letter of Transmittal and all other required
documents. Therefore, holders of the Old Capital Securities desiring to tender
such Old Capital Securities in exchange for New Capital Securities should
allow sufficient time to ensure timely delivery. The Company, the Trust and
the Exchange Agent are under no duty to give notification of defects or
irregularities with respect to the tenders of Old Capital Securities for
exchange.
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<PAGE>
CAPITALIZATION
The following table sets forth the consolidated capitalization of M&I and
its subsidiaries at September 30, 1996, and "as adjusted" to reflect, on a pro
forma basis as of such date, the application of the estimated net proceeds
from the sale of the Old Capital Securities. No adjustment has been made for
any possible redemption of any common stock of M&I. See "Use of Proceeds." The
table should be read in conjunction with M&I's consolidated financial
statements and notes thereto incorporated herein by reference. See "Available
Information."
<TABLE>
<CAPTION>
SEPTEMBER 30, 1996
----------------------
AS
ACTUAL ADJUSTED
---------- ----------
(IN THOUSANDS)
<S> <C> <C>
Long-Term Debt...................................... $ 232,727 $ 232,727
Company-Obligated Mandatorily Redeemable Capital
Trust Pass-through Securities of Subsidiary Trust
holding solely a Company Guaranteed Related
Subordinated Debt(1)............................... -- 200,000
Shareholders' Equity
Series A Convertible Preferred Stock, $1.00 Par
Value, 2,000,000 Shares Authorized, 517,129 Shares
Issued; Liquidation Preference Of $51,713.......... 517 517
Common Stock, $1.00 Par Value, 160,000,000 Shares
Authorized, 99,494,335 Shares Issued............... 99,494 99,494
Additional Paid-In Capital.......................... 200,320 200,320
Retained Earnings................................... 1,165,163 1,165,163
Treasury Stock, At Cost (8,457,461 Shares).......... (197,895) (197,895)
Deferred Compensation............................... (954) (954)
Net Unrealized Gains On Securities Available For
Sale, Net of Related Income Taxes.................. 4,095 4,095
---------- ----------
Total Shareholders' Equity........................ 1,270,740 1,270,740
---------- ----------
Total Capitalization............................ $1,503,467 $1,703,467
========== ==========
</TABLE>
- --------
(1) The Company-Obligated Mandatorily Redeemable Capital Trust Pass-through
Securities of Subsidiary Trust holding solely a Company Guaranteed Related
Subordinated Debt reflects the Capital Securities. The Trust is a wholly
owned subsidiary of the Company and holds the Subordinated Debt Securities
as its sole asset. The SEC staff will accept the classification of such
securities in the Company's consolidated financial statements as debt.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges for
M&I for the periods indicated:
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
SEPTEMBER 30, YEARS ENDED DECEMBER 31,
-------------- ----------------------------
RATIO OF EARNINGS TO FIXED
CHARGES(1) 1996 1995 1995 1994 1993 1992 1991
- -------------------------- ------ ------ ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Excluding Interest on Deposits.. 3.64x 3.61x 3.76x 3.18x 6.52x 5.57x 3.80x
Including Interest on Deposits.. 1.62x 1.67x 1.68x 1.50x 1.83x 1.60x 1.36x
</TABLE>
- --------
(1) The ratio of earnings to fixed charges has been computed by dividing
earnings before income taxes and fixed charges by fixed charges. Fixed
charges, excluding interest on deposits, consists of interest on
indebtedness and one-third of rental expense (which is deemed
representative of the interest factor). Fixed charges, including interest
on deposits, consist of both the foregoing items plus interest on
deposits.
22
<PAGE>
ACCOUNTING TREATMENT
The financial statements of the Trust will be consolidated into M&I's
consolidated financial statements with the Capital Securities shown as
"Company-Obligated Mandatorily Redeemable Capital Trust Pass-through
Securities of Subsidiary Trust holding solely a Company Guaranteed Related
Subordinated Debt" or its equivalent. The Trust is a wholly owned subsidiary
of the Company and holds the Subordinated Debt Securities as its sole asset.
See "Capitalization."
USE OF PROCEEDS
Neither M&I nor the Trust will receive any cash proceeds from the issuance
of the New Capital Securities offered hereby. In consideration for issuing the
New Capital Securities in exchange for Old Capital Securities as described in
this Prospectus, the Trust will receive Old Capital Securities in like
Liquidation Amount. The Old Capital Securities surrendered in exchange for the
New Capital Securities will be retired and canceled.
The net proceeds to the Trust from the offering of the Old Capital
Securities was approximately $199.0 million (before deducting expenses
associated with the offering). All of the net proceeds from the sale of
Capital Securities were invested by the Trust in the Old Subordinated Debt
Securities. M&I's net proceeds from the sale of the Old Subordinated Debt
Securities were added to the general funds of M&I and were and may be used for
general corporate purposes, including, without limitation, funding the
repurchase of shares of its common stock, reduction of indebtedness (including
the refinancing of M&I's outstanding commercial paper), investments in or
advances to subsidiaries and possible future acquisitions of bank and non-bank
subsidiaries.
THE TRUST
The Trust is a statutory business trust created under Delaware law pursuant
to (i) a separate declaration of trust (the "Original Declaration") executed
by the Company, as sponsor for the Trust (the "Sponsor"), and the M&I Trustees
(as defined herein) for the Trust and (ii) the filing of a certificate of
trust for the Trust with the Delaware Secretary of State on December 2, 1996.
The Original Declaration was amended and restated in its entirety pursuant to
an Amended and Restated Declaration of Trust dated as of December 9, 1996 (the
"Declaration") executed by the Sponsor and the M&I Trustees (as defined
below). The Declaration has been qualified under the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"). The Trust exists for the
exclusive purposes of (i) issuing the Trust Securities representing undivided
beneficial interests in the assets of the Trust, (ii) investing the gross
proceeds of such Trust Securities in the Subordinated Debt Securities, and
(iii) engaging in only those other activities necessary or incidental thereto.
All of the Common Securities of the Trust will be directly or indirectly owned
by the Company. The Common Securities of the Trust rank pari passu, and
payments will be made thereon pro rata, with the Capital Securities of the
Trust except that upon an event of default under the Declaration in respect of
the Trust, the rights of the holders of the Common Securities of the Trust to
payment in respect of distributions and payments upon liquidation, redemption
and otherwise will be subordinated to the rights of the holders of the Capital
Securities of the Trust. The Company acquired Common Securities in an
aggregate liquidation amount equal to 3% of the total capital of the Trust.
The Trust has a term of approximately 55 years, but may earlier terminate as
provided in the Declaration.
The Trust's business and affairs will be conducted by the trustees (the "M&I
Trustees") appointed by the Company, as the holder of all the Common
Securities. The holder of the Common Securities of the Trust will be entitled
to appoint, remove or replace any of, or increase or reduce the number of, the
M&I Trustees of the Trust. The duties and obligations of the M&I Trustees of
the Trust shall be governed by the Declaration of Trust. A majority of the M&I
Trustees (the "Regular Trustees") of the Trust will be persons who are
employees or officers of or affiliated with the Company. One M&I Trustee will
be a financial institution that will be unaffiliated with the Company and will
be eligible and act as property trustee and as indenture trustee pursuant to
the terms set forth herein (the "Institutional Trustee").
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<PAGE>
Pursuant to the Declaration, the number of M&I Trustees of the Trust is
five. Three of the trustees of the Trust are Regular Trustees. The fourth
trustee of the Trust is the Institutional Trustee. Initially, The Chase
Manhattan Bank, a New York State banking corporation, is the Institutional
Trustee until removed or replaced by the holder of the Common Securities of
the Trust. The Chase Manhattan Bank is also trustee under the Guarantee. The
fifth trustee of the Trust is required to be an entity that maintains its
principal place of business in the State of Delaware (the "Delaware Trustee").
Chase Manhattan Bank Delaware, an affiliate of the Institutional Trustee, is
the Delaware Trustee. See "Description of the Capital Securities--Voting
Rights" herein. The Institutional Trustee holds title to the Subordinated Debt
Securities for the benefit of the holders of the Trust Securities issued by
the Trust, and the Institutional Trustee holds the power to exercise all
rights, powers and privileges under the Indenture as the holder of the
Subordinated Debt Securities. In addition, the Institutional Trustee maintains
exclusive control of a separate segregated non-interest bearing trust account
(the "Property Account") to hold all payments made in respect of the
Subordinated Debt Securities for the benefit of the holders of the Trust
Securities issued by the Trust. The Institutional Trustee will make payments
of distributions and payments on liquidation, redemption and otherwise to the
holders of record of the Trust Securities issued by the Trust out of funds
from the Property Account of the Trust. The Company, as holder of all the
Common Securities of the Trust, has the right, subject to the Trust Indenture
Act with respect to the Institutional Trustee and Delaware law with respect to
the Delaware Trustee, to appoint, remove or replace any M&I Trustee and to
increase or decrease the number of M&I Trustees. The Company will pay all fees
and expenses related to the Trust and the offering and sale of the Trust
Securities of the Trust. See "Description of the Subordinated Debt
Securities--Miscellaneous." The rights of the holders of the Capital
Securities of the Trust, including economic rights, rights to information and
voting rights, are set forth in the Declaration with respect to the Trust, the
Delaware Business Trust Act, as amended (the "Trust Act"), and the Trust
Indenture Act. See "Description of the Capital Securities." The principal
place of business of the Trust is c/o Marshall & Ilsley Corporation, 770 North
Water Street, Milwaukee, Wisconsin 53202, and its telephone number is (414)
765-7801.
MARSHALL & ILSLEY CORPORATION
Marshall & Ilsley Corporation ("M&I") is a registered bank holding company
under the Bank Holding Company Act of 1956, as amended (the "BHCA"), and a
registered savings and loan holding company under the Home Owners' Loan Act of
1933, as amended ("HOLA"). As of September 30, 1996, M&I had consolidated
total assets of approximately $14.4 billion and consolidated total deposits of
approximately $10.6 billion, making M&I the second largest bank holding
company headquartered in Wisconsin. The executive offices of M&I are located
at 770 North Water Street, Milwaukee, Wisconsin 53202 (telephone number (414)
765-7801).
M&I's principal assets are the stock of its bank and nonbank subsidiaries
and the assets of its Data Services Division ("M&I Data Services"). M&I's
subsidiaries include 29 commercial banks, one savings association and a number
of companies engaged in businesses that the Federal Reserve Board has
determined to be closely-related or incidental to the business of banking. M&I
provides its subsidiaries with financial and managerial assistance in such
areas as budgeting, tax planning, compliance assistance, asset and liability
management, investment administration and portfolio planning, business
development, advertising and human resources management.
M&I's bank and savings association subsidiaries provide a full range of
banking services to individuals, businesses and governments throughout
Wisconsin and the Phoenix, Arizona metropolitan area. These subsidiaries offer
retail, institutional, international, business and correspondent banking,
investment and trust services through the operation of 226 banking offices in
Wisconsin and 12 offices in Arizona. M&I Marshall & Ilsley Bank, M&I's largest
bank subsidiary with consolidated assets as of September 30, 1996 of
approximately $4.9 billion, is the third largest bank in Wisconsin.
24
<PAGE>
M&I Data Services is a major supplier of financial and data processing
services and software to banking, financial and related organizations. M&I
Data Services provides services and software to over 800 financial institution
customers in the United States, as well as institutions in numerous foreign
countries. M&I's nonbank subsidiaries operate a variety of bank-related
businesses, including those providing investment management services,
insurance services, trust services, equipment lease financing, commercial and
residential mortgage banking, venture capital, brokerage services and
financial advisory services. M&I Investment Management Corp. offers a full
range of asset management services to M&I's trust company subsidiaries, the
Marshall Funds and other individual, business and institutional customers.
M&I's trust company subsidiaries provide trust and employee benefit plan
services to customers in Wisconsin, Arizona and Florida. M&I First National
Leasing Corp. leases a variety of equipment and machinery to large and small
businesses. M&I Mortgage Corp. originates, purchases, sells and services
residential mortgages. The Richter-Schroeder Company originates and services
long-term commercial real estate loans for institutional investors. M&I
Capital Markets Group, Inc. provides venture capital, financial advisory and
strategic planning services to customers, including assistance in connection
with the private placement of securities, raising funds for expansion,
leveraged buy-outs, divestitures, mergers and acquisitions and small business
investment company transactions. M&I Brokerage Services, Inc., a broker-dealer
registered with the National Association of Securities Dealers, Inc. (the
"NASD") and the Securities and Exchange Commission (the "SEC"), provides
brokerage and other investment related services to a variety of retail and
commercial customers. On August 7, 1996, M&I acquired EastPoint Technology,
Inc., a software development company located in Bedford, New Hampshire which
specializes in client/server technology, for approximately $25.5 million in
cash.
As a registered bank holding company and savings and loan holding company,
M&I is subject to regulation and examination by the Federal Reserve under the
BHCA and the Office of Thrift Supervision ("OTS") under HOLA. M&I's state bank
subsidiaries are subject to regulation and examination by the Wisconsin Office
of the Commissioner of Banking, or in the case of M&I Thunderbird Bank, the
Arizona State Banking Department, and the Federal Reserve (for state banks
which are members of the Federal Reserve System). M&I's national bank
subsidiary is subject to regulation and examination by the Office of the
Comptroller of the Currency. M&I's savings association subsidiary is subject
to regulation and examination by the Wisconsin Office of the Commissioner of
Savings and Loans and the OTS. In addition, all of M&I's bank subsidiaries are
subject to examination by the FDIC and other federal agencies.
Under Federal Reserve policy, M&I is expected to act as a source of
financial strength to each of its bank subsidiaries and to commit resources to
support each bank subsidiary in circumstances when it might not do so absent
such requirements. In addition, the bank subsidiaries of M&I, are subject to
certain restrictions imposed by federal law on any extensions of credit to,
and certain other transactions with, M&I and certain other affiliates, and on
investments in stock or other securities thereof. In addition, payment of
dividends to M&I by the subsidiary banks is subject to ongoing review of
banking regulators and is subject to various statutory limitations and in
certain circumstances requires approval by banking regulatory authorities.
Furthermore, there are numerous other federal and state laws and regulations
which regulate the activities of M&I and its bank subsidiaries, including
requirements and limitations relating to capital and reserve requirements,
permissible investments and lines of business, transactions with affiliates,
mergers and acquisitions, issuances of securities, extensions of credit and
branch banking. The federal regulatory agencies have implemented provisions of
the Federal Deposit Insurance Corporation Improvement Act of 1991 by creating
standards for when they will take prompt corrective action if a depository
institution fails to maintain a certain capital level within specified
categories ranging from "critically undercapitalized" to "well capitalized."
Information regarding capital requirements for bank holding companies can be
found in Note 13 of the Notes to the Consolidated Financial Statements
contained in Item 8 of M&I's Form 10-K for the fiscal year ended December 31,
1995, which is incorporated herein by reference, and tables reflecting M&I's
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regulatory capital position at September 30, 1996 can be found in Item 2 of
M&I's Form 10-Q for the period ended September 30, 1996.
For additional information regarding M&I, see the documents incorporated by
reference herein as described in "Incorporation of Certain Documents by
Reference."
THE EXCHANGE OFFER
PURPOSE AND EFFECT OF THE EXCHANGE OFFER
In connection with the sale of the Old Capital Securities, M&I and the Trust
entered into the Registration Rights Agreement with the Initial Purchasers,
pursuant to which M&I and the Trust agreed to file and to use their best
efforts to cause to become effective with the Commission a registration
statement with respect to the exchange of the Old Capital Securities for
capital securities with terms identical in all material respects to the terms
of the Old Capital Securities. A copy of the Registration Rights Agreement has
been filed as an exhibit to the Registration Statement of which this
Prospectus is a part.
The Exchange Offer is being made to satisfy the contractual obligations of
M&I and the Trust under the Registration Rights Agreement. The form and terms
of the New Capital Securities are the same as the form and terms of the Old
Capital Securities except that the New Capital Securities have been registered
under the Securities Act and therefore will not be subject to certain
restrictions on transfer applicable to the Old Capital Securities and will not
provide for any increase in the Distribution rate thereon. In that regard, the
Old Capital Securities provide, among other things, that, if the Exchange
Offer is not consummated by June 7, 1997, the Distribution rate borne by the
Old Capital Securities commencing on June 8, 1997, will increase by 0.25% per
annum until the Exchange Offer is consummated. Upon consummation of the
Exchange Offer, holders of Old Capital Securities will not be entitled to any
increase in the Distribution rate thereon or any further registration rights
under the Registration Rights Agreement, except under limited circumstances.
See "Risk Factors--Consequences of a Failure to Exchange Old Capital
Securities."
The Exchange Offer is not being made to, nor will the Company accept tenders
for exchange from, holders of Old Capital Securities in any jurisdiction in
which the Exchange Offer or the acceptance thereof would not be in compliance
with the securities or blue sky laws of such jurisdiction.
Unless the context requires otherwise, the term "holder" with respect to the
Exchange Offer means any person in whose name the Old Capital Securities are
registered on the books of the Company or any other person who has obtained a
properly completed bond power from the registered holder, or any participant
in The Depository Trust Company whose name appears on a security position
listing as a holder of Old Capital Securities (which, for purposes of the
Exchange Offer, include beneficial interests in the Old Capital Securities,
held by direct or indirect participants in The Depository Trust Company and
Old Capital Securities held in definitive form).
Pursuant to the Exchange Offer, M&I will exchange as soon as practicable
after the date hereof the Old Guarantee for the New Guarantee and all of the
Old Subordinated Debt Securities, of which $206,186,000 aggregate principal
amount is outstanding, for like aggregate principal of the New Subordinated
Debt Securities. The New Guarantee and New Subordinated Debt Securities have
been registered under the Securities Act.
TERMS OF THE EXCHANGE
The Company hereby offers, upon the terms and subject to the conditions set
forth in this Prospectus and in the accompanying Letter of Transmittal, to
exchange up to $200,000,000 aggregate
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Liquidation Amount of New Capital Securities for a like aggregate Liquidation
Amount of Old Capital Securities properly tendered on or prior to the
Expiration Date (as defined below) and not properly withdrawn in accordance
with the procedures described below. The Company will issue, promptly after
the Expiration Date, an aggregate Liquidation Amount of up to $200,000,000 of
New Capital Securities in exchange for a like principal amount of outstanding
Old Capital Securities tendered and accepted in connection with the Exchange
Offer. Holders may tender their Old Capital Securities in whole or in part in
a Liquidation Amount of not less than $100,000 or any integral multiple of
$1,000 in excess thereof.
The Exchange Offer is not conditioned upon any minimum Liquidation Amount of
Old Capital Securities being tendered. As of the date of this Prospectus,
$200,000,000 aggregate Liquidation Amount of the Old Capital Securities is
outstanding.
Holders of Old Capital Securities do not have any appraisal or dissenters'
rights in connection with the Exchange Offer. Old Capital Securities which are
not tendered for or are tendered but not accepted in connection with the
Exchange Offer will remain outstanding and not be entitled to any further
registration rights under the Registration Rights Agreement, except under
limited circumstances. See "Risk Factors--Consequences of a Failure to
Exchange Old Capital Securities".
If any tendered Old Capital Securities are not accepted for exchange because
of an invalid tender, the occurrence of certain other events set forth herein
or otherwise, certificates for any such unaccepted Old Capital Securities will
be returned, without expense, to the tendering holder thereof promptly after
the Expiration Date.
Holders who tender Old Capital Securities in connection with the Exchange
Offer will not be required to pay brokerage commissions or fees or, subject to
the instructions in the Letter of Transmittal, transfer taxes with respect to
the exchange of Old Capital Securities in connection with the Exchange Offer.
M&I will pay all charges and expenses, other than certain applicable taxes
described below, in connection with the Exchange Offer. See "--Fees and
Expenses."
NEITHER THE BOARD OF DIRECTORS OF M&I NOR THE TRUSTEES OF THE TRUST MAKES
ANY RECOMMENDATION TO HOLDERS OF OLD CAPITAL SECURITIES AS TO WHETHER TO
TENDER OR REFRAIN FROM TENDERING ALL OR ANY PORTION OF THEIR OLD CAPITAL
SECURITIES PURSUANT TO THE EXCHANGE OFFER. IN ADDITION, NO ONE HAS BEEN
AUTHORIZED TO MAKE ANY SUCH RECOMMENDATION. HOLDERS OF OLD CAPITAL SECURITIES
MUST MAKE THEIR OWN DECISION WHETHER TO TENDER PURSUANT TO THE EXCHANGE OFFER
AND, IF SO, THE AGGREGATE AMOUNT OF OLD CAPITAL SECURITIES TO TENDER AFTER
READING THIS PROSPECTUS AND THE LETTER OF TRANSMITTAL AND CONSULTING WITH
THEIR ADVISERS, IF ANY, BASED ON THEIR FINANCIAL POSITION AND REQUIREMENTS.
EXPIRATION DATE; EXTENSIONS, AMENDMENTS
The term "Expiration Date" means 5:00 p.m., New York City time, on
, 1997 unless the Exchange Offer is extended by M&I and the Trust
(in which case the term "Expiration Date" shall mean the latest date and time
to which the Exchange Offer is extended).
M&I and the Trust expressly reserves the right in their sole and absolute
discretion, subject to applicable law, at any time and from time to time, (i)
to delay the acceptance of the Old Capital Securities for exchange, (ii) to
terminate the Exchange Offer (whether or not any Old Capital Securities have
theretofore been accepted for exchange) if M&I and the Trust determine, in
their sole and absolute discretion, that any of the events or conditions
referred to under "--Conditions to the Exchange Offer" has occurred or exists
or has not been satisfied, (iii) to extend the Expiration Date of the Exchange
Offer and retain all Old Capital Securities tendered pursuant to the Exchange
Offer,
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subject, however, to the right of holders of Old Capital Securities to
withdraw their tendered Old Capital Securities as described under "--
Withdrawal Rights", and (iv) to waive any condition or otherwise amend the
terms of the Exchange Offer in any respect. If the Exchange Offer is amended
in a manner determined by M&I and the Trust to constitute a material change,
or if M&I and the Trust waives a material condition of the Exchange Offer, M&I
and the Trust will promptly disclose such amendment by means of a prospectus
supplement that will be distributed to the registered holders of the Old
Capital Securities, and M&I and the Trust will extend the Exchange Offer to
the extent required by Rule 14e-1 under the Exchange Act.
Any such delay in acceptance, extension, termination or amendment will be
followed promptly by oral or written notice thereof to the Exchange Agent (any
such oral notice to be promptly confirmed in writing) and by making a public
announcement thereof, and such announcement in the case of an extension will
be made no later than 9:00 a.m., New York City time, on the next business day
after the previously scheduled Expiration Date. Without limiting the manner in
which M&I and the Trust may choose to make any public announcement and subject
to applicable laws, M&I and the Trust shall have no obligation to publish,
advertise or otherwise communicate any such public announcement other than by
issuing a release to an appropriate news agency.
ACCEPTANCE FOR EXCHANGE AND ISSUANCE OF NEW CAPITAL SECURITIES
Upon the terms and subject to the conditions of the Exchange Offer, the
Trust will exchange, and will issue to the Exchange Agent, New Capital
Securities for Old Capital Securities validly tendered and not withdrawn
(pursuant to the withdrawal rights described under "--Withdrawal Rights")
promptly after the Expiration Date.
In all cases, delivery of New Capital Securities in exchange for Old Capital
Securities tendered and accepted for exchange pursuant to the Exchange Offer
will be made only after timely receipt by the Exchange Agent of (i) Old
Capital Securities or a book-entry confirmation of a book-entry transfer of
Old Capital Securities into the Exchange Agent's account at The Depository
Trust Company ("DTC"), (ii) the Letter of Transmittal (or facsimile thereof),
properly completed and duly executed, with any required signature guarantees,
and (iii) any other documents required by the Letter of Transmittal.
The term "book-entry confirmation" means a timely confirmation of a book-
entry transfer of Old Capital Securities into the Exchange Agent's account at
DTC.
Subject to the terms and conditions of the Exchange Offer, the Trust will be
deemed to have accepted for exchange, and thereby exchanged, Old Capital
Securities validly tendered and not withdrawn as, if and when the Trust gives
oral or written notice to the Exchange Agent (any such oral notice to be
promptly confirmed in writing) of the Trust's acceptance of such Old Capital
Securities for exchange pursuant to the Exchange Offer. The Exchange Agent
will act as agent for the Trust for the purpose of receiving tenders of Old
Capital Securities, Letters of Transmittal and related documents, and as agent
for tendering holders for the purpose of receiving Old Capital Securities,
Letters of Transmittal and related documents and transmitting New Capital
Securities to validly tendered holders. Such exchange will be made promptly
after the Expiration Date. If for any reason whatsoever, acceptance for
exchange or the exchange of any Old Capital Securities tendered pursuant to
the Exchange Offer is delayed (whether before or after the Trust's acceptance
for exchange of Old Capital Securities) or the Trust extends the Exchange
Offer or is unable to accept for exchange or exchange Old Capital Securities
tendered pursuant to the Exchange Offer, then, without prejudice to the
Trust's rights set forth herein, the Exchange Agent may, nevertheless, on
behalf of the Trust and subject to Rule 14e-1(c) under the Exchange Act,
retain tendered Old Capital Securities and such Old Capital Securities may not
be withdrawn except to the extent tendering holders are entitled to withdrawal
rights as described under "--Withdrawal Rights".
Pursuant to the Letter of Transmittal, a holder of Old Capital Securities
will warrant and agree in the Letter of Transmittal that it has full power and
authority to tender, exchange, sell, assign and transfer Old Capital
Securities, that the Trust will acquire good, marketable and unencumbered
title to
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the tendered Old Capital Securities, free and clear of all liens,
restrictions, charges and encumbrances, and the Old Capital Securities
tendered for exchange are not subject to any adverse claims or proxies. The
holder also will warrant and agree that it will, upon request, execute and
deliver any additional documents deemed by the Trust or the Exchange Agent to
be necessary or desirable to complete the exchange, sale, assignment, and
transfer of the Old Capital Securities tendered pursuant to the Exchange
Offer.
PROCEDURES FOR TENDERING OLD CAPITAL SECURITIES
Valid Tender. Except as set forth below, in order for Old Capital Securities
to be validly tendered pursuant to the Exchange Offer, either (i) a properly
completed and duly executed Letter of Transmittal (or facsimile thereof), with
any required signature guarantees and any other required documents, must be
received by the Exchange Agent at the address set forth under "--Exchange
Agent," on or prior to the Expiration Date and (a) tendered Old Capital
Securities must be received by the Exchange Agent, or (b) such Old Capital
Securities must be tendered pursuant to the procedures for book-entry transfer
set forth below and a book-entry confirmation must be received by the Exchange
Agent, in each case on or prior to the Expiration Date, or (ii) the guaranteed
delivery procedures set forth below must be complied with.
If less than all of the Old Capital Securities are tendered, a tendering
holder should fill in the amount of Old Capital Securities being tendered in
the appropriate box on the Letter of Transmittal. The entire amount of Old
Capital Securities delivered to the Exchange Agent will be deemed to have been
tendered unless otherwise indicated.
THE METHOD OF DELIVERY OF CERTIFICATES, THE LETTER OF TRANSMITTAL AND ALL
OTHER REQUIRED DOCUMENTS, IS AT THE OPTION AND SOLE RISK OF THE TENDERING
HOLDER, AND DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE
EXCHANGE AGENT. IF DELIVERY IS BY MAIL, REGISTERED MAIL, RETURN RECEIPT
REQUESTED, PROPERLY INSURED, OR AN OVERNIGHT DELIVERY SERVICE IS RECOMMENDED.
IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
Book-Entry Transfer. The Exchange Agent will establish an account with
respect to the Old Capital Securities at DTC for purposes of the Exchange
Offer within two business days after the date of this Prospectus. Any
financial institution that is a participant in DTC's book-entry transfer
facility system may make a book-entry delivery of the Old Capital Securities
by causing DTC to transfer such Old Capital Securities into the Exchange
Agent's account at DTC in accordance with DTC's procedures for transfers.
However, although delivery of Old Capital Securities may be effected through
book-entry transfer into the Exchange Agent's account at DTC, the Letter of
Transmittal (or facsimile thereof), properly completed and duly executed, with
any required signature guarantees and any other required documents, must in
any case be delivered to and received by the Exchange Agent at its address set
forth under "--Exchange Agent" on or prior to the Expiration Date, or the
guaranteed delivery procedure set forth below must be complied with.
DELIVERY OF DOCUMENTS TO DTC DOES NOT CONSTITUTE DELIVERY TO THE EXCHANGE
AGENT.
Signature Guarantees. Certificates for the Old Capital Securities need not
be endorsed and signature guarantees on the Letter of Transmittal are
unnecessary unless (a) a certificate for the Old Capital Securities is
registered in a name other than that of the person surrendering the
certificate or (b) such registered holder completes the box entitled "Special
Issuance Instructions" or "Special Delivery Instructions" in the Letter of
Transmittal. In the case of (a) or (b) above, such certificates for Old
Capital Securities must be duly endorsed or accompanied by a properly executed
bond power, with the endorsement or signature on the bond power and on the
Letter of Transmittal guaranteed by
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a firm or other entity identified in Rule 17Ad-15 under the Exchange Act as an
"eligible guarantor institution," including (as such terms are defined
therein): (i) a bank; (ii) a broker, dealer, municipal securities broker or
dealer or government securities broker or dealer; (iii) a credit union; (iv) a
national securities exchange, registered securities association or clearing
agency; or (v) a savings association that is a participant in a Securities
Transfer Association (an "Eligible Institution"), unless surrendered on behalf
of such Eligible Institution. See Instruction 1 to the Letter of Transmittal.
Guaranteed Delivery. If a holder desires to tender Old Capital Securities
pursuant to the Exchange Offer and the certificates for such Old Capital
Securities are not immediately available or time will not permit all required
documents to reach the Exchange Agent on or before the Expiration Date, or the
procedures for book-entry transfer cannot be completed on a timely basis, such
Old Capital Securities may nevertheless be tendered, provided that all of the
following guaranteed delivery procedures are complied with:
(i) such tenders are made by or through an Eligible Institution;
(ii) a properly completed and duly executed Notice of Guaranteed
Delivery, substantially in the form accompanying the Letter of Transmittal,
is received by the Exchange Agent, as provided below, on or prior to
Expiration Date; and
(iii) the certificates (or book-entry confirmation) representing all
tendered Old Capital Securities, in proper form for transfer, together with
a properly completed and duly executed Letter of Transmittal (or facsimile
thereof), with any required signature guarantees and any other documents
required by the Letter of Transmittal, are received by the Exchange Agent
within three New York Stock Exchange trading days after the date of
execution of such Notice of Guaranteed Delivery.
The Notice of Guaranteed Delivery may be delivered by hand, or transmitted
by facsimile or mail to the Exchange Agent and must include a guarantee by an
Eligible Institution in the form set forth in such notice.
Notwithstanding any other provision hereof, the delivery of New Capital
Securities in exchange for Old Capital Securities tendered and accepted for
exchange pursuant to the Exchange Offer will in all cases be made only after
timely receipt by the Exchange Agent of Old Capital Securities, or of a book-
entry confirmation with respect to such Old Capital Securities, and a properly
completed and duly executed Letter of Transmittal (or facsimile thereof),
together with any required signature guarantees and any other documents
required by the Letter of Transmittal. Accordingly, the delivery of New
Capital Securities might not be made to all tendering holders at the same
time, and will depend upon when Old Capital Securities, book-entry
confirmations with respect to Old Capital Securities and other required
documents are received by the Exchange Agent.
The Trust's acceptance for exchange of Old Capital Securities tendered
pursuant to any of the procedures described above will constitute a binding
agreement between the tendering holder and the Trust upon the terms and
subject to the conditions of the Exchange Offer.
Determination of Validity. All questions as to the form of documents,
validity, eligibility (including time of receipt) and acceptance for exchange
of any tendered Old Capital Securities will be determined by the Trust, in its
sole discretion, whose determination shall be final and binding on all
parties. The Trust reserves the absolute right, in its sole and absolute
discretion, to reject any and all tenders determined by it not to be in proper
form or the acceptance of which, or exchange for, may, in the view of counsel
to the Trust, be unlawful. The Trust also reserves the absolute right, subject
to applicable law, to waive any of the conditions of the Exchange Offer as set
forth under "--Conditions to the Exchange Offer" or any condition or
irregularity in any tender of Old Capital Securities of any particular holder
whether or not similar conditions or irregularities are waived in the case of
other holders.
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The Trust's interpretation of the terms and conditions of the Exchange Offer
(including the Letter of Transmittal and the instructions thereto) will be
final and binding. No tender of Old Capital Securities will be deemed to have
been validly made until all irregularities with respect to such tender have
been cured or waived. Neither the Trust, any affiliates or assigns of the
Trust, the Exchange Agent or any other person shall be under any duty to give
any notification of any irregularities in tenders or incur any liability for
failure to give any such notification.
If any Letter of Transmittal, endorsement, bond power, power of attorney, or
any other document required by the Letter of Transmittal is signed by a
trustee, executor, administrator, guardian, attorney-in-fact, officer of a
corporation or other person acting in a fiduciary or representative capacity,
such person should so indicate when signing, and unless waived by the Trust,
evidence satisfactory to the Trust, in its sole discretion, of such person's
authority to so act must be submitted.
A beneficial owner of Old Capital Securities that are held by or registered
in the name of a broker, dealer, commercial bank, trust company or other
nominee or custodian is urged to contact such entity promptly if such
beneficial holder wishes to participate in the Exchange Offer.
RESALES OF NEW CAPITAL SECURITIES
Based on interpretations by the staff of the Commission, as set forth in no-
action letters issued to third parties, the Company and the Trust believe that
holders of Old Capital Securities (other than any holder that is an
"affiliate" of the Company or the Trust as defined under Rule 405 of the
Securities Act) who exchange their Old Capital Securities for New Capital
Securities pursuant to the Exchange Offer may offer such New Capital
Securities for resale, resell such New Capital Securities and otherwise
transfer such New Capital Securities without compliance with the registration
and prospectus delivery provisions of the Securities Act, provided that such
New Capital Securities are acquired in the ordinary course of such holders'
business and such holders are not engaged in, and do not intend to engage in,
a distribution of such New Capital Securities and have no arrangement or
understanding with any person to participate in the distribution of such New
Capital Securities. However, the staff of the Commission has not considered
the Exchange Offer in the context of a no-action letter, and there can be no
assurance that the staff of the Commission would make a similar determination
with respect to the Exchange Offer. Each broker-dealer that receives New
Capital Securities for its own account in exchange for Old Capital Securities,
where such Old Capital Securities were acquired by such broker-dealer as a
result of market-making activities or other trading activities, must
acknowledge that it will deliver a prospectus in connection with any resale of
such New Capital Securities. See "Plan of Distribution."
WITHDRAWAL RIGHTS
Except as otherwise provided herein, tenders of Old Capital Securities may
be withdrawn at any time on or prior to the Expiration Date.
In order for a withdrawal to be effective a written, telegraphic or
facsimile transmission of such notice of withdrawal must be timely received by
the Exchange Agent at one of its addresses set forth under "Exchange Agent" on
or prior to the Expiration Date. Any such notice of withdrawal must specify
the name of the person who tendered the Old Capital Securities to be
withdrawn, the aggregate principal amount of Old Capital Securities to be
withdrawn, and (if certificates for such Old Capital Securities have been
tendered) the name of the registered holder of the Old Capital Securities as
set forth on the Old Capital Securities, if different from that of the person
who tendered such Old Capital Securities. If Old Capital Securities have been
delivered or otherwise identified to the Exchange Agent, then prior to the
physical release of such Old Capital Securities, the tendering holder must
submit the serial numbers shown on the particular Old Capital Securities to be
withdrawn and the signature on the notice of withdrawal must be guaranteed by
an Eligible Institution, except in the case of Old Capital
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Securities tendered for the account of an Eligible Institution. If Old Capital
Securities have been tendered pursuant to the procedures for book-entry
transfer set forth in "Procedures for Tendering Old Capital Securities," the
notice of withdrawal must specify the name and number of the account at DTC to
be credited with the withdrawal of Old Capital Securities, in which case a
notice of withdrawal will be effective if delivered to the Exchange Agent by
written, telegraphic or facsimile transmission. Withdrawals of tenders of Old
Capital Securities may not be rescinded. Old Capital Securities properly
withdrawn will not be deemed validly tendered for purposes of the Exchange
Offer, but may be retendered at any subsequent time on or prior to the
Expiration Date by following any of the procedures described above under
"Procedures for Tendering Old Capital Securities."
All questions as to the validity, form and eligibility (including time of
receipt) of such withdrawal notices will be determined by the Trust, in its
sole discretion, whose determination shall be final and binding on all
parties. Neither the Trust, any affiliates or assigns of the Trust, the
Exchange Agent or any other person shall be under any duty to give any
notification of any irregularities in any notice of withdrawal or incur any
liability for failure to give any such notification. Any Old Capital
Securities which have been tendered but which are withdrawn will be returned
to the holder thereof promptly after withdrawal.
DISTRIBUTIONS ON THE NEW CAPITAL SECURITIES
Holders of Old Capital Securities whose Old Capital Securities are accepted
for exchange will not receive accumulated Distributions on such Old Capital
Securities for any period from and after the last Distribution Date with
respect to such Old Capital Securities prior to the original issue date of the
New Capital Securities or, if no such Distributions have been made, will not
receive any accumulated Distributions on such Old Capital Securities, and will
be deemed to have waived the right to receive any Distributions on such Old
Capital Securities accumulated from and after such Distribution Date or, if no
such Distributions have been made, from and after December 9, 1996.
CONDITIONS TO THE EXCHANGE OFFER
Notwithstanding any other provisions of the Exchange Offer, or any extension
of the Exchange Offer, M&I and the Trust will not be required to accept for
exchange, or to exchange, any Old Capital Securities for any New Capital
Securities, and, as described below, may terminate the Exchange Offer (whether
or not any Old Capital Securities have theretofore been accepted for exchange)
or may waive any conditions to or amend the Exchange Offer, if any of the
following conditions have occurred or exists or have not been satisfied:
(a) there shall occur a change in the current interpretation by the staff
of the Commission which permits the New Capital Securities issued pursuant
to the Exchange Offer in exchange for Old Capital Securities to be offered
for resale, resold and otherwise transferred by holders thereof (other than
broker-dealers and any such holder which is an "affiliate" of M&I or the
Trust within the meaning of Rule 405 under the Securities Act) without
compliance with the registration and prospectus delivery provisions of the
Securities Act provided that such New Capital Securities are acquired in
the ordinary course of such holders' business and such holders have no
arrangement or understanding with any person to participate in the
distribution of such New Capital Securities;
(b) any action or proceeding shall have been instituted or threatened in
any court or by or before any governmental agency or body with respect to
the Exchange Offer which, in M&I and the Trust's judgment, would reasonably
be expected to impair the ability of M&I and the Trust to proceed with the
Exchange Offer;
(c) any law, statute, rule or regulation shall have been adopted or
enacted which, in M&I and the Trust's judgment, would reasonably be
expected to impair the ability of M&I and the Trust to proceed with the
Exchange Offer;
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(d) a banking moratorium shall have been declared by United States
federal or Wisconsin or New York State authorities which, in the Company's
judgment, would reasonably be expected to impair the ability of the Company
to proceed with the Exchange Offer;
(e) trading on the New York Stock Exchange or generally in the United
States over-the-counter market shall have been suspended by order of the
Commission or any other governmental authority which, in M&I and the
Trust's judgment, would reasonably be expected to impair the ability of M&I
and the Trust to proceed with the Exchange Offer;
(f) a stop order shall have been issued by the Commission or any state
securities authority suspending the effectiveness of the Registration
Statement or proceedings shall have been initiated or, to the knowledge of
M&I or the Trust, threatened for that purpose or that any governmental
approval has not been obtained, which approval M&I and the Trust shall, in
their sole discretion, deem necessary for the consummation of the Exchange
Offer as contemplated hereby; or
(g) any change, or any development involving a prospective change, in the
business or financial affairs of M&I and the Trust or any of their
subsidiaries have occurred which, in the sole judgment of M&I and the
Trust, might materially impair the ability of M&I and the Trust to proceed
with the Exchange Offer.
If M&I and the Trust determines in their sole and absolute discretion that
any of the foregoing events or conditions has occurred or exists or has not
been satisfied, M&I and the Trust may, subject to applicable law, terminate
the Exchange Offer (whether or not any Old Capital Securities have theretofore
been accepted for exchange) or may waive any such condition or otherwise amend
the terms of the Exchange Offer in any respect. If such waiver or amendment
constitutes a material change to the Exchange Offer, M&I and the Trust will
promptly disclose such waiver by means of a prospectus supplement that will be
distributed to the registered holders of the Old Capital Securities, and M&I
and the Trust will extend the Exchange Offer to the extent required by Rule
14e-1 under the Exchange Act.
EXCHANGE AGENT
The Chase Manhattan Bank has been appointed as Exchange Agent for the
Exchange Offer. Delivery of the Letters of Transmittal and any other required
documents, questions, requests for assistance, and requests for additional
copies of this Prospectus or of the Letter of Transmittal should be directed
to the Exchange Agent as follows:
The Chase Manhattan Bank
55 Water Street
Room 234-North Building
New York, New York 10041
Attention: Carlos Esteves
Telephone: (212) 638-0828
Facsimile: (212) 638-7375 or
(212) 344-9367
Delivery to other than the above address or facsimile numbers will not
constitute a valid delivery.
FEES AND EXPENSES
M&I has agreed to pay the Exchange Agent reasonable and customary fees for
its services and will reimburse it for its reasonable out-of-pocket expenses
in connection therewith. M&I will also pay brokerage houses and other
custodians, nominees and fiduciaries the reasonable out-of-pocket expenses
incurred by them in forwarding copies of this Prospectus and related documents
to the beneficial owners of Old Capital Securities, and in handling or
tendering for their customers.
Holders who tender their Old Capital Securities for exchange will not be
obligated to pay any transfer taxes in connection therewith. If, however, New
Capital Securities are to be delivered to, or are to be issued in the name of,
any person other than the registered holder of the Old Capital Securities
tendered, or if a transfer tax is imposed for any reason other than the
exchange of Old
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Capital Securities in connection with the Exchange Offer, then the amount of
any such transfer taxes (whether imposed on the registered holder or any other
persons) will be payable by the tendering holder. If satisfactory evidence of
payment of such taxes or exemption therefrom is not submitted with the Letter
of Transmittal, the amount of such transfer taxes will be billed directly to
such tendering holder.
Neither M&I nor the Trust will make any payment to brokers, dealers or
others soliciting acceptances of the Exchange Offer.
DESCRIPTION OF THE CAPITAL SECURITIES
The Old Capital Securities were issued and the New Capital Securities will
be issued pursuant to the terms of the Declaration. The Institutional Trustee,
The Chase Manhattan Bank, is trustee for the Capital Securities under the
Declaration. The terms of the Capital Securities include those stated in the
Declaration and those made part of the Declaration by the Trust Indenture Act.
The following summary of the material terms and provisions of the Capital
Securities does not purport to be complete and is subject to, and qualified in
its entirety by reference to the Declaration (a copy of which has been filed
as an exhibit to the Registration Statement of which this Prospectus is a
part), the Trust Act and the Trust Indenture Act.
GENERAL
The Declaration authorizes the Regular Trustees of the Trust to issue, on
behalf of the Trust, the Trust Securities in respect of the Trust, which
represent undivided beneficial interests in the assets of the Trust. All of
the Common Securities of the Trust are owned by the Company. The Common
Securities of the Trust rank pari passu, and payments will be made thereon on
a pro rata basis, with the Capital Securities of the Trust, except that upon
the occurrence and during the continuance of a Declaration Event of Default
(as defined herein) with respect to the Trust, the rights of the holders of
the Common Securities of the Trust to receive payment of periodic
distributions and payments upon liquidation, redemption and otherwise will be
subordinated to the rights of the holders of the Capital Securities of the
Trust. The Declaration does not permit the issuance by the Trust of any
securities other than the Trust Securities in respect of the Trust or the
incurrence of any indebtedness by the Trust. Pursuant to the Declaration of
Trust, the Institutional Trustee holds legal title to the Subordinated Debt
Securities purchased by the Trust for the benefit of the holders of the Trust
Securities of the Trust. The payment of distributions out of money held by the
Trust, and payments upon redemption of the Capital Securities of the Trust
upon liquidation of the Trust, are guaranteed by the Company as described
under "Description of the Guarantee." The Guarantee is held by The Chase
Manhattan Bank, the Guarantee Trustee, for the benefit of the holders of the
Capital Securities. The Guarantee does not cover payment of distributions in
respect of Capital Securities of the Trust to the extent the Trust does not
have available funds to pay such distributions. In such event, the remedy of
holders of such Capital Securities would be, through the vote of holders of a
majority in liquidation amount of such Capital Securities, to direct the
Institutional Trustee to enforce the Institutional Trustee's rights under the
Subordinated Debt Securities held by the Trust except in the circumstances in
which a holder of such Capital Securities may take Direct Action. See "--
Voting Rights" and "--Declaration Events of Default."
DISTRIBUTIONS
Distributions on the Capital Securities is fixed at a rate per annum of
7.65% of the stated liquidation amount of $1,000 per Capital Security. Except
as set forth below in respect of an Extension Period, distributions in arrears
for more than one semiannual period will accrue on the Capital
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<PAGE>
Securities at the distribution rate per annum of 7.65%, compounded
semiannually to the extent permitted by law. The term "distribution" as used
herein includes cash distributions and any such compounded distributions
payable unless otherwise stated. The amount of distributions payable for any
period will be computed on the basis of a 360-day year of twelve 30-day months
and the actual number of days elapsed per 30-day month.
Distributions on the Capital Securities are cumulative, accrue from December
9, 1996, the date of issuance of the Old Capital Securities, and will be
payable (subject to extension of distribution payment periods as described
herein) semiannually in arrears on June 1 and December 1 of each year (each, a
"Distribution Payment Date"), commencing June 1, 1997, when, as and if
available for payment. Distributions will be made by the Institutional
Trustee, except as otherwise described below.
The Company has the right under the Indenture to defer payments of interest
on the Subordinated Debt Securities by extending the interest payment period
at any time and from time to time, subject to the conditions described below.
If such right is exercised, semiannual distributions on the Capital Securities
will also be deferred (though such distributions would continue to accrue at
the distribution rate of 7.65% per annum compounded semiannually (to the
extent permitted by law) since interest would continue to accrue on the
Subordinated Debt Securities at a rate of 7.65% per annum, compounded
semiannually to the extent permitted by law) during any Extension Period. Such
right to extend any interest payment period for the Subordinated Debt
Securities is limited to Extension Periods, each not exceeding 10 consecutive
semiannual periods, and no Extension Period may be initiated while accrued
interest from a prior, completed Extension Period is unpaid or while the
Company is in default on the payment of interest that has become due and
payable on the Subordinated Debt Securities, and no Extension Period may
extend beyond the maturity of the Subordinated Debt Securities. In the event
that the Company exercises this right, then during any Extension Period (a)
the Company shall not declare or pay dividends on, make a distribution with
respect to, or redeem, purchase or acquire, or make a liquidation payment with
respect to, any of its capital stock or rights to acquire such capital stock
(other than (i) purchases or acquisitions of shares of any such capital stock
or rights to acquire such capital stock in connection with the satisfaction by
the Company of its obligations under any employee benefit plans, (ii) as a
result of a reclassification of the Company's capital stock or rights to
acquire such capital stock or the exchange or conversion of one class or
series of the Company's capital stock or rights to acquire such capital stock
for another class or series of the Company's capital stock or rights to
acquire such capital stock, (iii) the purchase of fractional interests in
shares of the Company's capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or exchanged
or (iv) dividends and distributions made on the Company's capital stock or
rights to acquire such capital stock with the Company's capital stock or
rights to acquire such capital stock) or make guarantee payments with respect
to the foregoing, and (b) the Company shall not make any payment of interest,
principal or premium, if any, on or repay, repurchase or redeem any debt
securities issued by the Company that rank pari passu with or junior to the
Subordinated Debt Securities. Prior to the termination of any such Extension
Period in respect of the Subordinated Debt Securities, the Company may further
extend the interest payment period; provided that each such Extension Period
in respect of the Subordinated Debt Securities, together with all such
previous and further extensions thereof, may not exceed 10 consecutive
semiannual periods or extend beyond the maturity of the Subordinated Debt
Securities. Upon the termination of any Extension Period in respect of the
Subordinated Debt Securities and the payment of all amounts then due, the
Company may commence a new Extension Period, subject to the above
requirements. See "Description of the Subordinated Debt Securities--Interest"
"--Option to Extend Interest Payment Period" and "Certain Covenants." If
distributions are deferred, the distributions due shall be paid on the date
that the related Extension Period terminates, or, if such date is not a
Distribution Payment Date, on the immediately following Distribution Payment
Date, to holders of applicable Capital Securities as they appear on the books
and records of the Trust on the record date immediately preceding such date.
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<PAGE>
Distributions on the Capital Securities must be paid on the dates payable
(after giving effect to any Extension Period) to the extent that the Trust has
funds available for the payment of such distributions in the Property Account
of the Trust. The Trust's funds available for distribution to the holders of
the Capital Securities issued by the Trust will be limited to payments
received from the Company on the Subordinated Debt Securities. See
"Description of the Subordinated Debt Securities." The payment of
distributions out of moneys held by the Trust is guaranteed by the Company to
the extent set forth under "Description of the Guarantee."
Distributions on the Capital Securities will be payable to the holders
thereof as they appear on the books and records of the Trust on the relevant
record dates, which, as long as the Capital Securities are held in book-entry
only form, will be one Business Day (as defined below) prior to the relevant
payment dates. Such distributions will be paid through the Institutional
Trustee who will hold amounts received in respect of the Subordinated Debt
Securities in the Property Account of the Trust for the benefit of the holders
of the Trust Securities. Subject to any applicable laws and regulations and
the provisions of the Declaration, each such payment will be made as described
under "--Book-Entry Only Issuance--The Depository Trust Company" below. At any
time when the Capital Securities are not held solely in book-entry only form,
the Regular Trustees shall select record dates, which shall be 15 days prior
to the relevant payment date. In the event that any date on which
distributions are to be made on the Capital Securities is not a Business Day,
then payment of the distributions payable on such date will be made on the
next succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay) with the same force and effect as if
made on such payment date. A "Business Day" shall mean any day other than
Saturday, Sunday or any other day on which banking institutions in New York
City (in the State of New York) are permitted or required by any applicable
law to close.
REDEMPTION
The Subordinated Debt Securities will mature on December 1, 2026 and may be
redeemed by the Company at par, together with accrued and unpaid interest
thereon to the date of redemption, in whole or in part, at any time in certain
circumstances upon the occurrence of a Tax Event. In addition, the
Subordinated Debt Securities may be redeemed by the Company, in whole or in
part, at any time and from time to time on or after December 1, 2006 (the
"Optional Redemptions"), other than upon the occurrence of a Tax Event, at the
call prices (expressed as a percentage of the principal amount) expressed
below:
<TABLE>
<CAPTION>
IF REDEEMED DURING THE 12-MONTH
PERIOD BEGINNING, DECEMBER 1, CALL PRICE
------------------------------- ----------
<S> <C>
2006 103.5820%
2007 103.2238
2008 102.8656
2009 102.5074
2010 102.1492
2011 101.7910
2012 101.4328
2013 101.0746
2014 100.7164
2015 100.3582
</TABLE>
and at 100% of the principal amount on or after December 1, 2016 (each a "Call
Price"), together, in each case, with accrued and unpaid interest thereon to
the date of redemption. In each case, the right of the Company to redeem the
Subordinated Debt Securities is subject to receipt of prior approval by the
Federal Reserve if then required under applicable capital guidelines or
policies of the Federal Reserve.
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<PAGE>
Upon the repayment in full at maturity or redemption in whole or in part of
the Subordinated Debt Securities (other than following the distribution of the
Subordinated Debt Securities to the holders of the Trust Securities), the
proceeds from such repayment or payment shall simultaneously be applied to
redeem on a pro rata basis at the Redemption Price, Trust Securities of the
Trust having an aggregate liquidation amount equal to the aggregate principal
amount of the Subordinated Debt Securities so repaid or redeemed; provided,
however, that holders of such Trust Securities shall be given not less than 30
nor more than 60 days' notice of such redemption (other than at the scheduled
maturity of the Subordinated Debt Securities). See "Description of the
Subordinated Debt Securities--Redemption." In the event that fewer than all of
the outstanding Capital Securities are to be redeemed, such Capital Securities
will be redeemed in accordance with the procedures of DTC (as defined herein)
as described under "--Book-Entry Only Issuance--The Depository Trust Company"
below.
TAX EVENT REDEMPTION
"Tax Event" means that the Regular Trustees of the Trust shall have received
an opinion of a nationally recognized independent tax counsel to the Company
experienced in such matters to the effect that, as a result of (a) any
amendment to, clarification of or change (including any announced prospective
change) in, the laws (or any regulations thereunder) of the United States or
any political subdivision or taxing authority thereof or therein, (b) any
judicial decision or official administrative pronouncement, ruling, regulatory
procedure, notice or announcement, including any notice or announcement of
intent to adopt such procedures or regulations (an "Administrative Action") or
(c) any amendment to, clarification of or change in the administrative
position or interpretation of any Administrative Action or judicial decision
that differs from the theretofore generally accepted position, in each case,
by any legislative body, court, governmental agency or regulatory body,
irrespective of the manner in which such amendment, clarification or change is
made known, which amendment, clarification or change is effective or such
Administrative Action or decision is announced, in each case, on or after
December 2, 1996, there is more than an insubstantial risk that (i) the Trust
is, or will be within 90 days of the date thereof, subject to United States
federal income tax with respect to interest accrued or received on the
Subordinated Debt Securities held by the Trust or subject to more than a de
minimis amount of other taxes, duties or other governmental charges, (ii) any
portion of interest payable by the Company to the Trust on the Subordinated
Debt Securities is not, or within 90 days of the date thereof will not be,
deductible by the Company for United States federal income tax purposes, or
(iii) the Company could become liable to pay, on the next date on which any
amount would be payable with respect to the Subordinated Debt Securities, any
Additional Interest (as defined herein).
If, at any time, a Tax Event in respect of the Trust shall occur and be
continuing, and the Company receives an opinion (a "Redemption Tax Opinion")
of nationally recognized independent tax counsel experienced in such matters
that, as a result of such Tax Event in respect of the Trust, there is more
than an insubstantial risk that the Company would be precluded from deducting
the interest on the Subordinated Debt Securities held by the Institutional
Trustee for United States federal income tax purposes, even if the
Subordinated Debt Securities were distributed to the holders of Trust
Securities in liquidation of such holders' interests in the Trust (as
described in "--Liquidation Distribution Upon Dissolution" below), the Company
shall have the right at any time, subject to receipt of prior approval by the
Federal Reserve if then required under applicable capital guidelines or
policies of the Federal Reserve, within 90 days following the occurrence of
such Tax Event, upon not less than 30 nor more than 60 days' notice, to redeem
the Subordinated Debt Securities held by the Institutional Trustee, in whole
or in part, for cash so long as such Tax Event is continuing at their full
principal amounts plus any accrued and unpaid interest thereon to the dates of
redemption (the "Tax Event Redemption"), and, following such redemption, Trust
Securities of the Trust with an aggregate liquidation amount equal to the
aggregate principal amount of the Subordinated Debt Securities so redeemed
shall be redeemed by the Trust at the applicable Redemption Price; provided,
however, that (i) if at the time
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<PAGE>
there is available to the Company or the Trust the opportunity to eliminate,
within such 90-day period the adverse effects of the Tax Event by taking some
ministerial action, such as filing a form or making an election or pursuing
some other similar reasonable measure that will have no adverse effect on the
Trust, the Company or the holders of the Trust Securities and (ii) if such
notice has not been given, the Company or the Trust will pursue such measure
in lieu of redemption.
REDEMPTION PROCEDURES
The Trust may not redeem fewer than all of the outstanding Capital
Securities issued by the Trust unless all accrued and unpaid distributions
have been paid on all such Capital Securities for all semiannual distribution
periods terminating on or prior to the date of redemption.
If the Trust gives a notice of redemption, which notice will be irrevocable,
in respect of Capital Securities issued by the Trust, and held in book entry
form, by 12:00 noon, New York City time, on the redemption date, provided that
the Company has paid to the Institutional Trustee a sufficient amount of cash
in connection with the related redemption or maturity of the Subordinated Debt
Securities, the Institutional Trustee will irrevocably deposit with the
Depositary or its nominee funds sufficient to pay the applicable Redemption
Price and will give the Depositary irrevocable instructions and authority to
pay such Redemption Price to the holders of such Capital Securities. See "--
Book-Entry Only Issuance--The Depository Trust Company." If notice of
redemption shall have been given and funds deposited as required, then,
immediately prior to the close of business on the date of such deposit,
distributions will cease to accrue on the Capital Securities so called for
redemption and all rights of holders of such Capital Securities so called for
redemption will cease, except the right of the holders of such Capital
Securities to receive the applicable Redemption Price but without interest on
such Redemption Price. In the event that any date fixed for redemption of
Capital Securities is not a Business Day, then payment of the Redemption Price
payable on such date will be made on the next succeeding day that is a
Business Day (without any interest or other payment in respect of any such
delay), except that, if such Business Day falls in the next calendar year,
such payment will be made on the immediately preceding Business Day. In the
event that payment of the Redemption Price in respect of Capital Securities is
improperly withheld or refused and not paid by the Institutional Trustee, or
by the Company pursuant to the Guarantee, distributions on such Capital
Securities will continue to accrue at the then applicable rate from the
original redemption date to the actual date of payment, in which case the
actual payment date will be considered the date fixed for redemption for
purposes of calculating the Redemption Price.
In the event that fewer than all of the outstanding Capital Securities
issued by the Trust are to be redeemed, Capital Securities will be redeemed in
accordance with the procedures of DTC as described below under "--Book-Entry
Only Issuance--The Depository Trust Company."
In the event of any redemption of Capital Securities issued by the Trust in
part, the Trust shall not be required to (i) issue, register the transfer of
or exchange any Certificated Security (as defined herein) during a period
beginning at the opening of business 15 days before any selection for
redemption of Capital Securities and ending at the close of business on the
earliest date on which the relevant notice of redemption is deemed to have
been given to all holders of Capital Securities to be so redeemed or (ii)
register the transfer of or exchange any Certificated Securities so selected
for redemption, in whole or in part, except for the unredeemed portion of any
Certificated Securities being redeemed in part.
Subject to the foregoing and applicable law (including, without limitation,
United States federal securities laws), provided the acquiror is not the
holder of the Common Securities or the obligor under the Subordinated Debt
Securities, the Company or its subsidiaries may at any time, and from time to
time, purchase outstanding Capital Securities by tender, in the open market or
by private agreement.
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<PAGE>
LIQUIDATION DISTRIBUTION UPON DISSOLUTION
Pursuant to the Declaration, the Trust shall dissolve (i) on December 31,
2051, the expiration of the term of the Trust, (ii) upon the bankruptcy of the
Company, (iii) (other than in connection with a merger, consolidation or
similar transaction not prohibited by the Indenture, the Declaration or the
Guarantee, as the case may be) upon the filing of a certificate of dissolution
or its equivalent with respect to the Company, upon the consent of the holders
of at least a majority in liquidation amount of the Trust Securities issued by
Trust voting together as a single class to file a certificate of cancellation
with respect to the Trust, or upon the revocation of the charter of the
Company and the expiration of 90 days after the date of revocation without a
reinstatement thereof, (iv) upon exercise of the right of the holder of all of
the outstanding Common Securities of the Trust to dissolve the Trust as
described below, (v) upon the entry of a decree of a judicial dissolution of
the Company or the Trust, or (vi) upon the redemption of all of the Trust
Securities issued by the Trust. Pursuant to the Declaration, as soon as
practicable after the dissolution of the Trust and upon completion of the
winding up of the Trust, the Trust shall terminate upon the filing of a
certificate of cancellation.
In the event of any voluntary or involuntary dissolution of the Trust (each
a "Dissolution Event") other than in connection with a redemption of the
Subordinated Debt Securities as previously described, the holders of the
Capital Securities issued by the Trust will be entitled to receive out of the
assets of the Trust, after satisfaction of liabilities to creditors of the
Trust (to the extent not satisfied by the Company), distributions in an amount
equal to the aggregate of the stated liquidation amount of $1,000 per Capital
Security (the "Liquidation Amount") plus accrued and unpaid distributions
thereon to the date of payment (the "Liquidation Distribution"), unless, in
connection with such Dissolution Event, Subordinated Debt Securities in an
aggregate stated principal amount equal to the aggregate stated liquidation
amount of, with identical premium to, if any, with an interest rate identical
to the distribution rate of, and bearing accrued and unpaid interest equal to
accrued and unpaid distributions on, such Capital Securities have been
distributed on a pro rata basis to the holders of such Capital Securities in
exchange for such Capital Securities as is required under certain
circumstances as described below. Upon any Dissolution Event in connection
with which the Subordinated Debt Securities are distributed, if at the time of
such Dissolution Event the Capital Securities are rated by at least one
nationally recognized statistical rating organization, the Company will use
its best efforts to obtain from at least one nationally recognized statistical
rating organization a rating for the Subordinated Debt Securities.
The Company, as the holder of all of the Common Securities, has the right at
any time to dissolve the Trust (including but not limited to the occurrence of
a Tax Event), subject to certain conditions, with the result that, after
satisfaction of liabilities to creditors of the Trust (to the extent not
satisfied by the Company), unless the Subordinated Debt Securities held by the
Trust are redeemed in the circumstances described herein, the Subordinated
Debt Securities would be distributed to the holders of the Trust Securities in
liquidation of the holders' interests in the Trust on a pro rata basis in
accordance with its aggregate stated liquidation amount thereof, in
liquidation of the Trust.
If an early dissolution occurs as described in clause (i), (ii), (iii) or
(v), the Trust shall be liquidated by the M&I Trustees as expeditiously as
such M&I Trustees determine to be possible by distributing, after satisfaction
of liabilities to creditors of the Trust, to the holders of the Trust
Securities, the Subordinated Debt Securities, unless such distribution is
determined by the Institutional Trustee not to be practical, in which event
such holders will be entitled to receive out of the assets of the Trust
available for distribution to holders, after satisfaction of liabilities to
creditors of the Trust, an amount equal to the Liquidation Distribution. An
early dissolution of the Trust pursuant to clause (iv) above shall occur only
if the M&I Trustees determine that such liquidation is possible by
distributing, after satisfaction of liabilities to creditors of the Trust, to
the holders of the Trust Securities issued by the Trust, the Subordinated Debt
Securities, and such distribution occurs.
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<PAGE>
If, upon any such Dissolution Event, the Liquidation Distribution can be
paid only in part because the Trust has insufficient assets available to pay
in full the aggregate Liquidation Distribution, then the amounts payable
directly by the Trust on such Capital Securities shall be paid on a pro rata
basis. The holders of the Common Securities issued by the Trust will be
entitled to receive distributions upon any such Dissolution Event pro rata
with the holders of such Capital Securities, except that if a Declaration
Event of Default has occurred and is continuing in respect of the Trust, the
Capital Securities shall have a preference over the Common Securities with
regard to such distributions.
After the date for any distribution of Subordinated Debt Securities upon
dissolution of the Trust, (i) the Trust Securities of the Trust will be deemed
to be no longer outstanding, (ii) the Depositary (as defined herein) or its
nominee, as the record holder of the Capital Securities, will receive a
registered Global Certificate (as defined herein) or Certificates representing
the Subordinated Debt Securities to be delivered upon such distribution, and
(iii) any certificates representing Capital Securities not held by the
Depositary or its nominee will be deemed to represent undivided beneficial
interests in such of the Subordinated Debt Securities as have an aggregate
principal amount equal to the aggregate stated liquidation amount of, with an
interest rate identical to the distribution rate of, and bearing accrued and
unpaid interest equal to accrued and unpaid distributions on, such Capital
Securities until such certificates are presented to the Company or its agent
for transfer or reissuance.
There can be no assurance as to the market prices for either the Capital
Securities or the Subordinated Debt Securities that may be distributed in
exchange for the Capital Securities if a dissolution and liquidation of the
Trust were to occur. Accordingly, the Capital Securities that an investor may
purchase, whether in the secondary market or otherwise, or the Subordinated
Debt Securities that an investor may receive if a dissolution and liquidation
of the Trust were to occur, may trade at a discount to the price paid to
purchase the Capital Securities.
DECLARATION EVENTS OF DEFAULT
An event of default under the Indenture in respect of the Subordinated Debt
Securities issued to the Trust (an "Indenture Event of Default") constitutes
an event of default under the Declaration of Trust with respect to the Trust
Securities issued by the Trust (each a "Declaration Event of Default");
provided, that pursuant to the Declaration of Trust, the holder of the Common
Securities of the Trust will be deemed to have waived any Declaration Event of
Default with respect to such Common Securities until all Declaration Events of
Default with respect to the Capital Securities of the Trust have been cured,
waived or otherwise eliminated. Until such Declaration Events of Default with
respect to such Capital Securities have been so cured, waived, or otherwise
eliminated, the Institutional Trustee will be deemed to be acting solely on
behalf of the holders of the Capital Securities of the Trust and only the
holders of such Capital Securities will have the right to direct the
Institutional Trustee with respect to certain matters under the Declaration,
and therefore the Indenture. The holders of a majority in liquidation amount
of the Capital Securities of the Trust will have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Institutional Trustee or to direct the exercise of any trust or power
conferred upon the Institutional Trustee Trust under the Declaration,
including the right to direct the Institutional Trustee to exercise the
remedies available to it as holder of the Subordinated Debt Securities. If the
Institutional Trustee fails to enforce its rights under the Subordinated Debt
Securities after the holders of a majority in liquidation amount of such
Capital Securities have so directed the Institutional Trustee, to the fullest
extent permitted by law. a holder of record of such Capital Securities may
institute a legal proceeding against the Company to enforce the Institutional
Trustee's rights under the Subordinated Debt Securities without first
instituting any legal proceeding against the Institutional Trustee or any
other person or entity. Notwithstanding the foregoing, if a Declaration Event
of Default relating to Capital Securities of the Trust has occurred and is
continuing and such event is attributable to the failure of the Company to pay
interest or principal (or premium, if any) on the Subordinated Debt Securities
issued to the Trust on the respective dates such interest or principal (or
premium, if any) is payable (or in the case of redemption, the
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<PAGE>
redemption date), then a holder of record of such Capital Securities may
institute a Direct Action against the Company for payment, on or after the
respective due dates specified in the Subordinated Debt Securities, to such
holder directly of the principal of (or premium, if any) or interest on
Subordinated Debt Securities having an aggregate principal amount equal to the
aggregate liquidation amount of the Capital Securities of such holder. In
connection with such Direct Action, the Company will be subrogated to the
rights of such holder of Capital Securities under the applicable Declaration
to the extent of any payment made by the Company to such holder of Capital
Securities in such Direct Action; provided, however, that no such subrogation
right may be exercised so long as a Declaration Event of Default has occurred
and is continuing. The holders of Capital Securities will not be able to
exercise directly any other remedy available to the holders of the
Subordinated Debt Securities.
Upon the occurrence of a Declaration Event of Default relating to Capital
Securities of the Trust, the Institutional Trustee, so long as it is the sole
holder of the Subordinated Debt Securities issued to the Trust, will have the
right under the Indenture to declare the principal of (or premium, if any) and
interest on the Subordinated Debt Securities to be immediately due and
payable. The Company and the Trust are each required to file annually with the
Institutional Trustee an officer's certificate as to its compliance with all
conditions and covenants under the Declaration.
VOTING RIGHTS
Except as described herein, under the Trust Act and under "Description of
the Guarantee--Modification of the Guarantee; Assignment", and as otherwise
required by law and the Declaration, the holders of the Capital Securities
will have no voting rights. The Regular Trustees of the Trust are required to
call a meeting of the holders of the Capital Securities of the Trust if
directed to do so by holders of at least 10% in aggregate liquidation amount
thereof.
Subject to the requirements set forth in this paragraph, the holders of a
majority in aggregate liquidation amount of the Capital Securities of the
Trust have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Institutional Trustee, or
exercising any trust or power conferred upon such Institutional Trustee under
the Declaration, including the right to direct such Institutional Trustee, as
holder of the Subordinated Debt Securities, to (i) exercise the remedies
available to it under the Indenture as a holder of the Subordinated Debt
Securities, (ii) waive any past default that is waivable under the Indenture,
(iii) exercise any right to rescind or annul a declaration that the principal
of all the Subordinated Debt Securities shall be due and payable or (iv)
consent on behalf of all the holders of the Capital Securities of the Trust to
any amendment, modification or termination of the Indenture or the
Subordinated Debt Securities where such consent shall be required; provided,
however, that where a consent or action under the Indenture would require the
consent or act of holders of more than a majority in principal amount of the
Subordinated Debt Securities (a "Super-Majority") affected thereby, the
Institutional Trustee may only give such consent or take such action at the
written direction of the holders of at least the proportion in aggregate
liquidation amount of the Capital Securities outstanding which the relevant
Super-Majority represents of the aggregate principal amount of the
Subordinated Debt Securities outstanding. If the Institutional Trustee fails
to enforce its rights under the Subordinated Debt Securities after the holders
of a majority in liquidation amount of such Capital Securities have so
directed the Institutional Trustee, to the extent permitted by law, a holder
of record of the Capital Securities may institute a legal proceeding directly
against the Company to enforce the Institutional Trustee's rights under the
Subordinated Debt Securities without first instituting any legal proceeding
against the Institutional Trustee or any other person or entity.
Notwithstanding the foregoing, if a Declaration Event of Default relating to
the Capital Securities of the Trust has occurred and is continuing and such
event is attributable to the failure of the Company to pay interest or
principal (or premium if any) on the Subordinated Debt Securities on the
respective dates such interest or principal is payable (or in the case of
redemption, the redemption date) then a holder of record of Capital Securities
of the Trust may directly institute a proceeding for enforcement of payment,
on or after the respective due dates specified in the Subordinated Debt
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Securities, to such holder directly of the principal of (or premium, if any)
or interest on the Subordinated Debt Securities having an aggregate principal
amount equal to the aggregate liquidation amount of the Capital Securities of
such holder. The Institutional Trustee shall notify all holders of the Capital
Securities of the Trust of any default actually known to the Institutional
Trustee with respect to the Subordinated Debt Securities unless (x) such
defaults have been cured prior to the giving of such notice or (y) the
Institutional Trustee determines in good faith that the withholding of such
notice is in the interest of the holders of such Capital Securities, except
where the default relates to the payment of interest or principal of (or
premium, if any) on any of the Subordinated Debt Securities. Such notice shall
state that such Indenture Event of Default also constitutes a Declaration
Event of Default. Except with respect to directing the time, method and place
of conducting a proceeding for a remedy, the Institutional Trustee shall not
take any of the actions described in clauses (i), (ii) or (iii) above unless
the Institutional Trustee has obtained an opinion of tax counsel to the effect
that, as a result of such action, the Trust will not be classified as other
than a grantor trust for United States federal income tax purposes.
In the event the consent of the Institutional Trustee, as the holder of the
Subordinated Debt Securities, is required under the Indenture with respect to
any amendment, modification or termination of the Indenture, such
Institutional Trustee shall request the direction of the holders of the Trust
Securities of the Trust with respect to such amendment, modification or
termination and shall vote with respect to such amendment, modification or
termination as directed by a majority in liquidation amount of such Trust
Securities voting together as a single class; provided, however, that where a
consent under the Indenture would require the consent of a Super-Majority, the
Institutional Trustee may only give such consent at the direction of the
holders of at least the proportion in liquidation amount of such Trust
Securities outstanding which the relevant Super-Majority represents of the
aggregate principal amount of the Subordinated Debt Securities outstanding.
The Institutional Trustee shall not take any such action in accordance with
the directions of the holders of such Trust Securities unless the
Institutional Trustee has obtained an opinion of tax counsel to the effect
that, as a result of such action, the Trust will not be classified as other
than a grantor trust for United States federal income tax purposes.
A waiver of an Indenture Event of Default will constitute a waiver of the
corresponding Declaration Event of Default.
Any required approval or direction of holders of Capital Securities of the
Trust may be given at a separate meeting of such holders convened for such
purpose, at a meeting of all of the such holders of Trust Securities of the
Trust or pursuant to written consent. The Regular Trustees of the Trust will
cause a notice of any meeting at which holders of Capital Securities of the
Trust are entitled to vote, or of any matter upon which action by written
consent of such holders is to be taken, to be mailed to each holder of record
of such Capital Securities. Each such notice will include a statement setting
forth the following information: (i) the date of such meeting or the date by
which such action is to be taken; (ii) a description of any resolution
proposed for adoption at such meeting on which such holders are entitled to
vote or of such matter upon which written consent is sought; and (iii)
instructions for the delivery of proxies or consents. No vote or consent of
the holders of Capital Securities of the Trust will be required for such Trust
to redeem and cancel such Capital Securities or distribute the Subordinated
Debt Securities in accordance with the Declaration.
Notwithstanding that holders of Capital Securities are entitled to vote or
consent under any of the circumstances described above, any of the Capital
Securities that are owned at such time by the Company or any entity directly
or indirectly controlling or controlled by, or under direct or indirect common
control with, the Company, shall not entitle the holders thereof to vote or
consent and shall, for purposes of such vote or consent, be treated as if such
Capital Securities were not outstanding.
The procedures by which holders of Capital Securities may exercise their
voting rights are described below. See "--Book-Entry Only Issuance--The
Depository Trust Company" below.
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Holders of the Capital Securities will have no rights to appoint or remove
the M&I Trustees, who may be appointed, removed or replaced solely by the
Company as the holder of all of the Common Securities of the Trust.
MODIFICATION OF THE DECLARATION
The Declaration with respect to the Trust may be amended without the consent
of the holders of the Trust Securities of the Trust to: (i) cure any
ambiguity; (ii) correct or supplement any provision in such Declaration that
may be defective or inconsistent with any other provision of such Declaration;
(iii) add to the covenants, restrictions or obligations of the Company; (iv)
conform to any change in Rule 3a-5 under the Investment Company Act of 1940,
as amended (the "1940 Act"), or a written change in interpretation or
application of Rule 3a-5 by any legislative body, court, government agency or
regulatory authority, which amendment does not have a material adverse effect
on the rights, preferences or privileges of the holders of such Trust
Securities; and (v) modify, eliminate and add to any provision of such
Declaration, provided, that no such modification, elimination or addition
shall adversely affect the powers, preferences or special rights of the
holders of such Trust Securities.
In addition, the Declaration with respect to the Trust may be modified and
amended if approved by the Regular Trustees of the Trust (and in certain
circumstances the Institutional Trustee and the Delaware Trustee), provided
that, if any proposed amendment provides for, or such Regular Trustees
otherwise propose to effect, (i) any action that would adversely affect the
powers, preferences or special rights of the Trust Securities of the Trust,
whether by way of amendment to the Declaration or otherwise or (ii) the
dissolution, winding-up or termination of the Trust other than pursuant to the
terms of the Declaration, then the holders of such Trust Securities voting
together as a single class will be entitled to vote on such amendment or
proposal and such amendment or proposal shall not be effective except with the
approval of the holders of at least a majority in liquidation amount of the
Trust Securities affected thereby; provided, that if any amendment or proposal
referred to in clause (i) above would adversely affect only the Capital
Securities or only the Common Securities of the Trust, then only the affected
class will be entitled to vote on such amendment or proposal and such
amendment or proposal shall not be effective except with the approval of a
majority in liquidation amount of such class of Trust Securities.
Notwithstanding the foregoing, no amendment or modification may be made to
the Declaration if such amendment or modification would (i) cause the Trust to
be classified for purposes of United States federal income taxation as other
than a grantor trust, (ii) reduce or otherwise adversely affect the powers of
the Institutional Trustee or (iii) cause the Trust to be deemed an "investment
company" which is required to be registered under the 1940 Act.
Notwithstanding any provision of the Declaration, the provisions of Section
316(b) of the Trust Indenture Act incorporated by reference into the Indenture
provides that the right of any holder of Capital Securities to receive
payments of distributions and other payments upon redemption or otherwise on
or after their respective due dates, or to institute suit for the enforcement
of any such payment on or after such respective dates, shall not be impaired
or affected without the consent of such holder.
MERGERS, CONSOLIDATIONS OR AMALGAMATIONS
The Trust may not consolidate, amalgamate, merge with or into, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to, any corporation or other body, except as
described below. The Trust may, with the consent of a majority of the Regular
Trustees of the Trust and without the consent of the holders of the Trust
Securities of the Trust, the Institutional Trustee or the Delaware Trustee,
consolidate, amalgamate, merge with or into, or be replaced by, a trust
organized as such under the laws of any State of the United States; provided
that (i) if the Trust
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is not the survivor, such successor entity either (x) expressly assumes all of
the obligations of the Trust under Trust Securities issued by the Trust or (y)
substitutes for the Trust Securities other securities having substantially the
same terms as the Trust Securities (the "Successor Securities"), so that the
Successor Securities rank the same as the Trust Securities rank with respect
to distributions and payments upon liquidation, redemption and otherwise, (ii)
the Company expressly acknowledges a trustee of such successor entity
possessing the same powers and duties as the Institutional Trustee as the
holder of the Subordinated Debt Securities, (iii) the Capital Securities of
the Trust or any Successor Securities are listed, or any Successor Securities
will be listed upon notification of issuance, on any national securities
exchange or with another organization on which such Capital Securities are
then listed or quoted, if any, (iv) such merger, consolidation, amalgamation
or replacement does not cause the Capital Securities (including any Successor
Securities) to be downgraded by any nationally recognized statistical rating
organization, (v) such merger, consolidation, amalgamation or replacement does
not adversely affect the rights, preferences and privileges of the holders of
such Trust Securities (including any Successor Securities) in any material
respect (other than with respect to any dilution of the holders' interest in
such successor entity), (vi) such successor entity has a purpose substantially
identical to that of the Trust, (vii) prior to such merger, consolidation,
amalgamation or replacement, the Company has received an opinion of a
nationally recognized independent counsel to the Trust experienced in such
matters to the effect that (A) (based on certain assumptions) such merger,
consolidation, amalgamation or replacement does not adversely affect the
rights, preferences and privileges of the holders of the Trust Securities
(including any Successor Securities) in any material respect (other than with
respect to any dilution of the holders' interest in such successor entity),
(B) following such merger, consolidation, amalgamation or replacement, neither
the Trust nor such successor entity will be required to register as an
investment company under the 1940 Act and (C) following such merger,
consolidation, amalgamation or replacement, neither the Trust nor such
successor entity will be classified as other than a grantor trust for United
States federal income tax purposes, and (viii) the Company guarantees the
obligations of such successor entity under the Successor Securities at least
to the extent provided by the applicable Guarantee. Notwithstanding the
foregoing, the Trust shall not, except with the consent of holders of 100% in
liquidation amount of the Trust Securities of the Trust, consolidate,
amalgamate, merge with or into, or be replaced by, any other entity or permit
any other entity to consolidate, amalgamate, merge with or into, or replace
it, if such consolidation, amalgamation, merger or replacement would cause the
Trust or the successor entity to be classified as other than a grantor trust
for United States federal income tax purposes.
BOOK-ENTRY ONLY ISSUANCE--THE DEPOSITORY TRUST COMPANY
The description of book-entry procedures in this Prospectus includes
summaries of certain rules and operating procedures of The Depository Trust
Company ("DTC") that affect transfers of interests in the global certificate
or certificates issued in connection with sales of Capital Securities. Except
as described in the next paragraph, the Capital Securities will be issued only
as fully registered securities registered in the name of Cede & Co. (as
nominee for DTC). One or more fully registered global Capital Security
certificates (the "Global Certificates") will be issued, representing, in the
aggregate, the New Capital Securities, and will be deposited with DTC.
The laws of some jurisdictions require that certain purchasers of securities
take physical delivery of securities in definitive form. Such laws may impair
the ability to transfer beneficial interests in the global Capital Securities
as represented by a Global Certificate.
DTC is a limited-purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law,
a member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act. DTC
holds securities that its participants ("Participants") deposit with DTC. DTC
also facilitates the settlement among Participants of securities transactions,
such as transfers and pledges, in deposited
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securities through electronic computerized book-entry changes in Participants'
accounts, thereby eliminating the need for physical movement of securities
certificates. Participants in DTC include securities brokers and dealers,
banks, trust companies, clearing corporations and certain other organizations
("Direct Participants"). DTC is owned by a number of its Direct Participants
and by the New York Stock Exchange, Inc., the American Stock Exchange, Inc.,
and the National Association of Securities Dealers, Inc. Access to the DTC
system is also available to others, such as securities brokers and dealers,
banks and trust companies that clear transactions through or maintain a
custodial relationship with a Direct Participant, either directly or
indirectly ("Indirect Participants"). The rules applicable to DTC and its
Participants are on file with the Securities and Exchange Commission.
Purchases of Capital Securities within the DTC system must be made by or
through Direct Participants, which will receive a credit for the Capital
Securities on DTC's records. The ownership interest of each actual purchaser
of each Capital Security ("Beneficial Owner") is in turn to be recorded on the
Direct Participants' and Indirect Participants' records. Beneficial Owners
will not receive written confirmation from DTC of their purchases, but
Beneficial Owners are expected to receive written confirmations providing
details of the transactions, as well as periodic statements of their holdings,
from the Direct or Indirect Participants through which the Beneficial Owners
purchased Capital Securities. Transfers of ownership interests in the Capital
Securities are to be accomplished by entries made on the books of Participants
acting on behalf of Beneficial Owners. Beneficial Owners will not receive
certificates representing their ownership interests in the Capital Securities,
except in the event that use of the book-entry system for the Capital
Securities is discontinued.
To facilitate subsequent transfers, all the Capital Securities deposited by
Participants with DTC will be registered in the name of DTC's nominee, Cede &
Co. The deposit of Capital Securities with DTC and their registration in the
name of Cede & Co. will effect no change in beneficial ownership. DTC will
have no knowledge of the actual Beneficial Owners of the Capital Securities.
DTC's records will reflect only the identity of the Direct Participants to
whose accounts such Capital Securities are credited, which may or may not be
the Beneficial Owners. The Direct Participants and Indirect Participants will
remain responsible for keeping account of their holdings on behalf of their
customers.
So long as DTC, or its nominee, is the registered owner or holder of a
Global Certificate in respect of the Capital Securities, DTC or such nominee,
as the case may be, will be considered the sole owner or holder of the Capital
Securities represented thereby for all purposes under the Declaration in
respect of such Capital Securities and such Capital Securities. No Beneficial
Owner of an interest in a Global Certificate will be able to transfer that
interest except in accordance with DTC's applicable procedures.
DTC has advised the Company that it will take any action permitted to be
taken by a holder of Capital Securities (including the presentation of Capital
Securities for exchange as described below) only at the direction of one or
more Participants to whose accounts the DTC interests in the Global
Certificates are credited and only in respect of such portion of the aggregate
liquidation amount of Capital Securities as to which such Participant or
Participants has or have given such direction. However, if there is a
Declaration Event of Default with respect to the Capital Securities, DTC will,
upon notice, exchange the Global Certificates in respect of such Capital
Securities for certificated securities, which it will distribute to its
Participants.
Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed
by arrangements among them, subject to any statutory or regulatory
requirements as may be in effect from time to time.
Redemption notices in respect of the Capital Securities held in book-entry
form will be sent to Cede & Co. If less than all of the Capital Securities are
being redeemed, DTC's practice is to determine by lot the amount of the
interest of each Direct Participant to be redeemed.
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Although voting with respect to the Capital Securities is limited, in those
cases where a vote is required, neither DTC nor Cede & Co. will itself consent
or vote with respect to Capital Securities. Under its usual procedures, DTC
would mail an omnibus proxy to the Trust as soon as possible after the record
date. The omnibus proxy assigns Cede & Co.'s consenting or voting rights to
those Direct Participants to whose accounts the Capital Securities are
credited on the record date (identified in a listing attached to the omnibus
proxy).
Distributions on the Capital Securities held in book-entry form will be made
to DTC in immediately available funds. DTC's practice is to credit Direct
Participants' accounts on the relevant payment date in accordance with their
respective holdings shown on DTC's records unless DTC has reason to believe
that it will not receive payments on such payment date. Payments by Direct
Participants and Indirect Participants to Beneficial Owners will be governed
by standing instructions and customary practices and will be the
responsibility of such Direct Participants and Indirect Participants and not
of DTC, the Trust or the Company, subject to any statutory or regulatory
requirements as may be in effect from time to time. Payment of distributions
to DTC is the responsibility of the Trust, disbursement of such payments to
Direct Participants is the responsibility of DTC, and disbursement of such
payments to the Beneficial Owners is the responsibility of Direct Participants
and Indirect Participants.
Except as provided herein, a Beneficial Owner of an interest in a Global
Certificate will not be entitled to receive physical delivery of Capital
Securities. Accordingly, each Beneficial Owner must rely on the procedures of
DTC, the Direct Participants and the Indirect Participants to exercise any
rights under the Capital Securities.
Although DTC has agreed to the foregoing procedures in order to facilitate
transfers of interests in the Global Certificates among Participants of DTC,
DTC is under no obligation to perform or continue to perform such procedures,
and such procedures may be discontinued at any time. None of the Company, the
Trust or any Institutional Trustee will have any responsibility for the
performance by DTC or its Direct Participants or Indirect Participants under
the rules and procedures governing DTC. DTC may discontinue providing its
services as securities depositary with respect to the Capital Securities at
any time by giving notice to the Trust. Under such circumstances, in the event
that a successor securities depositary is not obtained, Capital Security
certificates will be required to be printed and delivered. Additionally, the
Trust (with the consent of the Company) may decide to discontinue use of the
system of book-entry transfers through DTC (or a successor depositary) with
respect to the Capital Securities of the Trust. In that event, certificates
for such Capital Securities will be printed and delivered.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources that the Company and the Trust believes to be
reliable, but neither the Company nor the Trust takes responsibility for the
accuracy thereof.
PAYMENT AND PAYING AGENCY
Payments in respect of the Capital Securities represented by the Global
Certificates shall be made to DTC, which shall credit the relevant accounts at
DTC on the applicable distribution payment dates or, in the case of
Certificated Securities in non-book-entry form, such payments shall be made by
check mailed to the address of the holder entitled thereto as such address
shall appear on books and records of the Trust. The paying agent for the Trust
Securities (the "Paying Agent") shall initially be The Chase Manhattan Bank.
The Paying Agent shall be permitted to resign as Paying Agent upon 30 days'
written notice to the Institutional Trustee. In the event that The Chase
Manhattan Bank shall no longer be the Paying Agent, the Institutional Trustee
shall appoint a successor to act as Paying Agent (which shall be a bank or
trust company).
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RESTRICTIONS ON TRANSFER
The Capital Securities will be issued and may be transferred only in blocks
having an aggregate liquidation amount of not less that $100,000 (100 Capital
Securities). Any such transfer of Capital Securities in a block having an
aggregate liquidation amount of less than $100,000 shall be deemed to be null
and void and of no legal effect whatsoever. Any such transferee shall be
deemed not to be the holder of such Capital Securities for any purpose,
including but not limited to the receipt of distributions on such Capital
Securities, and such transferee shall be deemed to have no interest whatsoever
in such Capital Securities.
REGISTRAR, TRANSFER AGENT AND PAYING AGENT
The Institutional Trustee will act as registrar, transfer agent and Paying
Agent for the Capital Securities of the Trust.
Registration of transfers or exchanges of Capital Securities will be
effected without charge by or on behalf of the Trust, but upon payment (with
the giving of such indemnity as the Trust or the Company may require) in
respect of any tax or other government charges which may be imposed in
relation to it.
The Trust will not be required to register or cause to be registered the
transfer or exchange of Capital Securities after such Capital Securities have
been called for redemption.
INFORMATION CONCERNING THE INSTITUTIONAL TRUSTEE
The Institutional Trustee, prior to the occurrence of a default with respect
to the Trust Securities of the Trust and after the curing of any defaults that
may have occurred, undertakes to perform only such duties as are specifically
set forth in the Declaration and, after default, shall exercise such of the
rights and powers vested in it by such Declaration, and use the same degree of
care and skill in their exercise, as a prudent individual would exercise or
use in the conduct of his or her own affairs. Subject to such provisions, the
Institutional Trustee is under no obligation to exercise any of the powers
vested in it by the Declaration at the request of any holder of Capital
Securities of the Trust, unless offered reasonable indemnity by such holder
against the costs, expenses and liabilities which might be incurred thereby.
The holders of Capital Securities of the Trust will not be required to offer
such indemnity in the event such holders, by exercising their voting rights,
direct the Institutional Trustee to take any action it is empowered to take
under the Declaration following a Declaration Event of Default. The
Institutional Trustee of a the Trust also serves as trustee under the
Guarantee and the Indenture. The Company and certain of its subsidiaries
conduct certain banking transactions with the Institutional Trustee in the
ordinary course of their business.
Whenever in the exercise of its rights or powers or the performance of its
duties under the Declaration the Institutional Trustee shall deem it desirable
to receive instructions with respect to enforcing any remedy or right or
taking any other action thereunder, the Institutional Trustee (i) may request
instructions from the holders of the Capital Securities of the Trust which
instructions may only be given by the holders of a majority, or such other
proportion, in liquidation amount of the Capital Securities of the Trust as
would be entitled to direct the Institutional Trustee under the terms of such
Capital Securities in respect of such remedy, right or action, (ii) may
refrain from enforcing such remedy or right or taking such other action until
such instructions are received, and (iii) shall be protected in conclusively
relying on or acting in or accordance with such instructions.
PROPOSED TAX LEGISLATION
On March 19, 1996, President Clinton proposed certain tax law changes that
would, among other things, generally deny corporate issuers a deduction for
interest in respect of certain debt obligations
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issued on or after December 7, 1995 (the "Proposed Legislation") if such debt
obligations have a maximum term in excess of twenty years and are not shown as
indebtedness on the issuer's applicable consolidated balance sheet. On March
29, 1996, Senate Finance Committee Chairman William V. Roth, Jr. and House
Ways and Means Committee Chairman Bill Archer issued a joint statement (the
"Joint Statement") indicating their intent that certain legislative proposals
initiated by the Clinton administration, including the Proposed Legislation,
that may be adopted by either of the tax-writing committees of Congress would
have an effective date that is no earlier than the date of "appropriate
Congressional action." Based upon the Joint Statement, it is expected that if
the Proposed Legislation were to be enacted, such legislation would not apply
to the Subordinated Debt Securities. There can be no assurance, however, that
the effective date guidance contained in the Joint Statement will be
incorporated into the Proposed Legislation, if enacted, or that other
legislation enacted after the date hereof will not otherwise adversely affect
the ability of the Company to deduct the interest payable on the Subordinated
Debt Securities. Accordingly, there can be no assurance that a Tax Event will
not occur. See "Description of the Capital Securities--Tax Event Redemption."
GOVERNING LAW
The Declaration and the Capital Securities of the Trust will be governed by,
and construed in accordance with, the laws of the State of Delaware, without
regard to principles of conflict of laws.
MISCELLANEOUS
The Regular Trustees of the Trust are authorized and directed to operate the
Trust in such a way so that the Trust will not be required to register as an
"investment company" under the 1940 Act nor be characterized as other than a
grantor trust for United States federal income tax purposes. The Company is
authorized and directed to conduct its affairs so that the Subordinated Debt
Securities will be treated as indebtedness of the Company for United States
federal income tax purposes. In this connection, the Company and the Regular
Trustees are authorized to take any action, not inconsistent with applicable
law, the Declaration or the certificates of incorporation of the Company, that
each of the Company and the Regular Trustees determine in their discretion to
be necessary or desirable to achieve such end, as long as such action does not
adversely affect the interests of the holders of the Capital Securities or
vary the terms thereof.
Holders of the Capital Securities have no preemptive rights.
DESCRIPTION OF THE GUARANTEE
Set forth below is a summary of information concerning the Guarantee which
has been executed and delivered by the Company for the benefit of the holders
from time to time of the Capital Securities. Chase Manhattan Bank is trustee
(the "Guarantee Trustee") under the Guarantee. The terms of the Guarantee are
those set forth in the Guarantee and those made part of such Guarantee by the
Trust Indenture Act. This summary of the material terms of the Guarantee does
not purport to be complete and is subject in all respects to the provisions
of, and is qualified in its entirety by reference to, the Guarantee (a copy of
which has been filed as an exhibit to the Registration Statement of which this
Prospectus is a part) and the Trust Indenture Act. The Guarantee will be held
by the Guarantee Trustee for the benefit of the holders of the Capital
Securities of the Trust. The Guarantee has been qualified under the Trust
Indenture Act.
GENERAL
Pursuant to the Guarantee, the Company has irrevocably and unconditionally
agreed, to the extent set forth therein, to pay in full, to the holders of the
Capital Securities issued by the Trust, the Guarantee Payments (as defined
herein) (except to the extent paid by the Trust), as and when due,
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regardless of any defense, right of set-off or counterclaim which the Trust
may have or assert. The following payments with respect to Capital Securities
issued by the Trust, to the extent not paid by the Trust (the "Guarantee
Payments"), are subject to the Guarantee (without duplication): (i) any
accrued and unpaid distributions which are required to be paid on Capital
Securities, to the extent the Trust shall have funds available therefor; (ii)
the Redemption Price, to the extent the Trust has funds available therefor,
with respect to any Capital Securities called for redemption by the Trust; and
(iii) upon a voluntary or involuntary dissolution, winding-up or termination
of the Trust (other than in connection with the distribution of Subordinated
Debt Securities to the holders of Capital Securities upon the redemption of
all of the Capital Securities), the lesser of (a) the aggregate of the
liquidation amount and all accrued and unpaid distributions on such Capital
Securities to the date of payment, to the extent the Trust has funds available
therefor, and (b) the amount of assets of the Trust remaining available for
distribution to holders of such Capital Securities in liquidation of the
Trust. The Company's obligation to make a Guarantee Payment may be satisfied
by direct payment of the required amounts by the Company to the holders of
Capital Securities or by causing the Trust to pay such amounts to such
holders.
The Guarantee in respect of the Trust will not apply to any payment of
distributions except to the extent the Trust shall have funds available
therefor, which funds will not be available except to the extent the Company
has made payments of interest (or premium, if any) or principal or other
payments on the Subordinated Debt Securities purchased by the Trust. See
"Description of the Subordinated Debt Securities--Certain Covenants." The
Guarantee, when taken together with the Company's obligations under the
Subordinated Debt Securities, the Declaration and the Indenture, including its
obligations to pay costs, expenses, debts and liabilities of the Trust (other
than with respect to the Trust Securities), the Indenture and each
Declaration, will provide a full and unconditional guarantee on a subordinated
basis by the Company of payments due on the Capital Securities.
Because the Guarantee is a guarantee of payment and not of collection,
holders of the Capital Securities may proceed directly against the Company as
guarantor, rather than having to proceed against the Trust before attempting
to collect from the Company, and the Company waives any right or remedy to
require that any action be brought against the Trust or any other person or
entity before proceeding against the Company. Such obligations will not be
discharged except by payment of the Guarantee Payments in full. The Guarantee
will be deposited with the Guarantee Trustee to be held for the benefit of the
holders of Capital Securities. Except as otherwise noted herein, the Guarantee
Trustee has the right to enforce the Guarantee on behalf of the holders of the
Capital Securities.
The Company has also agreed separately to irrevocably and unconditionally
guarantee the obligations of the Trust with respect to Common Securities
issued by Trust (the "Common Securities Guarantee") to the same extent as the
respective Guarantee, except that upon an event of default under the
Declaration of Trust, holders of Capital Securities of the Trust shall have
priority over holders of Common Securities of Trust with respect to
distributions and payments on liquidation, redemption or otherwise.
CERTAIN COVENANTS OF THE COMPANY UNDER THE GUARANTEE
In the Guarantee, the Company will covenant that, so long as any Capital
Securities issued by the Trust remain outstanding, if the Company shall be in
default under such Guarantee or there shall have occurred and be continuing
any event that would constitute an event of default under the Declaration of
the Trust or an Extension Period shall be continuing, then (a) the Company
shall not declare or pay any dividend on, make a distribution with respect to,
or redeem, purchase or make a liquidation payment with respect to, any of the
Company's capital stock or rights to acquire such capital stock (other than
(i) purchases or acquisitions of shares of any such capital stock or rights to
acquire such capital stock in connection with the satisfaction by the Company
of its obligations under any employee benefit plans, (ii) as a result of a
reclassification of the Company's capital stock or rights to acquire
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such capital stock or the exchange or conversion of one class or series of the
Company's capital stock or rights to acquire such capital stock for another
class or series of the Company's capital stock or rights to acquire such
capital stock, (iii) the purchase of fractional interests in shares of the
Company's capital stock pursuant to the conversion or exchange provisions of
such capital stock or the security being converted or exchanged, or (iv)
dividends and distributions made on the Company's capital stock or rights to
acquire such capital stock with the Company's capital stock or rights to
acquire such capital stock), or make any guarantee payments with respect to
the foregoing and (b) the Company shall not make any payment of interest,
principal or premium, if any, on or repay, repurchase or redeem any debt
securities issued by the Company that rank pari passu with or junior to the
Subordinated Debt Securities.
MODIFICATION OF THE GUARANTEE; ASSIGNMENT
Except with respect to any changes which do not adversely affect the rights
of holders of Capital Securities in any material respect (in which case no
vote of such holders will be required), the Guarantee may be amended only with
the prior approval of the holders of not less than a majority in liquidation
amount of the outstanding Capital Securities issued by such the Trust. All
guarantees and agreements contained in the Guarantee shall bind the
successors, assigns, receivers, trustees and representatives of the Company
and shall inure to the benefit of the holders of the Capital Securities then
outstanding.
TERMINATION
The Guarantee will terminate as to the Capital Securities issued by the
Trust (a) upon full payment of the Redemption Price of all Capital Securities
of the Trust, (b) upon distribution of the Subordinated Debt Securities held
by the Trust to the holders of the Capital Securities of the Trust or (c) upon
full payment of the amounts payable in accordance with the Declaration of
Trust upon liquidation of the Trust. Notwithstanding the foregoing, the
Guarantee will continue to be effective or will be reinstated, as the case may
be, if at any time any holder of Capital Securities issued by the Trust must
restore payment of any sums paid under such Capital Securities or Guarantee.
EVENTS OF DEFAULT
An event of default under a Guarantee in respect of the Trust will occur
upon the failure of the Company to perform any of its payment or other
obligations thereunder.
The holders of a majority in liquidation amount of the Capital Securities
issued by the Trust have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Guarantee Trustee in
respect of the Guarantee of such Capital Securities or to direct the exercise
of any trust or power conferred upon the Guarantee Trustee under such
Guarantee. A holder of record of such Capital Securities may institute a legal
proceeding directly against the Company to enforce the Guarantee Trustee's
rights under such Guarantee, without first instituting a legal proceeding
against the Trust, the Guarantee Trustee or any other person or entity.
Pursuant to the Guarantee, the Company will waive any right or remedy to
require that any action be brought first against the Trust or any other person
or entity before proceeding directly against the Company.
STATUS OF THE GUARANTEE
The Company's obligations under the Guarantee are subordinate and junior in
right of payment to all present and future Senior Indebtedness (as defined
herein) of the Company and are also effectively subordinated to claims of
creditors of the Company's subsidiaries. The terms of the Capital Securities
provide that each holder of Capital Securities issued by the Trust by
acceptance thereof agrees to the subordination provisions and other terms of
the Guarantee relating thereto. Because the Company is a holding company, the
right of the Company to participate in any distribution of assets of any
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subsidiary upon such subsidiary's liquidation or reorganization or otherwise
is subject to the prior claims of creditors of that subsidiary, except to the
extent the Company may itself be recognized as a creditor of that subsidiary.
Accordingly, the Company's obligations under the Guarantee will be effectively
subordinated to all existing and future liabilities of the Company's
subsidiaries, and claimants should look only to the assets of the Company for
payments thereunder. See "Marshall & Ilsley Corporation." The Guarantee does
not limit the incurrence or issuance of other secured or unsecured debt of the
Company, including Senior Indebtedness, whether under the Indenture, any other
indenture that the Company may enter into in the future or otherwise.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The Guarantee Trustee, prior to the occurrence of a default with respect to
the Guarantee and after the curing of all defaults that may have occurred,
undertakes to perform only such duties as are specifically set forth in such
Guarantee and, after default, shall exercise such of the rights and powers
vested in it by such Guarantee, and use the same degree of care and skill in
their exercise, as a prudent individual would exercise or use in the conduct
of his or her own affairs. Subject to such provisions, the Trustee is under no
obligation to exercise any of the powers vested in it by the Guarantee at the
request of any holder of Capital Securities, unless offered reasonable
indemnity against the costs, expenses and liabilities which might be incurred
thereby.
The Company and certain of its affiliates maintain a banking relationship
with the Guarantee Trustee.
GOVERNING LAW
The Guarantee is governed by and construed in accordance with the laws of
the State of New York, without regard to conflict of laws principles.
DESCRIPTION OF THE SUBORDINATED DEBT SECURITIES
Set forth below is a description of the principal terms of the Subordinated
Debt Securities. The following description does not purport to be complete and
is subject to, and is qualified in its entirety by reference to, the
Indenture, dated as of December 9, 1996 (the "Base Indenture"), among the
Company and The Chase Manhattan Bank, as trustee (the "Debt Trustee"), as
supplemented by a First Supplemental Indenture dated as of December 9, 1996
(the Base Indenture, as so supplemented, is herein referred to as the
"Indenture".) Certain capitalized terms used herein are defined in the
Indenture. The terms of the Indenture will be those set forth in the Indenture
and those made part thereof by the Trust Indenture Act. The Indenture, by its
terms, requires the Company and the Debt Trustee to comply with the Trust
Indenture Act. This summary of the material terms of the Indenture does not
purport to be complete and is subject in all respects to the provisions of,
and is qualified in its entirety by reference to, the Indenture (a copy of
which has been filed as an exhibit to the Registration Statement of which this
Prospectus is a part) and the Trust Indenture Act. The Indenture has been
qualified under the Trust Indenture Act. Certain capitalized terms used herein
are defined in the Indenture.
Under certain circumstances involving the dissolution of the Trust following
the occurrence of a Tax Event, Subordinated Debt Securities may be distributed
to the holders of the Trust Securities of the Trust in liquidation of the
Trust. See "Description of the Capital Securities--Tax Event Redemption."
GENERAL
Concurrently with the issuance of the Old Capital Securities, the Trust
invested the proceeds thereof, together with the consideration paid by the
Company for the Common Securities, in the Old Subordinated Debt Securities
issued by the Company. The Old Subordinated Debt Securities were and
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the New Subordinated Debt Securities exchanged for the Old Subordinated Debt
Securities under the Exchange Offer will be issued as unsecured debt under the
Indenture. Subordinated Debt Securities will be limited to such amount being
the sum of the aggregate stated liquidation amounts of the Trust Securities of
the Trust. The amount of securities that may be issued under the Indenture is
unlimited.
The Subordinated Debt Securities are not subject to a sinking fund
provision. The entire principal amount of the Subordinated Debt Securities
will mature and become due and payable, together with any accrued and unpaid
interest thereon including Compounded Interest (as defined herein) and
Additional Interest (as defined herein), if any, on December 1, 2026.
If the Subordinated Debt Securities are distributed to holders of Capital
Securities of the Trust in liquidation of such holders' interests in Trust,
the Subordinated Debt Securities will, with respect to Capital Securities in
book-entry Form, initially be issued as a Global Security (as defined herein)
having an aggregate principal amount equal to the liquidation amount of such
Capital Securities and, with respect to such Capital Securities held in
Certificated non-book entry form, will initially be deemed to be represented
by such certificates and to have an aggregate principal amount equal to the
liquidation amount of such Capital Securities. As described herein, under
certain limited circumstances, Subordinated Debt Securities may be issued in
certificated non-book entry form in exchange for a Global Security. See "--
Book-Entry and Settlement" below. Subordinated Debt Securities deemed to be
represented by a Capital Security certificate will be issued in certificated
form upon presentation for transfer or reissuance. In the event that
Subordinated Debt Securities are issued in certificated non- book entry form,
such Subordinated Debt Securities will be in denominations of $1,000 and
integral multiples thereof and may be transferred or exchanged at the offices
described below. Payments on Subordinated Debt Securities issued as a Global
Security will be made to DTC, a successor depositary or, in the event that no
depositary is used, to a paying agent for the Subordinated Debt Securities. In
the event Subordinated Debt Securities are issued in certificated non-book
entry form, interest or principal (and premium, if any) will be payable, the
transfer of the Subordinated Debt Securities will be registrable and
Subordinated Debt Securities will be exchangeable for Subordinated Debt
Securities of other denominations of a like aggregate principal amount at the
corporate trust office of the Debt Trustee in New York, New York; provided
that payment of interest may be made at the option of the Company by check
mailed to the address of the holder entitled thereto or by wire transfer to an
account appropriately designated by the holder entitled thereto.
Notwithstanding the foregoing, so long as the holder of any Subordinated Debt
Securities is the Institutional Trustee, the payment of interest or principal
(and premium, if any) on the Subordinated Debt Securities held by such
Institutional Trustee will be made at such place and to such account as may be
designated by such Institutional Trustee.
The Indenture does not contain provisions that afford holders of the
Subordinated Debt Securities protection in the event of a highly leveraged
transaction or other similar transaction involving the Company that may
adversely affect such holders.
SUBORDINATION
The Indenture provides that the Subordinated Debt Securities are
subordinated and junior in right of payment to all present and future Senior
Indebtedness of the Company. No payment of principal (including redemption
payments), premium, if any, or interest on the Subordinated Debt Securities
may be made (in cash, property, securities, by set-off or otherwise) if (i)
any Senior Indebtedness of the Company, as the case may be, is not paid when
due and any applicable grace period with respect to a payment default under
such Senior Indebtedness has ended and such default has not been cured or
waived or ceased to exist or (ii) the maturity of any Senior Indebtedness of
the Company has been accelerated because of a default. Upon any distribution
of assets of the Company to creditors upon any dissolution, winding-up,
liquidation or reorganization, whether voluntary or involuntary, or in
bankruptcy, insolvency, receivership or other proceedings, all principal,
premium, if any, and interest
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due or to become due on all Senior Indebtedness of the Company must be paid in
full before the holders of Subordinated Debt Securities are entitled to
receive or retain any payment. Upon satisfaction of all claims of all Senior
Indebtedness then outstanding, the rights of the holders of the Subordinated
Debt Securities will be subrogated to the rights of the holders of Senior
Indebtedness of the Company to receive payments or distributions applicable to
Senior Indebtedness until all amounts owing on the Subordinated Debt
Securities are paid in full.
The term "Senior Indebtedness" means, with respect to the Company (i) the
principal, premium, if any, and interest in respect of (A) indebtedness of
such obligor for money borrowed and (B) indebtedness evidenced by securities,
debentures, notes, bonds or other similar instruments issued by such obligor,
including, without limitation, any current of future indebtedness under any
indenture (other than the Indenture) to which the Company is party; (ii) the
Company's 8 1/2% Convertible Subordinated Notes due 1997; (iii) any current or
future indebtedness issued under that certain indenture dated as of July 15,
1993 between the Company and Chemical Bank, as Trustee, as such indenture may
be amended from time to time; (iv) all capital lease obligations of such
obligor, (v) all obligations of such obligor issued or assumed as the deferred
purchase price of property, all conditional sale obligations of such obligor
and all obligations of such obligor under any title retention agreement, (vi)
all obligations of such obligor for the reimbursement on any letter of credit,
any banker's acceptance, any security purchase facility, any repurchase
agreement or similar arrangement, any interest rate swap, any other hedging
arrangement, any obligation under options or any similar credit or other
transaction, (vii) all obligations of the type referred to in clauses (i)
through (vi) above of other persons for the payment of which such obligor is
responsible or liable as obligor, guarantor or otherwise and (viii) all
obligations of the type referred to in clauses (i) through (vii) above of
other persons secured by any lien on any property or asset of such obligor
(whether or not such obligation is assumed by such obligor), except for (1)
any indebtedness between or among the Company or any affiliate of the Company,
(2) any other debt securities issued pursuant to the Indenture and guarantees
in respect of those debt securities and (3) any obligation as to which, in the
instrument creating or evidencing the same or pursuant to which the same is
outstanding, it is specifically designated by express provision that such
obligation is not Senior Indebtedness. Such Senior Indebtedness shall continue
to be Senior Indebtedness and be entitled to the benefits of the subordination
provisions irrespective of any amendment, modification or waiver of any term
of such Senior Indebtedness.
The Company is legal entity separate and distinct from its banking and non-
banking affiliates. The Company's principal assets are the stock of its bank
and non-bank subsidiaries and the assets of M&I Data Services. The Company
relies primarily on dividends from such subsidiaries to meet its obligations
for payment of principal and interest on its outstanding debt obligations and
corporate expenses. The principal sources of the Company's' income are
dividends, interest and fees from the banking and non-banking affiliates. The
bank subsidiaries of the Company are subject to certain restrictions imposed
by federal law on any extensions of credit to, and certain other transactions
with the Company and certain other affiliates and on investments in stock or
other securities thereof. In addition, payment of dividends to the Company by
the subsidiary banks is subject to ongoing review by banking regulators and is
subject to various statutory limitations and in certain circumstances requires
approval by banking regulatory authorities. Accordingly, the Subordinated Debt
Securities will be effectively subordinated to all existing and future
liabilities of the Company's subsidiaries.
The Indenture does not limit the aggregate amount of Senior Indebtedness
that may be issued by the Company. As of September 30, 1996, the Company had
approximately $295 million principal amount of Senior Indebtedness (excluding
indebtedness of subsidiaries of the Company) and the Company's subsidiaries
had in the aggregate approximately $2.0 billion of indebtedness.
REDEMPTION
The Company may redeem the Subordinated Debt Securities, in whole or in
part, at any time and from time to time, on or after December 1, 2006 upon not
less than 30 nor more than 60 days' notice,
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at the Call Price described under "Description of the Capital Securities--
Redemption," plus accrued and unpaid interest to the redemption date.
In addition, Subordinated Debt Securities may be redeemed by the Company at
any time in certain circumstances upon the occurrence of a Tax Event as
described under "Description of the Capital Securities--Tax Event Redemption,"
upon not less than 30 nor more than 60 days' notice, at a redemption price
equal to 100% of the principal amount to be redeemed plus any accrued and
unpaid interest to the redemption date. Either redemption prior to maturity is
subject to the Company having received prior approval of the Federal Reserve
to do so if then required under applicable capital guidelines or policies of
the Federal Reserve.
INTEREST
Subordinated Debt Securities shall bear interest at the rate of 7.65% per
annum, from the original date of issuance, payable semiannually in arrears on
June 1 and December 1 of each year (each an "Interest Payment Date"),
commencing June 1, 1997, to the person in whose name such Subordinated Debt
Security is registered, subject to certain exceptions, at the close of
business on the Business Day next preceding such Interest Payment Date. The
term "interest" as used herein, as such term relates to the Subordinated Debt
Securities, includes any Compounded Interest, Additional Interest or Special
Payment payable unless otherwise stated. In the event the Subordinated Debt
Securities shall not be held solely in book-entry only form, the Company shall
select relevant record dates, which shall be 15 days prior to the relevant
Interest Payment Date.
The amount of interest payable for any period will be computed on the basis
of a 360-day year of twelve 30-day months. The amount of interest payable for
any period shorter than a full semiannual period for which interest is
computed will be computed on the basis of the actual number of days elapsed
per 30-day month. In the event that any date on which interest is payable on
the Subordinated Debt Securities is not a Business Day, then payment of the
interest payable on such date will be made on the next succeeding day that is
a Business Day (and without any interest or other payment in respect of any
such delay) with the same force and effect as if made on such date.
OPTION TO EXTEND INTEREST PAYMENT PERIOD
So long as the Company is not in default in the payment of interest that has
become due and payable on the Subordinated Debt Securities and no accrued
interest from a prior completed Extension Period is unpaid, the Company shall
have the right to defer payments of interest on the Subordinated Debt
Securities by extending the interest payment period, at any time and from time
to time, for Extension Periods, each not exceeding 10 consecutive semiannual
periods, and on the date on which each such Extension Period ends or, if such
date is not an Interest Payment Date, on the immediately following Interest
Payment Date, the Company shall pay all interest then accrued and unpaid,
together with interest thereon compounded semiannually at the rate specified
for the Subordinated Debt Securities to the extent permitted by applicable law
("Compounded Interest"); provided that during any Extension Period (a) the
Company shall not declare or pay dividends on, make any distribution with
respect to, or redeem, purchase, acquire, or make a liquidation payment with
respect to, any of its capital stock or rights to acquire such capital stock
(other than (i) purchases or acquisitions of shares of any such capital stock
or rights to acquire such capital stock in connection with the satisfaction by
the Company, respectively, of its obligations under any employee benefit
plans, (ii) as a result of a reclassification of the Company's capital stock
or rights to acquire such capital stock or the exchange or conversion of one
class or series of the Company's capital stock or rights to acquire such
capital stock for another class or series of the Company's capital stock or
rights to acquire such capital stock, (iii) the purchase of fractional
interests in shares of the Company's capital stock pursuant to the conversion
or exchange provisions of such capital stock or the security being converted
or exchanged or (iv) dividends and distributions made on the Company's capital
stock or rights to acquire such
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capital stock with the Company's capital stock or rights to acquire such
capital stock), or make any guarantee payments with respect to the foregoing,
and (b) the Company shall not make any payment of interest, principal or
premium, if any, on or repay, repurchase or redeem any debt securities issued
by the Company that rank pari passu with or junior to the Subordinated Debt
Securities. Prior to the termination of any such Extension Period, the Company
may further defer payments of interest by extending the interest payment
period; provided, however, that each such Extension Period, including all such
previous and further extension thereof, may not exceed 10 consecutive
semiannual periods or extend beyond the maturity of the Subordinated Debt
Securities. Upon the termination of any Extension Period and the payment of
all amounts then due, the Company may commence a new Extension Period, subject
to the terms set forth in this section. No interest during an Extension
Period, except on the date on which such Extension Period terminates (or if
such date is not an Interest Payment Date, on the immediately following
Interest Payment Date), shall be due and payable. The Company has no present
intention of exercising its right to defer payments of interest on the
Subordinated Debt Securities.
If the Institutional Trustee shall be the sole holder of the Subordinated
Debt Securities, the Company shall give the Regular Trustees, the
Institutional Trustee and the Debt Trustee notice of its initiation of any
Extension Period one Business Day prior to the earlier of (i) the date
distributions on the Capital Securities of the Trust are payable or (ii) the
date the Regular Trustees of the Trust are required to give notice to holders
of the Capital Securities of the Trust (or any national securities exchange or
other organization on which the Capital Securities are listed, if any) of the
record date or the distribution payment date, in each case with respect to
distributions on the Trust Securities of the Trust the payment of which is
being deferred. The Regular Trustees of the Trust shall give notice of the
Company's initiation of any Extension Period to the holders of such Capital
Securities. If the Institutional Trustee shall not be the sole holder of the
Subordinated Debt Securities, the Company shall give the holders of such
Subordinated Debt Securities notice of its initiation of such Extension Period
at least 10 Business Days prior to the earlier of (i) the next succeeding
Interest Payment Date or (ii) the date upon which the Company is required to
give notice to holders of such Subordinated Debt Securities (or any national
securities exchange or other organization on which the corresponding Capital
Securities are listed, if any) of the record date or interest payment date, in
each case with respect to interest payments the payment of which is being
deferred.
ADDITIONAL INTEREST
If at any time the Trust shall be required to pay any taxes, duties,
assessments or governmental charges of whatever nature (other than withholding
taxes) imposed by the United States, or any other taxing authority, then, in
any such case, the Company will pay as additional interest ("Additional
Interest") on the Subordinated Debt Securities held by the Institutional
Trustee such additional amounts as shall be required so that the net amounts
received and retained by the Trust after paying any such taxes, duties,
assessments or other governmental charges will equal the amounts the Trust and
the Institutional Trustee would have received had no such taxes, duties,
assessments or other governmental charges been imposed.
PROPOSED TAX LEGISLATION
On March 19, 1996, President Clinton proposed the Proposed Legislation
which, among other things, would generally deny corporate issuers a deduction
for interest in respect of certain debt obligations issued on or after
December 7, 1995, if such debt obligations have a maximum term in excess of
twenty years and are not shown as indebtedness on the issuer's applicable
consolidated balance sheet. On March 29, 1996, Senate Finance Committee
Chairman William V. Roth, Jr. and House Ways and Means Committee Chairman Bill
Archer issued the Joint Statement indicating their intent that certain
legislative proposals initiated by the Clinton administration, including the
Proposed Legislation, that may be adopted by either of the tax-writing
committees of Congress would have an
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effective date that is no earlier than the date of "appropriate Congressional
action." Based upon the Joint Statement, it is expected that if the Proposed
Legislation were to be enacted, such legislation would not apply to the
Subordinated Debt Securities. There can be no assurance, however, that the
effective date guidance contained in the Joint Statement will be incorporated
into the Proposed Legislation, if enacted, or that other legislation enacted
after the date hereof will not otherwise adversely affect the ability of the
Company to deduct the interest payable on the Subordinated Debt Securities.
Accordingly, there can be no assurance that a Tax Event will not occur. See
"Description of the Capital Securities--Tax Event Redemption."
CERTAIN COVENANTS
If (i) there shall have occurred and be continuing any event that would
constitute an Event of Default (as defined herein), (ii) the Company shall be
in default with respect to its payment of any obligations under the Guarantee
or Common Securities Guarantee (as defined in the Indenture), or (iii) the
Company shall have given notice of its election to defer payments of interest
on the Subordinated Debt Securities by extending the interest payment period
as provided in the Indenture and such period, or any extension thereof, shall
be continuing, then (a) the Company shall not declare or pay any dividend on,
make a distribution with respect to, or redeem, purchase or make a liquidation
payment with respect to, any of its capital stock or rights to acquire such
capital stock (other than (i) purchases or acquisitions of shares of any such
capital stock or rights to acquire such capital stock in connection with the
satisfaction by the Company of its obligations under any employee benefit
plans, (ii) as a result of a reclassification of the Company's capital stock
or rights to acquire such capital stock or the exchange or conversion of one
class or series of the Company's capital stock or rights to acquire such
capital stock for another class or series of the Company's capital stock or
rights to acquire such capital stock, (iii) the purchase of fractional
interests in shares of the Company's capital stock pursuant to the conversion
or exchange provisions of such capital stock or the security being converted
or exchanged, or (iv) dividends and distributions made on the Company's
capital stock or rights to acquire such capital stock with the Company's
capital stock or rights to acquire such capital stock), or make any guarantee
payments with respect to the foregoing and (b) the Company shall not make any
payment of interest, principal or premium, if any, on or repay, repurchase or
redeem any debt securities issued by the Company that rank pari passu with or
junior to such Subordinated Debt Securities.
For so long as the Trust Securities remain outstanding, the Company will
covenant (i) to maintain 100% ownership of the Common Securities of the Trust;
provided, however, that any permitted successor of the Company under the
Indenture may succeed to the Company's ownership of such Common Securities,
(ii) to use its reasonable efforts to cause the Trust (a) to remain a
statutory business trust, except in connection with the distribution of
Subordinated Debt Securities to the holders of Trust Securities in liquidation
of the Trust, the redemption of all of the Trust Securities of the Trust or
certain mergers, consolidations or amalgamations, each as permitted by the
Declaration, and (b) to otherwise continue to be classified as a grantor trust
for United States federal income tax purposes and (iii) to use its reasonable
efforts to cause each holder of Trust Securities issued by the Trust to be
treated as owning an undivided beneficial interest in the Subordinated Debt
Securities issued to the Trust.
LIMITATION ON MERGERS AND SALES OF ASSETS
Nothing contained in the Indenture or in the Subordinated Debt Securities
shall prevent any consolidation or merger of the Company with or into any
other corporation (whether or not affiliated with the Company) or successive
consolidations or mergers in which the Company or its successor or successors
shall be a party, or shall prevent any sale, conveyance, transfer or other
disposition of the property of the Company or its successor or successors as
an entirety, or substantially as an entirety, to any other corporation
(whether or not affiliated with the Company or its successor or successors)
authorized to acquire and operate the same; provided, however, that the
Company shall, upon any
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such consolidation, merger, sale, conveyance, transfer or other disposition,
cause the obligations of the Company under Subordinated Debt Securities and
under the Indenture, to be expressly assumed, by supplemental indenture
satisfactory in form to the Debt Trustee and executed and delivered to the
Debt Trustee, by the successor entity formed by such consolidation or into
which the Company shall have been merged, or which shall have acquired such
property. Upon execution and delivery of such supplemental indenture to the
Debt Trustee, such successor entity will be substituted under the Indenture
and thereupon the Company will be relieved of any further liability or
obligation thereunder.
EVENTS OF DEFAULT, WAIVER AND NOTICE
The Indenture provides that any one or more of the following described
events which has occurred and is continuing with respect to the Subordinated
Debt Securities constitutes an "Event of Default" with respect to the
Subordinated Debt Securities:
(a) default for 30 days in payment of any interest on the Subordinated
Debt Securities, including any Compounded Interest, Additional Interest or
Special Payment in respect thereof, when due; provided, however, that a
valid extension of the interest payment period by the Company shall not
constitute a default in the payment of interest for this purpose; or
(b) default in payment of principal and premium, if any, on the
Subordinated Debt Securities when due either at maturity, upon redemption,
by declaration or otherwise; provided, however, that a valid extension of
the maturity of such Subordinated Debt Securities shall not constitute a
default for this purpose; or
(c) default by the Company in the performance of any other of the
covenants or agreements in the Indenture which shall not have been remedied
for a period of 90 days after notice; or
(d) certain events of bankruptcy, insolvency or reorganization of the
Company; or
(e) as to Subordinated Debt Securities issued to the Trust, the voluntary
or involuntary dissolution, winding-up or termination of the Trust, except
in connection with the distribution of Subordinated Debt Securities to the
holders of Trust Securities in liquidation of the Trust, the redemption of
all of the Trust Securities of the Trust, or certain mergers,
consolidations or amalgamations, each as permitted by the Declaration of
Trust.
The Indenture provides that the Debt Trustee may, under certain
circumstances, withhold from the holders notice of default with respect to the
Subordinated Debt Securities (except for any default in payment of principal
of or interest or premium on the Subordinated Debt Securities) if the Trustee
considers it in the interest of such holders to do so.
The Indenture provides that if an Event of Default in respect of the
Subordinated Debt Securities shall have occurred and be continuing, either the
Debt Trustee or the holders of not less than 25% in aggregate principal amount
of the Subordinated Debt Securities then outstanding may declare the principal
of and accrued interest on all Subordinated Debt Securities to be due and
payable immediately, but upon certain conditions such declarations may be
annulled and past defaults may be waived (except defaults in payment of
principal of or interest or premium on the Subordinated Debt Securities, which
must be cured or paid in full) by the holders of a majority in aggregate
principal amount of the Subordinated Debt Securities then outstanding.
No holder of any Subordinated Debt Security shall have any right to
institute any suit, action or proceeding for any remedy under the Indenture,
unless such holder previously shall have given to the Debt Trustee written
notice of a continuing Event of Default with respect to the Subordinated Debt
Securities and unless the holders of not less than 25% in aggregate principal
amount of the Subordinated Debt Securities then outstanding shall have given
the Debt Trustee a written request to institute such action, suit or
proceeding and shall have offered to the Debt Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred thereby, and the
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Debt Trustee for 60 days after its receipt of such notice, request and offer
of indemnity shall have failed to institute any such action, suit or
proceeding; provided that no holder of Subordinated Debt Securities shall have
any right to prejudice the rights of any other holder of Subordinated Debt
Securities, obtain priority or preference over any other such holder or
enforce any right under this Indenture except as provided in the Indenture and
for the equal, ratable and common benefit of all holders of Subordinated Debt
Securities. Notwithstanding the foregoing, the right of any holder of any
Subordinated Debt Security to receive payment of the principal of, premium, if
any, and interest, on such Subordinated Debt Security when due, or to
institute suit for the enforcement of any such payment, shall not be impaired
or affected without the consent of such holder.
The holders of a majority in aggregate principal amount of the Subordinated
Debt Securities then outstanding shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to, or
exercising any trust or power conferred on, the Debt Trustee under the
Indenture; provided, however, that, except under certain circumstances, the
Debt Trustee may decline to follow any such direction if the Debt Trustee
determines that the action so directed would be unjustly prejudicial to
holders not taking part in such direction or would be unlawful or would
involve the Debt Trustee in personal liability. The Indenture requires the
annual filing by the Company with the Debt Trustee of a certificate as to the
absence of certain defaults under the Indenture.
An Event of Default under the Indenture also constitutes a Declaration Event
of Default. The holders of Capital Securities of the Trust in certain
circumstances have the right to direct the Institutional Trustee of Trust to
exercise its rights as the holder of the Subordinated Debt Securities. See
"Description of the Capital Securities--Declaration Events of Default" and "--
Voting Rights." Notwithstanding the foregoing, if an Indenture Event of
Default has occurred and is continuing and such event is attributable to the
failure of the Company to pay interest or principal (or premium, if any) on
the Subordinated Debt Securities on the respective dates such interest or
principal (or premium, if any) is payable (or in the case of redemption, on
the redemption date), the Company acknowledges that a holder of record of
Capital Securities of the Trust may institute a Direct Action for payment, on
or after the respective due dates specified in such Subordinated Debt
Securities, to such holder directly of the principal of (or premium, if any)
or interest on Subordinated Debt Securities having an aggregate principal
amount equal to the aggregate liquidation amount of the Capital Securities of
such holder. Notwithstanding any payments made to such holder of Capital
Securities by the Company in connection with a Direct Action, the Company
shall remain obligated to pay the principal of (or premium, if any) or
interest on the Subordinated Debt Securities held by the Trust or the
Institutional Trustee, and the Company shall be subrogated to the rights of
such holder of such Capital Securities under the Declaration to the extent of
any payments made by the Company to such holder in any Direct Action;
provided, however, that no such subrogation right may be exercised so long as
a Declaration Event of Default has occurred and is continuing. Except to the
extent described above under "Description of the Capital Securities--
Declaration Events of Default" and "--Voting Rights," the holders of Capital
Securities will not be able to exercise directly any other remedy available to
the holders of the Subordinated Debt Securities.
MODIFICATION OF THE INDENTURE
The Indenture contains provisions permitting the Company and the Debt
Trustee, with the consent of the holders of not less than a majority in
principal amount of the Subordinated Debt Securities by such modification at
the time outstanding, to modify the Indenture or any supplemental indenture or
the rights of the holders of the Subordinated Debt Securities; provided,
however, that no such modification shall without the consent of the holder of
each Subordinated Debt Security so affected (i) extend the fixed maturity of
any Subordinated Debt Security, or reduce the principal amount thereof or any
premium thereon, or reduce any amount payable on redemption thereof, or reduce
the rate or extend the time of payment of interest thereon, or make the
principal of, or interest or premium on, the Subordinated Debt Securities
payable in any coin or currency other than that provided in the
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Subordinated Debt Securities, or reduce the amount of principal of an OID
security that would be due and payable upon an acceleration of the maturity
thereof or the amount payable thereof in bankruptcy or impair or affect the
right of any holder of Subordinated Debt Securities to institute suit for the
payment thereof or (ii) reduce the aforesaid percentage of Subordinated Debt
Securities the consent of the holders of which is required for any such
modification.
The Company and the Debt Trustee may enter into supplemental indentures,
without the consent of any holder of the Subordinated Debt Securities: (i) to
evidence the succession of another corporation to the Company and the
assumption by the successor corporation of the covenants, agreements and
obligations of the Company pursuant to the Indenture; (ii) to add to the
covenants of the Company such further covenants, restrictions or conditions
for the protection of the holders of the Subordinated Debt Securities and to
make the occurrence, or the occurrence and continuance (including any or no
grace periods), of a default in any of such additional covenants, restrictions
or conditions a default or an Event of Default permitting the enforcement of
remedies provided in the Indenture; (iii) to cure any ambiguity or to correct
or supplement any provision contained in the Indenture or in any supplemental
indenture which may be defective or inconsistent with any other provision
contained therein or in any supplemental indenture, or to make such other
provisions in regard to matters or questions arising under the Indenture;
provided that any such action shall not adversely affect the interests of the
holders of the Subordinated Debt Securities; (iv) to add on, delete from, or
revise the terms of the Subordinated Debt Securities to provide for transfer
procedures and restrictions substantially similar to those applicable to the
Capital Securities (for purposes of assuring that no registration of
Subordinated Debt Securities is required under the Securities Act); (v) to
evidence and provide for the acceptance of appointment under the Indenture by
a successor Debt Trustee with respect to the Subordinated Debt Securities and
to add to or change any of the provisions of the Indenture as shall be
necessary to provide for or facilitate the administration of the trust under
the Indenture by more than one Debt Trustee, pursuant to the Indenture; (vi)
to make any change that does not adversely affect the rights of any holder of
any Subordinated Debt Security in any material respect; or (vii) to provide
for the issuance, and establish the form and terms and conditions, of the
Subordinated Debt Securities, to establish the form of any certifications
required to be furnished pursuant to the terms of the Indenture or the
Subordinated Debt Securities or to add to the rights of the holders of the
Subordinated Debt Securities.
THE DEBT TRUSTEE
The Company may have normal banking relationships with the Debt Trustee in
the ordinary course of business.
BOOK-ENTRY AND SETTLEMENT
If distributed to holders of Capital Securities of the Trust in connection
with the involuntary or voluntary dissolution, winding-up or liquidation of
the Trust as a result of the occurrence of a Tax Event, the Subordinated Debt
Securities will with respect to such Capital Securities held in book-entry
form, initially be issued in the form of one or more global certificates (each
a "Global Security") registered in the name of the Depositary or its nominee.
Except under the limited circumstances described below, Subordinated Debt
Securities represented by a Global Security will not be exchangeable for, and
will not otherwise be issuable as, Subordinated Debt Securities in definitive
form. The Global Securities described above may not be transferred except by
the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or to a
successor depositary or its nominee.
The laws of some jurisdictions require that certain purchasers of securities
take physical delivery of such securities in definitive form. Such laws may
impair the ability to transfer beneficial interests in such a Global Security.
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Except as provided below, owners of beneficial interests in a Global
Security will not be entitled to receive physical delivery of Subordinated
Debt Securities in definitive form and will not be considered the holders (as
defined in the Indenture) thereof for any purpose under the Indenture, and no
Global Security representing Subordinated Debt Securities shall be
exchangeable, except for another Global Security of like denomination and
tenor to be registered in the name of the Depositary or its nominee or to a
successor Depositary or its nominee. Accordingly, each Beneficial Owner must
rely on the procedures of the Depositary or if such person is not a
Participant, on the procedures of the Participant through which such person
owns its interest to exercise any rights of a holder under the Indenture.
THE DEPOSITARY
If Subordinated Debt Securities are distributed to holders of Capital
Securities in liquidation of such holders' interests in the Trust, DTC will
act as securities Depositary for the Subordinated Debt Securities issued by
the Trust with respect to Capital Securities held in book-entry form. For a
description of DTC and the specific terms of the depositary arrangements, see
"Description of the Capital Securities--Book-Entry Only Issuance--The
Depository Trust Company." As of the date of this Prospectus, the description
herein of DTC's book-entry system and DTC's practices as they relate to
purchases, transfers, notices and payments with respect to the Capital
Securities apply in all material respects to any debt obligations represented
by one or more Global Securities held by DTC. The Company may appoint a
successor to DTC or any successor depositary in the event DTC or such
successor depositary is unable or unwilling to continue as the Depositary for
the Global Securities.
None of the Company, the Trust, the Institutional Trustee any paying agent
and any other agent of the Company, or the Debt Trustee will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in a Global
Security for the Subordinated Debt Securities or for maintaining, supervising
or reviewing any records relating to such beneficial ownership interests.
DISCONTINUANCE OF THE DEPOSITARY'S SERVICES
A Global Security shall be exchangeable for Subordinated Debt Securities
registered in the names of persons other than the Depositary or its nominee
only if (i) the Depositary notifies the Company that it is unwilling or unable
to continue as a depositary for such Global Security and no successor
depositary shall have been appointed, (ii) the Depositary, at any time, ceases
to be a clearing agency registered under the Exchange Act at which time the
Depositary is required to be so registered to act as such depositary and no
successor depositary shall have been appointed, (iii) the Company, in its sole
discretion, determines that such Global Security shall be so exchangeable or
(iv) there shall have occurred an Indenture Event of Default. Any Global
Security that is exchangeable pursuant to the preceding sentence shall be
exchangeable for Subordinated Debt Securities registered in such names as the
Depositary shall direct. It is expected that such instructions will be based
upon directions received by the Depositary from its Participants with respect
to ownership of beneficial interests in such Global Security.
RESTRICTIONS ON TRANSFER
The Subordinated Debt Securities will be issued and may be transferred only
in blocks having a liquidation amount of not less than $100,000. Any such
transfer of Subordinated Debt Securities in a block having a liquidation
amount of less than $100,000 shall be deemed to be null and void and of no
legal effect whatsoever. Any such transferee shall be deemed not to be the
holder of such Subordinated Debt Securities for any purpose, including but not
limited to the receipt of payments on such Subordinated Debt Securities, and
such transferee shall be deemed to have no interest whatsoever in such
Subordinated Debt Securities.
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GOVERNING LAW
The Indenture and the Subordinated Debt Securities will be governed by, and
construed in accordance with, the laws of the State of New York, without
regard to conflict of laws principles.
MISCELLANEOUS
The Indenture provides that the Company will pay all fees and expenses
related to (i) the offering and sale of the Trust Securities and the
Subordinated Debt Securities, (ii) the organization, maintenance and
dissolution of the Trust, (iii) the retention of the M&I Trustees and (iv) the
enforcement by the Institutional Trustee of the rights of the holders of the
Capital Securities.
The Company will have the right at all times to assign any of its respective
rights or obligations under the Indenture to a direct or indirect wholly-owned
subsidiary of the Company; provided that, in the event of any such assignment,
the Company, as the case may be, will remain liable for all of their
respective obligations. Subject to the foregoing, the Indenture will be
binding upon and inure to the benefit of the parties thereto and their
respective successors and assigns. The Indenture provides that it may not
otherwise be assigned by the parties thereto.
EFFECT OF OBLIGATIONS UNDER THE SUBORDINATED DEBT
SECURITIES AND THE GUARANTEE
As set forth in the Declaration, the sole purpose of the Trust is to issue
and sell the Trust Securities evidencing undivided beneficial interests in the
assets of the Trust, and to invest the proceeds from such issuance and sale in
the Subordinated Debt Securities issued by the Company in accordance with such
Trust Securities.
As long as payments of interest and other payments are made when due on the
Subordinated Debt Securities, such payments will be sufficient to cover
distributions and payments due on the Trust Securities issued by the Trust
because of the following factors: (i) the aggregate principal amount of
Subordinated Debt Securities will be equal to the aggregate stated liquidation
amount of such Trust Securities; (ii) the interest rate and the interest and
other payment dates on the Subordinated Debt Securities will match the
distribution rate and distribution and other payment dates for such Capital
Securities; (iii) the Company shall pay all, and the Trust shall not be
obligated to pay directly or indirectly any, costs, expenses, debts, and
obligations of the Trust (other than with respect to such Trust Securities);
and (iv) the Declaration of the Trust further provides that the Trustees of
the Trust shall not take or cause or permit the Trust to, among other things,
engage in any activity that is not consistent with the purposes of the Trust.
Payments of distributions (to the extent funds therefor are available to the
Trust) and other payments due on such Capital Securities (to the extent funds
therefor are available to the Trust) are guaranteed by the Company as
described under "Description of the Guarantee." If the Company does not make
interest payments on the Subordinated Debt Securities, it is expected that the
Trust will not have sufficient funds to pay distributions on such Capital
Securities. The Guarantee will not apply to any payment of distributions
except to the extent that Trust has funds available for the payment of such
distributions. The Guarantee will cover the payment of distributions and other
payments on such Capital Securities only if and to the extent that the Company
has made payments of interest or principal (or premium, if any) on the
Subordinated Debt Securities held by the Trust as its sole assets. The
Guarantee, when taken together with the Company's obligations under the
Subordinated Debt Securities, the Declaration and the Indenture, including its
obligations to pay costs, expenses, debts and liabilities of the Trust (other
than with respect to the Trust Securities), the Indenture and the Declaration,
provide a full and unconditional guarantee on a subordinated basis by the
Company of amounts when due on such Capital Securities issued by the Trust.
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If the Company fails to make interest or other payments on the Subordinated
Debt Securities when due (after giving effect to any Extension Period), the
Declaration provides a mechanism whereby the holders of the Capital
Securities, using the procedures described herein under "Description of the
Capital Securities--Book-Entry Only Issuance--The Depository Trust Company"
and "--Voting Rights," may direct the Institutional Trustee, to the fullest
extent permitted by law to enforce its rights under the Subordinated Debt
Securities. If the Institutional Trustee fails to enforce its rights under the
Subordinated Debt Securities after a majority in liquidation amount of Capital
Securities have so directed the Institutional Trustee, a holder of record of
the Capital Securities may institute a legal proceeding against the Company to
enforce the Institutional Trustee's rights under the Subordinated Debt
Securities without first instituting any legal proceedings against the
Institutional Trustee or any other person or entity. Notwithstanding the
foregoing, if a Declaration Event of Default has occurred and is continuing
and such event is attributable to the failure of the Company to pay principal
(or premium, if any) or interest on the Subordinated Debt Securities on the
respective dates such principal (or premium, if any) or interest is payable
(or in the case of redemption, on the redemption date), then a holder of
record of Capital Securities may institute a Direct Action for payment on or
after the respective due dates specified in the Subordinated Debt Securities.
In connection with such Direct Action, the Company will be subrogated to the
rights of such holder of Capital Securities under the Declaration to the
extent of any payment made by the Company to such holder of Capital Securities
in such Direct Action; provided, however, that no such subrogation right may
be exercised so long as a Declaration Event of Default has occurred and is
continuing.
Because the Company is a holding company, the Subordinated Debt Securities
and the Guarantee are effectively subordinated to all existing and future
liabilities, including trade payables, of the Company's subsidiaries, except
to the extent that the Company is a creditor of the subsidiaries recognized as
such.
PLAN OF DISTRIBUTION
Each broker-dealer that receives New Capital Securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Capital Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be
used by a broker-dealer in connection with resales of New Capital Securities
received in exchange for Old Capital Securities where such New Capital
Securities were acquired as a result of market-making activities or other
trading activities. The Company and the Trust have agreed that, starting on
the date of the original issuance of the Old Capital Securities and ending on
the close of business one year after such date, they will make this
Prospectus, as amended or supplemented, available to any broker-dealer for use
in connection with any such resale. In addition, until 1997, all
dealers offering transactions in the New Capital Securities may be required to
deliver a Prospectus.
The Company and the Trust will not receive any proceeds from any sale of New
Capital Securities by broker-dealers. New Capital Securities received by
broker-dealers for their own account pursuant to the Exchange Offer may be
sold from time to time in one or more transactions in the over-the-counter
market, in negotiated transactions, through the writing of options on the New
Capital Securities or a combination of such methods of resale, at market
prices prevailing at the time of resale, at prices related to such prevailing
market prices or negotiated prices. Any such resale may be made directly to
purchasers or to or through brokers or dealers who may receive compensation in
the form of commissions or concessions from any such broker-dealer and/or the
purchasers of any such New Capital Securities. Any broker-dealer that resells
New Capital Securities that were received by it for its own account pursuant
to the Exchange Offer and any broker or dealer that participates in a
distribution of such New Capital Securities may be deemed to be an
"underwriter" within the meaning of the Securities Act and any profit of any
such resale of New Capital Securities and any commissions or concessions
received by any such persons may be deemed to be underwriting compensation
under
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the Securities Act. The Letter of Transmittal states that by acknowledging
that it will deliver and by delivering a prospectus, a broker-dealer will not
be deemed to admit that it is an "underwriter" within the meaning of the
Securities Act.
Each broker-dealer that surrenders Old Capital Securities pursuant to the
Exchange Offer will be deemed to have agreed, by execution of the Letter of
Transmittal, to comply with applicable laws in connection with offers and
sales by way of this Prospectus including without limitation the prospectus
delivery requirements of the Securities Act and the applicable requirements of
Rules 10b-5 and 10b-6 under the Exchange Act and to discontinue offers and
sales upon notice from the Company of the happening of any event that requires
the making of changes in the Registration Statement or the Prospectus so that
the statements therein are not misleading and do not omit to state a material
fact required to be stated therein or necessary to make the statements therein
(in the case of the Prospectus, in light of the circumstances under which they
were made) not misleading. The Company has agreed, subject to certain
exceptions, to make any such required change promptly following the occurrence
of any such event.
For a period of one year after the original issuance of the Old Capital
Securities, the Company and the Trust will promptly send additional copies of
this Prospectus and any amendment or supplement to this Prospectus to any
broker-dealer that requests such documents in the Letter of Transmittal. The
Company and the Trust have agreed to pay all expenses incident to the Exchange
Offer (including the expenses of one counsel for the holders of the Old
Capital Securities) other than commissions or concessions of any brokers or
dealers and will indemnify the holders of the Old Capital Securities
(including any broker-dealers) against certain liabilities, including
liabilities under the Securities Act.
UNITED STATES FEDERAL INCOME TAXATION
GENERAL
In addition to the two specific opinions referred to below under "--US
Holders--Characterization of the Trust" and "--Characterization of the
Subordinated Debt Securities," Godfrey & Kahn, S.C., counsel to the Company
and the Trust ("Counsel"), has, in connection with the issuance of the Old
Capital Securities, rendered its opinion generally to the effect that, subject
to the exceptions and qualifications set forth therein, the discussion of
United States federal income taxation which follows summarizes the material
United States federal income tax consequences of the purchase, ownership and
disposition of Capital Securities.
This summary is based on the Internal Revenue Code of 1986, as amended (the
"Code"), Treasury regulations thereunder, and administrative and judicial
interpretations thereof, each as of the date hereof, all of which are subject
to change, possibly on a retroactive basis.
Except as otherwise stated, this summary deals only with Capital Securities
held as a capital asset by a holder who or which (i) purchased Capital
Securities upon original issuance (an "Initial Holder") and (ii) is a US
Holder (as defined below). It does not deal with all aspects of United States
federal income taxation, nor with the particular United States federal income
tax (hereafter, "income tax") consequences which may be applicable to certain
classes of US Holders (such as banks, thrift institutions, real estate
investment trusts, regulated investment companies, insurance companies,
brokers and dealers in securities or currencies, other financial institutions,
tax-exempt organizations, persons holding Capital Securities as a position in
a "straddle," as part of a "synthetic security or hedge," as part of a
"conversion transaction" or as part of any other integrated investment,
persons having a functional currency other than the U.S. Dollar and certain
United States expatriates). Further, this summary does not address (a) the
income tax consequences to shareholders in, or partners or beneficiaries of, a
holder of Capital Securities, (b) the United States federal alternative
minimum tax consequences of the purchase, ownership or disposition of Capital
Securities, or (c) any state, local or foreign tax consequences of the
purchase, ownership and disposition of Capital Securities.
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A "US Holder" is a holder of Capital Securities who or which is a citizen or
individual resident (or is treated as a citizen or individual resident) of the
United States for income tax purposes, a corporation or partnership created or
organized (or treated as created or organized for income tax purposes) in or
under the laws of the United States or any political subdivision thereof, an
estate the income of which is includible in its gross income for United States
federal income tax purposes without regard to its source or a trust if, and
only if, (i) a court within the United States is able to exercise primary
supervision over the administration of the trust and (ii) one or more United
States trustees have the authority to control all substantial decisions of the
trust.
EXCHANGE OF CAPITAL SECURITIES
The exchange of Old Capital Securities for New Capital Securities should not
be a taxable event to holders for income tax purposes. The exchange of Old
Capital Securities for New Capital Securities pursuant to the Exchange Offer
should not be treated as an "exchange" for federal income tax purposes because
the degree to which the New Capital Securities differ from the Old Capital
Securities is not economically significant and because the exchange will occur
by operation of the terms of the Old Capital Securities. Accordingly, the New
Capital Securities should have the same issue price as the Old Capital
Securities, and a holder should have the same adjusted basis and holding
period in the New Capital Securities as the holder had in the Old Capital
Securities immediately before the exchange. Therefore, the tax opinions
rendered by Counsel in connection with the issuance of the Old Capital
Securities, when read in conjunction with the tax opinion rendered in
connection with the Exchange Offer, are equally applicable to this issuance of
New Capital Securities.
US HOLDERS
CHARACTERIZATION OF THE TRUST
In connection with the issuance of the Old Capital Securities, Counsel
rendered its opinion generally to the effect that, under then current law and
assuming full compliance with the terms of the Declaration (and other
documents), and based on certain assumptions and qualifications referenced in
the opinion, the Trust will be characterized for United States federal income
tax purposes as a grantor trust and will not be characterized as an
association taxable as a corporation for such purposes. Accordingly, for
income tax purposes, each holder of Capital Securities generally will be
considered the owner of an undivided interest in the Subordinated Debt
Securities owned by the Trust, and each US Holder will be required to include
all income or gain recognized for income tax purposes with respect to its
allocable share of the Subordinated Debt Securities on its own income tax
return.
CHARACTERIZATION OF THE SUBORDINATED DEBT SECURITIES
In connection with the issuance of the Old Subordinated Debt Securities,
Counsel rendered its opinion generally to the effect that, under then current
law and assuming full compliance with the terms of the Indenture (and other
documents), and based on certain assumptions and qualifications referenced in
the opinion, the Subordinated Debt Securities will be characterized for United
States federal income tax purposes as debt of the Company.
ORIGINAL ISSUE DISCOUNT
Under the terms of the Subordinated Debt Securities, the Company has the
option to defer payments of interest from time to time by extending the
interest payment period for a period not exceeding 10 consecutive semiannual
periods, but not beyond the maturity of the Subordinated Debt Securities.
Recently issued Treasury regulations under Section 1273 of the Code provide
that debt instruments like the Subordinated Debt Securities will not be
considered issued with OID by reason of the Company's option to defer payments
of interest if the likelihood of deferral is "remote."
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The Company has concluded, and this discussion assumes, that, as of the date
of this Prospectus, the likelihood of exercise of that option is "remote"
within the meaning of the applicable regulations, in part because exercising
that option would prevent the Company from declaring dividends on its stock
and would prevent the Company from making any payments with respect to debt
securities that rank pari passu or junior to the Subordinated Debt Securities.
Therefore, the Subordinated Debt Securities should not be treated as issued
with OID by reason of the Company's deferral option. Rather, stated interest
on the Subordinated Debt Securities will generally be taxable to a US Holder,
as ordinary income, when paid or accrued in accordance with that holder's
method of accounting for income tax purposes. It should be noted, however,
that these regulations have not yet been addressed in any rulings or other
interpretations by the Service. Accordingly, it is possible that the Service
could take a position contrary to the interpretation described herein.
In the event the Company subsequently exercised its option to defer payments
of interest, the Subordinated Debt Securities would be treated as reissued for
OID purposes and the sum of the remaining interest payments on the
Subordinated Debt Securities would thereafter be treated as OID, which would
accrue, and be includible in a US Holder's taxable income, on an economic
accrual basis (regardless of the US Holder's method of accounting for income
tax purposes) over the remaining term of the Subordinated Debt Securities
(including any period of interest deferral), without regard to the timing of
payments under the Subordinated Debt Securities. (Subsequent distributions of
interest on the Subordinated Debt Securities generally would not be taxable.)
The amount of OID that accrued in any period would generally equal the amount
of interest that accrued on the Subordinated Debt Securities in that period at
the stated interest rate. Consequently, during any period of interest
deferral, US Holders will include OID in gross income in advance of the
receipt of cash, and a US Holder which disposes of a Capital Security prior to
the record date for payment of distributions on the Subordinated Debt
Securities following that period will be subject to income tax on OID accrued
through the date of disposition (and not previously included in income), but
will not receive cash from the Trust with respect to that OID.
If the Company's option to defer payments of interest were not treated as
remote, the Subordinated Debt Securities would be treated as initially issued
with OID in an amount equal to the aggregate stated interest over the term of
the Subordinated Debt Securities. That OID would generally be includible in a
US Holder's taxable income, over the term of the Subordinated Debt Securities,
on an economic accrual basis.
CHARACTERIZATION OF INCOME
Because the income underlying the Capital Securities will not be
characterized as dividends for income tax purposes, corporate holders of
Capital Securities will not be entitled to a dividends-received deduction for
any income recognized with respect to the Capital Securities.
MARKET DISCOUNT AND BOND PREMIUM
Holders of Capital Securities other than Initial Holders may be considered
to have acquired their undivided interests in the Subordinated Debt Securities
with market discount or acquisition premium (as each phrase is defined for
income tax purposes).
RECEIPT OF SUBORDINATED DEBT SECURITIES OR CASH UPON LIQUIDATION OF THE TRUST
The Company will have the right to distribute Subordinated Debt Securities
to holders in exchange for the Capital Securities and in liquidation of the
Trust. Except as discussed below, such a distribution would not be a taxable
event for income tax purposes, and each US Holder would have an aggregate
adjusted basis in its Subordinated Debt Securities for income tax purposes
equal to such holder's aggregate adjusted basis in its Capital Securities. For
income tax purposes, a US Holder's holding
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period in the Subordinated Debt Securities received in such a liquidation of
the Trust would include the period during which the Capital Securities were
held by the holder. If, however, the relevant event is a Tax Event which
results in the Trust being treated as an association taxable as a corporation,
the distribution would likely constitute a taxable event to US Holders of the
Capital Securities for income tax purposes.
Under certain circumstances described herein (see "Description of the
Capital Securities"), the Subordinated Debt Securities may be redeemed for
cash and the proceeds of such redemption distributed to holders in redemption
of their Capital Securities. Such a redemption would be taxable for income tax
purposes, and a US Holder would recognize gain or loss as if it had sold the
Capital Securities for cash. See "--Sales of Capital Securities" below.
SALES OF CAPITAL SECURITIES
A US Holder that sells Capital Securities will recognize gain or loss equal
to the difference between its adjusted basis in the Capital Securities and the
amount realized on the sale of such Capital Securities. A US Holder's adjusted
basis in the Capital Securities generally will be its initial purchase price,
increased by OID previously included (or currently includible) in such
holder's gross income to the date of disposition, and decreased by payments
received on the Capital Securities (other than any interest received with
respect to the period prior to the effective date of the Company's first
exercise of its option to defer payments of interest). Any such gain or loss
generally will be capital gain or loss, and generally will be a long-term
capital gain or loss if the Capital Securities have been held for more than
one year.
A holder who disposes of his Capital Securities between record dates for
payments of distributions thereon will be required to include accrued but
unpaid interest (or OID) on the Subordinated Debt Securities through the date
of disposition in its taxable income for income tax purposes (notwithstanding
that the holder may receive a separate payment from the purchaser with respect
to accrued interest), and to deduct that amount from the sales proceeds
received (including the separate payment, if any, with respect to accrued
interest) for the Capital Securities (or as to OID only, to add such amount to
such holder's adjusted tax basis in its Capital Securities). To the extent the
selling price is less than the holder's adjusted tax basis (which will include
accrued but unpaid OID, if any), a holder will recognize a capital loss.
Subject to certain limited exceptions, capital losses cannot be applied to
offset ordinary income for income tax purposes.
NON-US HOLDERS
The following discussion applies to an Initial Holder who is not a US Holder
(a "Non-US Holder").
Payments to a holder of a Capital Security which is a Non-US Holder will
generally not be subject to withholding of income tax, provided that (a) the
beneficial owner of the Capital Security does not (directly or indirectly,
actually or constructively) own 10% or more of the total combined voting power
of all classes of stock of the Company entitled to vote, (b) the beneficial
owner of the Capital Security is not a controlled foreign corporation that is
related to the Company through stock ownership, and (c) either (I) the
beneficial owner of the Capital Securities certifies to the Trust or its
agent, under penalties of perjury, that it is a Non-US Holder and provides its
name and address, or (II) a securities clearing organization, bank or other
financial institution that holds customers' securities in the ordinary course
of its trade or business (a "Financial Institution"), and holds the Capital
Security in such capacity, certifies to the Trust or its agent, under
penalties of perjury, that such a statement has been received from the
beneficial owner by it or by another Financial Institution between it and the
beneficial owner in the chain of ownership, and furnishes the Trust or its
agent with a copy thereof.
66
<PAGE>
As discussed above (see "Description of the Capital Securities--Tax Event
Redemption"), changes in legislation affecting the income tax consequences of
the Subordinated Debt Securities are possible, and could adversely affect the
ability of the Company to deduct the interest payable on the Subordinated Debt
Securities. Moreover, any such legislation could, as the Proposed Legislation
would have, adversely affect Non-US Holders by characterizing income derived
from the Subordinated Debt Securities as dividends, generally subject to a 30%
income tax (on a withholding basis) when paid to a Non-US Holder, rather than
as interest which, as discussed above, is generally exempt from income tax in
the hands of a Non-US Holder.
A Non-US Holder of a Capital Security will generally not be subject to
withholding of income tax on any gain realized upon the sale or other
disposition of a Capital Security.
A Non-US Holder which holds Capital Securities in connection with the active
conduct of a United States trade or business will be subject to income tax on
all income and gains recognized with respect to its proportionate share of the
Subordinated Debt Securities.
INFORMATION REPORTING
In general, information reporting requirements will apply to payments made
on, and proceeds from the sale of, Capital Securities held by a noncorporate
US Holder within the United States. In addition, payments made on, and
payments of the proceeds from the sale of, Capital Securities to or through
the United States office of a broker are subject to information reporting
unless the holder thereof certifies as to its non-United States status or
otherwise establishes an exemption from information reporting and backup
withholding (see "--Backup Withholding" below). Taxable income on the Capital
Securities for a calendar year should be reported to US Holders on Forms 1099
by the following January 31st.
BACKUP WITHHOLDING
Payments made on, and proceeds from the sale of, the Capital Securities may
be subject to a "backup" withholding tax of 31% unless the holder complies
with certain identification or exemption requirements. Any amounts so withheld
will be allowed as a credit against the holder's income tax liability, or
refunded, provided the required information is provided to the United States
Internal Revenue Service.
* * *
THE PRECEDING DISCUSSION IS ONLY A SUMMARY AND DOES NOT ADDRESS THE
CONSEQUENCES TO A PARTICULAR HOLDER OF THE PURCHASE, OWNERSHIP AND DISPOSITION
OF CAPITAL SECURITIES. POTENTIAL HOLDERS OF CAPITAL SECURITIES ARE URGED TO
CONTACT THEIR OWN TAX ADVISORS TO DETERMINE THEIR PARTICULAR TAX CONSEQUENCES.
ERISA CONSIDERATIONS
Each fiduciary of a pension, profit-sharing or other employee benefit plan
subject to the Employee Retirement Income Security Act of 1974, as amended
("ERISA") (a "Plan"), should consider the fiduciary standards of ERISA in the
context of the Plan's particular circumstances before authorizing an
investment in the Capital Securities. Accordingly, among other factors, the
fiduciary should consider whether the investment would satisfy the prudence
and diversification requirements of ERISA and would be consistent with the
documents and instruments governing the Plan.
Section 406 of ERISA and Section 4975 of the Code prohibit Plans, as well as
individual retirement accounts and Keogh plans subject to Section 4975 of the
Code (also "Plans"), from engaging in certain transactions involving "plan
assets" with persons who are "parties in interest"
67
<PAGE>
under ERISA or "disqualified persons" under the Code ("Parties in Interest")
with respect to such Plan. A violation of these "prohibited transaction" rules
may result in an excise tax or other liabilities under ERISA and/or Section
4975 of the Code for such persons, unless exemptive relief is available under
an applicable statutory or administrative exemption. Employee benefit plans
that are governmental plans (as defined in Section 3(32) of ERISA), certain
church plans (as defined in Section 3(33) of ERISA) and foreign plans (as
described in Section 4(b)(5) of ERISA) are not subject to the requirements of
ERISA or Section 4975 of the Code.
Under a regulation (the "Plan Assets Regulation") issued by the U.S.
Department of Labor (the "DOL"), the assets of the Trust would be deemed to be
"plan assets" of a Plan for purposes of ERISA and Section 4975 of the Code if
"plan assets" of the Plan were used to acquire an equity interest in such
Trust and no exception were applicable under the Plan Assets Regulation. An
"equity interest" is defined under the Plan Assets Regulation as any interest
in an entity other than an instrument which is treated as indebtedness under
applicable local law and which has no substantial equity features and
specifically includes a beneficial interest in a trust.
Pursuant to an exception contained in the Plan Assets Regulation, the assets
of the Trust would not be deemed to be "plan assets" of investing Plans if,
immediately after the most recent acquisition of any equity interest in the
Trust, less than 25% of the value of each class of equity interests in the
Trust were held by Plans, other employee benefit plans not subject to ERISA or
Section 4975 of the Code (such as governmental, church and foreign plans), and
entities holding assets deemed to be "plan assets" of any Plan (collectively,
"Benefit Plan Investors"). No assurance can be given by the Initial Purchasers
that the value of the Capital Securities held by Benefit Plan investors will
be less than 25% of the total value of such Capital Securities at the
completion of the initial offering or thereafter, and no monitoring or other
measures will be taken with respect to the satisfaction of the conditions to
this exception. All of the Common Securities will be purchased and held by the
Company.
Certain transactions involving the Trust could be deemed to constitute
direct or indirect prohibited transactions under ERISA and Section 4975 of the
Code with respect to a Plan if the Capital Securities of the Trust were
acquired with "plan assets" of such Plan and assets of the Trust were deemed
to be "plan assets" of Plans investing in the Trust. For example, if the
Company is a Party in interest with respect to an investing Plan (either
directly or by reason of its ownership of its subsidiaries), extensions of
credit between the Company and the Trust (as represented by the Subordinated
Debt Securities and the Guarantees) would likely be prohibited by Section
406(a)(1)(B) of ERISA and Section 4975(c)(1)(B) of the Code, unless exemptive
relief were available under an applicable administrative exemption (see
below).
The DOL has issued five prohibited transaction class exemptions ("PTCEs")
that may provide exemptive relief for direct or indirect prohibited
transactions resulting from the purchase or holding of the Capital Securities,
assuming that assets of the Trust were deemed to be "plan assets" of Plans
investing in the Trust (see above). Those class exemptions are PTCE 96-23 (for
certain transactions determined by in-house asset managers), PTCE 95-60 (for
certain transactions involving insurance company general accounts), PTCE 91-38
(for certain transactions involving bank collective investment funds), PTCE
90-1 (for certain transactions involving insurance company separate accounts),
and PTCE 84-14 (for certain transactions determined by independent qualified
asset managers).
Because the Capital Securities may be deemed to be equity interests in the
Trust for purposes of applying ERISA and Section 4975 of the Code, the Capital
Securities may not be purchased or held by any Plan, any entity whose
underlying assets include "plan assets" by reason of any Plan's investment in
the entity (a "Plan Asset Entity") or any person investing "plan assets" of
any Plan, unless such purchaser or holder is eligible for the exemptive relief
available under PTCE 96-23, 95-60, 91-38, 90-1 or 84-14. Any purchaser or
holder of the Capital Securities or any interest therein will be deemed to
have represented by its purchase and holding thereof that it either (a) is not
a Plan or a
68
<PAGE>
Plan Asset Entity and is not purchasing such securities on behalf of or with
"plan assets" of any Plan or (b) is eligible for the exemptive relief
available under PTCE 96-23, 95-60, 91-38, 90-1 or 84-14 with respect to such
purchase or holding. See "Notice to Investors" herein.
Due to the complexity of these rules and the penalties that may be imposed
upon persons involved in non-exempt prohibited transactions, it is
particularly important that fiduciaries or other persons considering
purchasing Capital Securities on behalf of or with "plan assets" of any Plan
consult with their counsel regarding the potential consequences if the assets
of the Trust were deemed to be "plan assets" and the availability of exemptive
relief under PTCE 96-23, 95-60, 91-38, 90-1 or 84-14.
LEGAL MATTERS
Certain matters of Delaware law relating to the validity of the New Capital
Securities will be passed upon on behalf of the Trust by Morris, Nichols,
Arsht & Tunnell, special Delaware counsel to the Trust. The validity under
Wisconsin law of the Subordinated Debt Securities and the Guarantee will be
passed upon for M&I by Godfrey & Kahn, S.C., Milwaukee, Wisconsin. Certain
United States federal income tax matters have been, and will be in connection
with the Exchange Offer, passed upon for M&I and the Trust by Godfrey & Kahn,
S.C.
INDEPENDENT PUBLIC ACCOUNTANTS
The consolidated financial statements of the Company and its subsidiaries
included in the Company's Annual Report on Form 10-K for the year ended
December 31, 1995, have been audited by Arthur Andersen LLP, independent
public accountants, as set forth in their report therein and herein by
reference. Such consolidated financial statements are incorporated herein by
reference in reliance upon such report given upon the authority of such firm
as experts in accounting and auditing.
69
<PAGE>
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFOR-
MATION OR TO MAKE ANY REPRESENTATIONS IN CONNECTION WITH THE OFFER MADE HEREBY
EXCEPT AS CONTAINED IN THIS PROSPECTUS AND, IF GIVEN OR MADE, NO SUCH INFORMA-
TION OR REPRESENTATIONS SHOULD BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY, THE TRUST, PROSPECTUS OR ANY OF THEIR RESPECTIVE AGENTS. NEITHER THE
DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIR-
CUMSTANCES, CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE INFOR-
MATION SET FORTH HEREIN OR IN THE AFFAIRS OF THE COMPANY OR THE TRUST SINCE
THE DATE HEREOF. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL, OR A
SOLICITATION OF AN OFFER TO BUY, THE CAPITAL SECURITIES BY ANYONE IN ANY JU-
RISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH
THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO OR TO
ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
---------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information..................................................... 6
Incorporation of Certain Documents by Reference........................... 7
Summary................................................................... 8
Risk Factors.............................................................. 16
Capitalization............................................................ 22
Ratio of Earnings to Fixed Charges........................................ 22
Accounting Treatment...................................................... 23
Use of Proceeds........................................................... 23
The Trust................................................................. 23
Marshall & Ilsley Corporation............................................. 24
The Exchange Offer........................................................ 26
Description of the Capital Securities..................................... 34
Description of the Guarantee.............................................. 48
Description of the Subordinated Debt Securities........................... 51
Effect of Obligations Under the Subordinated Debt Securities and the
Guarantee................................................................ 61
Plan of Distribution...................................................... 62
United States Federal Income Taxation..................................... 63
ERISA Considerations...................................................... 67
Legal Matters............................................................. 69
Independent Public Accountants............................................ 69
</TABLE>
$200,000,000
M&I CAPITAL
TRUST A
7.65% CAPITAL TRUST PASS-THROUGH
SECURITIESSM (TRUPSSM)
(LIQUIDATION AMOUNT $1,000 PER
CAPITAL SECURITY)
FULLY AND UNCONDITIONALLY GUARANTEED,
AS DESCRIBED HEREIN, BY
MARSHALL & ILSLEY CORPORATION
LOGO
PROSPECTUS
DATED , 1997
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Sections 180.0850 to 180.0859 of the Wisconsin Statutes require a
corporation to indemnify any director or officer who is a party to any
threatened, pending or completed civil, criminal, administrative or
investigative action, suit, arbitration or other proceeding, whether formal or
informal, which involves foreign, federal, state or local law and which is
brought by or in the right of the corporation or by any other person. A
corporation's obligation to indemnify any such person includes the obligation
to pay any judgment, settlement, penalty, assessment, forfeiture or fine,
including any excise tax assessed with respect to an employee benefit plan,
and all reasonable expenses including fees, costs, charges, disbursements,
attorney's and other expenses except in those cases in which liability was
incurred as a result of the breach or failure to perform a duty which the
director or officer owes to the corporation and the breach or failure to
perform constitutes: (i) a willful failure to deal fairly with the corporation
or its shareholders in connection with a matter in which the director or
officer has a material conflict of interest; (ii) a violation of criminal law,
unless the person has reasonable cause to believe his conduct was lawful or
had no reasonable cause to believe his conduct was unlawful; (iii) a
transaction from which the person derived an improper personal profit; or (iv)
willful misconduct.
Unless otherwise provided in a corporation's articles of incorporation or
By-Laws or by written agreement, an officer or director seeking
indemnification is entitled to indemnification if approved in any of the
following manners: (i) by majority vote of a disinterested quorum of the board
of directors, or if such quorum of disinterested directors cannot be obtained,
by a majority vote of a committee of two or more disinterested directors; (ii)
by independent legal counsel; (iii) by a panel of three arbitrators; (iv) by
affirmative vote of shareholders; (v) by a court; or (vi) with respect to any
additional right to indemnification granted by any other method permitted in
Section 180.0858 of the Wisconsin Statutes.
Reasonable expenses incurred by a director or officer who is a party to a
proceeding may be reimbursed by a corporation at such time as the director or
officer furnishes to the corporation written affirmation of his good faith
belief that he has not breached or failed to perform his duties and a written
undertaking to repay any amounts advanced if it is determined that
indemnification by the corporation is not required.
The indemnification provisions of Sections 180.0850 to 180.0859 are not
exclusive. A corporation may expand an officer's or director's right to
indemnification (i) in its articles of incorporation or by-laws; (ii) by
written agreement; (iii) by resolution of its board of directors; or (iv) by
resolution of a majority of all of the corporation's voting shares then issued
and outstanding.
As permitted by Section 180.0858, M&I has adopted indemnification provisions
in its By-Laws which closely track the statutory indemnification provisions
with certain exceptions. In particular, Section 7.1 of M&I's By-Laws, among
other items, provides that (i) any individual shall be indemnified unless it
is proven by a final judicial adjudication that indemnification is prohibited
and (ii) payment or reimbursement of expenses, subject to certain limitations,
will be mandatory rather than permissive. M&I has purchased directors' and
officers' liability insurance which insures M&I's officers and directors
against certain liabilities which may arise under the Securities Act of 1933.
Under the Declaration, M&I will agree to indemnify each of the Trustees of
the Trust, and to hold the Trustees harmless against, any loss, damage,
claims, liability or expense incurred without negligence or bad faith on the
Trustees' part, arising out of or in connection with the acceptance or
administration of the Declaration, including the costs and expenses of
defending themselves against any claim or liability in connection with the
exercise or performance of any of their powers or duties under the
Declaration.
<PAGE>
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
<TABLE>
<C> <S>
4.1 Certificate of Trust of M&I Capital Trust A
4.2 Amended and Restated Declaration of Trust dated as of December 9,
1996 among Marshall & Ilsley Corporation, as Sponsor, The Chase
Manhattan Bank, as Institutional Trustee, Chase Manhattan Bank
Delaware, as Delaware Trustee, J.B. Wigdale, G.H. Gunnlaugsson and
M.A. Hatfield, as Regular Trustees, and the holders from time to time
of undivided interests in the assets of the Trust
4.3 Indenture, dated as of December 9, 1996, between Marshall & Ilsley
Corporation and The Chase Manhattan Bank, as Indenture Trustee
4.4 First Supplemental Indenture, dated as of December 9, 1996, between
Marshall & Ilsley Corporation and The Chase Manhattan Bank, as
Indenture Trustee
4.5 Form of Capital Security Certificate for M&I Capital Trust A
(included as Exhibit
A-2 to Exhibit 4.2).
4.6 Capital Securities Guarantee Agreement, dated as of December 9, 1996,
between Marshall & Ilsley Corporation and The Chase Manhattan Bank,
as Guarantee Trustee
4.7 Registration Rights Agreement dated December 2, 1996, by and among
Marshall & Ilsley Corporation, M&I Capital Trust A and Salomon
Brothers Inc, as Representative of the Initial Purchasers
4.8 Form of Subordinated Debt Security (included as part of Exhibit 4.4)
5.1 Opinion of Godfrey & Kahn, S.C. as to legality of the Junior
Subordinated Deferrable Interest Debentures to be issued by M&I
Capital Trust A and the Capital Securities Guarantee*
5.2 Opinion of Morris, Nichols, Arsht & Tunnell as to legality of the
7.65% Capital Trust Pass-through Securities to be issued by M&I
Capital Trust A*
Opinion of Godfrey & Kahn, S.C. as to certain federal income tax
8 matters*
12 Computation of ratio of earnings to fixed charges*
23.1 Consent of Arthur Andersen LLP
23.2 Consent Godfrey & Kahn, S.C. (included in Exhibits 5.1 and 8)*
Consent of Morris, Nichols, Arsht & Tunnell (included in Exhibit
23.3 5.2)*
24 Powers of Attorney
25.1 Form T-1 Statement of Eligibility of The Chase Manhattan Bank to act
as trustee under the Indenture
25.2 Form T-1 Statement of Eligibility of The Chase Manhattan Bank to act
as trustee under the Amended and Restated Declaration of Trust
25.3 Form T-1 Statement of Eligibility of The Chase Manhattan Bank under
the Capital Securities Guarantee Agreement for the benefit of the
holders of Capital Securities of M&I Capital Trust A
99.1 Form of Letter of Transmittal*
99.2 Form of Notice of Guaranteed Delivery*
99.3 Form of Exchange Agent Agreement *
</TABLE>
- --------
* To be filed by amendment.
2
<PAGE>
ITEM 22. UNDERTAKINGS
Each of the undersigned Registrants hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as amended, each
filing of a Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section 15(d)
of the Securities Exchange Act of 1934) that is incorporated by reference
statement relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of
each Registrant pursuant to the provisions, or otherwise, each Registrant has
been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and
therefore is unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by each Registrant of
expenses incurred or paid by a director, officer of controlling person of each
Registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with
the securities being registered, each Registrant will, unless in the opinion
of its counsel the matter has been settled by the controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
The undersigned Registrants hereby undertake to respond to requests for
information that is incorporated by reference into the Prospectus pursuant to
Item 4, 10(b), 11 or 13 of this Form, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in documents
filed subsequent to the effective date of the registration statement through
the date of responding to the request.
The undersigned Registrants hereby undertake to supply by means of a post-
effective amendment all information concerning a transaction, and the company
being acquired or involved therein, that was not the subject of and included
in the registration statement when it became effective.
3
<PAGE>
SIGNATURES
PURSUANT TO REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING A FORM S-4 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF MILWAUKEE, STATE OF WISCONSIN, ON JANUARY 14, 1997.
MARSHALL & ILSLEY CORPORATION
(Registrant)
/s/ J.B. Wigdale
By: _________________________________
J.B. Wigdale
Chairman of the Board
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATED INDICATED:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ J.B. Wigdale Chairman of the Board and a January 14, 1997
____________________________________ Director (Chief Executive
J.B. Wigdale Officer)
/s/ G.H. Gunnlaugsson Executive Vice President and January 14, 1997
____________________________________ a Director (Chief
G.H. Gunnlaugsson Financial Officer)
/s/ P.R. Justiliano Senior Vice President and January 14, 1997
____________________________________ Corporate Controller
P.R. Justiliano (Principal Accounting
Officer)
Directors: Oscar C. Boldt, Wendell F. Bueche, Glenn A. Francke, G.H.
Gunnlaugsson, Burleigh E. Jacobs, Jack F. Kellner, James F. Kress, D.J.
Kuester, Edward L. Meyer, Jr., Don R. O'Hare, San W. Orr, Jr., Peter M.
Platten, III, J.A. Puelicher, Stuart W. Tisdale, J.B. Wigdale and James O.
Wright.
/s/ M.A. Hatfield As Attorney-in-Fact*
____________________________________
M.A. Hatfield
</TABLE>
- --------
* Pursuant to authority granted by powers of attorney, copies of which are
filed herewith.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, M&I CAPITAL
TRUST A CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL
THE REQUIREMENTS FOR FILING ON FORM S-4 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF MILWAUKEE, AND STATE OF WISCONSIN ON JANUARY 14,
1997.
M&I Capital Trust A
/s/ G.H. Gunnlaugsson
By: _________________________________
G.H. Gunnlaugsson
Regular Trustee
/s/ M.A. Hatfield
By: _________________________________
M.A. Hatfield
Regular Trustee
4
<PAGE>
EXHIBIT A
CERTIFICATE OF TRUST
OF
M&I CAPITAL TRUST A
This Certificate of Trust of M&I Capital Trust A (the "Trust") dated
December 2, 1996, is being duly executed and filed by the undersigned, as
trustees, to form a business trust pursuant to the Delaware Business Trust Act,
12 Del. C. (S)3801, et seq. The undersigned, as trustees, do hereby certify as
follows:
1. The name of the business trust being formed hereby is "M&I Capital
Trust A."
2. The name and business address of the trustee of the Trust which
has its principal place of business in the State of Delaware is as follows:
Chase Manhattan Bank Delaware
1201 Market Street
Wilmington, Delaware 19801
3. This Certificate of Trust shall be effective as of the date of
filing.
A-1
<PAGE>
IN WITNESS WHEREOF, the undersigned, being the sole trustees of the
Trust, have executed this Certificate of Trust as of the date first above
written.
--------------------------------
J. B. Wigdale, as Trustee
--------------------------------
M. A. Hatfield, as Trustee
--------------------------------
G. H. Gunnlaugsson, as Trustee
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee
By:
-----------------------------
Name:
Title:
CHASE MANHATTAN BANK,
as Institutional Trustee
By:
-----------------------------
Name:
Title:
A-2
<PAGE>
==============================================
AMENDED AND RESTATED DECLARATION
OF TRUST
M&I CAPITAL TRUST A
Dated as of December 9, 1996
==============================================
<PAGE>
<TABLE>
<CAPTION>
CROSS-REFERENCE TABLE*
Section of Trust Indenture
Act of 1939, as amended Section of Declaration
- -------------------------- ----------------------
<S> <C>
310(a) 5.3(a)
310(c) Inapplicable
311(c) Inapplicable
312(a) 2.2(a)
312(b) 2.2(b)
313 2.3
314(a) 2.4
314(b) Inapplicable
314(c) 2.5
314(d) Inapplicable
314(f) Inapplicable
315(a) 3.9(b)
315(c) 3.9(a)
315(d) 3.9(a)
316(a) Annex I
316(b) Annex I
316(c) 3.6(e)
</TABLE>
- ---------------------------
* This Cross-Reference Table does not constitute part of the Declaration and
shall not affect the interpretation of any of its terms or provisions.
<PAGE>
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
M&I CAPITAL TRUST A
December 9, 1996
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration") dated and
effective as of December 9, 1996, by the Trustees (as defined herein), the
Sponsor (as defined herein) and by the holders, from time to time, of undivided
beneficial interests in the Trust to be issued pursuant to this Declaration;
WHEREAS, the Trustees and the Sponsor established M&I Capital Trust A
(the "Trust"), a business trust under the Delaware Business Trust Act pursuant
to a Declaration of Trust dated as of December 2, 1996 (the "Original
Declaration"), and a Certificate of Trust filed with the Secretary of State of
the State of Delaware on December 2, 1996, for the sole purpose of issuing and
selling certain securities representing undivided beneficial interests in the
assets of the Trust and investing the proceeds thereof in certain Debentures of
the Debenture Issuer;
WHEREAS, as of the date hereof, no interests in the Trust have been
issued;
WHEREAS, all of the Trustees and the Sponsor, by this Declaration,
amend and restate each and every term and provision of the Original Declaration;
and
NOW, THEREFORE, it being the intention of the parties hereto to
continue the Trust as a business trust under the Business Trust Act and that
this Declaration constitutes the governing instrument of such business trust,
the Trustees declare that all assets contributed to the Trust will be held in
trust for the benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions.
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not defined in the
preamble above have the respective meanings assigned to them in this Section
1.1;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
<PAGE>
(c) all references to "the Declaration" or "this Declaration" are to
this Declaration as modified, supplemented or amended from time to time;
(d) all references in this Declaration to Articles and Sections and
Annexes and Exhibits are to Articles and Sections of and Annexes and Exhibits to
this Declaration unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this Declaration unless otherwise defined in this Declaration or
unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice versa.
"Administrative Action" has the meaning set forth in paragraph 4(c) of
Annex I.
"Affiliate" has the same meaning as given to that term in Rule 405 of
the Securities Act or any successor rule thereunder.
"Agent" means any Paying Agent.
"Authorized Officer" of a Person means any Person that is authorized
to bind such Person.
"Bankruptcy Event" means, with respect to any Person:
(a) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of such Person in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of such Person or for any substantial part of
its property, or ordering the winding-up or liquidation of its affairs and such
decree or order shall remain unstayed and in effect for a period of 90
consecutive days; or
(b) such Person shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, shall
consent to the entry of an order for relief in an involuntary case under any
such law, or shall consent to the appointment of or taking possession by a
receiver, liquidator, assignee, trustee, custodian, sequestrator (or other
similar official) of such Person or of any substantial part of its property, or
shall make any general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due.
"Book Entry Interest" means a beneficial interest in a Global Capital
Security, ownership and transfers of which shall be maintained and made through
book entries by a Clearing Agency as described in Section 9.2.
"Business Day" means any day other than Saturday, Sunday or any other
day on which federal or state banking institutions in the Borough of Manhattan,
the City of New York, are authorized or obligated by law, executive order or
regulation to close.
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"Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code (S) 3801 et seq., as it may be amended from time to time, or
any successor legislation.
"Capital Securities Guarantee" means the guarantee agreement to be
dated as of December 9, 1996, of the Sponsor in respect of the Capital
Securities.
"Capital Securities" means the Initial Capital Securities and Exchange
Capital Securities.
"Capital Security Beneficial Owner" means, with respect to a Book
Entry Interest, a Person who is the beneficial owner of such Book Entry
Interest, as reflected on the books of the Clearing Agency, or on the books of a
Person maintaining an account with such Clearing Agency (directly as a Clearing
Agency Participant or as an indirect participant, in each case in accordance
with the rules of such Clearing Agency).
"Certificate" means any certificate evidencing Securities.
"Clearing Agency" means an organization registered as a "Clearing
Agency" pursuant to Section 17A of the Exchange Act that is acting as depositary
for the Capital Securities and in whose name or in the name of a nominee of that
organization shall be registered a Global Capital Security and which shall
undertake to effect book entry transfers and pledges of the Capital Securities.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time the Clearing
Agency effects book entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" means the "Closing Date" under the Purchase Agreement.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time, or any successor legislation.
"Commission" means the Securities and Exchange Commission.
"Common Securities" has the meaning specified in Section 7.1(a).
"Common Securities Guarantee" means the guarantee agreement to be
dated as of December 9, 1996 of the Sponsor in respect of the Common Securities.
"Common Security Certificate" means a definitive certificate in fully
registered form representing a Common Security substantially in the form of
Exhibit A-3.
"Company Indemnified Person" means (a) any Regular Trustee; (b) any
Affiliate of any Regular Trustee; (c) any officers, directors, shareholders,
members, partners, employees, representatives or agents of any Regular Trustee;
or (d) any officer, employee or agent of the Trust or its Affiliates.
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"Corporate Trust Office" means the office of the Institutional Trustee
at which the corporate trust business of the Institutional Trustee shall, at any
particular time, be principally administered, which office at the date of
execution of this Agreement is located at 450 West 33rd Street, New York, New
York 10001.
"Covered Person" means: (a) any officer, director, shareholder,
partner, member, representative, employee or agent of (i) the Trust or (ii) the
Trust's Affiliates; and (b) any Holder of Securities.
"Debenture Issuer" means Marshall & Ilsley Corporation, a Wisconsin
corporation, in its capacity as issuer of the Debentures under the Indenture.
"Debentures" means the Initial Debentures and the Exchange Debentures.
"Debenture Trustee" means The Chase Manhattan Bank, a New York state
banking corporation, as trustee under the Indenture until a successor is
appointed thereunder, and thereafter means such successor trustee.
"Definitive Capital Securities" means Initial Definitive Capital
Securities and Exchange Definitive Capital Securities.
"Delaware Trustee" has the meaning set forth in Section 5.2.
"Depositary" means, with respect to the Capital Securities, DTC, or
another Clearing Agency.
"Direct Action" has the meaning set forth in Section 3.8(e).
"Distribution" means a distribution payable to Holders of Securities
in accordance with Section 6.1.
"DTC" means The Depository Trust Company, New York, New York, the
initial Clearing Agency.
"Event of Default" in respect of the Securities means an Indenture
Event of Default has occurred and is continuing in respect of the Debentures.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, or any successor legislation.
"Exchange Capital Securities" has the meaning specified in Section
7.1(a).
"Exchange Capital Security Certificate" means a certificate
representing an Exchange Capital Security substantially in the form of Exhibit
A-2.
"Exchange Certificate" means a Common Security Certificate or an
Exchange Capital Security Certificate.
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"Exchange Debentures" means 7.65% Junior Subordinated Deferrable
Interest Debentures due 2026 to be issued by the Debenture Issuer under the
Indenture to be exchanged with the Initial Debentures pursuant to the
Registration Agreement.
"Exchange Definitive Capital Securities" means any Exchange Securities
in definitive form issued by the Trust.
"Exchange Global Capital Securities" means any Exchange Capital
Securities in global form issued by the Trust.
"Exchange Securities" means Common Securities and Exchange Capital
Securities.
"Extension Period" has the meaning set forth in paragraph 2(b) of
Annex I.
"Federal Reserve" means the Board of Governors of the Federal Reserve
System.
"Fiduciary Indemnified Person" has the meaning set forth in Section
10.4(b).
"Global Capital Securities" means Initial Global Capital Securities
and Exchange Global Capital Securities.
"Holder" means a Person in whose name a Certificate representing a
Security is registered, such Person being a beneficial owner within the meaning
of the Business Trust Act.
"IAI" has the meaning set forth in Section 7.3(c).
"Indemnified Person" means a Company Indemnified Person or a Fiduciary
Indemnified Person.
"Indenture" means the Indenture dated as of December 9, 1996, among
the Debenture Issuer and the Debenture Trustee, and any indenture supplemental
thereto pursuant to which the Debentures are to be issued.
"Indenture Event of Default" means an Event of Default as defined in
the Indenture.
"Initial Capital Securities" has the meaning specified in Section
7.1(a).
"Initial Capital Security Certificate" means a certificate
representing an Initial Capital Security substantially in the form of Exhibit
A-1.
"Initial Certificate" means a Common Security Certificate or an
Initial Capital Security Certificate.
"Initial Debentures" means 7.65% Junior Subordinated Deferrable
Interest Debentures due 2026 to be issued by the Debenture Issuer under the
Indenture to be held by the
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Institutional Trustee or, upon a dissolution of the Trust, the Depositary or the
Holder, as the case may be, a specimen certificate for such series of Debentures
being Exhibit D.
"Initial Definitive Capital Securities" means any Restricted
Definitive Capital Security and any other Initial Capital Securities in
definitive form issued by the Trust.
"Initial Global Capital Securities" means any Rule 144A Global
Security and any other Initial Capital Securities in global form issued by the
Trust.
"Initial Securities" means Common Securities and the Initial Capital
Securities.
"Institutional Trustee" means the Trustee meeting the eligibility
requirements set forth in Section 5.3.
"interest" means any interest due on the Debentures including any
Compounded Interest, Special Interest and Additional Interest.
"Investment Company" means an investment company as defined in the
Investment Company Act.
"Investment Company Act" means the Investment Company Act of 1940, as
amended from time to time, or any successor legislation.
"Legal Action" has the meaning set forth in Section 3.6(g).
"Liquidation" has the meaning set forth in paragraph 3 of Annex I.
"Liquidation Distribution" has the meaning set forth in paragraph 3 of
Annex I.
"Majority in liquidation amount of the Securities" means, except as
provided in the terms of the Capital Securities or by the Trust Indenture Act,
Holder(s) of outstanding Securities voting together as a single class or, as the
context may require, Holders of outstanding Capital Securities or Holders of
outstanding Common Securities voting separately as a class, who are the record
owners of more than 50% of the aggregate liquidation amount (including the
stated amount that would be paid on redemption, liquidation or otherwise, plus
accrued and unpaid Distributions to the date upon which the voting percentages
are determined) of all outstanding Securities of the relevant class.
"Ministerial Action" has the meaning set forth in paragraph 4(c) of
Annex I.
"Offering Memorandum" has the meaning set forth in Section 3.6.
"Officers' Certificates" means, with respect to any Person, a
certificate signed by two Authorized Officers of such Person. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for it in this Declaration shall include:
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(a) a statement that each officer signing the Certificate has read the
covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Paying Agent" has the meaning specified in Section 7.2.
"Payment Amount" has the meaning set forth in Section 6.1.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Pro Rata" has the meaning set forth in paragraph 8 of Annex I.
"PORTAL" has the meaning set forth in Section 3.6(b).
"Property Account" has the meaning set forth in Section 3.8(c).
"Purchase Agreement" means the Purchase Agreement for the offering and
sale of Capital Securities in the form of Exhibit E.
"QIBs" has the meaning set forth in Section 7.3.
"Quorum" means a majority of the Regular Trustees or, if there are
only two Regular Trustees, both of them.
"Redemption/Distribution Notice" has the meaning set forth in
paragraph 4(e) of Annex I.
"Redemption Price" has the meaning set forth in paragraph 4(a) of
Annex I.
"Redemption Tax Opinion" has the meaning set forth in paragraph 4(c)
of Annex I.
"Registered Exchange Offer" has the meaning set forth in the
Registration Agreement.
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"Registrar" has the meaning set forth in Section 7.2.
"Registration Agreement" means the Registration Agreement relating to
the Securities in the form of Exhibit F.
"Regular Trustee" has the meaning set forth in Section 5.1.
"Related Party" means, with respect to the Sponsor, any direct or
indirect wholly owned subsidiary of the Sponsor or any other Person that owns,
directly or indirectly, 100% of the outstanding voting securities of the
Sponsor.
"Responsible Officer" means, with respect to the Institutional
Trustee, any officer within the Corporate Trust Office of the Institutional
Trustee, including any vice-president, any assistant vice-president, any
assistant secretary, the treasurer, any assistant treasurer or other officer of
the Corporate Trust Office of the Institutional Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of that officer's knowledge of
and familiarity with the particular subject.
"Restricted Capital Securities" means Rule 144A Global Capital
Securities and Restricted Definitive Capital Securities.
"Restricted Definitive Capital Securities" has the meaning set forth
in Section 7.3(c).
"Restricted Securities Legend" has the meaning set forth in Section
9.2(g).
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144A Global Capital Security" has the meaning set forth in
Section 7.3(a).
"Rule 3a-5" means Rule 3a-5 under the Investment Company Act.
"Securities" means the Common Securities and the Capital Securities.
"Securities Act" means the Securities Act of 1933, as amended from
time to time or any successor legislation.
"Securities Guarantees" means the Common Securities Guarantee and the
Capital Securities Guarantee.
"Sponsor" means Marshall & Ilsley Corporation, a Wisconsin
corporation, or any successor entity in a merger, consolidation or amalgamation,
in its capacity as sponsor of the Trust.
"Successor Delaware Trustee" has the meaning set forth in Section
5.7(b).
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"Successor Institutional Trustee" has the meaning set forth in Section
5.7(b).
"Super Majority" has the meaning set forth in Section 2.6(a)(ii).
"Tax Event" has the meaning set forth in paragraph 4(c) of Annex I.
"10% in liquidation amount of the Securities" means, except as
provided in the terms of the Capital Securities or by the Trust Indenture Act,
Holder(s) of outstanding Securities voting together as a single class or, as the
context may require, holders of outstanding Capital Securities or Holders of
outstanding Common Securities voting separately as a class, who are the record
owners of 10% or more of the aggregate liquidation amount (including the stated
amount that would be paid on redemption, liquidation or otherwise, plus accrued
and unpaid Distributions to the date upon which the voting percentages are
determined) of all outstanding Securities of the relevant class.
"Transfer Agent" has the meaning set forth in Section 7.2.
"Treasury Regulations" means the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the United
States Treasury, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees here under.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended from time to time, or any successor legislation.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act: Application.
--------------------------------
(a) This Declaration is subject to the provisions of the Trust
Indenture Act that are required to be part of this Declaration and shall, to the
extent applicable, be governed by such provisions.
(b) The Institutional Trustee shall be the only Trustee which is a
trustee for the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this Declaration
limits, qualifies or conflicts with the duties imposed by (S)(S) 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
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(d) The application of the Trust Indenture Act to this Declaration
shall not affect the nature of the Securities as equity securities representing
undivided beneficial interests in the assets of the Trust.
SECTION 2.2 Lists of Holders of Securities.
------------------------------
(a) Each of the Sponsor and the Regular Trustees on behalf of the
Trust shall provide the Institutional Trustee (i) within 14 days after each
record date for payment of Distributions, a list, in such form as the
Institutional Trustee may reasonably require, of the names and addresses of the
Holders of the Securities ("List of Holders") as of such record date, provided
that neither the Sponsor nor the Regular Trustees on behalf of the Trust shall
be obligated to provide such List of Holders at any time the List of Holders
does not differ from the most recent List of Holders given to the Institutional
Trustee by the Sponsor and the Regular Trustees on behalf of the Trust, and (ii)
at any other time, within 30 days of receipt by the Trust of a written request
therefor, a List of Holders as of a date no more than 14 days before such List
of Holders is given to the Institutional Trustee. The Institutional Trustee
shall preserve, in as current a form as is reasonably practicable, all
information contained in Lists of Holders given to it or which it receives in
the capacity as Paying Agent (if acting in such capacity) provided that the
Institutional Trustee may destroy any List of Holders previously given to it on
receipt of a new List of Holders.
(b) The Institutional Trustee shall comply with its obligations under
(S)(S) 311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Institutional Trustee. Within 60 days after
May 15 of each year, the Institutional Trustee shall provide to the Holders of
the Capital Securities such reports as are required by (S) 313(a) of the Trust
Indenture Act, if any, in the form and in the manner provided by (S) 313 of the
Trust Indenture Act. The Institutional Trustee shall also comply with the other
requirements of (S) 313 of the Trust Indenture Act. The Sponsor shall promptly
notify the Institutional Trustee when the Capital Securities are listed on any
stock exchange.
SECTION 2.4 Periodic Reports to Institutional Trustee. Each of the
Sponsor and the Regular Trustees on behalf of the Trust shall provide to the
Institutional Trustee such documents, reports and information as required by (S)
314 (if any) and the compliance certificate required by (S) 314 of the Trust
Indenture Act in the form, in the manner and at the times required by (S) 314 of
the Trust Indenture Act and an Officers' Certificate as to its compliance with
all conditions and covenants under this Declaration on an annual basis on or
before 120 days after the end of each fiscal year of the Sponsor.
SECTION 2.5 Evidence of Compliance with Conditions Precedent. Each of
the Sponsor and the Regular Trustees on behalf of the Trust shall provide to the
Institutional Trustee such evidence of compliance with any conditions precedent,
if any, provided for in this Declaration that relate to any of the matters set
forth in (S) 314(c) of the Trust Indenture Act. Any certificate or opinion
required to be given by an officer pursuant to (S) 314(c)(1) may be given in the
form of an Officers' Certificate.
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SECTION 2.6 Events of Default; Waiver. (a) The Holders of a Majority
in liquidation amount of Capital Securities may, by vote or consent, on behalf
of the Holders of all of the Capital Securities, waive any past Event of Default
in respect of the Capital Securities and its consequences, provided that, if the
underlying Indenture Event of Default:
(i) is not waivable under the Indenture, the Event of Default
under this Declaration shall also not be waivable; or
(ii) requires the consent or vote of greater than a majority in
principal amount of the holders of the Debentures (a "Super Majority")
to be waived under the Indenture, such Event of Default under this
Declaration may only be waived by the vote or consent of the Holders
of at least the proportion in liquidation amount of the Capital
Securities that the relevant Super Majority represents of the
aggregate principal amount of the Debentures outstanding.
The foregoing provisions of this Section 2.6(a) shall be in lieu of
(S) 316(a)(1)(B) of the Trust Indenture Act and such (S) 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act. Upon such waiver, any such
Indenture Event of Default shall cease to exist, and any Event of Default with
respect to the Capital Securities arising therefrom shall be deemed to have been
cured, for every purpose of this Declaration, but no such waiver shall extend to
any subsequent or other default or Event of Default with respect to the Capital
Securities or impair any right consequent thereon. Any waiver by the Holders of
the Capital Securities of an Event of Default with respect to the Capital
Securities shall also be deemed to constitute a waiver by the Holders of the
Common Securities of any such Event of Default with respect to the Common
Securities for all purposes of this Declaration without any further act, vote,
or consent of the Holders of the Common Securities.
The Holders of a Majority in liquidation amount of the Capital
Securities will have the right to direct the time, method and place of
conducting any proceeding of any remedy available to the Institutional Trustee
or to direct the exercise of any trust or power conferred upon the Institutional
Trustee, including the right to direct the Institutional Trustee to exercise the
remedies available to it as holder of the Debentures; provided, however, that
(subject to the provisions of Section 3.9) the Institutional Trustee shall have
the right to decline to follow any such direction if the Institutional Trustee
shall determine that the action so directed would be unjustly prejudicial to the
Holders not taking part in such direction or if the Institutional Trustee, being
advised by counsel, determines that the action or proceeding so directed may not
lawfully be taken or if the Institutional Trustee, in good faith, by its board
of directors or trustees, executive committee, or a trust committee of directors
or trustees and/or Responsible Officers, shall determine that the action or
proceedings so directed would involve the Institutional Trustee in personal
liability.
(b) The Holders of a Majority in liquidation amount of the Common
Securities may, by vote or consent, on behalf of the Holders of all of the
Common Securities, waive any
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past Event of Default with respect to the Common Securities and its
consequences, provided, that if the underlying Indenture Event of Default:
(i) is not waivable under the Indenture, the Event of Default
under this Declaration shall also not be waivable; or
(ii) requires the consent or vote of a Super Majority to be
waived under the Indenture, such Event of Default under this
Declaration may only be waived by the vote or consent of the Holders
of at least the proportion in liquidation amount of the Common
Securities that the relevant Super Majority represents of the
aggregate principal amount of the Debentures outstanding; provided,
further, that, notwithstanding (i) or (ii) above, each Holder of
Common Securities will be deemed to have waived any such Indenture
Event of Default and all Events of Default with respect to the Common
Securities and their consequences until all Events of Default with
respect to the Capital Securities have been cured, waived or otherwise
eliminated, and until such Events of Default have been so cured,
waived or otherwise eliminated, the Institutional Trustee will be
deemed to be acting solely on behalf of the Holders of the Capital
Securities and only the Holders of the Capital Securities will have
the right to direct the Institutional Trustee in accordance with the
terms of the Securities. The foregoing provisions of this Section
2.6(b) shall be in lieu of (S)(S) 316(a)(1)(A) and 316(a)(1)(B) of the
Trust Indenture Act and (S)(S) 316(a)(1)(A) and 316(a)(1)(B) of the
Trust Indenture Act are hereby expressly excluded from this
Declaration and the Securities, as permitted in the Trust Indenture
Act. Subject to the foregoing provisions in this Section 2.6(b), upon
such waiver, any such Indenture Event of Default shall cease to exist,
and any Event of Default with respect to the Common Securities arising
therefrom shall be deemed to have been cured, for every purpose of
this Declaration, but no such waiver shall extend to any subsequent or
other default or Event of Default with respect to the Common
Securities or impair any right consequent thereon.
(c) A waiver of an Indenture Event of Default by the Institutional
Trustee at the direction of the Holders of the Capital Securities constitutes a
waiver of the corresponding Event of Default under this Declaration. The
foregoing provisions of this Section 2.6(c) shall be in lieu of (S) 316(a)(1)(B)
of the Trust Indenture Act and (S) 316(a)(1)(B) of the Trust Indenture Act is
hereby expressly excluded from this Declaration and the Securities, as permitted
by the Trust Indenture Act.
SECTION 2.7 Events of Default; Notice. (a) The Institutional Trustee
shall, within 90 days after the occurrence of an Event of Default, transmit by
mail, first class postage prepaid, to the Holders of the Securities, notices of
all defaults with respect to the Securities actually known to a Responsible
Officer of the Institutional Trustee, unless such defaults have been cured
before the giving of such notice (the term "defaults" for the purposes of this
Section 2.7(a) being hereby defined to be an Indenture Event of Default, not
including any periods of grace provided for therein and irrespective of the
giving of any notice provided therein);
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provided, however, that, except for a default in the payment of principal of (or
premium, if any) or interest on any of the Debentures or in the payment of any
sinking fund installment established for the Debentures, the Institutional
Trustee shall be protected in withholding such notice if and so long as a
Responsible Officer of the Institutional Trustee in good faith determines that
the withholding of such notice is in the interests of the Holders of the Capital
Securities.
(b) The Institutional Trustee shall not be deemed to have knowledge of
any default except:
(i) a default under Sections 5.01(a) and 5.01(b) of the
Indenture; or
(ii) any default as to which the Institutional Trustee shall
have received written notice or of which a Responsible Officer of the
Institutional Trustee charged with the administration of the
Declaration shall have actual knowledge.
ARTICLE III
ORGANIZATION
SECTION 3.1 Name. The Trust is named "M&I Capital Trust A," as such
name may be modified from time to time by the Regular Trustees following written
notice to the Holders of Securities. The Trust's activities may be conducted
under the name of the Trust or any other name deemed advisable by the Regular
Trustees.
SECTION 3.2 Office. The address of the principal office of the Trust
is c/o Marshall & Ilsley Corporation, 770 North Water Street, Milwaukee,
Wisconsin 53202. On ten Business Days written notice to the Holders of
Securities, the Regular Trustees may designate another principal office.
SECTION 3.3 Purpose. The exclusive purposes and functions of the Trust
are (a) to issue and sell Securities representing undivided beneficial interests
in the assets of the Trust, (b) investing the gross proceeds from such sale to
acquire the Debentures and (c) except as otherwise limited herein, to engage in
only those other activities necessary or incidental thereto. The Trust shall not
borrow money, issue debt or reinvest proceeds derived from investments, pledge
any of its assets, or otherwise undertake (or permit to be undertaken) any
activity that would cause the Trust not to be classified for United States
federal income tax purposes as a grantor trust.
SECTION 3.4 Authority. Subject to the limitations provided in this
Declaration and to the specific duties of the Institutional Trustee, the Regular
Trustees shall have exclusive and complete authority to carry out the purposes
of the Trust. An action taken by the Regular Trustees in accordance with their
powers shall constitute the act of and serve to bind the Trust and an action
taken by the Institutional Trustee on behalf of the Trust in accordance with its
powers shall constitute the act of and serve to bind the Trust. In dealing with
the Trustees acting on behalf of the Trust, no Person shall be required to
inquire into the authority of the Trustees to
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bind the Trust. Persons dealing with the Trust are entitled to rely conclusively
on the power and authority of the Trustees as set forth in this Declaration.
SECTION 3.5 Title to Property of the Trust. Except as provided in
Section 3.8 with respect to the Debentures and the Property Account or as
otherwise provided in this Declaration, legal title to all assets of the Trust
shall be vested in the Trust. The Holders shall not have legal title to any part
of the assets of the Trust, but shall have an undivided beneficial interest in
the assets of the Trust.
SECTION 3.6 Powers and Duties of the Regular Trustees. The Regular
Trustees shall have the exclusive power, duty and authority to cause the Trust
to engage in the following activities:
(a) to issue and sell the Capital Securities and the Common Securities
in accordance with this Declaration; provided, however, that the Trust may issue
no more than two series of Capital Securities (as provided in Section 7.1(a))
and no more than one series of Common Securities, and, provided, further, that
there shall be no interests in the Trust other than the Securities, and the
issuance of Securities shall be limited to a simultaneous issuance of Initial
Capital Securities and Common Securities on the Closing Date and an issuance of
Exchange Capital Securities as provided in Section 7.1(a);
(b) in connection with the issue and sale of the Capital Securities,
at the direction of the Sponsor, to:
(i) distribute an offering memorandum (the "Offering
Memorandum" in preliminary and/or final form prepared by the Sponsor,
including any amendments or supplements thereto, in relation to
offering and sale of the Capital Securities.
(ii) execute and file any documents prepared by the Sponsor, or
take any acts as determined by the Sponsor to be necessary in order to
qualify or register all or part of the Capital Securities in any State
in which the Sponsor has determined to qualify or register such
Capital Securities for sale;
(iii) if and at such time determined by the Sponsor, execute and
file an application, prepared by the Sponsor, to the Private
Offerings, Resales and Trading through Automated Linkages ("PORTAL")
Market and if and at such time determined by the Sponsor, to The New
York Stock Exchange, Inc. or any other national stock exchange or the
Nasdaq Stock Market's National Market for listing upon notice of
issuance of any Capital Securities;
(iv) execute and deliver letters or documents to, or
instruments with, DTC relating to the Capital Securities;
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(v) execute and enter into the Purchase Agreement, the
Registration Agreement and other related agreements providing for the
sale of the Capital Securities and to perform its obligations
thereunder; and
(vi) execute and file one or more registration statements
relating to the Capital Securities contemplated by the Registration
Agreement.
(c) to acquire the Debentures with the proceeds of the sale of the
Capital Securities and the Common Securities; provided, however, that the
Regular Trustees shall cause legal title to the Debentures to be held of record
in the name of the Institutional Trustee for the benefit of the Holders of the
Capital Securities and the Holders of Common Securities;
(d) to give the Sponsor and the Institutional Trustee prompt written
notice of the occurrence of a Tax Event; provided, that the Regular Trustees
shall consult with the Sponsor before taking or refraining from taking any
Ministerial Action in relation to a Tax Event;
(e) to establish a record date with respect to all actions to be taken
hereunder that require a record date be established, including and with respect
to, for the purposes of (S) 316(c) of the Trust Indenture Act, Distributions,
voting rights, redemptions and exchanges, and to issue relevant notices to the
Holders of Capital Securities and Holders of Common Securities as to such
actions and applicable record dates;
(f) to take all actions and perform such duties as may be required of
the Regular Trustees pursuant to the terms of this Declaration, the Securities
or the Registration Agreement;
(g) to bring or defend, pay, collect, compromise, arbitrate, resort to
legal action, or otherwise adjust claims or demands of or against the Trust
("Legal Action"), unless pursuant to Section 3.8(e), the Institutional Trustee
has the exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors, and
consultants and pay reasonable compensation for such services;
(i) to cause the Trust to comply with the Trust's obligations under
the Trust Indenture Act;
(j) to give the certificate required by (S) 314(a)(4) of the Trust
Indenture Act to the Institutional Trustee, which certificate may be executed by
any Regular Trustee;
(k) to incur expenses that are necessary or incidental to carry out
any of the purposes of the Trust;
(l) to act as, or appoint another Person to act as, registrar and
transfer agent for the Securities;
(m) to give prompt written notice to (1) the Holders of the Securities
of any notice received from the Debenture Issuer of its election to defer
payments of interest on the
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Debentures by extending the interest payment period under the Indenture, and (2)
any Holder of any notice received from the Debenture Issuer pursuant to Section
7(c)(i) of the Registration Agreement on such Holder's behalf;
(n) to execute all documents or instruments, perform all duties and
powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing;
(o) to take all action that may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of the
State of Delaware and of each other jurisdiction in which such existence is
necessary to protect the limited liability of the Holders of the Capital
Securities or to enable the Trust to effect the purposes for which the Trust was
created;
(p) to take any action, not inconsistent with this Declaration or with
applicable law, that the Regular Trustees determine in their discretion to be
necessary or desirable in carrying out the activities of the Trust as set out in
this Section 3.6, including, but not limited to:
(i) causing the Trust not to be deemed to be an Investment
Company required to be registered under the Investment Company Act;
(ii) causing the Trust to be classified for United States
federal income tax purposes as a grantor trust; and
(iii) cooperating with the Debenture Issuer to ensure that the
Debentures will be treated as indebtedness of the Debenture Issuer for
United States federal income tax purposes, provided, that such action
does not adversely affect the interests of Holders of Capital
Securities or alter the terms thereof; and
(q) to take all action necessary to cause all applicable tax returns
and tax information reports that are required to be filed with respect to the
Trust to be duly prepared and filed by the Regular Trustees, on behalf of the
Trust.
(r) Each Regular Trustee, before the occurrence of any Event of
Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Declaration and no implied covenants shall be read into this Declaration
against such Regular Trustee. In case an Event of Default has occurred (that has
not been cured or waived pursuant to Section 2.6), such Regular Trustee shall
exercise such of the rights and powers vested in him by this Declaration, and
use the same degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of his or her own
affairs.
(s) No provision of this Declaration shall be construed to relieve a
Regular Trustee from liability for his own negligent action, his own negligent
failure to act, or his own willful misconduct, except that:
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(i) prior to the occurrence of an Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Regular Trustees shall
be determined solely by the express provisions of this
Declaration and the Regular Trustees shall not be liable except
for the performance of such duties and obligations as are
specifically set forth in this Declaration, and no implied
covenants or obligations shall be read into this Declaration
against the Regular Trustees; and
(B) in the absence of bad faith on the part of a Regular
Trustee, such Regular Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to
such Regular Trustee and conforming to the requirements of this
Declaration; but in the case of any such certificates or opinions
that by any provision hereof are specifically required to be
furnished to such Regular Trustee, such Regular Trustee shall be
under a duty to examine the same to determine whether or not they
conform to the requirements of this Declaration;
(ii) a Regular Trustee shall not be liable for any error of
judgment made in good faith unless it shall be proved that such
Regular Trustee was negligent in ascertaining the pertinent facts;
(iii) no provision of this Declaration shall require a Regular
Trustee to expend or risk his own funds or otherwise incur personal
financial liability in the performance of any of his duties or in the
exercise of any of his rights or powers, if he shall have reasonable
grounds for believing that the repayment of such funds or liability is
not reasonably assured to him under the terms of this Declaration or
indemnity reasonably satisfactory to such Regular Trustee against such
risk or liability is not reasonably assured to him;
(iv) a Regular Trustee shall not be responsible for monitoring
the compliance by the Institutional Trustee or the Sponsor with their
respective duties under this Declaration, nor shall such Regular
Trustee be liable for any default or misconduct of the Institutional
Trustee or the Sponsor;
(v) a Regular Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by him to be genuine
and to have been signed, sent or presented by the proper party or
parties;
(vi) a Regular Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation
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statement or any filing under tax or securities laws) or any
rerecording, refiling or registration thereof;
(vii) the Regular Trustees may consult with counsel or other
experts of their selection and the advice or opinion of such counsel
and experts with respect to legal matters or advice within the scope
of such experts' area of expertise shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by them hereunder in good faith and in accordance with such
advice or opinion, such counsel may be counsel to the Sponsor or any
of its Affiliates, and may include any of its employees. The Regular
Trustees shall have the right at any time to seek instructions
concerning the administration of this Declaration from any court of
competent jurisdiction;
(viii) the Regular Trustees shall be under no obligation to
exercise any of the rights or powers vested in them by this
Declaration at the request or direction of any Holder, unless such
Holder shall have provided to the Regular Trustees security and
indemnity, reasonably satisfactory to the Regular Trustees, against
the costs, expenses (including attorneys' fees and expenses) and
liabilities that might be incurred by them in complying with such
request or direction, including such reasonable advances as may be
requested by them;
(ix) a Regular Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but he, in his discretion,
may make such further inquiry or investigation into such facts or
matters as he may see fit;
(x) a Regular Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents, custodians, nominees or attorneys and such Regular
Trustee shall not be responsible for any misconduct or negligence on
the part of any agent or attorney appointed with due care by him
hereunder;
(xi) any action taken by a Regular Trustee or his agents
hereunder shall bind the Trust and the Holders of the Securities, and
the signature of such Regular Trustee or his agents alone shall be
sufficient and effective to perform any such action and no third party
shall be required to inquire as to the authority of such Regular
Trustee to so act or as to his compliance with any of the terms and
provisions of this Declaration, both of which shall be conclusively
evidenced by such Regular Trustee's or his agent's taking such action;
(xii) except as otherwise expressly provided by this
Declaration, a Regular Trustee shall not be under any obligation to
take any action that is discretionary under the provisions of this
Declaration; and
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(xiii) a Regular Trustee shall not be liable for any action
taken, suffered, or omitted to be taken by it in good faith and
reasonably believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Declaration.
(t) No provision of this Declaration shall be deemed to impose any
duty or obligation on a Regular Trustee to perform any act or acts or exercise
any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal or in which such Regular Trustee shall
be unqualified or incompetent in accordance with applicable law to perform any
such act or acts or to exercise any such right, power, duty or obligation. No
permissive power or authority available to a Regular Trustee shall be construed
to be a duty.
The Regular Trustees shall take all actions on behalf of the Trust
that are not specifically required by this Declaration or the Trust Indenture
Act to be taken by any other Trustee.
The Regular Trustees must exercise the powers set forth in this
Section 3.6 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3, and the Regular Trustees shall not take any
action that is inconsistent with the purposes and functions of the Trust set
forth in Section 3.3.
Subject to this Section 3.6, the Regular Trustees shall have none of
the powers or the authority of the Institutional Trustee set forth in Section
3.8.
Any expenses incurred by the Regular Trustees pursuant to this Section
3.6 shall be reimbursed by the Debenture Issuer.
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees. (a)
The Trust shall not, and the Trustees (including the Institutional Trustee)
shall not, engage in any activity other than as required or authorized by this
Declaration. In particular, the Trust shall not and the Trustees (including the
Institutional Trustee) shall cause the Trust not to:
(i) invest any proceeds received by the Trust from holding the
Debentures, but shall distribute all such proceeds to Holders of
Securities pursuant to the terms of this Declaration and of the
Securities;
(ii) acquire any assets other than as expressly provided
herein;
(iii) possess Trust property for other than a Trust purpose;
(iv) make any loans or incur any indebtedness other than loans
represented by the Debentures;
(v) possess any power or otherwise act in such a way as to
vary the Trust assets or the terms of the Securities in any way
whatsoever other than as expressly provided herein;
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(vi) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other than the
Securities; or
(vii) other than as provided in this Declaration (including
Annex I), (A) direct the time, method and place of exercising any
trust or power conferred upon the Debenture Trustee with respect to
the Debentures, (B) waive any past default that is waivable under the
Indenture, (C) exercise any right to rescind or annul any declaration
that the principal of all the Debentures shall be due and payable, or
(D) consent to any amendment, modification or termination of the
Indenture or the Debentures where such consent shall be required
unless the Trust shall have received an opinion of counsel to the
effect that such modification will not cause more than an
insubstantial risk that for United States federal income tax purposes
the Trust will not be classified as a grantor trust.
SECTION 3.8 Powers and Duties of the Institutional Trustee. (a) The
legal title to the Debentures shall be owned by and held of record in the name
of the Institutional Trustee in trust for the benefit of the Holders of the
Securities. The right, title and interest of the Institutional Trustee to the
Debentures shall vest automatically in each Person who may hereafter be
appointed as Institutional Trustee in accordance with Section 5.7. Such vesting
and cessation of title shall be effective whether or not conveyancing documents
with regard to the Debentures have been executed and delivered.
(b) The Institutional Trustee shall not transfer its right, title and
interest in the Debentures to the Regular Trustees or to the Delaware Trustee
(if the Institutional Trustee does not also act as Delaware Trustee).
(c) The Institutional Trustee shall:
(i) establish and maintain a segregated non-interest bearing
trust account (the "Property Account") in the name of and under the
exclusive control of the Institutional Trustee, and maintained in the
Institutional Trustee's trust department, on behalf of the Holders of
the Securities and, upon the receipt of payments of funds made in
respect of the Debentures held by the Institutional Trustee, deposit
such funds into the Property Account and make payments to the Holders
of the Capital Securities and Holders of the Common Securities from
the Property Account in accordance with Section 6.1. Funds in the
Property Account shall be held uninvested until disbursed in
accordance with this Declaration. The Property Account shall be an
account that is maintained with a banking institution the rating on
whose long-term unsecured indebtedness is at least equal to the rating
assigned to the Capital Securities by a "nationally recognized
statistical rating organization", as that term is defined for purposes
of Rule 436(g)(2) under the Securities Act;
(ii) engage in such ministerial activities as shall be
necessary or appropriate to effect the redemption of the Capital
Securities and the Common Securities to the extent the Debentures are
redeemed or mature; and
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(iii) upon written notice of distribution issued by the Regular
Trustees in accordance with the terms of the Securities, engage in
such ministerial activities as shall be necessary or appropriate to
effect the distribution of the Debentures to Holders of Securities
upon the occurrence of certain special events (as may be defined in
the terms of the Securities) arising from a Tax Event or other
specified circumstances pursuant to the terms of the Securities.
(d) The Institutional Trustee shall take all actions and perform such
duties as may be specifically required of the Institutional Trustee pursuant to
the terms of the Securities.
(e) The Institutional Trustee may take any Legal Action which arises
out of or in connection with an Event of Default of which a Responsible Officer
of the Institutional Trustee has actual knowledge or the Institutional Trustee's
duties and obligations under this Declaration or the Trust Indenture Act;
provided, however, that if an Event of Default has occurred and is continuing
and such event is attributable to the failure of the Debenture Issuer to pay
interest or principal (or premium, if any) on the Debentures on the date such
interest or principal (or premium, if any) is otherwise payable (or in the case
of redemption, on the redemption date), then a Holder of Capital Securities may
directly institute a proceeding for enforcement of payment to such Holder of the
principal of (or premium, if any) or interest on the Debentures having a
principal amount equal to the aggregate liquidation amount of the Capital
Securities of such Holder (a "Direct Action") on or after the respective due
date specified in the Debentures. In connection with such Direct Action, the
rights of the Holders of the Common Securities will be subrogated to the rights
of such Holder of Capital Securities to the extent of any payment made by the
Debenture Issuer to such Holder of Capital Securities in such Direct Action;
provided, however, that no Holder of the Common Securities may exercise any such
right of subrogation so long as an Event of Default with respect to the Capital
Securities has occurred and is continuing. Except as provided in the preceding
sentences, the Holders of Capital Securities will not be able to exercise
directly any other remedy available to the holders of the Debentures.
(f) The Institutional Trustee shall not resign as a Trustee unless
either:
(i) the Trust has been completely liquidated and the proceeds
of the liquidation distributed to the Holders of Securities pursuant
to the terms of the Securities; or
(ii) a Successor Institutional Trustee has been appointed and
has accepted that appointment in accordance with Section 5.7.
(g) The Institutional Trustee shall have the legal power to exercise
all of the rights, powers and privileges of a holder of Debentures under the
Indenture and, if an Event of Default occurs and is continuing, the
Institutional Trustee may, for the benefit of Holders of the Securities, enforce
its rights as holder of the Debentures subject to the rights of the Holders
pursuant to this Declaration (including Annex I) and the terms of such
Securities.
(h) Subject to this Section 3.8, the Institutional Trustee shall have
none of the duties, liabilities, powers or the authority of the Regular Trustees
set forth in Section 3.6.
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The Institutional Trustee must exercise the powers set forth in this
Section 3.8 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3, and the Institutional Trustee shall not take
any action that is inconsistent with the purposes and functions of the Trust set
out in Section 3.3.
SECTION 3.9 Certain Duties and Responsibilities of the Institutional
Trustee.
(a) The Institutional Trustee, before the occurrence of any Event of
Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Declaration and no implied covenants shall be read into this Declaration
against the Institutional Trustee. In case an Event of Default has occurred
(that has not been cured or waived pursuant to Section 2.6), the Institutional
Trustee shall exercise such of the rights and powers vested in it by this
Declaration, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.
(b) No provision of this Declaration shall be construed to relieve the
Institutional Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Institutional Trustee
shall be determined solely by the express provisions of this
Declaration and the Institutional Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Declaration, and no implied
covenants or obligations shall be read into this Declaration
against the Institutional Trustee; and
(B) in the absence of bad faith on the part of the
Institutional Trustee, the Institutional Trustee may conclusively
rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or opinions
furnished to the Institutional Trustee and conforming to the
requirements of this Declaration; but in the case of any such
certificates or opinions that by any provision hereof are
specifically required to be furnished to the Institutional
Trustee, the Institutional Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Declaration;
(ii) the Institutional Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer of the
Institutional Trustee, unless it shall be proved that the
Institutional Trustee was negligent in ascertaining the pertinent
facts;
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(iii) the Institutional Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a
Majority in liquidation amount of the Capital Securities or the Common
Securities, as applicable, relating to the time, method and place of
conducting any proceeding for any remedy available to the
Institutional Trustee, or exercising any trust or power conferred upon
the Institutional Trustee under this Declaration;
(iv) no provision of this Declaration shall require the
Institutional Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers, if it shall
have reasonable grounds for believing that the repayment of such funds
or liability is not reasonably assured to it under the terms of this
Declaration or indemnity reasonably satisfactory to the Institutional
Trustee against such risk or liability is not reasonably assured to
it;
(v) the Institutional Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Debentures and
the Property Account shall be to deal with such property in a similar
manner as the Institutional Trustee deals with similar property for
its own account, subject to the protections and limitations on
liability afforded to the Institutional Trustee under this Declaration
and the Trust Indenture Act;
(vi) the Institutional Trustee shall have no duty or liability
for or with respect to the value, genuineness, existence or
sufficiency of the Debentures or the payment of any taxes or
assessments levied thereon or in connection therewith;
(vii) the Institutional Trustee shall not be liable for any
interest on any money received by it except as it may otherwise agree
in writing with the Sponsor. Money held by the Institutional Trustee
need not be segregated from other funds held by it except in relation
to the Property Account maintained by the Institutional Trustee
pursuant to Section 3.8(c)(i) and except to the extent otherwise
required by law; and
(viii) the Institutional Trustee shall not be responsible for
monitoring the compliance by the Regular Trustees or the Sponsor with
their respective duties under this Declaration, nor shall the
Institutional Trustee be liable for any default or misconduct of the
Regular Trustees or the Sponsor.
SECTION 3.10 Certain Rights of Institutional Trustee. (a) Subject to
the provisions of Section 3.9:
(i) the Institutional Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document
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believed by it to be genuine and to have been signed, sent or
presented by the proper party or parties;
(ii) any direction or act of the Sponsor or the Regular
Trustees contemplated by this Declaration shall be sufficiently
evidenced by an Officers' Certificate;
(iii) whenever in the administration of this Declaration, the
Institutional Trustee shall deem it desirable that a matter be proved
or established before taking, suffering or omitting any action
hereunder, the Institutional Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part,
request and conclusively rely upon an Officers' Certificate which,
upon receipt of such request, shall be promptly delivered by the
Sponsor or the Regular Trustees;
(iv) the Institutional Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement or any filing under tax or
securities laws) or any rerecording, refiling or registration thereof;
(v) the Institutional Trustee may consult with counsel or
other experts of its selection and the advice or opinion of such
counsel and experts with respect to legal matters or advice within the
scope of such experts' area of expertise shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in accordance with such
advice or opinion, such counsel may be counsel to the Sponsor or any
of its Affiliates, and may include any of its employees. The
Institutional Trustee shall have the right at any time to seek
instructions concerning the administration of this Declaration from
any court of competent jurisdiction;
(vi) the Institutional Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Declaration
at the request or direction of any Holder, unless such Holder shall
have provided to the Institutional Trustee security and indemnity,
reasonably satisfactory to the Institutional Trustee, against the
costs, expenses (including attorneys' fees and expenses and the
expenses of the Institutional Trustee's agents, nominees or
custodians) and liabilities that might be incurred by it in complying
with such request or direction, including such reasonable advances as
may be requested by the Institutional Trustee; provided, however, that
nothing contained in this Section 3.10(a)(vi) shall be taken to
relieve the Institutional Trustee, upon the occurrence of an Event of
Default, of its obligation to exercise the rights and powers vested in
it by this Declaration;
(vii) the Institutional Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order,
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bond, debenture, note, other evidence of indebtedness or other paper
or document, but the Institutional Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit;
(viii) the Institutional Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through agents, custodians, nominees or attorneys and the
Institutional Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due
care by it hereunder;
(ix) any action taken by the Institutional Trustee or its agents
hereunder shall bind the Trust and the Holders of the Securities, and
the signature of the Institutional Trustee or its agents alone shall
be sufficient and effective to perform any such action and no third
party shall be required to inquire as to the authority of the
Institutional Trustee to so act or as to its compliance with any of
the terms and provisions of this Declaration, both of which shall be
conclusively evidenced by the Institutional Trustee's or its agent's
taking such action;
(x) whenever in the administration of this Declaration the
Institutional Trustee shall deem it desirable to receive instructions
with respect to enforcing any remedy or right or taking any other
action hereunder, the Institutional Trustee (i) may request
instructions from the Holders of the Securities which instructions
from the Holders may only be given by the Holders of the same
proportion in liquidation amount of the Securities as would be
entitled to direct the Institutional Trustee under the terms of the
Securities in respect of such remedy, right or action, (ii) may
refrain from enforcing such remedy or right or taking such other
action until such instructions are received, and (iii) shall be
protected in conclusively relying on or acting in or accordance with
such instructions;
(xi) except as otherwise expressly provided by this Declaration,
the Institutional Trustee shall not be under any obligation to take
any action that is discretionary under the provisions of this
Declaration; and
(xii) the Institutional Trustee shall not be liable for any
action taken, suffered, or omitted to be taken by it in good faith and
reasonably believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Declaration.
(b) No provision of this Declaration shall be deemed to impose any
duty or obligation on the Institutional Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal or in which the Institutional Trustee
shall be unqualified or incompetent in accordance with applicable law to perform
any such act or acts or to exercise any such right, power, duty or obligation.
No permissive power or authority available to the Institutional Trustee shall be
construed to be a duty.
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SECTION 3.11 Delaware Trustee. Notwithstanding any other provision of
this Declaration other than Section 5.2, the Delaware Trustee shall not be
entitled to exercise any powers, nor shall the Delaware Trustee have any of the
duties and responsibilities of the Regular Trustees or the Institutional Trustee
described in this Declaration. Except as set forth in Section 5.2, the Delaware
Trustee shall be a Trustee for the sole and limited purpose of fulfilling the
requirements of (S) 3807 of the Business Trust Act.
SECTION 3.12 Execution of Documents. Unless otherwise determined by
the Regular Trustees, and except as otherwise required by the Business Trust
Act, a majority of the Regular Trustees or, if there are only two, any Regular
Trustee or, if there is only one, such Regular Trustee is authorized to execute
on behalf of the Trust any documents that the Regular Trustees have the power
and authority to execute pursuant to Section 3.6.
SECTION 3.13 Not Responsible for Recitals or Issuance of Securities.
The recitals contained in this Declaration and the Securities shall be taken as
the statements of the Sponsor, and the Trustees do not assume any responsibility
for their correctness. The Trustees make no representations as to the value or
condition of the property of the Trust or any part thereof. The Trustees make no
representations as to the validity or sufficiency of this Declaration, the
Debentures or the Securities.
SECTION 3.14 Duration of Trust. The Trust, unless terminated pursuant
to the provisions of Article VIII hereof, shall have existence for fifty-five
(55) years from the Closing Date.
SECTION 3.15 Mergers. (a) The Trust may not consolidate, amalgamate,
merge with or into, or be replaced by, or convey, transfer or lease its
properties and assets substantially as an entirety to any corporation or other
body, except as described in Section 3.15(b) and (c).
(b) The Trust may, with the consent of the Regular Trustees or, if
there are more than two, a majority of the Regular Trustees and without the
consent of the Holders of the Securities, the Delaware Trustee or the
Institutional Trustee, consolidate, amalgamate, merge with or into, or be
replaced by a trust organized as such under the laws of any State; provided
that:
(i) such successor entity (the "Successor Entity") either:
(A) expressly assumes all of the obligations of the Trust
under the Securities; or
(B) substitutes for the Securities other securities having
substantially the same terms as the Securities (the "Successor
Securities") so that the Successor Securities rank the same as
the Securities rank with respect to Distributions and payments
upon liquidation, redemption and otherwise;
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(ii) the Debenture Issuer expressly appoints a trustee of the
Successor Entity that possesses the same powers and duties as the
Institutional Trustee as the holder of the Debentures;
(iii) the Capital Securities or any Successor Securities are
listed, or any Successor Securities will be listed upon notification
of issuance, on any national securities exchange or with another
organization on which the Capital Securities are then listed or
quoted, if any;
(iv) such merger, consolidation, amalgamation or replacement
does not cause the Capital Securities (including any Successor
Securities) to be downgraded by any nationally recognized statistical
rating organization;
(v) such merger, consolidation, amalgamation or replacement
does not adversely affect the rights, preferences and privileges of
the Holders of the Securities (including any Successor Securities) in
any material respect (other than with respect to any dilution of such
Holders' interests in the Successor Entity as a result of such merger,
consolidation, amalgamation or replacement);
(vi) such Successor Entity has a purpose substantially
identical to that of the Trust;
(vii) prior to such merger, consolidation, amalgamation or
replacement, the Sponsor has received an opinion of a nationally
recognized independent counsel to the Trust experienced in such
matters to the effect that:
(A) such merger, consolidation, amalgamation or replacement
does not adversely affect the rights, preferences and privileges
of the Holders of the Securities (including any Successor
Securities) in any material respect (other than with respect to
any dilution of the Holders' interest in the Successor Entity);
(B) following such merger, consolidation, amalgamation or
replacement, neither the Trust nor the Successor Entity will be
required to register as an Investment Company; and
(C) following such merger, consolidation, amalgamation or
replacement, the Trust (or the Successor Entity) will continue to
be classified as a grantor trust for United States federal income
tax purposes; and
(viii) the Sponsor guarantees the obligations of such Successor
Entity under the Successor Securities at least to the extent provided
by the Securities Guarantees.
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(c) Notwithstanding Section 3.15(b), the Trust shall not, except with
the consent of Holders of 100% in liquidation amount of the Securities,
consolidate, amalgamate, merge with or into, or to be replaced by any other
entity or permit any other entity to consolidate, amalgamate, merge with or
into, or replace it if such consolidation, amalgamation, merger or replacement
would cause the Trust or Successor Entity to be classified as other than a
grantor trust for United States federal income tax purposes.
ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities. The Sponsor will
purchase all of the Common Securities issued by the Trust, in an amount at least
equal to 3% of the capital of the Trust, at the same time as the Capital
Securities are sold.
SECTION 4.2 Responsibilities of the Sponsor. In connection with the
issue and sale of the Capital Securities, the Sponsor shall have the exclusive
right and responsibility to engage in the following activities:
(a) to prepare and distribute the Offering Memorandum in preliminary
and final form in relation to the Capital Securities, including any amendments
thereto;
(b) to determine the States in which to take appropriate action to
qualify or register for sale all or part of the Capital Securities and to do any
and all such acts, other than actions which must be taken by the Trust, and
advise the Trust of actions it must take, and prepare for execution and filing
any documents to be executed and filed by the Trust, as the Sponsor deems
necessary or advisable in order to comply with the applicable laws of any such
States;
(c) to prepare for filing and cause the filing by the Trust, as may be
appropriate, of an application to the PORTAL, the New York Stock Exchange or any
other national stock exchange or the Nasdaq National Market for listing or
quotation upon notice of issuance of any Capital Securities; and
(d) to negotiate the terms of the Purchase Agreement, the Registration
Agreement and other related agreements providing for the sale of the Capital
Securities.
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees. The number of Trustees initially
shall be five (5), and:
(a) at any time before the issuance of any Securities, the Sponsor
may, by written instrument, increase or decrease the number of Trustees; and
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(b) after the issuance of any Securities, the number of Trustees may
be increased or decreased by vote of the Holders of a majority in liquidation
amount of the Common Securities voting as a class at a meeting of the Holders of
the Common Securities; provided, however, that, the number of Trustees shall in
no event be less than two (2); provided, further, that (1) there shall be a
Delaware Trustee if required by Section 5.2; (2) there shall be at least one
Trustee who is an employee or officer of, or is affiliated with the Sponsor (a
"Regular Trustee"); and (3) one Trustee shall be the Institutional Trustee, and
such Trustee may also serve as Delaware Trustee if it meets the applicable
requirements, in which case Section 3.11 shall have no application to such
entity in its capacity as Institutional Trustee.
SECTION 5.2 Delaware Trustee. If required by the Business Trust Act,
one Trustee (the "Delaware Trustee") shall be:
(a) a natural person who is a resident of the State of Delaware; or
(b) if not a natural person, an entity which has its principal place
of business in the State of Delaware, and otherwise meets the requirements of
applicable law.
SECTION 5.3 Institutional Trustee; Eligibility. (a) There shall at all
times be one Trustee which shall act as Institutional Trustee which shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business under the
laws of the United States of America or any State or Territory thereof
or of the District of Columbia, or a corporation or Person permitted
by the Commission to act as an institutional trustee under the Trust
Indenture Act, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least 50 million
U.S. dollars ($50,000,000), and subject to supervision or examination
by Federal, State, Territorial or District of Columbia authority. If
such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the supervising or examining
authority referred to above, then for the purposes of this Section
5.3(a)(ii), the combined capital and surplus of such corporation shall
be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published.
(b) If at any time the Institutional Trustee shall cease to be
eligible to so act under Section 5.3(a), the Institutional Trustee shall
immediately resign in the manner and with the effect set forth in Section
5.7(c).
(c) If the Institutional Trustee has or shall acquire any
"conflicting interest" within the meaning of (S) 310(b) of the Trust Indenture
Act, the Institutional Trustee and the Holder of the Common Securities (as if it
were the obligor referred to in (S) 310(b) of the Trust Indenture Act) shall in
all respects comply with the provisions of (S) 310(b) of the Trust Indenture
Act.
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(d) The Indenture, the Debt Securities (as defined therein) issued or
to be issued thereunder, the Declaration, the Securities issued or to be issued
hereunder and the Capital Securities Guarantees and Common Securities Guarantees
in connection therewith (including the Capital Securities Guarantee in
connection herewith) shall be deemed to be specifically described in this
Declaration for purposes of clause (i) of the proviso contained in (S) 310(b)(1)
of the Trust Indenture Act.
(e) The initial Institutional Trustee shall be The Chase Manhattan
Bank.
SECTION 5.4 Certain Qualifications of Regular Trustees and Delaware
Trustee Generally. Each Regular Trustee and the Delaware Trustee shall be either
a natural person who is at least 21 years of age or a legal entity that shall
act through one or more Authorized Officers.
SECTION 5.5 Regular Trustees. The initial Regular Trustees shall be:
M.A. Hatfield, G.H. Gunnlaugsson and J.B. Wigdale.
(a) Except where a requirement for action by a specific number of
Regular Trustees is expressly set forth in this Declaration and except with
respect to any action the taking of which is the subject of a meeting of the
Regular Trustees any action required or permitted to be taken by the Regular
Trustees may be taken by, and any power of the Regular Trustees may be exercised
by, or with the consent of, any one such Regular Trustee.
(b) Unless otherwise determined by the Regular Trustees, and except as
otherwise required by the Business Trust Act or applicable law, any Regular
Trustee is authorized to execute on behalf of the Trust any documents which the
Regular Trustees have the power and authority to cause the Trust to execute
pursuant to Section 3.6.
SECTION 5.6 Delaware Trustee. The initial Delaware Trustee shall be
Chase Manhattan Bank Delaware.
SECTION 5.7 Appointment, Removal and Resignation of Trustees. (a)
Subject to Section 5.7(b), Trustees may be appointed or removed without cause at
any time except during an Event of Default:
(i) until the issuance of any Securities, by written
instrument executed by the Sponsor; and
(ii) after the issuance of any Securities, by vote of the
Holders of a Majority in liquidation amount of the Common Securities
voting as a class at a meeting of the Holders of the Common
Securities.
(b) (i) The Trustee that acts as Institutional Trustee shall not be
removed in accordance with Section 5.7(a) until a Successor Institutional
Trustee (a "Successor Institutional Trustee") has been appointed and has
accepted such appointment by written
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instrument executed by such Successor Institutional Trustee and delivered to the
Regular Trustees and the Sponsor; and
(ii) the Trustee that acts as Delaware Trustee shall not be
removed in accordance with Section 5.7(a) until a successor Trustee
possessing the qualifications to act as Delaware Trustee under
Sections 5.2 and 5.4 (a "Successor Delaware Trustee") has been
appointed and has accepted such appointment by written instrument
executed by such Successor Delaware Trustee and delivered to the
Regular Trustees and the Sponsor.
(c) A Trustee appointed to office shall hold office until his
successor shall have been appointed or until his death, removal or resignation.
Any Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing signed by the Trustee and delivered to
the Sponsor and the Trust, which resignation shall take effect upon such
delivery or upon such later date as is specified therein; provided, however,
that:
(i) no such resignation of the Trustee that acts as the
Institutional Trustee shall be effective:
(A) until a Successor Institutional Trustee has been
appointed and has accepted such appointment by instrument
executed by such Successor Institutional Trustee and delivered to
the Trust, the Sponsor and the resigning Institutional Trustee;
or
(B) until the assets of the Trust have been completely
liquidated and the proceeds thereof distributed to the Holders of
the Securities; and
(ii) no such resignation of the Trustee that acts as the
Delaware Trustee shall be effective until a Successor Delaware Trustee
has been appointed and has accepted such appointment by instrument
executed by such Successor Delaware Trustee and delivered to the
Trust, the Sponsor and the resigning Delaware Trustee.
(d) The Holders of the Common Securities shall use their best efforts
to promptly appoint a Successor Delaware Trustee or Successor Institutional
Trustee as the case may be if the Institutional Trustee or the Delaware Trustee
delivers an instrument of resignation in accordance with this Section 5.7.
(e) If no Successor Institutional Trustee or Successor Delaware
Trustee shall have been appointed and accepted appointment as provided in this
Section 5.7 within 60 days after delivery of an instrument of resignation or
removal, the Institutional Trustee or Delaware Trustee resigning or being
removed, as applicable, may petition, at the expense of the Trust, any court of
competent jurisdiction for appointment of a Successor Institutional Trustee or
Successor Delaware Trustee. Such court may thereupon, after prescribing such
notice, if any, as it may deem proper, appoint a Successor Institutional Trustee
or Successor Delaware Trustee, as the case may be.
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(f) No Institutional Trustee or Delaware Trustee shall be liable for
the acts or omissions to act of any Successor Institutional Trustee or Successor
Delaware Trustee, as the case may be.
(g) Holders of Capital Securities will have no rights to appoint or
remove the Trustees, who may be appointed, removed or replaced solely by the
Holder of all of the Common Securities.
SECTION 5.8 Vacancies Among Trustees. If a Trustee ceases to hold
office for any reason and the number of Trustees is not reduced pursuant to
Section 5.1, or if the number of Trustees is increased pursuant to Section 5.1,
a vacancy shall occur. A resolution certifying the existence of such vacancy by
the Regular Trustees or, if there are more than two, a majority of the Regular
Trustees shall be conclusive evidence of the existence of such vacancy. The
vacancy shall be filled with a Trustee appointed in accordance with Section 5.7.
SECTION 5.9 Effect of Vacancies. The death, resignation, retirement,
removal, bankruptcy, dissolution, liquidation, incompetence or incapacity to
perform the duties of a Trustee shall not operate to dissolve, terminate or
annul the Trust. Whenever a vacancy in the number of Regular Trustees shall
occur, until such vacancy is filled by the appointment of a Regular Trustee in
accordance with Section 5.7, the Regular Trustees in office, regardless of their
number, shall have all the powers granted to the Regular Trustees and shall
discharge all the duties imposed upon the Regular Trustees by this Declaration.
SECTION 5.10 Meetings. If there is more than one Regular Trustee,
meetings of the Regular Trustees shall be held from time to time upon the call
of any Regular Trustee. Regular meetings of the Regular Trustees may be held at
a time and place fixed by resolution of the Regular Trustees. Notice of any in-
person meetings of the Regular Trustees shall be hand delivered or otherwise
delivered in writing (including by facsimile, with a hard copy by overnight
courier) not less than 48 hours before such meeting. Notice of any telephonic
meetings of the Regular Trustees or any committee thereof shall be hand
delivered or otherwise delivered in writing (including by facsimile, with a hard
copy by overnight courier) not less than 24 hours before a meeting. Notices
shall contain a brief statement of the time, place and anticipated purposes of
the meeting. The presence (whether in person or by telephone) of a Regular
Trustee at a meeting shall constitute a waiver of notice of such meeting except
where a Regular Trustee attends a meeting for the express purpose of objecting
to the transaction of any activity on the ground that the meeting has not been
lawfully called or convened. Unless provided otherwise in this Declaration, any
action of the Regular Trustees may be taken at a meeting by vote of a majority
of the Regular Trustees present (whether in person or by telephone) and eligible
to vote with respect to such matter, provided that a Quorum is present, or
without a meeting by the unanimous written consent of the Regular Trustees. In
the event there is only one Regular Trustee, any and all action of such Regular
Trustee shall be evidenced by a written consent of such Regular Trustee.
SECTION 5.11 Delegation of Power. (a) Any Regular Trustee may, by
power of attorney consistent with applicable law, delegate to any other natural
person over the age of 21
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his or her power for the purpose of executing any documents contemplated in
Section 3.6, including any registration statement or amendment thereto filed
with the Commission, or making any other governmental filing; and
(b) the Regular Trustees shall have power to delegate from time to
time to such of their number or to officers of the Trust the doing of such
things and the execution of such instruments either in the name of the Trust or
the names of the Regular Trustees or otherwise as the Regular Trustees may deem
expedient, to the extent such delegation is not prohibited by applicable law or
contrary to the provisions of the Trust, as set forth herein.
SECTION 5.12 Conversion, Consolidation or Succession to Business.
Any Person into which the Institutional Trustee or the Delaware Trustee, as the
case may be, may be merged or converted or with which either may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Institutional Trustee or the Delaware Trustee, as the
case may be, shall be a party, or any Person succeeding to all or substantially
all the corporate trust business of the Institutional Trustee or the Delaware
Trustee, as the case may be, shall be the successor of the Institutional Trustee
or the Delaware Trustee, as the case may be, hereunder, provided such Person
shall be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions. Holders shall receive Distributions (as
defined herein) in accordance with the applicable terms of the relevant Holder's
Securities. Distributions shall be made on the Capital Securities and the
Common Securities in accordance with the preferences set forth in their
respective terms. If and to the extent that the Debenture Issuer makes a
payment of interest (including Compounded Interest (as defined in the
Indenture), Special Interest and Additional Interest (as defined in the
Indenture)), premium and/or principal on the Debentures held by the
Institutional Trustee (the amount of any such payment being a "Payment Amount"),
the Institutional Trustee shall and is directed, to the extent funds are
available for that purpose, to make a distribution (a "Distribution") of the
Payment Amount to Holders.
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities. (a) The Regular
Trustees shall on behalf of the Trust issue one series of preferred securities
representing undivided beneficial interests in the assets of the Trust having
such terms as are set forth in Annex I (the "Initial Capital Securities") and a
second series of preferred securities representing undivided beneficial
interests in the assets of the Trust having such terms as are set forth in Annex
I to be exchanged pursuant to the Registration Agreement for Initial Capital
Securities
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(the "Exchange Capital Securities" and together with the Initial Capital
Securities, the "Capital Securities") and one class of common securities
representing undivided beneficial interests in the assets of the Trust having
such terms as are set forth in Annex I (the "Common Securities"). The Trust
shall issue no securities or other interests in the assets of the Trust other
than the Capital Securities and the Common Securities and the aggregate
liquidation amount of all series of Securities issued by the Trust and
outstanding at any time shall not exceed $206,186,000. Capital Securities rank
pari passu and payment thereon shall be made Pro Rata with the Common Securities
except that, where an Event of Default has occurred and is continuing, the
rights of Holders of the Common Securities to payment in respect of
Distributions and payments upon liquidation, redemption and otherwise are
subordinated to the rights to payment of the Holders of the Capital Securities.
(b) The Certificates shall be signed on behalf of the Trust by a
Regular Trustee. Such signature shall be the facsimile or manual signature of
any present or any future Regular Trustee. In case any Regular Trustee of the
Trust who shall have signed any of the Securities shall cease to be such Regular
Trustee before the Certificates so signed shall be delivered by the Trust, such
Certificates nevertheless may be delivered as though the person who signed such
Certificates had not ceased to be such Regular Trustee; and any Certificate may
be signed on behalf of the Trust by such persons who, at the actual date of
execution of such Security, shall be the Regular Trustees of the Trust, although
at the date of the execution and delivery of the Declaration any such person was
not such a Regular Trustee. A Capital Security shall not be valid until
authenticated by the manual signature of an authorized officer of the
Institutional Trustee. Such signature shall be conclusive evidence that the
Capital Security has been authenticated under this Declaration. Upon written
order of the Trust signed by one Regular Trustee, the Institutional Trustee
shall authenticate the Capital Securities for original issue. The Institutional
Trustee may appoint an authenticating agent acceptable to the Trust to
authenticate the Capital Securities. A Common Security need not be so
authenticated.
(c) The consideration received by the Trust for the issuance of the
Securities shall constitute a contribution to the capital of the Trust and shall
not constitute a loan to the Trust.
(d) Upon issuance of the Securities as provided in this Declaration,
the Securities so issued shall be deemed to be validly issued, fully paid and
non-assessable.
(e) Every Person, by virtue of having become a Holder or a Capital
Security Beneficial Owner in accordance with the terms of this Declaration,
shall be deemed to have expressly assented and agreed to the terms of, and shall
be bound by, this Declaration and the Capital Securities Guarantee.
SECTION 7.2 Paying Agent, Transfer Agent and Registrar. The Trust
shall maintain in the Borough of Manhattan, City of New York, State of New York,
an office or agency where Securities may be presented for payment ("Paying
Agent") and an office or agency where Securities may be presented for
registration of transfer or exchange (the "Transfer Agent"). The Trust shall
keep or cause to be kept at such office or agency a register for the purpose of
registering Securities and transfers and exchanges of Securities, such register
to be
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held by a registrar (the "Registrar"). The Trust may appoint the Paying Agent,
the Registrar, the Transfer Agent and may appoint one or more additional paying
agents or one or more co-registrars or one or more co-transfer agents, in such
other locations as it shall determine. The term "Paying Agent" includes any
additional paying agent, the term "Registrar" includes any additional registrar
and the term "Transfer Agent" includes any co-transfer agent. The Trust may
change any Paying Agent without prior notice to any Holder. The Trust shall
notify the Institutional Trustee of the name and address of any Paying Agent,
Transfer Agent and Registrar not a party to this Declaration. The Trust has
appointed the Institutional Trustee to act as Paying Agent, Transfer Agent and
Registrar for the Capital Securities and the Common Securities. The Trust or any
of its Affiliates may act as Paying Agent, Transfer Agent or Registrar.
SECTION 7.3 Form and Dating. The Initial Capital Securities and the
Institutional Trustee's certificate of authentication shall be substantially in
the form of Exhibit A-1, the Exchange Capital Securities and the Institutional
Trustee's certificate of authentication shall be substantially in the form of
Exhibit A-2 and the Common Securities shall be substantially in the form of
Exhibit A-3, each of which is hereby incorporated in and expressly made a part
of this Declaration. Certificates may be typed, printed, lithographed or
engraved or may be produced in any other manner as is reasonably acceptable to
the Regular Trustees, as conclusively evidenced by their execution thereof. The
Securities may have letters, numbers, notations or other marks of identification
or designation and such legends or endorsements required by law, stock exchange
rule, the Depositary, agreements to which the Trust is subject, if any, or usage
(provided that any such notation, legend or endorsement is in a form acceptable
to the Trust). The Trust at the direction of the Sponsor shall furnish any such
legend not contained in Exhibit A-1, A-2 or A-3 to the Institutional Trustee in
writing. Each Capital Security shall be dated the date of its authentication.
The terms and provisions of the Securities set forth in Annex I and the forms of
Securities set forth in Exhibits A-1, A-2 and A-3 are part of the terms of this
Declaration and to the extent applicable, the Institutional Trustee, the
Delaware Trustee, the Regular Trustees and the Sponsor, by their execution and
delivery of this Declaration, expressly agree to such terms and provisions and
to be bound thereby. Capital Securities will be issued only in blocks having a
stated liquidation amount of not less than $100,000.
(a) Global Capital Securities.
(i) The Initial Capital Securities are being offered and sold by
the Trust pursuant to the Purchase Agreement. The Initial Capital
Securities offered and sold to Qualified Institutional Buyers ("QIBs")
in reliance on Rule 144A as provided in the Purchase Agreement, shall
be issued in the form of one or more permanent global Securities in
definitive, fully registered form without distribution coupons with
the appropriate global legends and the Restricted Securities Legend
(each, a "Rule 144A Global Capital Security"), which shall be
deposited on behalf of the purchasers of the Initial Capital
Securities represented thereby with the Institutional
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Trustee, at its New York office, as custodian for the Depositary, and
registered in the name of the Depositary or a nominee of the
Depositary, duly executed by the Trust and authenticated by the
Institutional Trustee as hereinafter provided. The number of Initial
Capital Securities represented by the Rule 144A Global Capital
Security may from time to time be increased or decreased by
adjustments made on the records of the Institutional Trustee and the
Depositary or its nominee as hereinafter provided.
(ii) In the event the Initial Global Capital Security is
tendered in a Registered Exchange Offer, it shall be exchanged for
interests in a single, permanent global security in definitive, fully
registered form without distribution coupons. Upon issuance such
Exchange Global Capital Security shall be deposited on behalf of the
holders of the Exchange Capital Securities represented thereby with
the Institutional Trustee, at its New York office, as custodian for
the Depositary, and registered in the name of the Depositary or a
nominee of the Depositary, duly executed by the Trust and
authenticated by the Institutional Trustee as hereinafter provided.
(b) Book-Entry Provisions. This Section 7.3(b) shall apply only to
Global Capital Securities as may be authorized by the Trust to be deposited with
or on behalf of the Depositary. The Trust shall execute and the Institutional
Trustee shall, in accordance with this Section 7.3, authenticate and deliver
initially one or more Global Capital Securities that (a) shall be registered in
the name of Cede & Co. or other nominee of such Depositary and (b) shall be
delivered by the Institutional Trustee to such Depositary or pursuant to such
Depositary's instructions or held by the Institutional Trustee as custodian for
the Depositary. Clearing Agency Participants shall have no rights under this
Declaration with respect to any Global Capital Security held on their behalf by
the Depositary or by the Institutional Trustee as the custodian of the
Depositary or under such Global Capital Security, and the Depositary may be
treated by the Trust, the Institutional Trustee and any agent of the Trust or
the Institutional Trustee as the absolute owner of such Global Capital Security
for all purposes whatsoever. Notwithstanding the foregoing, nothing herein
shall prevent the Trust, the Institutional Trustee or any agent of the Trust or
the Institutional Trustee from giving effect to any written certification, proxy
or other authorization furnished by the Depositary or impair, as between the
Depositary and the Clearing Agency Participants, the operation of customary
practices of such Depositary governing the exercise of the rights of a holder of
a beneficial interest in any Global Capital Security.
(c) Definitive Capital Securities.
(i) Except as provided in Section 7.5 and Section 9.2(e), owners
of beneficial interests in the Rule 144A Global Capital Security will
not be entitled to receive physical delivery of Definitive Capital
Securities. Purchasers of Initial Securities who are institutional
"accredited investors" (as defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act) ("IAIs"), but are not QIBs will receive
Initial Capital Securities in the form of individual certificates in
definitive, fully registered form without distribution coupons and
with the Restricted Securities Legend ("Restricted Definitive Capital
Securities"); provided, however, that upon transfer of such Restricted
Definitive Capital Securities to a QIB, such Restricted Definitive
Capital Securities will, unless the Rule 144A Global Capital
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Security has previously been exchanged, be exchanged for an interest
in a Rule 144A Global Capital Security pursuant to the provisions set
forth in Section 9.2. Restricted Definitive Capital Securities will
bear the Restricted Securities Legend unless removed in accordance
with this Section 7.3 or Section 9.2.
(ii) In the event Initial Definitive Capital Securities are
tendered in a Registered Exchange Offer, they will be exchanged for
certificated securities in definitive, fully registered form, without
coupons and without the Restricted Securities Legend; or, at the
option of the Holder, as an interest in the Exchange Global Capital
Security issued pursuant to Section 7.1(a).
SECTION 7.4 Mutilated, Destroyed, Lost or Stolen Certificates. If:
(a) any mutilated Certificates should be surrendered to the Regular Trustees, or
if the Regular Trustees shall receive evidence to their satisfaction of the
destruction, loss or theft of any Certificate; and
(b) there shall be delivered to the Regular Trustees and the
Institutional Trustee such security or indemnity as may be required by them to
keep each of them harmless; then, in the absence of notice that such Certificate
shall have been acquired by a bona fide purchaser, any Regular Trustee on behalf
of the Trust shall execute and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
denomination. In connection with the issuance of any new Certificate under this
Section 9.8, the Regular Trustees may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
therewith. Any duplicate Certificate issued pursuant to this Section shall
constitute conclusive evidence of an ownership interest in the relevant
Securities, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
SECTION 7.5 Temporary Securities.
Until definitive Securities are ready for delivery, the Trust may
prepare and, in the case of the Capital Securities, the Institutional Trustee
shall authenticate temporary Securities. Temporary Securities shall be
substantially in form of definitive Securities but may have variations that the
Trust considers appropriate for temporary Securities. Without unreasonable
delay, the Trust shall prepare and, in the case of the Capital Securities, the
Institutional Trustee shall authenticate definitive Securities in exchange for
temporary Securities.
SECTION 7.6 Cancellation.
The Trust at any time may deliver Securities to the Institutional
Trustee for cancellation. The Registrar shall forward to the Institutional
Trustee any Securities surrendered to it for registration of transfer,
redemption or payment. The Institutional Trustee shall promptly cancel all
Securities surrendered for registration of transfer, payment, replacement or
cancellation and shall dispose of canceled Securities as the Trust directs. The
Trust may not issue new Securities to replace Securities that it has paid or
that have been delivered to the Institutional Trustee for cancellation.
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ARTICLE VIII
DISSOLUTION AND TERMINATION OF TRUST
SECTION 8.1 Dissolution and Termination of Trust. (a) The Trust
shall dissolve:
(i) unless earlier terminated, on December 31, 2051, the
expiration of the term of the Trust;
(ii) upon a Bankruptcy Event with respect to the Sponsor, the
Trust or the Debenture Issuer;
(iii) (other than in connection with a merger, consolidation or
similar transaction not prohibited by the Indenture, this Declaration
or the Securities Guarantees, as the case may be) upon the filing of a
certificate of dissolution or its equivalent with respect to the
Sponsor; upon the consent of Holders of a Majority in liquidation
amount of the Securities voting together as a single class to file a
certificate of cancellation with respect to the Trust or upon the
revocation of the charter of the Sponsor and the expiration of 90 days
after the date of revocation without a reinstatement thereof;
(iv) upon exercise of the right of the holder of all of the
outstanding Common Securities to dissolve the Trust as provided in
Annex I hereto;
(v) upon the entry of a decree of judicial dissolution of the
Holder of the Common Securities, the Sponsor, the Trust or the
Debenture Issuer;
(vi) when all of the Securities shall have been called for
redemption and the amounts necessary for redemption thereof shall have
been paid to the Holders in accordance with the terms of the
Securities; or
(vii) before the issuance of any Securities, with the consent of
all of the Regular Trustees and the Sponsor.
(b) As soon as is practicable after the occurrence of an event
referred to in Section 8.1(a), and after satisfaction of liabilities to
creditors of the Trust, and subject to the terms set forth in Annex I, the
Trustees shall terminate the Trust by filing a certificate of cancellation with
the Secretary of State of the State of Delaware.
(c) The provisions of Section 3.9 and Article X shall survive the
termination of the Trust.
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ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 General. (a) Where Capital Securities are presented to the
Registrar or a co-registrar with a request to register a transfer or to exchange
them for an equal number of Capital Securities represented by different
certificates, the Registrar shall register the transfer or make the exchange if
its requirements for such transactions are met. To permit registrations of
transfer and exchanges, the Trust shall issue and the Institutional Trustee,
shall authenticate Capital Securities at the Registrar's request.
(b) Common Securities may not be transferred, except by operation of
law.
(c) Capital Securities may only be transferred, in whole or in part,
in accordance with the terms and conditions set forth in this Declaration and in
the terms of the Securities, provided, however, that Capital Securities may be
transferred only in blocks having a stated liquidation amount of not less than
$100,000 (i.e., 100 Capital Securities). Any transfer or purported transfer of
any Security not made in accordance with this Declaration shall be null and void
and will be deemed to be of no legal effect whatsoever and any such transferee
shall be deemed not to be the holder of such Capital Securities for any purpose,
including but not limited to the receipt of Distributions on such Capital
Securities, and such transferee shall be deemed to have no interest whatsoever
in such Capital Securities.
(d) The Regular Trustees shall provide for the registration of
Securities and of transfers of Securities, which will be effected without charge
but only upon payment (with such indemnity as the Trust or the Sponsor may
require) in respect of any tax or other governmental charges that may be imposed
in relation to it. Upon surrender for registration of transfer of any
Securities, the Regular Trustees shall cause one or more new Securities to be
issued in the name of the designated transferee or transferees. Every Security
surrendered for registration of transfer shall be accompanied by a written
instrument of transfer in form satisfactory to the Regular Trustees duly
executed by the Holder or such Holder's attorney duly authorized in writing.
Each Security surrendered for registration of transfer shall be canceled by the
Regular Trustees. A transferee of a Security shall be entitled to the rights and
subject to the obligations of a Holder hereunder upon the receipt by such
transferee of a Security. By acceptance of a Security, each transferee shall be
deemed to have agreed to be bound by this Declaration.
(e) The Trust shall not be required (i) to issue, register the
transfer of, or exchange, any Capital Securities during a period beginning at
the opening of business 15 days before the day of any selection of Capital
Securities for redemption and ending at the close of business on the earliest
date on which the relevant notice of redemption is deemed to have been given to
all Holders of Capital Securities to be redeemed, or (ii) to register the
transfer or exchange of any Capital Security so selected for redemption in whole
or in part, except the unredeemed portion of any Capital Security being redeemed
in part.
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SECTION 9.2 Transfer Procedures and Restrictions.
(a) General.
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(i) If Initial Capital Securities are issued upon the
transfer, exchange or replacement of Initial Capital Securities
bearing the Restricted Securities Legend, or if a request is made to
remove such Restricted Securities Legend on Initial Capital
Securities, the Initial Capital Securities so issued shall bear the
Restricted Securities Legend, or the Restricted Securities Legend
shall not be removed, as the case may be, unless there is delivered to
the Trust such satisfactory evidence, which may include an opinion of
counsel licensed to practice law in the State of New York, as may be
reasonably required by the Trust, that neither the legend nor the
restrictions on transfer set forth therein are required to ensure that
transfers thereof comply with the provisions of Rule 144A or Rule 144
under the Securities Act or, with respect to Restricted Capital
Securities, that such Securities are not "restricted" within the
meaning of Rule 144 under the Securities Act. Upon provision of such
satisfactory evidence, the Institutional Trustee, at the written
direction of the Trust, shall authenticate and deliver Capital
Securities that do not bear the legend.
(ii) If a transfer of Initial Capital Securities is made
pursuant to an effective Shelf Registration Statement, the Restricted
Securities Legend shall be removed from such Initial Capital
Securities so transferred at the request of the Holder.
(iii) Any Initial Capital Securities which are presented to the
Registrar for exchange pursuant to a Registered Exchange Offer shall
be exchanged for Exchange Capital Securities of equal liquidation
amount upon surrender to the Registrar of the Initial Capital
Securities to be exchanged in accordance with the terms of the
Registered Exchange Offer; provided that the Initial Capital
Securities so surrendered for exchange are duly endorsed and
accompanied by a letter of transmittal or written instrument of
transfer in form satisfactory to the Institutional Trustee and the
Registrar and duly executed by the Holder thereof or such Holder's
attorney who shall be duly authorized in writing to execute such
document on the behalf of such Holder.
(b) Transfer and Exchange of Definitive Capital Securities. When
Initial Definitive Capital Securities or Exchange Definitive Capital Securities
are presented to the Registrar or co-registrar
(x) to register the transfer of such Initial Definitive Capital
Securities or Exchange Definitive Capital Securities; or
(y) to exchange such Initial Definitive Capital Securities or
Exchange Definitive Capital Securities for an equal number of Initial
Definitive Capital Securities or Exchange Definitive Capital Securities,
respectively, of another number,
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the Registrar or co-registrar shall register the transfer or make the exchange
as requested if its reasonable requirements for such transaction are met;
provided, however, that the Definitive Capital Securities surrendered for
transfer or exchange:
(i) shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to the Trust
and the Registrar or co-registrar, duly executed by the Holder thereof
or his attorney duly authorized in writing; and
(ii) in the case of Initial Definitive Capital Securities that
are Restricted Definitive Capital Securities, are being transferred or
exchanged pursuant to an effective registration statement under the
Securities Act or pursuant to clause (A), (B), (C) or (D) below, and
are accompanied by the following additional information and documents,
as applicable:
(A) if such Restricted Definitive Capital Securities are
being delivered to the Registrar by a Holder for registration in
the name of such Holder, without transfer, a certification from
such Holder to that effect;
(B) if such Restricted Definitive Capital Securities are
being transferred pursuant to an exemption from registration in
accordance with Rule 144 under the Securities Act: (i) a
certification to that effect (in the form set forth on the
reverse of the Initial Capital Security) and (ii) if the Trust so
requests, evidence reasonably satisfactory to the Trust as to the
compliance with the restrictions set forth in the Restricted
Securities Legend;
(C) if such Restricted Definitive Capital Securities are
transferred to QIBs in accordance with Rule 144A under the
Securities Act, the transferee QIBs must take delivery of their
interests in the Capital Securities in the form of a beneficial
interest in the Rule 144A Global Capital Security in accordance
with Section 9.2(c); or
(D) if such Restricted Definitive Capital Securities are
being transferred to a Person who is an IAI, but is not a QIB,
upon the delivery of a certificate by the transferee IAI
substantially in the form of Exhibit B hereto and such other
opinion, certification and/or other information as may be
reasonably required by the Trust or the Sponsor, the
Institutional Trustee shall cancel or cause to be canceled such
Restricted Definitive Securities being transferred and
concurrently therewith, the Trust shall issue and the
Institutional Trustee shall authenticate, upon written order of
any Regular Trustee, an appropriate number of Restricted
Definitive Capital Securities.
(c) Restrictions on Transfer of an Initial Definitive Capital
Security for a Beneficial Interest in an Initial Global Capital Security. An
Initial Definitive Capital Security
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may not be exchanged for a beneficial interest in an Initial Global Capital
Security except upon satisfaction of the requirements set forth below. Upon
receipt by the Institutional Trustee of an Initial Definitive Capital Security,
duly endorsed or accompanied by appropriate instruments of transfer, in form
satisfactory to the Trust, together with:
(i) if such Initial Definitive Capital Security is a
Restricted Capital Security, certification, substantially in the form
set forth in Exhibit C hereto, that such Definitive Capital Security
is being transferred to a QIB in accordance with Rule 144A under the
Securities Act; and
(ii) whether or not such Definitive Capital Security is a
Restricted Capital Security, written instructions directing the
Institutional Trustee to make, or to direct the Depositary to make, an
adjustment on its books and records with respect to such Initial
Global Capital Security to reflect an increase in the number of the
Initial Capital Securities represented by the Initial Global Capital
Security,
then the Institutional Trustee shall cancel such Initial Definitive Capital
Security and cause, or direct the Depositary to cause, the aggregate number of
Initial Capital Securities represented by the Global Capital Security to be
increased accordingly. If no Initial Global Capital Securities are then
outstanding, the Trust shall issue and the Institutional Trustee shall
authenticate, upon written order of any Regular Trustee, an appropriate number
of Initial Capital Securities in global form.
(d) Transfer and Exchange of Global Capital Securities. The transfer
and exchange of Initial Global Capital Securities or Exchange Global Capital
Securities or beneficial interests therein shall be effected through the
Depositary, in accordance with this Declaration (including applicable
restrictions on transfer set forth in the Restricted Securities Legend) and the
procedures of the Depositary therefor.
Notwithstanding any other provisions of this Declaration, a Global Capital
Security may not be transferred as a whole except by the Depositary to a nominee
of the Depositary or another nominee of the Depositary or by the Depositary or
any such nominee to a successor Depositary or a nominee of such successor
Depositary.
(e) Transfer of a Beneficial Interest in a Global Capital Security
for a Definitive Capital Security.
(i) Any Person having a beneficial interest in an Initial
Global Capital Security that is being transferred or exchanged
pursuant to an effective registration statement under the Securities
Act or pursuant to clause (A) or (B) below may upon request, and if
accompanied by the information specified below, exchange such
beneficial interest for an Initial Definitive Capital Security or an
Exchange Definitive Capital Security, as the case may be, representing
the same number of Initial Capital Securities or Exchange Capital
Securities, as the case may be. Upon receipt by the Institutional
Trustee from the Depositary or its nominee on behalf of any Person
having a beneficial interest in an Initial Global
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Capital Security or an Exchange Global Capital Security, as the case
may be, of written instructions or such other form of instructions as
is customary for the Depositary or the Person designated by the
Depositary as having such a beneficial interest in such Global Capital
Security and in the case of an Initial Global Security, the following
additional information and documents (all of which may be submitted by
facsimile):
(A) if such beneficial interest is being transferred
pursuant to an exemption from registration in accordance with
Rule 144 under the Securities Act: (i) a certification to that
effect from the transferee or transferor and (ii) if the Regular
Trustees so request, additional evidence reasonably satisfactory
to them as to the compliance with the restrictions set forth in
the Restricted Securities Legend,
(B) if such beneficial interest is being transferred to a
Person who is an IAI, but is not a QIB, upon the delivery of a
certificate by the transferee IAI substantially in the form of
Exhibit B hereto and such other opinion, certification and/or
other information as may be reasonably required by the Trust and
the Sponsor,
then the Institutional Trustee will cause, in accordance with the
standing instructions and procedures of the Depositary, the aggregate
liquidation amount of the Global Capital Security to be reduced on its
books and records and, following such reduction, the Trust will issue
and the Institutional Trustee will authenticate and deliver an
appropriate number of Definitive Capital Securities.
(ii) Definitive Capital Securities issued in exchange for a
beneficial interest in a Global Capital Security pursuant to this
Section (c) shall be registered in such names and in such authorized
denominations as the Depositary, pursuant to instructions from
Clearing Agency Participants or indirect participants or otherwise,
shall instruct the Institutional Trustee. The Institutional Trustee
shall deliver such Capital Securities to the persons in whose names
such Capital Securities are so registered in accordance with the
instructions of the Depositary.
(f) Authentication of Definitive Capital Securities. If at any time:
(i) the Depositary notifies the Trust that the Depositary is
unwilling or unable to continue as Depositary for the Global Capital
Securities and a successor Depositary for the Global Capital
Securities is not appointed by the Regular Trustees pursuant to
Section 9.5 within 90 days after delivery of such notice; or
(ii) the Trust, in its sole discretion, notifies the
Institutional Trustee in writing that it elects to cause the issuance
of Definitive Capital Securities under this Declaration,
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then the Trust will execute, and the Institutional Trustee, upon receipt of a
written order of the Trust signed by one Regular Trustee requesting the
authentication and delivery of Definitive Capital Securities to the Persons
designated by the Trust, will authenticate and deliver Definitive Capital
Securities, in an aggregate principal amount equal to the principal amount of
Global Capital Securities, in exchange for such Global Capital Securities.
(g) Legend.
(i) Except as permitted by Section 9.2(a), each Initial Capital
Security certificate evidencing the Rule 144A Global Capital
Securities and the Restricted Definitive Capital Securities (and all
Initial Capital Securities issued in exchange therefor or substitution
thereof) shall bear a legend (the "Restricted Securities Legend") in
substantially the following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT
TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF
THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH SECURITY PRIOR TO THE DATE WHICH IS THREE
YEARS (OR SUCH LESSER PERIOD OF TIME AS SPECIFIED IN RULE 144(k) UNDER
THE SECURITIES ACT) AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF
AND THE LAST DATE ON WHICH MARSHALL & ILSLEY CORPORATION (THE
"COMPANY") OR M&I CAPITAL TRUST A (THE "TRUST") OR ANY AFFILIATE OF
THE COMPANY OR THE TRUST WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF THIS SECURITY) (THE "RESALE RESTRICTIONS TERMINATION
DATE") ONLY (A) TO THE COMPANY OR THE TRUST, (B) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C) FOR SO
LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, (D) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR (7)
OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY
FOR ITS OWN
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ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED
INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR
OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE
COMPANY'S AND THE TRUST'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM IN ACCORDANCE WITH THE DECLARATION OF
TRUST, A COPY OF WHICH MAY BE OBTAINED FROM THE COMPANY OR THE TRUST.
THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE
RESALE RESTRICTIONS TERMINATION DATE.
(h) Cancellation or Adjustment of Global Capital Security. At such
time as all beneficial interests in a Global Capital Security have either been
exchanged for Definitive Capital Securities to the extent permitted by this
Declaration or redeemed, repurchased or canceled in accordance with the terms of
this Declaration, such Global Capital Security shall be returned to the
Depositary for cancellation or retained and canceled by the Institutional
Trustee. At any time prior to such cancellation, if any beneficial interest in a
Global Capital Security is exchanged for Definitive Capital Securities, Capital
Securities represented by such Global Capital Security shall be reduced and an
adjustment shall be made on the books and records of the Institutional Trustee
(if it is then the Securities Custodian for such Global Capital Security) with
respect to such Global Capital Security, by the Institutional Trustee to reflect
such reduction.
(i) Obligations with Respect to Transfers and Exchanges of Capital
Securities.
(i) To permit registrations of transfers and exchanges, the
Trust shall execute and the Institutional Trustee shall authenticate
Definitive Capital Securities and Global Capital Securities at the
Registrar's request;
(ii) Registrations of transfers or exchanges will be effected
without charge, but only upon payment (with such indemnity as the
Trust or the Sponsor may require) in respect of any tax or other
governmental charge that may be imposed in relation to it;
(iii) The Registrar or co-registrar shall not be required to
register the transfer of or exchange of (A) any Capital Security
during a period beginning at the opening of business 15 days before
the day of any selection of Capital Securities for redemption and
ending at the close of business on the earliest date on which the
relevant notice of redemption is deemed to have been given to all
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Holders of Capital Securities to be redeemed, and (B) any Capital
Security so selected for redemption in whole or in part, except the
unredeemed portion of any Capital Security being redeemed in part; or
(iv) All Capital Securities issued upon any transfer or
exchange pursuant to the terms of this Declaration shall evidence the
same security and shall be entitled to the same benefits under this
Declaration as the Capital Securities surrendered upon such transfer
or exchange.
SECTION 9.3 Deemed Security Holders. The Trust, the Trustees, the
Paying Agent, the Transfer Agent or the Registrar may treat the Person in whose
name any Certificate shall be registered on the books and records of the Trust
as the sole holder of such Certificate and of the Securities represented by such
Certificate for purposes of receiving Distributions and for all other purposes
whatsoever and, accordingly, shall not be bound to recognize any equitable or
other claim to or interest in such Certificate or in the Securities represented
by such Certificate on the part of any Person, whether or not the Trust, the
Trustees, the Paying Agent, the Transfer Agent or the Registrar shall have
actual or other notice thereof.
SECTION 9.4 Notices to Clearing Agency. Whenever a notice or other
communication to the Capital Security Holders is required under this
Declaration, unless and until Definitive Capital Securities shall have been
issued to the beneficial owners of Capital Securities pursuant to Section 9.2(e)
or Section 9.2(f), the Regular Trustees shall give all such notices and
communications specified herein to be given to the Capital Security Holders to
the Clearing Agency, and shall have no notice obligations to the beneficial
owners of Capital Securities.
SECTION 9.5 Appointment of Successor Clearing Agency. If any Clearing
Agency elects to discontinue its services as securities depositary with respect
to the Capital Securities, the Regular Trustees may, in their sole discretion,
appoint a successor Clearing Agency with respect to such Capital Securities.
ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 Liability. (a) Except as expressly set forth in this
Declaration, the Securities Guarantees and the terms of the Securities, the
Sponsor shall not be:
(i) personally liable for the return of any portion of the
capital contributions (or any return thereon) of the Holders of the
Securities which shall be made solely from assets of the Trust; and
(ii) required to pay to the Trust or to any Holder of
Securities any deficit upon dissolution of the Trust or otherwise.
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(b) Pursuant to (S) 3803(a) of the Business Trust Act, the Holder of
the Common Securities shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware; provided, however,
that the Holder of the Common Securities shall be liable for all of the debts
and obligations of the Trust (other than with respect to the Securities) to the
extent not satisfied out of the Trust's assets.
(c) Pursuant to (S) 3803(a) of the Business Trust Act, the Holders of
the Capital Securities shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware.
SECTION 10.2 Exculpation. (a) No Indemnified Person shall be liable,
responsible or accountable in damages or otherwise to the Trust or any Covered
Person for any loss, damage or claim incurred by reason of any act or omission
performed or omitted by such Indemnified Person in good faith on behalf of the
Trust and in a manner such Indemnified Person reasonably believed to be within
the scope of the authority conferred on such Indemnified Person by this
Declaration or by law, except that an Indemnified Person shall be liable for any
such loss, damage or claim incurred by reason of such Indemnified Person's
negligence or willful misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Trust and upon such information, opinions, reports
or statements presented to the Trust by any Person as to matters the Indemnified
Person reasonably believes are within such other Person's professional or expert
competence, if selected by such Indemnified Person, has been selected by such
Indemnified Person with reasonable care by or on behalf of the Trust, including
information, opinions, reports or statements as to the value and amount of the
assets, liabilities, profits, losses, or any other facts pertinent to the
existence and amount of assets from which Distributions to Holders of Securities
might properly be paid.
SECTION 10.3 Fiduciary Duty. (a) To the extent that, at law or in
equity, an Indemnified Person has duties (including fiduciary duties) and
liabilities relating thereto to the Trust or to any other Covered Person, an
Indemnified Person acting under this Declaration shall not be liable to the
Trust or to any other Covered Person for its good faith reliance on the
provisions of this Declaration. The provisions of this Declaration, to the
extent that they restrict the duties and liabilities of an Indemnified Person
otherwise existing at law or in equity (other than the duties imposed on the
Institutional Trustee under the Trust Indenture Act), are agreed by the parties
hereto to replace such other duties and liabilities of the Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between
any Covered Persons; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified Person
shall act in a manner that is,
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or provides terms that are, fair and reasonable to the Trust or any
Holder of Securities, the Indemnified Person shall resolve such
conflict of interest, take such action or provide such terms,
considering in each case the relative interest of each party
(including its own interest) to such conflict, agreement, transaction
or situation and the benefits and burdens relating to such interests,
any customary or accepted industry practices, and any applicable
generally accepted accounting practices or principles. In the absence
of bad faith by the Indemnified Person, the resolution, action or term
so made, taken or provided by the Indemnified Person shall not
constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the Indemnified
Person at law or in equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person is permitted or
required to make a decision:
(i) in its "discretion" or under a grant of similar authority,
the Indemnified Person shall be entitled to consider such interests
and factors as it desires, including its own interests, and shall have
no duty or obligation to give any consideration to any interest of or
factors affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard, the
Indemnified Person shall act under such express standard and shall not
be subject to any other or different standard imposed by this
Declaration or by applicable law.
SECTION 10.4 Indemnification. (a) (i) The Sponsor shall indemnify, to
the full extent permitted by law, any Company Indemnified Person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Trust) by reason
of the fact that he is or was a Company Indemnified Person against expenses
(including attorneys' fees and expenses), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Trust,
and, with respect to any criminal action or proceeding, had no reasonable cause
to believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the Company Indemnified Person did not act in good faith and in a manner which
he reasonably believed to be in or not opposed to the best interests of the
Trust, and, with respect to any criminal action or proceeding, had reasonable
cause to believe that his conduct was unlawful.
(ii) The Sponsor shall indemnify, to the full extent permitted
by law, any Company Indemnified Person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action or suit by or in the
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right of the Trust to procure a judgment in its favor by reason of the
fact that he is or was a Company Indemnified Person against expenses
(including attorneys' fees and expenses) actually and reasonably
incurred by him in connection with the defense or settlement of such
action or suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Trust
and except that no such indemnification shall be made in respect of
any claim, issue or matter as to which such Company Indemnified Person
shall have been adjudged to be liable to the Trust unless and only to
the extent that the Court of Chancery of Delaware or the court in
which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which such Court of Chancery
or such other court shall deem proper.
(iii) To the extent that a Company Indemnified Person shall be
successful on the merits or otherwise (including dismissal of an
action without prejudice or the settlement of an action without
admission of liability) in defense of any action, suit or proceeding
referred to in paragraphs (i) and (ii) of this Section 10.4 (a), or in
defense of any claim, issue or matter therein, he shall be
indemnified, to the full extent permitted by law, against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
(iv) Any indemnification under paragraphs (i) and (ii) of this
Section 10.4(a) (unless ordered by a court) shall be made by the
Sponsor only as authorized in the specific case upon a determination
that indemnification of the Company Indemnified Person is proper in
the circumstances because he has met the applicable standard of
conduct set forth in paragraphs (i) and (ii). Such determination shall
be made (1) by the Regular Trustees by a majority vote of a Quorum
consisting of such Regular Trustees who were not parties to such
action, suit or proceeding, (2) if such a Quorum is not obtainable,
or, even if obtainable, if a Quorum of disinterested Regular Trustees
so directs, by independent legal counsel in a written opinion, or (3)
by the Common Security Holder of the Trust.
(v) To the fullest extent permitted by law, expenses
(including attorneys' fees and expenses) incurred by a Company
Indemnified Person in defending a civil, criminal, administrative or
investigative action, suit or proceeding referred to in paragraphs (i)
and (ii) of this Section 10.4 (a) shall be paid by the Debenture
Issuer in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such
Company Indemnified Person to repay such amount if it shall ultimately
be determined that he is not entitled to be indemnified by the
Debenture Issuer as authorized in this Section 10.4 (a).
Notwithstanding the foregoing, no advance shall be made by the
Debenture Issuer if a determination is reasonably and promptly made
(i) by the Regular Trustees by a majority vote of a Quorum of
disinterested Regular Trustees, (ii) if such a Quorum is not
obtainable, or, even if
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obtainable, if a Quorum of disinterested Regular Trustees so directs,
by independent legal counsel in a written opinion or (iii) the Common
Security Holder of the Trust, that, based upon the facts known to the
Regular Trustees, counsel or the Common Security Holder at the time
such determination is made, such Company Indemnified Person acted in
bad faith or in a manner that such Person did not believe to be in or
not opposed to the best interests of the Trust, or, with respect to
any criminal proceeding, that such Company Indemnified Person believed
or had reasonable cause to believe his conduct was unlawful. In no
event shall any advance be made in instances where the Regular
Trustees, independent legal counsel or the Common Security Holder
reasonably determine that such Person deliberately breached his duty
to the Trust or its Common or Capital Security Holders.
(vi) The indemnification and advancement of expenses provided
by, or granted pursuant to, the other paragraphs of this Section 10.4
(a) shall not be deemed exclusive of any other rights to which those
seeking indemnification and advancement of expenses may be entitled
under any agreement, vote of stockholders or disinterested directors
of the Sponsor or Capital Security Holders of the Trust or otherwise,
both as to action in his official capacity and as to action in another
capacity while holding such office. All rights to indemnification
under this Section 10.4(a) shall be deemed to be provided by a
contract between the Debenture Issuer and each Company Indemnified
Person who serves in such capacity at any time while this Section 10.4
(a) is in effect. Any repeal or modification of this Section 10.4(a)
shall not affect any rights or obligations then existing.
(vii) The Debenture Issuer or the Trust may purchase and
maintain insurance on behalf of any Person who is or was a Company
Indemnified Person against any liability asserted against him and
incurred by him in any such capacity, or arising out of his status as
such, whether or not the Sponsor would have the power to indemnify him
against such liability under the provisions of this Section 10.4 (a).
(viii) For purposes of this Section 10.4 (a), references to "the
Trust" shall include, in addition to the resulting or surviving
entity, any constituent entity (including any constituent of a
constituent) absorbed in a consolidation or merger, so that any Person
who is or was a director, trustee, officer or employee of such
constituent entity, or is or was serving at the request of such
constituent entity as a director, trustee, officer, employee or agent
of another entity, shall stand in the same position under the
provisions of this Section 10.4 (a) with respect to the resulting or
surviving entity as he would have with respect to such constituent
entity if its separate existence had continued.
(ix) The indemnification and advancement of expenses provided
by, or granted pursuant to, this Section 10.4(a) shall, unless
otherwise provided when
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authorized or ratified, continue as to a Person who has ceased to be a
Company Indemnified Person and shall inure to the benefit of the
heirs, executors and administrators of such a Person.
(b) To the fullest extent permitted by law, the Sponsor agrees to
indemnify the (i) Institutional Trustee, (ii) the Delaware Trustee, (iii) any
Affiliate of the Institutional Trustee and the Delaware Trustee, and (iv) any
officers, directors, shareholders, members, partners, employees,
representatives, custodians, nominees or agents of the Institutional Trustee and
the Delaware Trustee (each of the Persons in (i) through (iv) being referred to
as a "Fiduciary Indemnified Person") for, and to hold each Fiduciary Indemnified
Person harmless against, any and all loss, liability, damage, claim or expense
including taxes (other than taxes based on the income of such Fiduciary
Indemnified Person) incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against or investigating
any claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder. The obligation to indemnify as set forth in this
Section 10.4(b) shall survive the dissolution of the Trust and termination of
this Declaration and the removal or resignation of any Institutional Trustee or
Delaware Trustee, as the case may be.
SECTION 10.5 Outside Businesses. Any Covered Person, the Sponsor, the
Delaware Trustee and the Institutional Trustee (subject to Section 5.3) may
engage in or possess an interest in other business ventures of any nature or
description, independently or with others, similar or dissimilar to the business
of the Trust, and the Trust and the Holders of Securities shall have no rights
by virtue of this Declaration in and to such independent ventures or the income
or profits derived therefrom, and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed wrongful or
improper. No Covered Person, the Sponsor, the Delaware Trustee, or the
Institutional Trustee shall be obligated to present any particular investment or
other opportunity to the Trust even if such opportunity is of a character that,
if presented to the Trust, could be taken by the Trust, and any Covered Person,
the Sponsor, the Delaware Trustee and the Institutional Trustee shall have the
right to take for its own account (individually or as a partner or fiduciary) or
to recommend to others any such particular investment or other opportunity. Any
Covered Person, the Delaware Trustee and the Institutional Trustee may engage or
be interested in any financial or other transaction with the Sponsor or any
Affiliate of the Sponsor, or may act as depositary for, trustee or agent for, or
act on any committee or body of holders of, securities or other obligations of
the Sponsor or its Affiliates.
SECTION 10.6 Compensation; Fees. The Sponsor agrees:
(a) to pay to the Trustees from time to time reasonable compensation
for all services rendered by them hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust); and
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(b) except as otherwise expressly provided herein, to reimburse the
Trustees upon request for all reasonable expenses, disbursements and advances
incurred or made by the Trustees in accordance with any provision of this
Declaration (including the reasonable compensation and the expenses and
disbursements of their respective agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad faith.
The provisions of this Section 10.6 shall survive the dissolution of
the Trust and the termination of this Declaration and the removal or resignation
of any Trustee.
No Trustee may claim any lien or charge on any property of the Trust
as a result of any amount due pursuant to this Section 10.6.
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year. The fiscal year ("Fiscal Year") of the Trust
shall be the calendar year, or such other year as is required by the Code.
SECTION 11.2 Certain Accounting Matters. (a) At all times during the
existence of the Trust, the Regular Trustees shall keep, or cause to be kept,
full books of account, records and supporting documents, which shall reflect in
reasonable detail each transaction of the Trust. The books of account shall be
maintained on the accrual method of accounting, in accordance with generally
accepted accounting principles, consistently applied. The books of account and
the records of the Trust shall be examined by and reported upon as of the end of
each Fiscal Year of the Trust by a firm of independent certified public
accountants selected by the Regular Trustees.
(b) The Regular Trustees shall cause to be prepared and shall make
available for the Holders of the Securities upon request from the Trust, within
90 days after the end of each Fiscal Year of the Trust, annual financial
statements of the Trust, including a balance sheet of the Trust as of the end of
such Fiscal Year, and the related statements of income or loss.
(c) The Paying Agent shall cause to be duly prepared and delivered to
each of the Holders of Securities any annual United States federal income tax
information statement required by the Code, containing such information with
regard to the Securities held by each Holder as is required by the Code and the
Treasury Regulations. The Paying Agent shall endeavor to deliver all such
statements within the time required by the Code.
(d) The Sponsor shall cause to be duly prepared and filed an annual
United States federal income tax return on a Form 1041 or such other form
required by United States federal income tax law, and any other annual income
tax returns required to be filed by the Sponsor on behalf of the Trust with any
state or local taxing authority.
SECTION 11.3 Banking. The Trust shall maintain one or more bank
accounts in the name and for the sole benefit of the Trust; provided, however,
that all payments of funds in
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respect of the Debentures held by the Institutional Trustee shall be made
directly to the Property Account and no other funds of the Trust shall be
deposited in the Property Account. The sole signatories for such accounts shall
be designated by the Regular Trustees; provided, however, that the Institutional
Trustee shall designate the signatories for the Property Account.
SECTION 11.4 Withholding. The Trust and the Paying Agent shall comply
with all withholding requirements under United States federal, state and local
law. The Trust shall request, and the Holders shall provide to the Trust, such
forms or certificates as are necessary to establish an exemption from
withholding with respect to each Holder, and any representations and forms as
shall reasonably be requested by the Trust to assist it in determining the
extent of, and in fulfilling, its withholding obligations. The Paying Agent
shall file required forms with applicable jurisdictions and, unless an exemption
from withholding is properly established by a Holder, shall remit amounts
withheld with respect to the Holder to applicable jurisdictions. To the extent
that the Trust is required to withhold and pay over any amounts to any authority
with respect to distributions or allocations to any Holder, the amount withheld
shall be deemed to be a Distribution in the amount of the withholding to the
Holder. In the event of any claimed overwithholding, Holders shall be limited to
an action against the applicable jurisdiction. If the amount required to be
withheld was not withheld from actual Distributions made, the Trust may reduce
subsequent Distributions by the amount of such withholding.
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments. (a) Except as otherwise provided in this
Declaration or by any applicable terms of the Securities, this Declaration may
only be amended by a written instrument approved and executed by
(i) the Regular Trustees (or, if there are more than two
Regular Trustees, a majority of the Regular Trustees);
(ii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Institutional Trustee, the
Institutional Trustee; and
(iii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee, the Delaware
Trustee.
(b) Notwithstanding any other provision of this Article XII, no
amendment shall be made, and any such purported amendment shall be void and
ineffective:
(i) unless the Institutional Trustee shall have first
received;
(A) an Officers' Certificate from each of the Trust and the
Sponsor that such amendment is permitted by, and conforms to, the
terms of this Declaration (including the terms of the
Securities); and
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(B) an opinion of counsel (who may be counsel to the Sponsor
or the Trust) that such amendment is permitted by, and conforms
to, the terms of this Declaration (including the terms of the
Securities); and
(ii) if the result of such amendment would be to
(A) cause the trust to fail to continue to be classified for
purposes of United States federal income taxation as a grantor
trust;
(B) reduce or otherwise adversely affect the powers of the
Institutional Trustee in contravention of the Trust Indenture
Act; or
(C) cause the Trust to be deemed to be an Investment Company
required to be registered under the Investment Company Act.
(c) At such time after the Trust has issued any Securities that remain
outstanding, any amendment that would adversely affect the powers, preferences
or special rights of any Holder of Securities may be effected only with such
additional requirements as may be set forth in Annex I hereto.
(d) Section 9.1(b) and this Section 12.1 shall not be amended without
the consent of all of the Holders of the Securities.
(e) Article IV shall not be amended without the consent of the Holders
of a Majority in liquidation amount of the Common Securities.
(f) the rights of the holders of the Common Securities under Article V
to increase or decrease the number of, and appoint and remove, Trustees shall
not be amended without the consent of the Holders of a Majority in liquidation
amount of the Common Securities.
(g) Subject to this Section 12.1(c), this Declaration may be amended
without the consent of the Holders of the Securities to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this Declaration
that may be defective or inconsistent with any other provision of this
Declaration;
(iii) add to the covenants, restrictions or obligations of the
Sponsor;
(iv) to conform to any change in Rule 3a-5 or written change in
interpretation or application of Rule 3a-5 by any legislative body,
court, government agency or regulatory authority which amendment does
not have a material adverse effect on the right, preferences or
privileges of the Holders of Securities; and
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(v) to modify, eliminate and add to any provision of this
Declaration to such extent as may be necessary; provided, however,
that no such modification, elimination or addition shall adversely
affect the powers, preferences or special rights of Holders of
Securities.
SECTION 12.2 Meetings of the Holders of Securities; Action by Written
Consent. (a) Meetings of the Holders of any class of Securities may be called at
any time by the Regular Trustees (or as provided in the terms of the Securities)
to consider and act on any matter on which Holders of such class of Securities
are entitled to act under the terms of this Declaration, the terms of the
Securities or the rules of any stock exchange on which the Capital Securities
are listed or admitted for trading, if any. The Regular Trustees shall call a
meeting of the Holders of such class if directed to do so by the Holders of at
least 10% in liquidation amount of such class of Securities. Such direction
shall be given by delivering to the Regular Trustees one or more calls in a
writing stating that the signing Holders of Securities wish to call a meeting
and indicating the general or specific purpose for which the meeting is to be
called. Any Holders of Securities calling a meeting shall specify in writing the
Certificates held by the Holders of Securities exercising the right to call a
meeting and only those Securities represented by such Certificates shall be
counted for purposes of determining whether the required percentage set forth in
the second sentence of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of the
Securities, the following provisions shall apply to meetings of Holders of
Securities:
(i) notice of any such meeting shall be given to all the
Holders of Securities having a right to vote thereat at least 7 days
and not more than 60 days before the date of such meeting. Whenever a
vote, consent or approval of the Holders of Securities is permitted or
required under this Declaration or the rules of any stock exchange on
which the Capital Securities are listed or admitted for trading, if
any, such vote, consent or approval may be given at a meeting of the
Holders of Securities. Any action that may be taken at a meeting of
the Holders of Securities may be taken without a meeting if a consent
in writing setting forth the action so taken is signed by the Holders
of Securities owning not less than the minimum amount of Securities in
liquidation amount that would be necessary to authorize or take such
action at a meeting at which all Holders of Securities having a right
to vote thereon were present and voting. Prompt notice of the taking
of action without a meeting shall be given to the Holders of
Securities entitled to vote who have not consented in writing. The
Regular Trustees may specify that any written ballot submitted to the
Security Holder for the purpose of taking any action without a meeting
shall be returned to the Trust within the time specified by the
Regular Trustees;
(ii) each Holder of a Security may authorize any Person to act
for it by proxy on all matters in which a Holder of Securities is
entitled to participate, including waiving notice of any meeting, or
voting or participating at a meeting. No proxy shall be valid after
the expiration of 11 months from the date thereof
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unless otherwise provided in the proxy. Every proxy shall be revocable
at the pleasure of the Holder of Securities executing it. Except as
otherwise provided herein, all matters relating to the giving, voting
or validity of proxies shall be governed by the General Corporation
Law of the State of Delaware relating to proxies, and judicial
interpretations thereunder, as if the Trust were a Delaware
corporation and the Holders of the Securities were stockholders of a
Delaware corporation; each meeting of the Holders of the Securities
shall be conducted by the Regular Trustees or by such other Person
that the Regular Trustees may designate; and
(iii) unless the Business Trust Act, this Declaration, the terms
of the Securities, the Trust Indenture Act or the listing rules of any
stock exchange on which the Capital Securities are then listed or
trading otherwise provides, the Regular Trustees, in their sole
discretion, shall establish all other provisions relating to meetings
of Holders of Securities, including notice of the time, place or
purpose of any meeting at which any matter is to be voted on by any
Holders of Securities, waiver of any such notice, action by consent
without a meeting, the establishment of a record date, Quorum
requirements, voting in person or by proxy or any other matter with
respect to the exercise of any such right to vote.
ARTICLE XIII
REPRESENTATIONS OF INSTITUTIONAL TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Institutional Trustee.
The Trustee that acts as initial Institutional Trustee represents and warrants
to the Trust and to the Sponsor at the date of this Declaration, and each
Successor Institutional Trustee represents and warrants to the Trust and the
Sponsor at the time of the Successor Institutional Trustee's acceptance of its
appointment as Institutional Trustee, that:
(a) the Institutional Trustee is a banking corporation with trust
powers and authority under the laws of its jurisdiction of incorporation to
execute and deliver, and to carry out and perform its obligations under the
terms of, this Declaration;
(b) the execution, delivery and performance by the Institutional
Trustee of the Declaration has been duly authorized by all necessary corporate
action on the part of the Institutional Trustee. This Declaration has been duly
executed and delivered by the Institutional Trustee, and it constitutes a legal,
valid and binding obligation of the Institutional Trustee, enforceable against
it in accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other similar laws affecting
creditors' rights generally and to general principles of equity (regardless of
whether considered in a proceeding in equity or at law);
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(c) the execution, delivery and performance of this Declaration by the
Institutional Trustee does not conflict with or constitute a breach of the
charter or by-laws of the Institutional Trustee; and
(d) no consent, approval or authorization of, or registration with or
notice to, any New York State or federal banking authority is required for the
execution, delivery or performance by the Institutional Trustee of this
Declaration.
SECTION 13.2 Representations and Warranties of Delaware Trustee. The
Trustee that acts as initial Delaware Trustee represents and warrants to the
Trust and to the Sponsor at the date of this Declaration, and each Successor
Delaware Trustee represents and warrants to the Trust and the Sponsor at the
time of the Successor Delaware Trustee's acceptance of its appointment as
Delaware Trustee, that:
(a) The Delaware Trustee is duly organized, validly existing and in
good standing under the laws of the State of Delaware, with trust power and
authority to execute and deliver, and to carry out and perform its obligations
under the terms of, this Declaration.
(b) The Delaware Trustee has been authorized to perform its
obligations under the Certificate of Trust and this Declaration. This
Declaration under Delaware law constitutes a legal, valid and binding obligation
of the Delaware Trustee, enforceable against it in accordance with its terms,
subject to applicable bankruptcy, reorganization, moratorium, insolvency, and
other similar laws affecting creditors' rights generally and to general
principles of equity (regardless of whether considered in a proceeding in equity
or at law).
(c) No consent, approval or authorization of, or registration with or
notice to, any federal or Delaware banking authority is required for the
execution, delivery or performance by the Delaware Trustee of this Declaration.
(d) The Delaware Trustee is a natural person who is a resident of the
State of Delaware or, if not a natural person, an entity which has its principal
place of business in the State of Delaware and, in either case, a Person that
satisfies for the Trust the requirements of Section 3807 of the Business Trust
Act.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices. All notices provided for in this Declaration
shall be in writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by first class mail, as follows:
(a) if given to the Trust, in care of the Regular Trustees at the
Trust's mailing address set forth below (or such other address as the Trust may
give notice of to the Holders of the Securities and the Institutional Trustee):
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M&I Capital Trust A
c/o Marshall & Ilsley Corporation
770 North Water Street
Milwaukee, Wisconsin 53202
Attention: Secretary
Telecopy: (414)765-7899
(b) if given to the Delaware Trustee, at the mailing address set forth
below (or such other address as Delaware Trustee may give notice of to the
Holders of the Securities):
Chase Manhattan Bank Delaware
1201 Market Street
Wilmington, Delaware 19801
Attention: Corporate Trustee Administration Department
(c) if given to the Institutional Trustee, at the Institutional
Trustee's mailing address set forth below (or such other address as the
Institutional Trustee may give notice of to the Holders of the Securities):
The Chase Manhattan Bank
450 West 33rd Street
New York, New York 10001
Attention: Corporate Trustee Administration Department
Telecopy: 946-8158/8159/8160
(d) if given to the Holder of the Common Securities, at the mailing
address of the Sponsor set forth below (or such other address as the Holder of
the Common Securities may give notice of to the Trust and the Institutional
Trustee):
Marshall & Ilsley Corporation
770 North Water Street
Milwaukee, Wisconsin 53202
Attention: Secretary
Telecopy: (414)765-7899
(e) if given to any other Holder, at the address set forth on the
books and records of the Trust.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 14.2 Governing Law. This Declaration and the rights of the
parties hereunder shall be governed by and interpreted in accordance with the
laws of the State of
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Delaware and all rights and remedies shall be governed by such laws without
regard to the principles of conflict of laws of the State of Delaware or any
other jurisdiction that would call for the application of the law of any
jurisdiction other than the State of Delaware; provided, however, that there
shall not be applicable to the Trust, the Trustees or this Declaration any
provision of the laws (statutory or common) of the State of Delaware pertaining
to trusts that relate to or regulate, in a manner inconsistent with the terms
hereof (a) the filing with any court or governmental body or agency of trustee
accounts or schedules of trustee fees and charges, (b) affirmative requirements
to post bonds for trustees, officers, agents or employees of a trust, (c) the
necessity for obtaining court or other governmental approval concerning the
acquisition, holding or disposition of real or personal property, (d) fees or
other sums payable to trustees, officers, agents or employees of a trust, (e)
the allocation of receipts and expenditures to income or principal, (f)
restrictions or limitations on the permissible nature, amount or concentration
of trust investments or requirements relating to the titling, storage or other
manner of holding or investing trust assets or (g) the establishment of
fiduciary or other standards of responsibility or limitations on the acts or
powers of trustees that are inconsistent with the limitations or liabilities or
authorities and powers of the Trustees as set forth or referenced in this
Declaration, provided that the immunities and standard of care of the
Institutional Trustee in connection with the administration of its trust
hereunder shall be governed by the laws of its jurisdiction of incorporation.
Section 3540 of Title 12 of the Delaware Code shall not apply to the Trust.
SECTION 14.3 Intention of the Parties. It is the intention of the
parties hereto that the Trust be classified for United States federal income tax
purposes as a grantor trust. The provisions of this Declaration shall be
interpreted to further this intention of the parties.
SECTION 14.4 Headings. Headings contained in this Declaration are
inserted for convenience of reference only and do not affect the interpretation
of this Declaration or any provision hereof.
SECTION 14.5 Successors and Assigns. Whenever in this Declaration any
of the parties hereto is named or referred to, the successors and assigns of
such party shall be deemed to be included, and all covenants and agreements in
this Declaration by the Sponsor and the Trustees shall bind and inure to the
benefit of their respective successors and assigns, whether or not so expressed.
SECTION 14.6 Partial Enforceability. If any provision of this
Declaration, or the application of such provision to any Person or circumstance,
shall be held invalid, the remainder of this Declaration, or the application of
such provision to persons or circumstances other than those to which it is held
invalid, shall not be affected thereby.
SECTION 14.7 Counterparts. This Declaration may contain more than one
counterpart of the signature page and this Declaration may be executed by the
affixing of the signature of each of the Trustees to any of such counterpart
signature pages. All of such counterpart signature pages shall be read as though
one, and they shall have the same force and effect as though all of the signers
had signed a single signature page.
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IN WITNESS WHEREOF, the undersigned have caused these presents to be
executed as of the day and year first above written.
/s/ M.A. Hatfield, as Regular Trustee
------------------------------------------
M.A. Hatfield, as Regular Trustee
/s/ G.H. Gunnlaugsson, as Regular Trustee
------------------------------------------
G.H. Gunnlaugsson, as Regular Trustee
/s/ J.B. Wigdale, as Regular Trustee
------------------------------------------
J.B. Wigdale, as Regular Trustee
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee
By: /s/ John J. Cashin
---------------------------------------
Name: John J. Cashin
Title: Senior Trust Officer
THE CHASE MANHATTAN BANK,
as Institutional Trustee
By: /s/ Gregory P. Shea
---------------------------------------
Name: Gregory P. Shea
Title: Senior Trust Officer
MARSHALL & ILSLEY CORPORATION,
as Sponsor
By: /s/ G.H. Gunnlaugsson
--------------------------------------
Name: G.H. Gunnlaugsson
Title: Executive Vice President
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ANNEX I
TERMS OF
7.65% CAPITAL TRUST PASS-THROUGH SECURITIES/SM/(TRUPS/SM/)*
Pursuant to Section 7.1 of the Amended and Restated Declaration of
Trust, dated as of December 9, 1996 (as amended from time to time, the
"Declaration"), the designation, rights, privileges, restrictions, preferences
and other terms and provisions of the Capital Securities and the Common
Securities are set out below (each capitalized term used but not defined herein
has the meaning set forth in the Declaration or, if not defined in the
Declaration, as defined in the Offering Memorandum referred to below):
1. Designation and Number. (a) Capital Securities. 200,000
Capital Securities of M&I Capital Trust A (the "Trust"), with an aggregate
stated liquidation amount with respect to the assets of the Trust of two hundred
million dollars ($200,000,000) and a stated liquidation amount with respect to
the assets of the Trust of $1,000 per Capital Security, are hereby designated
for the purposes of identification only as "7.65% Capital Trust Pass-through
Securities"/SM /(the "Capital Securities"). The Capital Security Certificates
evidencing the Capital Securities shall be substantially in the forms of
Exhibits A-1 and A-2 to the Declaration, with such changes and additions thereto
or deletions therefrom as may be required by ordinary usage, custom or practice
or to conform to the rules of any stock exchange on which the Capital Securities
are listed, if any.
(b) Common Securities. 6,186 Common Securities of the Trust (the
"Common Securities"). The Common Security Certificates evidencing the Common
Securities shall be substantially in the form of Exhibit A-3 to the Declaration,
with such changes and additions thereto or deletions therefrom as may be
required by ordinary usage, custom or practice.
2. Distributions. (a) Distributions payable on each Security will
be fixed at a rate per annum of 7.65% (the "Coupon Rate") of the stated
liquidation amount of $1,000 per Security, such rate being the rate of interest
payable on the Debentures to be held by the Institutional Trustee. Except as set
forth below in respect of an Extension Period, Distributions in arrears for more
than one semiannual period will bear interest thereon compounded semiannually at
the Coupon Rate (to the extent permitted by applicable law). The term
"Distributions" as used herein includes cash distributions and any such
compounded distributions payable unless otherwise stated. A Distribution is
payable only to the extent that payments are made in respect of the Debentures
held by the Institutional Trustee and to the extent the Institutional Trustee
has funds available therefor. The amount of Distributions payable for any period
will be computed for any full semiannual period on the basis of a 360-day year
of twelve 30-day months and the actual number of days elapsed per 30-day month.
- -----------------------------------
* Salomon Brothers Inc. has filed applications with the United States Patent
and Trademark Office for the registration of the "Capital Trust Pass-
through Securities" and the TruPS" service marks.
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(b) Distributions on the Securities will be cumulative, will accrue
from December 9, 1996, and will be payable, subject to extension of distribution
payment periods as described herein, semiannually in arrears on June 1, and
December 1 of each year, commencing on June 1, 1997 (each a "Distribution
Payment Date") when, as and if available for payment. The Debenture Issuer has
the right under the Indenture to defer payments of interest on the Debentures by
extending the interest payment period (each an "Extension Period") at any time
and from time to time on the Debentures, subject to the conditions described
below, although such interest would continue to accrue on the Debentures at a
rate of 7.65% per annum, compounded semiannually to the extent permitted by law
during any Extension Period. If such right is exercised, semiannual
distributions on the Securities will also be deferred (though such distributions
would continue to accrue at the distribution rate of 7.65% per annum, compounded
semiannually to the extent permitted by law) during any Extension Period. Such
right to extend any interest payment period in respect of the Debentures is
limited to Extension Periods, each not exceeding 10 consecutive semiannual
periods, provided, however, that no Extension Period shall be initiated while
accrued interest from a prior, completed Extension Period is unpaid or while the
Debenture Issuer is in default in the payment of interest that has become due
and payable on the Debentures; and, provided, further, that no Extension Period
shall extend beyond the date of maturity of the Debentures. In the event that
the Debenture Issuer exercises this right, then during any Extension Period (a)
the Debenture Issuer shall not declare or pay dividends on, make a distribution
with respect to, or redeem, purchase or acquire, or make a liquidation payment
with respect to, any of its capital stock or rights to acquire such capital
stock (other than (i) purchases or acquisitions of shares of any such capital
stock or rights to acquire such capital stock in connection with the
satisfaction by the Debenture Issuer of its obligations under any employee
benefit plans, (ii) as a result of a reclassification of the Debenture Issuer's
capital stock or rights to acquire such capital stock or the exchange or
conversion of one class or series of the Debenture Issuer's capital stock or
rights to acquire such capital stock for another class or series of the
Debenture Issuer's capital stock or rights to acquire such capital stock, (iii)
the purchase of fractional interests in shares of the Debenture Issuer's capital
stock pursuant to the conversion or exchange provisions of such capital stock or
the security being converted or exchanged or (iv) dividends and distributions
made on the Debenture Issuer's capital stock or rights to acquire such capital
stock with the Debenture Issuer's capital stock or rights to acquire such
capital stock), or make guarantee payments with respect to the foregoing, and
(b) the Debenture Issuer shall not make any payment of interest, principal or
premium, if any, on or repay, repurchase or redeem any debt securities issued by
the Debenture Issuer that rank pari passu with or junior to such Debentures.
Prior to the termination of any such Extension Period in respect of the
Debentures, the Debenture Issuer may further extend the interest payment period;
provided that each such Extension Period in respect of the Debentures, together
with all such previous and further extensions thereof, may not exceed 10
consecutive semiannual periods or extend beyond the maturity of the Debentures.
Upon the termination of any Extension Period of the Debentures and the payment
of all amounts then due, the Debenture Issuer may commence a new Extension
Period, subject to the above requirements. If Distributions are deferred, the
Distributions due shall be paid on the date that the related Extension Period
terminates, or, if such date is not a Distribution Payment Date, on the
immediately following Distribution Payment Date, to Holders of the Securities as
they appear on the books and records of the Trust on the record date immediately
preceding such date. Distributions on the Securities must be paid on the dates
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payable (after giving effect to any Extension Period) to the extent that the
Trust has funds available for the payment of such distributions in the Property
Account of the Trust. The Trust's funds available for Distribution to the
Holders of the Securities will be limited to payments received from the
Debenture Issuer in respect of the Debentures. The payment of Distributions out
of moneys held by the Trust is guaranteed by the Sponsor pursuant to the
Securities Guarantees.
(c) Distributions on the Securities will be payable to the Holders
thereof as they appear on the books and records of the Trust on the relevant
record dates. Such Distributions will be paid through the Institutional Trustee
who will hold amounts received in respect of the Debentures in the Property
Account for the benefit of the Holders of the Securities. While the Capital
Securities are held solely in book-entry only form, the relevant record dates
shall be one Business Day prior to the relevant payment dates which payment
dates correspond to the interest payment dates on the Debentures. Subject to any
applicable laws and regulations and the provisions of the Declaration, each such
payment in respect of the Capital Securities held in book-entry form will be
made as described under the heading "Description of the Capital Securities --
Book-Entry Only Issuance -- The Depository Trust Company" in the Offering
Memorandum dated December 2, 1996 of the Trust (as supplemented, the "Offering
Memorandum"). The relevant record dates for the Common Securities shall be the
same record dates as for the Capital Securities. At any time when the Capital
Securities are not held solely in book-entry only form, the relevant record
dates shall be selected by the Regular Trustees, which dates shall be 15 days
before the relevant payment dates. Payments in respect of Capital Securities
held in registered definitive form will be made by check to the Holder entitled
thereto. Distributions payable on any Securities that are not punctually paid on
any Distribution Payment Date, as a result of the Debenture Issuer having failed
to make a payment under the Debentures when due (taking into account any
Extension Period), will cease to be payable to the Person in whose name such
Securities are registered on the relevant record date, and such defaulted
Distribution will instead be payable to the Person in whose name such Securities
are registered on the special record date or other specified date determined in
accordance with the Indenture. If any date on which Distributions are payable on
the Securities is not a Business Day, then payment of the Distribution payable
on such date will be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such delay) except that,
if such Business Day is in the next succeeding calendar year, such payment shall
be made on the immediately preceding Business Day, in each case with the same
force and effect as if made on such date.
(d) In the event that there is any money or other property held by or
for the Trust that is not accounted for hereunder, such property shall be
distributed Pro Rata (as defined herein) among the Holders of the Securities.
3. Liquidation Distribution Upon Dissolution. In the event of any
voluntary or involuntary dissolution of the Trust (each a "Liquidation"), the
Holders of the Securities on the date of the dissolution will be entitled to
receive out of the assets of the Trust available for distribution to Holders of
Securities, after paying or making reasonable provision to pay all claims and
obligations of the Trust in accordance with Section 3808(e) of the Business
Trust Act,
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<PAGE>
an amount equal to the aggregate of the stated liquidation amount of $1,000 per
Security plus accrued and unpaid Distributions thereon to the date of payment
(such amount being the "Liquidation Distribution"), unless in connection with
such Liquidation, Debentures in an aggregate stated principal amount equal to
the aggregate stated liquidation amount of, with identical premium if any, to,
such Securities, with an interest rate equal to the rate of, and bearing accrued
and unpaid interest in an amount equal to the accrued and unpaid Distributions
on, and having the same record date as, such Securities, after the payment or
the making of reasonable provision to pay all claims and obligations of the
Trust in accordance with Section 3808(e) of the Business Trust Act, shall be
distributed on a Pro Rata basis to the Holders of the Securities in exchange for
such Securities.
The Sponsor, as the Holder of all of the outstanding Common
Securities, has the right at any time to dissolve the Trust (including, without
limitation, upon the occurrence of a Tax Event), subject to the receipt by the
Debenture Issuer of prior approval by the Federal Reserve if then required under
applicable guidelines or policies of the Federal Reserve, and, after paying or
making reasonable provision to pay all claims and obligations of the Trust in
accordance with Section 3808(e) of the Business Trust Act, cause the Debentures
to be distributed to the Holders of the Securities on a Pro Rata basis.
The Trust shall dissolve (i) unless earlier terminated, on December
31, 2051, the expiration of the term of the Trust, (ii) upon a Bankruptcy Event
with respect to the Sponsor, Trust or the Debenture Issuer, (iii) (other than in
connection with a merger, consolidation or similar transaction not prohibited by
the Indenture, the Declaration or the Securities Guarantees, as the case may be)
upon the filing of a certificate of dissolution or its equivalent with respect
to the Sponsor; upon the consent of the Holders of a Majority in liquidation
amount of the Securities voting together as a single class to file a certificate
of cancellation with respect to the Trust, or upon the revocation of the charter
of the Sponsor and the expiration of 90 days after the date of revocation
without a reinstatement thereof, (iv) upon exercise of the right of the Holder
of all of the outstanding Common Securities to dissolve the Trust as described
above, (v) upon the entry of a decree of a judicial dissolution of the Sponsor,
the Trust or the Debenture Issuer, (vi) when all of the Securities shall have
been called for redemption and the amounts necessary for redemption thereof
shall have been paid to the Holders in accordance with the terms of the
Securities, or (vii) before the issuance of any Securities, with the consent of
all of the Regular Trustees and the Sponsor. As soon as practicable after the
dissolution of the Trust and upon completion of the winding up of the Trust, the
Trust shall terminate upon the filing of a certificate of cancellation with the
Secretary of State of the State of Delaware.
If a Liquidation of the Trust occurs as described in clause (i), (ii),
(iii) or (v) in the immediately preceding paragraph, the Trust shall be
liquidated by the Trustees of the Trust as expeditiously as such Trustees
determine to be possible by distributing, after paying or making reasonable
provision to pay all claims and obligations of the Trust in accordance with
Section 3808(e) of the Business Trust Act, to the Holders of the Securities, the
Debentures on a Pro Rata basis, unless such distribution is determined by the
Institutional Trustee not to be practical, in which event such Holders will be
entitled to receive out of the assets of the Trust available for distribution to
the Holders, after paying or making reasonable provision to pay all
I-4
<PAGE>
claims and obligations of the Trust in accordance with Section 3808(e) of the
Business Trust Act, an amount equal to the Liquidation Distribution. An early
Liquidation of the Trust pursuant to clause (iv) above shall occur if the
Regular Trustees of the Trust determine that such Liquidation is possible by
distributing, after paying or making reasonable provision to pay all claims and
obligations of the Trust in accordance with Section 3808(e) of the Business
Trust Act, to the Holders of the Securities on a Pro Rata basis, the Debentures,
and such distribution occurs.
If, upon any such Liquidation the Liquidation Distribution can be paid
only in part because the Trust has insufficient assets available to pay in full
the aggregate Liquidation Distribution, then the amounts payable directly by the
Trust on the Securities shall be paid on a Pro Rata basis, except that if an
Event of Default has occurred and is continuing, the Capital Securities shall
have a preference over the Common Securities with regard to such amounts.
Upon any such Liquidation of the Trust involving a distribution of the
Debentures, if at the time of such Liquidation, the Capital Securities were
rated by at least one nationally-recognized statistical rating organization, the
Debenture Issuer will use its reasonable best efforts to obtain from at least
one such or other rating organization a rating for the Debentures.
After the date for any distribution of the Debentures upon dissolution
of the Trust, (i) the Securities of the Trust will be deemed to be no longer
outstanding, (ii) the Depositary or its nominee, as the record holder of the
Capital Securities, will receive a registered security in global form or
certificates representing the Debentures to be delivered upon such distribution,
and (iii) any certificates representing the Capital Securities not held by the
Depositary or its nominee will be deemed to represent undivided beneficial
interests in such of the Debentures as have an aggregate principal amount equal
to the aggregate stated liquidation amount of, with an interest rate identical
to the distribution rate of, and bearing accrued and unpaid interest equal to
accrued and unpaid distributions on, the Securities until such certificates are
presented to the Debenture Issuer or its agent for transfer or reissuance.
4. Redemption and Distribution. (a) If the Debenture Issuer redeems
the Debentures, the Trust shall redeem, on a Pro Rata basis, its Securities at a
redemption price (the "Redemption Price") equal to (i) $1,000 per Security in
the case of redemptions of the Debentures in certain circumstances described
below upon the occurrence of a Tax Event or (ii) other than in certain
circumstances upon the occurrence of a Tax Event an amount per Security equal to
the product of $1,000 and the percentage used to determine the call price for
the Debentures being redeemed as specified below:
<TABLE>
<CAPTION>
If redeemed during the 12-month period beginning, December 1, call price
- ------------------------------------------------------------- ----------
<S> <C>
2006..................................................... 103.5820%
2007..................................................... 103.2238
2008..................................................... 102.8656
2009..................................................... 102.5074
2010..................................................... 102.1492
</TABLE>
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<PAGE>
If redeemed during the 12-month period beginning, December 1, call price
- ------------------------------------------------------------- ----------
<TABLE>
<CAPTION>
<S> <C>
2011.................................................... 101.7910
2012.................................................... 101.4328
2013.................................................... 101.0746
2014.................................................... 100.7164
2015.................................................... 100.3582
</TABLE>
and thereafter at 100% of the principal amount of the Debentures, together, in
each case, with accrued and unpaid Distributions thereon to the date fixed for
redemption provided, however, that Holders of the Securities shall be given not
less than 30 nor more than 60 days' notice of such redemption (other than at the
stated maturity of the Debentures). In each case, the right of the Debenture
Issuer to redeem the Debentures is subject to the receipt by the Debenture
Issuer of prior approval by the Federal Reserve if then required under
applicable capital guidelines or policies of the Federal Reserve.
(b) If fewer than all the outstanding Securities are to be so
redeemed, the Common Securities and the Capital Securities will be redeemed Pro
Rata and the Capital Securities to be redeemed will be as described in Section
4(e)(ii) below.
(c) If, at any time, a Tax Event (as defined below) shall occur and be
continuing and the Debenture Issuer receives an opinion (a "Redemption Tax
Opinion") of a nationally recognized independent tax counsel experienced in such
matters that, as a result of a Tax Event, there is more than an insubstantial
risk that the Debenture Issuer would be precluded from deducting the interest on
the Debentures for United States federal income tax purposes even if the
Debentures were distributed to the Holders of Securities in liquidation of such
Holders' interests in the Trust as described in this Section 4(c), the Debenture
Issuer shall have the right at any time, subject to receipt by the Debenture
Issuer of prior approval by the Federal Reserve if then required under
applicable capital guidelines or policies of the Federal Reserve, within 90 days
following the occurrence of such Tax Event, upon not less than 30 nor more than
60 days' notice, to redeem the Debentures in whole or in part for cash, so long
as such Tax Event is continuing, at the principal amount plus any accrued and
unpaid interest thereon to the dates of redemption (the "Tax Event Redemption"),
and, following such redemption, Securities with an aggregate liquidation amount
equal to the aggregate principal amount of the Debentures so redeemed shall be
redeemed by the Trust at the Redemption Price on a Pro Rata basis; provided,
however, that, if (i) at the time there is available to the Debenture Issuer or
the Trust the opportunity to eliminate, within such 90 day period, the adverse
effects of the Tax Event by taking some ministerial action, such as filing a
form or making an election or pursuing some other similar reasonable measure
that will have no adverse effect on the Trust (a "Ministerial Action"), the
Debenture Issuer or the Holders of the Securities and (ii) if such notice has
not been given, the Trust or the Debenture Issuer will pursue such Ministerial
Action in lieu of redemption.
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<PAGE>
"Tax Event" means that the Regular Trustees of the Trust shall have
received an opinion of a nationally recognized independent tax counsel to the
Debenture Issuer experienced in such matters (a "Dissolution Tax Opinion") to
the effect that, as a result of (a) any amendment to, clarification of or change
(including any announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision or taxing
authority thereof or therein, (b) any judicial decision, official administrative
pronouncement, ruling, regulatory procedure, notice or announcement, including
any notice or announcement of intent to adopt such procedures or regulations (an
"Administrative Action"), or (c) any amendment to, clarification of, or change
in the official position or the interpretation of any Administrative Action or
judicial decision that differs from the theretofore generally accepted position,
in each case, by any legislative body, court, governmental authority or
regulatory body, irrespective of the manner in which such amendment,
clarification or change is made known, which amendment, clarification, or change
is effective or such Administrative Action or decision is announced, in each
case, on or after the date of the Offering Memorandum, there is more than an
insubstantial risk that (i) the Trust is, or will be within 90 days of the date
thereof, subject to United States federal income tax with respect to interest
accrued or received on the Debentures or subject to more than a de minimus
amount of other taxes, duties or other governmental charges, (ii) any portion of
interest payable by the Debenture Issuer to the Trust on the Debentures is not,
or within 90 days of the date thereof will not be, deductible by the Debenture
Issuer for United States federal income tax purposes or (iii) the Debenture
Issuer could become liable to pay, on the next date on which any amount would be
payable with respect to the Debentures, any Additional Interest (as defined in
the Indenture).
(d) The Trust may not redeem fewer than all the outstanding Capital
Securities unless all accrued and unpaid Distributions have been paid on all
Capital Securities for all semiannual Distribution periods terminating on or
before the date of redemption.
(e) Redemption or Distribution Procedures.
(i) Notice of any redemption of, or notice of distribution of
Debentures in exchange for, the Securities (a "Redemption/Distribution
Notice") will be given by the Trust by mail to each Holder of Securities to
be redeemed or exchanged not fewer than 30 nor more than 60 days before the
date fixed for redemption or exchange thereof which, in the case of a
redemption, will be the date fixed for redemption of the Debentures. For
purposes of the calculation of the date of redemption or exchange and the
dates on which notices are given pursuant to this Section 4(e)(i), a
Redemption/Distribution Notice shall be deemed to be given on the day such
notice is first mailed by first-class mail, postage prepaid, to Holders of
such Securities. Each Redemption/Distribution Notice shall be addressed to
the Holders of such Securities at the address of each such Holder appearing
on the books and records of the Trust. No defect in the
Redemption/Distribution Notice or in the mailing thereof with respect to
any Holder shall affect the validity of the redemption or exchange
proceedings with respect to any other Holder.
(ii) In the event that fewer than all the outstanding
Securities are to be redeemed, the Securities to be redeemed shall be
redeemed Pro Rata from each Holder of
I-7
<PAGE>
Capital Securities; provided, however, that, in respect of Capital
Securities registered in the name of and held of record by the Depositary
or its nominee (or any successor Clearing Agency or its nominee), the
Capital Securities shall be redeemed in accordance with the procedures of
the Depositary (which may include redemption by lot), and the distribution
of the proceeds of such redemption will be made to each Clearing Agency
Participant (or Person on whose behalf such nominee holds such Securities)
in accordance with the procedures applied by such Clearing Agency or
nominee.
(iii) If Securities are to be redeemed and the Trust gives a
Redemption/ Distribution Notice, which notice may only be issued if the
Debentures are redeemed as set out in this Section 4 (which notice will be
irrevocable), then (A) with respect to the Capital Securities, while the
Capital Securities are in book-entry only form, provided that the Debenture
Issuer has paid the Institutional Trustee a sufficient amount of cash in
connection with the related redemption or maturity of the Debentures, the
Institutional Trustee will deposit irrevocably with the Depositary or its
nominee (or successor Clearing Agency or its nominee), by 12:00 noon, New
York City time, on the redemption date, funds sufficient to pay the
applicable Redemption Price with respect to the Capital Securities and will
give the Depositary irrevocable instructions and authority to pay the
Redemption Price to the Holders of the Capital Securities, and (B) with
respect to Capital Securities issued in definitive form and Common
Securities, provided that the Debenture Issuer has paid the Institutional
Trustee a sufficient amount of cash in connection with the related
redemption or maturity of the Debentures, the Institutional Trustee will
pay the relevant Redemption Price to the Holders of such Securities by
check mailed to the address of each such Holder appearing on the books and
records of the Trust on the redemption date. If a Redemption/Distribution
Notice shall have been given and funds deposited as required then
immediately prior to the close of business on the date of such deposit
Distributions will cease to accrue on the Securities so called for
redemption and all rights of Holders of such Securities so called for
redemption will cease, except the right of the Holders of such Securities
to receive the applicable Redemption Price specified in Section 4(a), but
without interest on such Redemption Price. If any date fixed for redemption
of Securities is not a Business Day, then payment of any such Redemption
Price payable on such date will be made on the next succeeding day that is
a Business Day (and without any interest or other payment in respect of any
such delay) except that, if such Business Day falls in the next calendar
year, such payment will be made on the immediately preceding Business Day,
in each case with the same force and effect as if made on such date fixed
for redemption. If payment of the Redemption Price in respect of any
Securities is improperly withheld or refused and not paid either by the
Trust or by the Sponsor as guarantor pursuant to the relevant Securities
Guarantee, Distributions on such Securities will continue to accrue at the
then applicable rate from the original redemption date to the actual date
of payment, in which case the actual payment date will be considered the
date fixed for redemption for purposes of calculating the Redemption Price.
In the event of any redemption of Capital Securities issued by the Trust in
part, the Trust shall not be required to (i) issue, register the transfer
of or exchange any Security during a period beginning at the opening of
business 15 days before any selection for redemption of Capital Securities
and ending at the close of
I-8
<PAGE>
business on the earliest date on which the relevant notice of redemption is
deemed to have been given to all Holders of Capital Securities to be so
redeemed or (ii) register the transfer of or exchange any Capital
Securities so selected for redemption, in whole or in part, except for the
unredeemed portion of any Capital Securities being redeemed in part.
(iv) Redemption/Distribution Notices shall be sent by the
Regular Trustees on behalf of the Trust to (A) in respect of the Capital
Securities, the Depositary or its nominee (or any successor Clearing Agency
or its nominee) if the Global Capital Securities have been issued or, if
Definitive Capital Securities have been issued, to the Holders thereof, and
(B) in respect of the Common Securities, to the Holder thereof.
(v) Subject to the foregoing and applicable law (including,
without limitation, United States federal securities laws), provided the
acquiror is not the Holder of the Common Securities or the obligor under
the Indenture, the Sponsor or any of its subsidiaries may at any time and
from time to time purchase outstanding Capital Securities by tender, in the
open market or by private agreement.
5. Voting Rights - Capital Securities. (a) Except as provided under
Sections 5(b) and 7 and as otherwise required by law and the Declaration, the
Holders of the Capital Securities will have no voting rights. The Regular
Trustees are required to call a meeting of the Holders of the Capital Securities
if directed to do so by Holders of at least 10% in liquidation amount of the
Capital Securities.
(b) Subject to the requirements of obtaining a tax opinion by the
Institutional Trustee in certain circumstances set forth in the last sentence of
this paragraph, the Holders of a Majority in liquidation amount of the Capital
Securities, voting separately as a class, may direct, subject to the last
paragraph of Section 2.6(a) of the Declaration, the time, method, and place of
conducting any proceeding for any remedy available to the Institutional Trustee,
or exercising any trust or power conferred upon the Institutional Trustee under
the Declaration, including the right to direct the Institutional Trustee, as
holder of the Debentures, to (i) exercise the remedies available under the
Indenture as the holder of the Debentures, (ii) waive any past default that is
waivable under the Indenture, or (iii) exercise any right to rescind or annul a
declaration that the principal of all the Debentures shall be due and payable or
(iv) consent on behalf of all the holders of the Capital Securities to any
amendment, modification or termination of the Indenture or the Debentures where
such consent shall be required, provided, however, that, where a consent or
action under the Indenture would require the consent or act of the holders of
greater than a majority in principal amount of Debentures (a "Super Majority")
affected thereby, the Institutional Trustee may only give such consent or take
such action at the written direction of the Holders of at least the proportion
in aggregate liquidation amount of the Capital Securities outstanding which the
relevant Super Majority represents of the aggregate principal amount of the
Debentures outstanding. If the Institutional Trustee fails to enforce its rights
under the Debentures after the Holders of a Majority in liquidation amount of
such Capital Securities have so directed the Institutional Trustee, to the
fullest extent permitted by law, a Holder of the Capital Securities may
institute a legal proceeding directly against the Debenture Issuer to enforce
the Institutional Trustee's rights under the Debentures without first
instituting any legal
I-9
<PAGE>
proceeding against the Institutional Trustee or any other person or entity.
Notwithstanding the foregoing, if an Event of Default has occurred and is
continuing and such event is attributable to the failure of the Debenture Issuer
to pay interest or principal (or premium, if any) on the Debentures on the date
the interest or principal (or premium, if any) is payable (or in the case of
redemption, the redemption date), then a Holder of record of Capital Securities
may directly institute a proceeding for enforcement of payment, on or after the
respective due dates specified in the Debentures, to such Holder directly of the
principal of (or premium, if any) or interest on the Debentures having an
aggregate principal amount equal to the aggregate liquidation amount of the
Capital Securities of such Holder. Subject to Section 2.7 of the Declaration,
the Institutional Trustee shall notify all Holders of the Capital Securities of
any default actually known to the Institutional Trustee with respect to the
Debentures unless (x) such defaults have been cured prior to the giving of such
notice or (y) the Institutional Trustee determines in good faith that the
withholding of such notice is in the interest of the Holders of the Capital
Securities, except where the default relates to the payment of principal of (or
premium, if any) or interest on any of the Debentures. Such notice shall state
that such Indenture Event of Default also constitutes an Event of Default
hereunder. Except with respect to directing the time, method and place of
conducting a proceeding for a remedy, the Institutional Trustee shall not take
any of the actions described in clauses (i), (ii) or (iii) above unless the
Institutional Trustee has obtained an opinion of tax counsel to the effect that,
as a result of such action, the Trust will not be classified as other than a
grantor trust for United States federal income tax purposes.
A waiver of an Indenture Event of Default will constitute a waiver of
the corresponding Event of Default hereunder. Any required approval or direction
of Holders of Capital Securities may be given at a separate meeting of Holders
of Capital Securities convened for such purpose, at a meeting of all of the
Holders of Securities in the Trust or pursuant to written consent. The Regular
Trustees of the Trust will cause a notice of any meeting at which Holders of
Capital Securities are entitled to vote, or of any matter upon which action by
written consent of such Holders is to be taken, to be mailed to each Holder of
Capital Securities. Each such notice will include a statement setting forth (i)
the date of such meeting or the date by which such action is to be taken, (ii) a
description of any resolution proposed for adoption at such meeting on which
such Holders are entitled to vote or of such matter upon which written consent
is sought and (iii) instructions for the delivery of proxies or consents. No
vote or consent of the Holders of the Capital Securities will be required for
the Trust to redeem and cancel Capital Securities or to distribute the
Debentures in accordance with the Declaration and the terms of the Securities.
Notwithstanding that Holders of Capital Securities are entitled to
vote or consent under any of the circumstances described above, the Capital
Securities that are owned by the Sponsor or any Affiliate of the Sponsor shall
not entitle the Holder thereof to vote or consent and shall, for purposes of
such vote or consent, be treated as if such Capital Securities were not
outstanding.
Holders of Capital Securities will have no rights to appoint or remove
the Trustees, who may be appointed, removed or replaced solely by the Holder of
all of the Common Securities of the Trust.
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<PAGE>
6. Voting Rights - Common Securities. (a) Except as provided under
Sections 6(b), 6(c) and 7 and as otherwise required by law and the Declaration,
the Common Securities will have no voting rights.
(b) The Holders of the Common Securities are entitled, in accordance
with Article V of the Declaration, to vote to appoint, remove or replace any
Trustee.
(c) Subject to Section 2.6 of the Declaration and only after each
Event of Default (if any) with respect to the Capital Securities has been cured,
waived, or otherwise eliminated and subject to the requirements of the second to
last sentence of this paragraph, the Holders of a Majority in liquidation amount
of the Common Securities, voting separately as a class, may direct the time,
method, and place of conducting any proceeding for any remedy available to the
Institutional Trustee, or exercising any trust or power conferred upon the
Institutional Trustee under the Declaration, including (i) directing the time,
method, place of conducting any proceeding for any remedy available to the
Debenture Trustee, or exercising any trust or power conferred on the Debenture
Trustee with respect to the Debentures, (ii) waive any past default and its
consequences that is waivable under the Indenture, or (iii) exercise any right
to rescind or annul a declaration that the principal of all the Debentures shall
be due and payable, provided, however, that, where a consent or action under the
Indenture would require a Super Majority, the Institutional Trustee may only
give such consent or take such action at the written direction of the Holders of
at least the proportion in liquidation amount of the Common Securities which the
relevant Super Majority represents of the aggregate principal amount of the
Debentures outstanding. Notwithstanding this Section 6(c), the Institutional
Trustee shall not revoke any action previously authorized or approved by a vote
or consent of the Holders of the Capital Securities. Other than with respect to
directing the time, method and place of conducting any proceeding for any remedy
available to the Institutional Trustee or the Debenture Trustee as set forth
above, the Institutional Trustee shall not take any action described in (i),
(ii) or (iii) above, unless the Institutional Trustee has obtained an opinion of
tax counsel to the effect that for the purposes of United States federal income
tax the Trust will not be classified as other than a grantor trust on account of
such action. If the Institutional Trustee fails to enforce its rights under the
Declaration, any Holder of Common Securities may institute a legal proceeding
directly against any Person to enforce the Institutional Trustee's rights under
the Declaration, without first instituting a legal proceeding against the
Institutional Trustee or any other Person.
Any approval or direction of Holders of Common Securities may be given
at a separate meeting of Holders of Common Securities convened for such purpose,
at a meeting of all of the Holders of Securities in the Trust or pursuant to
written consent. The Regular Trustees will cause a notice of any meeting at
which Holders of Common Securities are entitled to vote, or of any matter upon
which action by written consent of such Holders is to be taken, to be mailed to
each Holder of Common Securities. Each such notice will include a statement
setting forth (i) the date of such meeting or the date by which such action is
to be taken, (ii) a description of any resolution proposed for adoption at such
meeting on which such Holders are entitled to vote or of such matter upon which
written consent is sought and (iii) instructions for the delivery of proxies or
consents.
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<PAGE>
No vote or consent of the Holders of the Common Securities will be
required for the Trust to redeem and cancel Common Securities or to distribute
the Debentures in accordance with the Declaration and the terms of the
Securities.
7. Amendments to Declaration and Indenture. (a) In addition to any
requirements under Section 12.1 of the Declaration, if any proposed amendment to
the Declaration provides for, or the Regular Trustees otherwise propose to
effect, (i) any action that would adversely affect the privileges, preferences
or special rights of the Securities, whether by way of amendment to the
Declaration or otherwise, or (ii) the dissolution, winding-up or termination of
the Trust, other than as described in Section 8.1 of the Declaration, then the
Holders of outstanding Securities, voting together as a single class, will be
entitled to vote on such amendment or proposal and such amendment or proposal
shall not be effective except with the approval of the Holders of at least a
Majority in liquidation amount of the Securities, affected thereby; provided,
however, if any amendment or proposal referred to in clause (i) above would
adversely affect only the Capital Securities or only the Common Securities, then
only the affected class will be entitled to vote on such amendment or proposal
and such amendment or proposal shall not be effective except with the approval
of a Majority in liquidation amount of such class of Securities.
(b) In the event the consent of the Institutional Trustee as the
holder of the Debentures is required under the Indenture with respect to any
amendment, modification or termination of the Indenture or the Debentures, the
Institutional Trustee shall request the written direction of the Holders of the
Securities with respect to such amendment, modification or termination and shall
vote with respect to such amendment, modification, or termination as directed by
a Majority in liquidation amount of the Securities voting together as a single
class; provided, however, that where a consent under the Indenture would require
a Super Majority, the Institutional Trustee may only give such consent at the
direction of the Holders of at least the proportion in liquidation amount of the
Securities which the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding. The Institutional Trustee shall
not take any such action in accordance with the directions of the Holders of the
Securities unless the Institutional Trustee has obtained an opinion of tax
counsel to the effect that, as a result of such action, the Trust will not be
classified as other than a grantor trust for United States federal income tax
purposes.
(c) Notwithstanding the foregoing, no amendment or modification may be
made to the Declaration if such amendment or modification would (i) cause the
Trust to be classified for purposes of United States federal income taxation as
other than a grantor trust, (ii) reduce or otherwise adversely affect the powers
of the Institutional Trustee or (iii) cause the Trust to be deemed an
"investment company" which is required to be registered under the Investment
Company Act.
(d) Notwithstanding any provision of the Declaration, the right of any
Holder of Capital Securities to receive payment of distributions and other
payments upon redemption or otherwise, on or after their respective due dates,
or to institute a suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the
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<PAGE>
consent of such Holder. For the protection and enforcement of the foregoing
provision, each and every Holder of Capital Securities shall be entitled to such
relief as can be given either at law or equity.
8. Pro Rata. A reference in these terms of the Securities to any
payment, distribution or treatment as being "Pro Rata" shall mean pro rata to
each Holder of Securities according to the aggregate liquidation amount of the
Securities held by the relevant Holder in relation to the aggregate liquidation
amount of all Securities outstanding unless, in relation to a payment, an Event
of Default has occurred and is continuing, in which case any funds available to
make such payment shall be paid first to each Holder of the Capital Securities
pro rata according to the aggregate liquidation amount of Capital Securities
held by the relevant Holder relative to the aggregate liquidation amount of all
Capital Securities outstanding, and only after satisfaction of all amounts owed
to the Holders of the Capital Securities, to each Holder of Common Securities
pro rata according to the aggregate liquidation amount of Common Securities held
by the relevant Holder relative to the aggregate liquidation amount of all
Common Securities outstanding. In any such proration, the Trust may make such
adjustments as may be appropriate in order that only Securities in denominations
of $1,000 or integral multiples thereof shall be redeemed.
9. Ranking. The Capital Securities rank pari passu and payment thereon
shall be made Pro Rata with the Common Securities except that, where an Event of
Default has occurred and is continuing, the rights of Holders of the Common
Securities to payment in respect of Distributions and payments upon liquidation,
redemption and otherwise are subordinated to the rights to payment of the
Holders of the Capital Securities with the result that no payment of any
Distribution on, or Redemption Price of, any Common Security, and no other
payment on account of redemption, liquidation or other acquisition of Common
Securities, shall be made unless payment in full in cash of all accumulated and
unpaid Distributions on all outstanding Capital Securities for all distribution
periods terminating on or prior thereto, or in the case of payment of the
Redemption Price the full amount of such Redemption Price on all outstanding
Capital Securities then called for redemption, shall have been made or provided
for, and all funds immediately available to the Institutional Trustee shall
first be applied to the payment in full in cash of all Distributions on, or the
Redemption Price of, Capital Securities then due and payable.
10. Acceptance of Securities Guarantee and Indenture. Each Holder of
Capital Securities and Common Securities, by the acceptance of such Securities,
agrees to the provisions of the Capital Securities Guarantee and the Common
Securities Guarantee, respectively, including the subordination provisions
therein and to the provisions of the Indenture.
11. No Preemptive Rights. The Holders of the Securities shall have no
preemptive or similar rights to subscribe for any additional securities.
12. Miscellaneous. These terms constitute a part of the Declaration.
The Sponsor will provide a copy of the Declaration, the Capital Securities
Guarantee or the Common Securities Guarantee (as may be appropriate), and the
Indenture to a Holder without charge on written request to the Sponsor at its
principal place of business.
I-13
<PAGE>
EXHIBIT A-1
FORM OF INITIAL CAPITAL SECURITY CERTIFICATE
[FORM OF FACE OF SECURITY]
[Include the following Restricted Securities Legend on all Initial
Capital Securities, including Rule 144A Global Capital Securities and Restricted
Definitive Capital Securities, unless otherwise determined by the Sponsor in
accordance with applicable law ----THIS SECURITY HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL
OR OTHERWISE TRANSFER SUCH SECURITY PRIOR TO THE DATE WHICH IS THREE YEARS (OR
SUCH LESSER PERIOD OF TIME AS SPECIFIED IN RULE 144(k) (UNDER THE SECURITIES
ACT) AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON
WHICH MARSHALL & ILSLEY CORPORATION (THE "COMPANY") OR M&I CAPITAL TRUST A (THE
"TRUST") OR ANY AFFILIATE OF THE COMPANY OR THE TRUST WAS THE OWNER OF THIS
SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) (THE "RESALE RESTRICTIONS
TERMINATION DATE") ONLY (A) TO THE COMPANY OR THE TRUST, (B) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C) FOR SO LONG AS
THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a) (1),
(2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE
SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
"ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR
OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND
THE TRUST'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES
(D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM IN ACCORDANCE WITH THE
DECLARATION OF TRUST, A COPY OF WHICH MAY BE OBTAINED FROM THE COMPANY OR THE
A-1-1
<PAGE>
TRUST. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE RESALE
RESTRICTIONS TERMINATION DATE.]
[Include if Capital Security is in the form of a Restricted Definitive
Capital Security -- IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO
THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATE AND OTHER INFORMATION AS MAY
BE REQUIRED BY THE DECLARATION TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE
FOREGOING RESTRICTIONS.]
[Include if Capital Security is in global form and The Depository
Trust Company is the Clearing Agency -- UNLESS THIS CERTIFICATE IS PRESENTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), NEW YORK, NEW YORK, TO THE TRUST OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC) ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OF TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
[Include if Capital Security is in global form -- TRANSFERS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND
TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE
IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE DECLARATION REFERRED TO
BELOW.]
Certificate Number Number of Capital Securities
CUSIP NO ___________
Certificate Evidencing Capital Securities
of
M&I CAPITAL TRUST A
7.65% Capital Trust Pass-through Securities/SM/ (TRUPS/SM/)
(liquidation amount $1,000 per Capital Security)
M&I CAPITAL TRUST A, a business trust created under the laws of the
State of Delaware (the "Trust"), hereby certifies that ______________ (the
"Holder") is the registered owner of securities of the Trust representing
undivided beneficial interests in the assets of the
A-1-2
<PAGE>
Trust, designated the 7.65% Capital Trust Pass-through Securities/SM/
(liquidation amount $1,000 per Capital Security) (the "Capital Securities").
Subject to the Declaration (as defined below), the Capital Securities are
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this Certificate duly endorsed and in
proper form for transfer. The designation, rights, privileges, restrictions,
preferences and other terms and provisions of the Capital Securities represented
hereby are issued pursuant to, and shall in all respects be subject to, the
provisions of the Amended and Restated Declaration of Trust of the Trust dated
as of December 9, 1996, among M.A. Hatfield, G.H. Gunnlaugsson and J.B. Wigdale,
as Regular Trustees, Chase Manhattan Bank Delaware, as Delaware Trustee, The
Chase Manhattan Bank, as Institutional Trustee, Marshall & Ilsley Corporation,
as Sponsor and the holders from time to time of undivided beneficial interests
in the assets of the Trust, including the designation of the terms of the
Capital Securities as set forth in Annex I to the Declaration, as the same may
be amended from time to time (the "Declaration"). Capitalized terms used herein
but not defined shall have the meaning given them in the Declaration. The Holder
is entitled to the benefits of the Capital Securities Guarantee to the extent
provided therein. The Sponsor will provide a copy of the Declaration, the
Capital Securities Guarantee and the Indenture to the Holder without charge upon
written request to the Trust at its principal place of business.
Upon receipt of this Security, the Holder is bound by the Declaration
and is entitled to the benefits thereunder.
By acceptance of this Security, the Holder agrees to treat, for United
States federal income tax purposes, the Debentures as indebtedness and the
Capital Securities as evidence of beneficial ownership in the Debentures.
This Capital Security is governed by, and construed in accordance
with, the laws of the State of Delaware, without regard to principles of
conflict of laws.
IN WITNESS WHEREOF, the Trust has executed this certificate this 9th
day of December, 1996.
M&I CAPITAL TRUST A
By:
--------------------------------
Name:
Title: Regular Trustee
A-1-3
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Capital Securities referred to in the within-
mentioned Declaration.
Dated:_________________
THE CHASE MANHATTAN BANK, as
Institutional Trustee
By:
---------------------------
Name:
Title:
A-1-4
<PAGE>
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Capital Security will be fixed at a rate
per annum of 7.65% (the "Coupon Rate") of the stated liquidation amount of
$1,000 per Capital Security, such rate being the rate of interest payable on the
Debentures to be held by the Institutional Trustee. Except as set forth below in
respect of an Extension Period, Distributions in arrears for more than a
semiannual period will bear interest thereon compounded semiannually at the
Coupon Rate (to the extent permitted by applicable law). The term
"Distributions" as used herein includes cash distributions and any such
compounded interest payable on the Debentures unless otherwise stated. A
Distribution is payable only to the extent that payments are made in respect of
the Debentures held by the Institutional Trustee and to the extent the
Institutional Trustee has funds available therefor. The amount of Distributions
payable for any period will be computed for any full semiannual Distribution
period on the basis of a 360-day year of twelve 30-day months and the actual
number of days elapsed per 30-day month.
Except as otherwise described below, Distributions on the Capital
Securities will be cumulative, will accrue from the date of original issuance
and will be payable semiannually in arrears on June 1 and December 1 of each
year, commencing on June 1, 1997. The Debenture Issuer has the right under the
Indenture to defer payments of interest by extending the interest payment period
(each an "Extension Period") at any time and from time to time on the
Debentures, subject to certain conditions, although such interest would continue
to accrue on the Debentures at a rate of 7.65% per annum, compounded
semiannually to the extent permitted by law during any Extension Period. If such
right is exercised, semiannual Distributions on the Capital Securities will also
be deferred (though such Distributions would continue to accrue at the
distribution rate of 7.65% per annum, compounded semiannually to the extent
permitted by law) during any Extension Period. Such right to extend any
extension period is limited to Extension Periods, each not exceeding 10
consecutive semiannual periods, provided, however, that no Extension Period
shall be initiated while accrued interest from a prior, completed Extension
Period is unpaid or while the Debenture Issuer is in default in the payment of
interest that has become due and payable on the Debentures, and, provided,
further, that no Extension Period shall extend beyond the date of maturity of
the Debentures. Prior to the termination of any such Extension Period in respect
of the Debentures, the Debenture Issuer may further extend the interest payment
period; provided that each such Extension Period in respect of the Debentures,
together with all such previous and further extensions thereof, may not exceed
10 consecutive semiannual periods or extend beyond the maturity of the
Debentures. If Distributions are deferred, the Distributions due shall be paid
on the date that the related Extension Period terminates, or, if such date is
not a Distribution Payment Date, on the immediately following Distribution
Payment Date, to Holders of the Capital Securities as they appear on the books
and records of the Trust on the record date immediately preceding such date.
Distributions on the Capital Securities must be paid on the dates payable (after
giving effect to any Extension Period) to the extent that the Trust has funds
available for the payment of such Distributions in the Property Account of the
Trust. The Trust's funds available for distribution to the Holders of the
Securities will be limited to payments received from the Debenture Issuer. The
payment of Distributions out of moneys held by the Trust is guaranteed by the
Sponsor pursuant to the Capital Securities Guarantee. The Capital Securities
shall be redeemable as provided in the Declaration.
A-1-5
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Capital
Security Certificate to:
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
(Insert assignee's social security or tax identification number)
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
(Insert address and zip code of assignee) and irrevocably appoints
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
agent to transfer this Capital Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date:
--------------------------------------------------------
Signature:
---------------------------------------------------
(Sign exactly as your name appears on the other side of this Capital
Security Certificate)
Signature Guarantee:/1/
------------------------
- ------------------------
/1/ Signature must be guaranteed by an "eligible guarantor institution" that is
a bank, stockbroker, savings and loan association or credit union meeting
the requirements of the Security registrar, which requirements include
membership or participation in the Securities Transfer Agents Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Security registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange Act of 1934, as
amended.
A-1-6
<PAGE>
EXHIBIT A-2
FORM OF EXCHANGE CAPITAL SECURITY CERTIFICATE
[FORM OF FACE OF SECURITY]
[Include if Capital Security is in global form and The Depository
Trust Company is the Clearing Agency -- UNLESS THIS CERTIFICATE IS PRESENTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), NEW YORK, NEW YORK, TO THE TRUST OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC) ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OF TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
[Include if Capital Security is in global form -- TRANSFERS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND
TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE
IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE DECLARATION REFERRED TO
BELOW.]
Certificate Number Number of Capital Securities
CUSIP NO ___________
Certificate Evidencing Capital Securities
of
M&I CAPITAL TRUST A
7.65% Capital Trust Pass-through Securities/SM/(TRUPS/SM/)
(liquidation amount $1,000 per Capital Security)
M&I CAPITAL TRUST A, a business trust created under the laws of the
State of Delaware (the "Trust"), hereby certifies that ______________ (the
"Holder") is the registered owner of securities of the Trust representing
undivided beneficial interests in the assets of the Trust, designated the 7.65%
Capital Trust Pass-through Securities/SM/ (liquidation amount $1,000 per Capital
Security) (the "Capital Securities"). Subject to the Declaration (as defined
below),
A-2-1
<PAGE>
the Capital Securities are transferable on the books and records of the Trust,
in person or by a duly authorized attorney, upon surrender of this Certificate
duly endorsed and in proper form for transfer. The designation, rights,
privileges, restrictions, preferences and other terms and provisions of the
Capital Securities represented hereby are issued pursuant to, and shall in all
respects be subject to, the provisions of the Amended and Restated Declaration
of Trust of the Trust dated as of December 9, 1996, among M.A. Hatfield, G.H.
Gunnlaugsson and J.B. Wigdale, as Regular Trustees, Chase Manhattan Bank
Delaware, as Delaware Trustee, The Chase Manhattan Bank, as Institutional
Trustee, Marshall & Ilsley Corporation, as Sponsor and the holders from time to
time of undivided beneficial interests in the assets of the Trust, including the
designation of the terms of the Capital Securities as set forth in Annex I to
the Declaration, as the same may be amended from time to time (the
"Declaration"). Capitalized terms used herein but not defined shall have the
meaning given them in the Declaration. The Holder is entitled to the benefits of
the Capital Securities Guarantee to the extent provided therein. The Sponsor
will provide a copy of the Declaration, the Capital Securities Guarantee and the
Indenture to the Holder without charge upon written request to the Trust at its
principal place of business.
Upon receipt of this Security, the Holder is bound by the Declaration
and is entitled to the benefits thereunder.
By acceptance of this Security, the Holder agrees to treat, for United
States federal income tax purposes, the Debentures as indebtedness and the
Capital Securities as evidence of beneficial ownership in the Debentures.
This Capital Security is governed by, and construed in accordance
with, the laws of the State of Delaware, without regard to principles of
conflict of laws.
IN WITNESS WHEREOF, the Trust has executed this certificate this 9th
day of December, 1996.
M&I CAPITAL TRUST A
By:
--------------------------------
Name:
Title: Regular Trustee
A-2-2
<PAGE>
CERTIFICATE OF AUTHENTICATION
This is one of the Capital Securities referred to in the within-
mentioned Declaration.
Dated:_________________
THE CHASE MANHATTAN BANK, as
Institutional Trustee
By:
--------------------------
Name:
Title:
A-2-3
<PAGE>
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Capital Security will be fixed at a rate
per annum of 7.65% (the "Coupon Rate") of the stated liquidation amount of
$1,000 per Capital Security, such rate being the rate of interest payable on the
Debentures to be held by the Institutional Trustee. Except as set forth below in
respect of an Extension Period, Distributions in arrears for more than a
semiannual period will bear interest thereon compounded semiannually at the
Coupon Rate (to the extent permitted by applicable law). The term
"Distributions" as used herein includes cash distributions and any such
compounded interest payable on the Debentures unless otherwise stated. A
Distribution is payable only to the extent that payments are made in respect of
the Debentures held by the Institutional Trustee and to the extent the
Institutional Trustee has funds available therefor. The amount of Distributions
payable for any period will be computed for any full semiannual Distribution
period on the basis of a 360-day year of twelve 30-day months and the actual
number of days elapsed per 30-day month.
Except as otherwise described below, Distributions on the Capital
Securities will be cumulative, will accrue from the date of original issuance
and will be payable semiannually in arrears on June 1 and December 1 of each
year, commencing on June 1, 1997. The Debenture Issuer has the right under the
Indenture to defer payments of interest by extending the interest payment period
(each an "Extension Period") at any time and from time to time on the
Debentures, subject to certain conditions, although such interest would continue
to accrue on the Debentures at a rate of 7.65% per annum, compounded
semiannually to the extent permitted by law during any Extension Period. If such
right is exercised, semiannual Distributions on the Capital Securities will also
be deferred (though such Distributions would continue to accrue at the
distribution rate of 7.65% per annum, compounded semiannually to the extent
permitted by law) during any Extension Period. Such right to extend any
extension period is limited to Extension Periods, each not exceeding 10
consecutive semiannual periods, provided, however, that no Extension Period
shall be initiated while accrued interest from a prior, completed Extension
Period is unpaid or while the Debenture Issuer is in default in the payment of
interest that has become due and payable on the Debentures, and, provided,
further, that no Extension Period shall extend beyond the date of maturity of
the Debentures. Prior to the termination of any such Extension Period in respect
of the Debentures, the Debenture Issuer may further extend the interest payment
period; provided that each such Extension Period in respect of the Debentures,
together with all such previous and further extensions thereof, may not exceed
10 consecutive semiannual periods or extend beyond the maturity of the
Debentures. If Distributions are deferred, the Distributions due shall be paid
on the date that the related Extension Period terminates, or, if such date is
not a Distribution Payment Date, on the immediately following Distribution
Payment Date, to Holders of the Capital Securities as they appear on the books
and records of the Trust on the record date immediately preceding such date.
Distributions on the Capital Securities must be paid on the dates payable (after
giving effect to any Extension Period) to the extent that the Trust has funds
available for the payment of such Distributions in the Property Account of the
Trust. The Trust's funds available for distribution to the Holders of the
Securities will be limited to payments received from the Debenture Issuer. The
payment of Distributions out of moneys held by the Trust is guaranteed by the
Sponsor pursuant to the Capital Securities Guarantee. The Capital Securities
shall be redeemable as provided in the Declaration.
A-2-4
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Capital
Security Certificate to:
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
(Insert assignee's social security or tax identification number)
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
(Insert address and zip code of assignee) and irrevocably appoints
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
agent to transfer this Capital Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date:
--------------------------------------------------------
Signature:
---------------------------------------------------
(Sign exactly as your name appears on the other side of this Capital
Security Certificate)
Signature Guarantee:/2/
------------------------------
- -----------------------
/2/ Signature must be guaranteed by an "eligible guarantor institution" that is
a bank, stockbroker, savings and loan association or credit union meeting
the requirements of the Security registrar, which requirements include
membership or participation in the Securities Transfer Agents Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Security registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange Act of 1934, as
amended.
A-2-5
<PAGE>
EXHIBIT A-3
-----------
FORM OF COMMON SECURITY CERTIFICATE
[THIS COMMON SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT PURSUANT TO AN EXEMPTION FROM REGISTRATION OR AN EFFECTIVE
REGISTRATION STATEMENT.]
[THIS SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED, EXCEPT BY OPERATION OF LAW.]
Certificate Number Number of Common Securities
Certificate Evidencing Common Securities
of
M&I CAPITAL TRUST A
M&I CAPITAL TRUST A, a statutory business trust created under the laws
of the State of Delaware (the "Trust"), hereby certifies that Marshall & Ilsley
Corporation (the "Holder") is the registered owner of common securities of the
Trust representing undivided beneficial interests in the assets of the Trust
(the "Common Securities"). The designation, rights, privileges, restrictions,
preferences and other terms and provisions of the Common Securities represented
hereby are issued pursuant to, and shall in all respects be subject to, the
provisions of the Amended and Restated Declaration of Trust of the Trust dated
as of December 9, 1996, among M.A. Hatfield, G.H. Gunnlaugsson and J.B. Wigdale,
as Regular Trustees, Chase Manhattan Bank Delaware, as Delaware Trustee, The
Chase Manhattan Bank, as Institutional Trustee, Marshall & Ilsley Corporation as
Sponsor and the holders from time to time of undivided beneficial interest in
the assets of the Trust including the designation of the terms of the Common
Securities as set forth in Annex I to the Declaration, as the same may be
amended from time to time (the "Declaration"). Capitalized terms used herein but
not defined shall have the meaning given them in the Declaration. The Holder is
entitled to the benefits of the Common Securities Guarantee to the extent
provided therein. The Sponsor will provide a copy of the Declaration, the Common
Securities Guarantee and the Indenture to the Holder without charge upon written
request to the Sponsor at its principal place of business.
As set forth in the Declaration, where an Event of Default has
occurred and is continuing, the rights of Holders of Common Securities to
payment in respect of Distributions and payments upon Liquidation, redemption or
otherwise are subordinated to the rights of payment of Holders of the Capital
Securities.
Upon receipt of this Certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
A-3-1
<PAGE>
By acceptance of this Certificate, the Holder agrees to treat, for
United States federal income tax purposes, the Debentures as indebtedness and
the Common Securities as evidence of undivided beneficial ownership in the
Debentures.
This Common Security is governed by, and construed in accordance with,
the laws of the State of Delaware, without regard to principles of conflict of
laws.
IN WITNESS WHEREOF, the Trust has executed this certificate this 9th
day of December, 1996.
M&I CAPITAL TRUST A
By:
------------------------------
Name:
Title: Regular Trustee
A-3-2
<PAGE>
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Common Security will be identical in
amount to the Distributions payable on each Capital Security, which is at a rate
per annum of 7.65% (the "Coupon Rate") of the stated liquidation amount of
$1,000 per Capital Security, such rate being the rate of interest payable on the
Debentures to be held by the Institutional Trustee. Except as set forth below in
respect of an Extension Period, Distributions in arrears for more than one
semiannual period will bear interest thereon compounded semiannually at the
Coupon Rate (to the extent permitted by applicable law). The term
"Distributions" as used herein includes cash distributions and any such
compounded distribution payable on the Debentures unless otherwise stated. A
Distribution is payable only to the extent that payments are made in respect of
the Debentures held by the Institutional Trustee and to the extent the
Institutional Trustee has funds available therefor. The amount of Distributions
payable for any period will be computed for any full semiannual Distribution
period on the basis of a 360-day year of twelve 30-day months and the actual
number of days elapsed per 30-day month.
Except as otherwise described below, Distributions on the Common
Securities will be cumulative, will accrue from the date of original issuance
and will be payable semiannually in arrears on June 1 and December 1 of each
year, commencing on June 1, 1997. The Debenture Issuer has the right under the
Indenture to defer payments of interest by extending interest payment period
(each an "Extension Period") at any time and from time to time on the
Debentures, subject to certain conditions, although such interest would continue
to accrue on the Debentures at a rate of 7.65% per annum, compounded
semiannually to the extent permitted by law during any Extension Period. If such
right is exercised, semiannual distributions on the Common Securities will also
be deferred (though such Distributions would continue to accrue at the
Distribution rate of 7.65% per annum, compounded semiannually to the extent
permitted by law) during any Extension Period. Such right to extend any
extension period is limited to Extension Periods, each not exceeding 10
consecutive semiannual periods, provided, however, that no Extension Period
shall be initiated while accrued interest from a prior, completed Extension
Period is unpaid or while the Debenture Issuer is in default in the payment of
interest that has become due and payable on the Debentures; and, provided,
further, that no Extension Period shall extend beyond the date of maturity of
the Debentures. Prior to the termination of any such Extension Period in respect
of the Debentures, the Debenture Issuer may further extend the interest payment
period; provided that each such Extension Period in respect of the Debentures,
together with all such previous and further extensions thereof, may not exceed
10 consecutive semiannual periods or extend beyond the maturity of the
Debentures. Upon the termination of any Extension Period of the Debentures and
the payment of all amounts then due, the Debenture Issuer may commence a new
Extension Period, subject to the above requirements. If Distributions are
deferred, the Distributions due shall be paid on the date that the related
Extension Period terminates, or, if such date is not a Distribution Payment
Date, on the immediately following Distribution Payment Date, to Holders of the
Common Securities as they appear on the books and records of the Trust on the
record date immediately preceding such date. Distributions on the Common
Securities must be paid on the dates payable (after giving effect to any
Extension Period) to the extent that the Trust has funds available for the
payment of such Distributions in the Property Account of the Trust. The Trust's
funds available for distribution to
A-3-3
<PAGE>
the Holders of the Common Securities will be limited to payments received from
the Debenture Issuer. The payment of Distributions out of moneys held by the
Trust is guaranteed by the Sponsor pursuant to the Common Securities Guarantee.
The Common Securities shall be redeemable as provided in the
Declaration.
A-3-4
<PAGE>
EXHIBIT B
FORM OF TRANSFEREE CERTIFICATE
TO BE EXECUTED BY IAIs
__________, 199__
Marshall & Ilsley Corporation
M&I Capital Trust A
c/o Marshall & Ilsley Corporation
770 North Water Street
Milwaukee, Wisconsin 53202
Re: Purchase of 7.65% Capital Trust Pass-through Securities/SM/(TruPS)
/SM/(the "Capital Securities") of M&I Capital Trust A (the "Trust")
Ladies and Gentlemen:
In connection with our purchase of the Capital Securities we confirm
that:
1. We understand that the 7.65% Capital Trust Pass-through
Securities/SM/ (the "Capital Securities") (including the guarantee (the
"Guarantee") of Marshall & Ilsley Corporation (the "Company") executed in
connection therewith) and the 7.65% Junior Subordinated Deferrable Interest
Debentures due 2026 (the "Subordinated Debt Securities") of the Company, the
Capital Securities, the Guarantee, and Subordinated Debt Securities together
being referred to herein as "Offered Securities" have not been registered under
the Securities Act of 1933, as amended (the "Securities Act"), and may not be
offered or sold except as permitted in the following sentence. We agree on our
own behalf and on behalf of any investor account for which we are purchasing the
Offered Securities that, if, prior to the date which is three years after the
later of the date of original issue of the Offered Securities and the last date
on which the Company, the Trust or any affiliate of the Company or the Trust was
the owner of such Offered Securities (the "Resale Restriction Termination
Date"), we decide to offer, sell or otherwise transfer any such Offered
Securities, such offer, sale or transfer will be made only (a) to the Company or
the Trust, (b) pursuant to an effective registration statement under the
Securities Act, (c) so long as the Offered Securities are eligible for resale
pursuant to Rule 144A under the Securities Act, to a person we reasonably
believe is a qualified institutional buyer under Rule 144A (a "QIB") that
purchases for its own account or for the account of a QIB and to whom notice is
given that the transfer is being made in reliance on Rule 144A, (d) to an
institutional "accredited investor" with the meaning of subparagraph (a) (1),
(2), (3) or (7) of Rule 501 under the Securities Act that is acquiring Offered
Securities for its own account or for the account of such an institutional
accredited investor for investment purposes and not with a view to, or for offer
or sale in connection with, any distribution thereof in violation of the
Securities Act, or (e) pursuant to another available exemption from the
registration requirements of the Securities Act, subject in each of the
foregoing cases to any requirements of law that the disposition of our property
or compliance with any applicable state securities laws. The foregoing
restrictions on
B-1
<PAGE>
resale will not apply subsequent to the Resale Restriction Termination Date. If
any resale or other transfer of the Offered Securities is proposed to be made
pursuant to clause (d) above prior to the Resale Restriction Termination Date,
the transferor shall deliver a letter from the transferee substantially in the
form of this letter to The Chase Manhattan Bank as Transfer Agent, which shall
provide as applicable, among other things, that the transferee is an
institutional "accredited investor" within the meaning of subparagraph (a)(1),
(2), (3) or (7) of Rule 501 under the Securities Act that is acquiring such
Securities for investment purposes and not for distribution in violation of the
Securities Act. We acknowledge on our behalf and on behalf of any investor
account for which we are purchasing Securities that the Trust and the Company
reserve the right prior to any offer, sale or other transfer pursuant to clauses
(d) or (e) prior to the Resale Restriction Termination Date of the Securities to
require the delivery of any opinion of counsel, certifications and/or other
information satisfactory to the Trust and the Company. We understand that the
certificates for any Offered Security that we receive will bear a legend
substantially to the effect of the foregoing.
2. We are an institutional "accredited investor" with the meaning of
subparagraph (a) (1), (2), (3) or (7) of Rule 501 under the Securities Act
purchasing for our own account or for the account of such an institutional
"accredited investor," and we are acquiring the Offered Securities for the
investment purposes and not with view to, or for offer or sale in connection
with, any distribution in violation of the Securities Act and we have such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of our investment in the Offered Securities, and
we and any account for which we are acting are each able to bear the economic
risks of our or its investment.
3. We are acquiring the Offered Securities purchased by us for our own
account (or for one or more accounts as to each of which we exercise sole
investment discretion and have authority to make, and do make, the statements
contained in this letter) and not with a view to any distribution of the Offered
Securities, subject, nevertheless, to the understanding that the disposition of
our property will at all times be and remain within our control.
4. We acknowledge that (a) none of the Company, the Trust, or the
Initial Purchasers (as defined in the Offering Memorandum dated December 2, 1996
relating to the Offered Securities, as supplemented (the "Final Memorandum"))
nor any person acting on behalf of the Company, the Trust or the Initial
Purchasers has made any representation to us with respect to the Company, the
Trust or the offer or sale of any Offered Securities and (b) any information we
desire concerning the Company, the Trust and the Offered Securities or any other
matter relevant to our decision to purchase the Offered Securities (including a
copy of the Final Memorandum) is or has been made available to us.
5. In the event that we purchase any Capital Securities or any
Subordinated Debt Securities, we will acquire such Capital Securities having an
aggregate stated liquidation amount of not less than $100,000 or such
Subordinated Debt Securities having an aggregate principal amount not less than
$100,000, for our own account and for each separate account for which we are
acting.
B-2
<PAGE>
6. We acknowledge that we (A) are not ourselves, and are not acquiring
Capital Securities with "plan assets" of an employee benefit or other plan
subject to Title I of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or Section 4975 of the Internal Revenue Code of 1986, as
amended (the "Code") (each, a "Plan"), or an entity whose underlying assets
include "plan assets" by reason of any Plan's investment in the entity (a "Plan
Asset Entity") or (B) (1) are ourselves, or are acquiring Capital Securities
with the assets of an "investment fund" (within the meaning of Part V(b) of PTCE
84-14) managed by a "qualified professional asset manager" (within the meaning
of Part V(a) of PTCE 84-14) which has made or properly authorized the decision
for such fund to purchase Capital Securities, under circumstances such that PTCE
84-14 is applicable to the purchase and holding of such Capital Securities, (2)
are ourselves, or are acquiring Capital Securities with the assets of, a Plan
managed by an "in-house asset manager" (within the meaning of Part IV(a) of PTCE
96-23) which has made or properly authorized the decision for such Plan to
purchase Capital Securities, under circumstances such that PTCE 96-23 is
applicable to the purchase and holding of such Capital Securities, (3) are an
insurance company pooled separate account purchasing Capital Securities pursuant
to Part I of PTCE 91-38, and in either case no Plan owns more than 10% of the
assets of such account or collective fund (when aggregated with other Plans of
the same employer (or its affiliates) or employee organization) or (4) are an
insurance company using the assets of its general account to purchase the
Capital Securities pursuant to Part I of PTCE 85-60, in which case the reserves
and liabilities for the general account contracts held by or on behalf of any
Plan, together with any other Plans maintained by the same employer (or its
affiliates) or employee organization, do not exceed 10% of the total reserves
and liabilities of the insurance company general account (exclusive of separate
account liabilities), plus surplus as set forth in the National Association of
Insurance Commissioners Annual Statement filed with the state of domicile of the
insurer.
7. We acknowledge that the Company, the Trust, the Initial Purchasers
and others will rely upon the truth and accuracy of the foregoing acknowledges,
representations, warranties and agreements and agrees that if any of the
acknowledgments, representations, warranties and agreements deemed to have been
made by our purchase of the Offered Securities are no longer accurate, we shall
promptly notify the Initial Purchasers. If we are acquiring any Offered
Securities as a fiduciary or agent for one or more investor accounts, we
represent that we have sole discretion with respect to each such investor
account and that we have full power to make the foregoing acknowledgments,
representations and agreement on behalf of each such investor account.
Very truly yours,
------------------------------------
(Name of Purchaser)
By:
---------------------------------
Date:
-------------------------------
B-3
<PAGE>
Upon their transfer, the Offered Securities would be registered in the
name of the new beneficial owner as follows:
Name:
---------------------------------------------------------------------------
Address:
------------------------------------------------------------------------
Taxpayer ID Number:
B-4
<PAGE>
EXHIBIT C
FORM OF TRANSFEREE CERTIFICATE
TO BE EXECUTED BY QIB
__________, 199__
Marshall & Ilsley Corporation
M&I Capital Trust A
c/o Marshall & Ilsley Corporation
770 North Water Street
Milwaukee, Wisconsin 53202
Re: Purchase of 7.65% Capital Trust Pass-through Securities /SM/(TRUPS)/SM/
(the "Capital Securities") of M&I Capital Trust A (the "Trust")
-----------------------------------------------------------------------
Reference is hereby made to the Amended and Restated Declaration dated
as of December 9, 1996 (the "Declaration") among M.A. Hatfield, G.H.
Gunnlaugsson and J.B. Wigdale, as Regular Trustees, Chase Manhattan Bank
Delaware, as Delaware Trustee, The Chase Manhattan Bank, as Institutional
Trustee, Marshall & Ilsley Corporation as Sponsor and the holders from time to
time of undivided beneficial interest in the assets of the Trust. Capitalized
terms used but not defined herein shall have the meanings given them in the
Declaration.
This letter relates to $_______ aggregate liquidation amount of
Capital Securities which are held in the name of [name of transferor] (the
"Transferor") to effect the transfer of such Capital Securities in exchange for
an equivalent beneficial interest in the Rule 144A Global Capital Security.
In connection with such request, and in respect to such Capital
Securities, the transferor does hereby certify that such Capital Securities are
being transferred in accordance with (i) the transfer restrictions set forth in
the Capital Securities and (ii) Rule 144A under the United States Securities Act
of 1933, as amended ("Rule 144A"), to a transferee that the Transferor
reasonably believes is purchasing the Capital Securities for its own account or
an account with respect to which the transferee exercises sole investment
discretion and the transferee and any such account is a "qualified institutional
buyer" within the meaning of Rule 144A, in a transaction meeting the
requirements of Rule 144A and in accordance with applicable securities laws of
any state of the United States or any other jurisdiction.
C-1
<PAGE>
You are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceeding or official inquiry with respect to the
matters covered hereby.
-------------------------------------
(Name of Transferor)
By:
----------------------------------
Name:
Title:
Date:
--------------------------------
C-2
<PAGE>
EXHIBIT D
SPECIMEN OF INITIAL DEBENTURE
D-1
<PAGE>
EXHIBIT E
PURCHASE AGREEMENT
E-1
<PAGE>
EXHIBIT F
REGISTRATION AGREEMENT
F-1
<PAGE>
================================================================================
MARSHALL & ILSLEY CORPORATION
as Issuer
INDENTURE
Dated as of December 9, 1996
THE CHASE MANHATTAN BANK
as Trustee
SUBORDINATED DEBT SECURITIES
================================================================================
<PAGE>
TIE-SHEET
of provisions of Trust Indenture Act of 1939 with Indenture dated as of December
9, 1996 among Marshall & Ilsley Corporation, as Issuer, and The Chase Manhattan
Bank, as Trustee:
<TABLE>
<CAPTION>
<S> <C>
ACT SECTION............................... INDENTURE SECTION
310(a)(1)................................. 6.09
(a)(2)................................... 6.09
310(a)(3)................................. N.A.
(a)(4)................................... N.A.
310(b).................................... 6.08; 6.10(a)(b) and (d)
310(c).................................... N.A.
311(a) and (b)............................ 6.13
311(c).................................... N.A.
312(a).................................... 4.01; 4.02(a)
312(b) and (c)............................ 4.02(b) and (c)
313(a).................................... 4.04(a)
313(b)(1)................................. N.A.
313(b)(2)................................. 4.04(a)
313(c).................................... 4.04(a)
313(d).................................... 4.04(b)
314(a).................................... 4.03
314(b).................................... N.A.
314(c)(1) and (2)......................... 13.06
314(c)(3)................................. N.A.
314(d).................................... N.A.
314(e).................................... 13.06
314(f).................................... N.A.
315(a)(c) and (d)......................... 6.01
315(b).................................... 5.08
315(e).................................... 5.09
316(a)(1)................................. 5.01; 5.07
316(a)(2)................................. Omitted
316(a) last sentence...................... 7.04
316(b).................................... 5.04
317(a).................................... 5.02
317(b).................................... 3.04(a)
318(a).................................... 13.08
</TABLE>
THIS TIE-SHEET IS NOT PART OF THE INDENTURE AS EXECUTED.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Parties..........................................................1
Recitals.........................................................1
Authorization of Indenture.......................................1
Compliance with Legal Requirements...............................1
Purpose of and Consideration for Indenture.......................1
</TABLE>
ARTICLE I
DEFINITIONS
<TABLE>
<S> <C>
SECTION 1.01. Definitions.......................................1
Affiliate...................................................2
Authenticating Agent........................................2
Bankruptcy Law..............................................2
Board of Directors..........................................2
Board Resolution............................................2
Business Day................................................2
Capital Securities..........................................2
Capital Securities Guarantee................................2
Certificate.................................................3
Common Securities...........................................3
Common Securities Guarantee.................................3
Company.....................................................3
Custodian...................................................3
Debt Security or Debt Securities............................3
Debt Security Register......................................3
Declaration.................................................3
Default.....................................................3
Depositary..................................................3
Event of Default............................................4
Exchange Act................................................4
Global Security.............................................4
Indenture...................................................4
Institutional Trustee.......................................4
Interest....................................................4
Interest Payment Date.......................................4
Marshall & Ilsley Trust.....................................4
Mortgage....................................................4
Officers' Certificate.......................................4
Opinion of Counsel..........................................5
Original Issue Date.........................................5
Original Issue Discount Security............................5
</TABLE>
<PAGE>
Person...................................................................6
Predecessor Security.....................................................6
Principal Office of the Trustee..........................................6
Responsible Officer......................................................6
Securityholder, holder of Debt Securities................................6
Senior Indebtedness......................................................6
Subsidiary...............................................................7
Trust Indenture Act......................................................7
Trust Securities.........................................................7
Trustee..................................................................7
Yield to Maturity........................................................7
ARTICLE II
DEBT SECURITIES
SECTION 2.01. Forms Generally................................................8
SECTION 2.02. Form of Trustee's Certificate of Authentication................8
SECTION 2.03. Amount Unlimited; Issuable in Series...........................8
SECTION 2.04. Authentication and Dating.....................................10
SECTION 2.05. Date and Denomination of Debt Securities......................11
SECTION 2.06. Execution of Debt Securities..................................13
SECTION 2.07. Exchange and Registration of Transfer of Debt Securities......14
SECTION 2.08. Mutilated, Destroyed, Lost or Stolen Debt Securities..........16
SECTION 2.09. Temporary Debt Securities.....................................17
SECTION 2.10. Cancellation of Debt Securities Paid, etc.....................17
SECTION 2.11. Global Securities.............................................18
SECTION 2.12. CUSIP Numbers.................................................19
ARTICLE III
PARTICULAR COVENANTS OF THE COMPANY
SECTION 3.01. Payment of Principal, Premium and Interest....................19
SECTION 3.02. Offices for Notices and Payments, etc.........................19
SECTION 3.03. Appointments to Fill Vacancies in Trustee's Office............20
SECTION 3.04. Provision as to Paying Agent..................................20
SECTION 3.05. Certificate to Trustee........................................21
SECTION 3.06. Compliance with Consolidation Provisions......................21
SECTION 3.07. Limitation on Dividends.......................................21
SECTION 3.08. Covenants as to Marshall & Ilsley Trusts......................22
SECTION 3.09. Calculation of Original Issue Discount........................22
ARTICLE IV
SECURITYHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
SECTION 4.01. Securityholders' Lists........................................23
SECTION 4.02. Preservation and Disclosure of Lists..........................23
ii
<PAGE>
SECTION 4.03. [Reserved].....................................................24
SECTION 4.04. Reports by the Trustee.........................................24
ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS UPON AN EVENT OF DEFAULT
SECTION 5.01. Events of Default..............................................25
SECTION 5.02. Payment of Debt Securities on Default; Suit Therefor...........27
SECTION 5.03. Application of Moneys Collected by Trustee.....................29
SECTION 5.04. Proceedings by Securityholders.................................29
SECTION 5.05. Proceedings by Trustee.........................................30
SECTION 5.06. Remedies Cumulative and Continuing.............................30
SECTION 5.07. Direction of Proceedings and Waiver of Defaults by
Majority of Securityholders....................................30
SECTION 5.08. Notice of Defaults.............................................31
SECTION 5.09. Undertaking to Pay Costs.......................................32
ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.01. Duties and Responsibilities of Trustee.........................32
SECTION 6.02. Reliance on Documents, Opinions, etc...........................33
SECTION 6.03. No Responsibility for Recitals, etc............................34
SECTION 6.04. Trustee, Authenticating Agent, Paying Agents, Transfer
Agents or Registrar May Own Debt Securities....................35
SECTION 6.05. Moneys to be Held in Trust.....................................35
SECTION 6.06. Compensation and Expenses of Trustee...........................35
SECTION 6.07. Officers' Certificate as Evidence..............................36
SECTION 6.08. Conflicting Interest of Trustee................................36
SECTION 6.09. Eligibility of Trustee.........................................36
SECTION 6.10. Resignation or Removal of Trustee..............................37
SECTION 6.11. Acceptance by Successor Trustee................................38
SECTION 6.12. Succession by Merger, etc......................................39
SECTION 6.13. Limitation on Rights of Trustee as a Creditor..................39
SECTION 6.14. Authenticating Agents..........................................39
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
SECTION 7.01. Action by Securityholders......................................41
SECTION 7.02. Proof of Execution by Securityholders..........................41
SECTION 7.03. Who Are Deemed Absolute Owners.................................42
SECTION 7.04. Debt Securities Owned by Company Deemed Not Outstanding........42
SECTION 7.05. Revocation of Consents; Future Holders Bound...................42
iii
<PAGE>
ARTICLE VIII
SECURITYHOLDERS' MEETINGS
<TABLE>
<S> <C>
SECTION 8.01. Purposes of Meetings..........................................43
SECTION 8.02. Call of Meetings by Trustee...................................43
SECTION 8.03. Call of Meetings by Company or Securityholders................43
SECTION 8.04. Qualifications for Voting.....................................44
SECTION 8.05. Regulations...................................................44
SECTION 8.06. Voting........................................................45
SECTION 8.07. Quorum; Actions...............................................45
</TABLE>
ARTICLE IX
SUPPLEMENTAL INDENTURES
<TABLE>
<S> <C>
SECTION 9.01. Supplemental Indentures without Consent of Securityholders....46
SECTION 9.02. Supplemental Indentures with Consent of Securityholders.......47
SECTION 9.03. Compliance with Trust Indenture Act; Effect of Supplemental
Indentures.................................................49
SECTION 9.04. Notation on Debt Securities...................................49
SECTION 9.05. Evidence of Compliance of Supplemental Indenture to be
Furnished Trustee..........................................49
</TABLE>
ARTICLE X
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
<TABLE>
<S> <C>
SECTION 10.01. Company May Consolidate, etc., on Certain Terms...............50
SECTION 10.02. Successor Corporation to be Substituted.......................50
SECTION 10.03. Opinion of Counsel to be Given Trustee........................51
</TABLE>
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE
<TABLE>
<S> <C>
SECTION 11.01. Discharge of Indenture........................................51
SECTION 11.02. Deposited Moneys to be Held in Trust by Trustee...............52
SECTION 11.03. Paying Agent to Repay Moneys Held.............................52
SECTION 11.04. Return of Unclaimed Moneys....................................52
</TABLE>
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01. Indenture and Debt Securities Solely Corporate
Obligations................................................52
iv
<PAGE>
ARTICLE XIII
MISCELLANEOUS PROVISIONS
<TABLE>
<S> <C>
SECTION 13.01. Successors...................................................53
SECTION 13.02. Official Acts by Successor Corporation.......................53
SECTION 13.03. Surrender of Company Powers..................................53
SECTION 13.04. Addresses for Notices, etc...................................53
SECTION 13.05. Governing Law................................................53
SECTION 13.06. Evidence of Compliance with Conditions Precedent.............53
SECTION 13.07. Non-Business Days............................................54
SECTION 13.08. Trust Indenture Act to Control...............................54
SECTION 13.09. Table of Contents, Headings, etc.............................54
SECTION 13.10. Execution in Counterparts....................................54
SECTION 13.11. Separability.................................................55
SECTION 13.12. Assignment...................................................55
SECTION 13.13. Acknowledgment of Rights.....................................55
</TABLE>
ARTICLE XIV
REDEMPTION OF SECURITIES -- MANDATORY AND OPTIONAL SINKING FUND
<TABLE>
<S> <C>
SECTION 14.01. Applicability of Article.....................................55
SECTION 14.02. Notice of Redemption; Selection of Debt Securities...........56
SECTION 14.03. Payment of Debt Securities Called for Redemption.............57
SECTION 14.04. Mandatory and Optional Sinking Fund..........................57
</TABLE>
ARTICLE XV
SUBORDINATION OF DEBT SECURITIES
<TABLE>
<S> <C>
SECTION 15.01. Agreement to Subordinate.....................................59
SECTION 15.02. Default on Senior Indebtedness...............................59
SECTION 15.03. Liquidation; Dissolution; Bankruptcy.........................60
SECTION 15.04. Subrogation..................................................61
SECTION 15.05. Trustee to Effectuate Subordination..........................62
SECTION 15.06. Notice by the Company........................................62
SECTION 15.07. Rights of the Trustee; Holders of Senior Indebtedness........63
SECTION 15.08. Subordination May Not Be Impaired............................63
</TABLE>
v
<PAGE>
THIS INDENTURE, dated as of December 9, 1996, between Marshall &
Ilsley Corporation, a Wisconsin corporation (hereinafter sometimes called the
"Company"), and The Chase Manhattan Bank, a New York State banking corporation,
as trustee (hereinafter sometimes called the "Trustee"),
W I T N E S S E T H :
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the issue from time to time of its subordinated unsecured debentures,
notes or other evidence of indebtedness to be issued in one or more series (the
"Debt Securities") up to such principal amount or amounts as may from time to
time be authorized in accordance with the terms of this Indenture and, to
provide the terms and conditions upon which the Debt Securities are to be
authenticated, issued and delivered, the Company has duly authorized the
execution of this Indenture; and
WHEREAS, all acts and things necessary to make this Indenture a valid
agreement according to its terms, have been done and performed;
NOW, THEREFORE, This Indenture Witnesseth:
In consideration of the premises, and the purchase of the Debt
Securities by the holders thereof, the Company covenants and agrees with the
Trustee for the equal and proportionate benefit of the respective holders from
time to time of the Debt Securities or of a series thereof, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions.
The terms defined in this Section 1.01 (except as herein otherwise
expressly provided or unless the context otherwise requires) for all purposes of
this Indenture and of any indenture supplemental hereto shall have the
respective meanings specified in this Section 1.01. All other terms used in this
Indenture which are defined in the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), or which are by reference therein defined in the
Securities Act of 1933, as amended (the "Securities Act"), shall (except as
herein otherwise expressly provided or unless the context otherwise requires)
have the meanings assigned to such terms in said Trust Indenture Act and in said
Securities Act as in force at the date of this Indenture as originally executed.
All accounting terms used herein and not expressly defined shall have the
meanings assigned to such terms in accordance with generally accepted accounting
principles and the term "generally accepted accounting principles" means such
accounting principles as are generally accepted at the time of any computation.
The words "herein", "hereof" and "hereunder" and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section or
other subdivision.
<PAGE>
"Affiliate" means, with respect to a specified Person, (a) any Person
directly or indirectly owning, controlling or holding with power to vote 10% or
more of the outstanding voting securities or other ownership interests of the
specified Person, (b) any Person 10% or more of whose outstanding voting
securities or other ownership interests are directly or indirectly owned,
controlled or held with power to vote by the specified Person, (c) any Person
directly or indirectly controlling, controlled by, or under common control with
the specified Person, (d) a partnership in which the specified Person is a
general partner, (e) any executive officer or director of the specified Person,
and (f) if the specified Person is an individual, any entity of which the
specified Person is an executive officer, director or general partner.
"Authenticating Agent" shall mean any agent or agents of the Trustee
which at the time shall be appointed and acting pursuant to Section 6.14.
"Bankruptcy Law" shall mean Title 11, U.S. Code, or any similar
federal or state law for the relief of debtors.
"Board of Directors" shall mean the board of directors or any other
duly authorized committee or any other duly authorized designated officers of
the Company.
"Board Resolution" shall mean a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification.
"Business Day" shall mean, with respect to any series of Debt
Securities, any day other than a Saturday, Sunday or any other day on which
banking institutions in New York City (in the State of New York) are permitted
or required by any applicable law to close.
"Capital Securities" shall mean undivided beneficial interests in the
assets of a Marshall & Ilsley Trust which rank pari passu with Common Securities
issued by such Marshall & Ilsley Trust; provided, however, that upon the
occurrence of an Event of Default (as defined in the Declaration with respect to
such Marshall & Ilsley Trust), the rights of holders of such Common Securities
to payment in respect of distributions and payments upon liquidation, redemption
and otherwise are subordinated to the rights of holders of such Capital
Securities.
"Capital Securities Guarantee" shall mean, in respect of any Marshall
& Ilsley Trust, any guarantee that the Company may enter into with The Chase
Manhattan Bank or other Persons that operates directly or indirectly for the
benefit of holders of Capital Securities of such Marshall & Ilsley Trust.
"Certificate" shall mean a certificate signed by any one of the
principal executive officer, the principal financial officer or the principal
accounting officer of the Company.
"Common Securities" shall mean undivided beneficial interests in the
assets of a Marshall & Ilsley Trust which rank pari passu with Capital
Securities issued by such Marshall & Ilsley Trust; provided, however, that upon
the occurrence of an Event of Default (as defined in the Declaration with
respect to such Marshall & Ilsley Trust), the rights of holders of such
2
<PAGE>
Common Securities to payment in respect of distributions and payments upon
liquidation, redemption and otherwise are subordinated to the rights of holders
of such Capital Securities.
"Common Securities Guarantee" shall mean, in respect of any Marshall &
Ilsley Trust, any guarantee that the Company may enter into with any Person or
Persons and that operates directly or indirectly for the benefit of holders of
Common Securities of such Marshall & Ilsley Trust.
"Company" shall mean Marshall & Ilsley Corporation, a Wisconsin
corporation, and, subject to the provisions of Article X, shall include its
successors and assigns.
"Custodian" shall mean any receiver, trustee, assignee, liquidator, or
similar official under any Bankruptcy Law.
"Debt Security" or "Debt Securities" shall have the meaning stated in
the first recital of this Indenture and more particularly means any debt
security or debt securities, as the case may be, authenticated and delivered
under this Indenture.
"Debt Security Register" shall have the meaning specified in Section
2.07.
"Declaration", with respect to a Marshall & Ilsley Trust, shall mean
the Amended and Restated Declaration of Trust of such Marshall & Ilsley Trust.
"Default" means any event, act or condition that with notice or lapse
of time, or both, would constitute an Event of Default.
"Depositary" shall mean, with respect to Debt Securities of any series
for which the Company shall determine that such Debt Securities will be issued
as a Global Security, The Depository Trust Company, New York, New York, another
clearing agency, or any successor registered as a clearing agency under the
Exchange Act, or other applicable statute or regulation, which, in each case,
shall be designated by the Company pursuant to either Section 2.03 or 2.11.
"Event of Default" shall mean any event specified in Section 5.01,
continued for the period of time, if any, and after the giving of the notice, if
any, therein designated.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Global Security" shall mean, with respect to any series of Debt
Securities, a Debt Security executed by the Company and delivered by the Trustee
to the Depositary or pursuant to the Depositary's instruction, all in accordance
with the Indenture, which shall be registered in the name of the Depositary or
its nominee.
"Indenture" shall mean this instrument as originally executed or, if
amended or supplemented as herein provided, as so amended or supplemented, or
both, and shall include the form and terms of particular series of Debt
Securities established as contemplated hereunder.
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"Institutional Trustee" has the meaning set forth in the Declaration
of the applicable Marshall & Ilsley Trust.
"Interest" shall mean, when used with respect to noninterest bearing
Debt Securities, interest payable after maturity.
"Interest Payment Date", when used with respect to any installment of
interest on a Debt Security of a particular series, shall mean the date
specified in such Debt Security or in a Board Resolution or in an indenture
supplemental hereto with respect to such series as the fixed date on which an
installment of interest with respect to Debt Securities of that series is due
and payable.
"Marshall & Ilsley Trust" shall mean a Delaware business trust or any
other similar trust created for the purpose of issuing Capital Securities in
connection with the issuance of Debt Securities under this Indenture of which
the Company is the sponsor.
"Mortgage" shall mean and include any mortgage, pledge, lien,
security interest, conditional sale or other title retention agreement or other
similar encumbrance.
"Officers' Certificate" shall mean a certificate signed by the
Chairman of the Board, the Vice Chairman, the President, any Managing Director
or any Vice President, and by the Treasurer, an Assistant Treasurer, the
Comptroller, an Assistant Comptroller, the Secretary or an Assistant Secretary
of the Company, and delivered to the Trustee. Each such certificate shall
include the statements provided for in Section 13.06 if and to the extent
required by the provisions of such Section.
"Opinion of Counsel" shall mean an opinion in writing signed by legal
counsel, who may be an employee of or counsel to the Company, or may be other
counsel satisfactory to the Trustee. Each such opinion shall include the
statements provided for in Section 13.06 if and to the extent required by the
provisions of such Section.
"Original Issue Date" of any Debt Security (or any portion thereof)
shall mean the earlier of (a) the date of such Debt Security or (b) the date of
any Debt Security (or portion thereof) for which such Debt Security was issued
(directly or indirectly) on registration of transfer, exchange or substitution.
"Original Issue Discount Security" shall mean any Debt Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereof pursuant to
Section 5.01.
The term "outstanding", when used with reference to Debt Securities,
shall, subject to the provisions of Section 7.04, mean, as of any particular
time, all Debt Securities authenticated and delivered by the Trustee or the
Authenticating Agent under this Indenture, except
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(a) Debt Securities theretofore canceled by the Trustee or the
Authenticating Agent or delivered to the Trustee for cancellation;
(b) Debt Securities, or portions thereof, for the payment or
redemption of which moneys in the necessary amount shall have been
deposited in trust with the Trustee or with any paying agent (other than
the Company) or shall have been set aside and segregated in trust by the
Company (if the Company shall act as its own paying agent); provided that,
if such Debt Securities, or portions thereof, are to be redeemed prior to
maturity thereof, notice of such redemption shall have been given as
provided in Article Fourteen or provision satisfactory to the Trustee shall
have been made for giving such notice; and
(c) Debt Securities paid pursuant to Section 2.08 or in lieu of or in
substitution for which other Debt Securities shall have been authenticated
and delivered pursuant to the terms of Section 2.08 unless proof
satisfactory to the Company and the Trustee is presented that any such Debt
Securities are held by bona fide holders in due course.
In determining whether the holders of the requisite principal amount
of outstanding Debt Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, the principal amount of an
Original Issue Discount Security that shall be deemed to be outstanding for such
purposes shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon a declaration of acceleration
of the maturity thereof pursuant to Section 5.01.
"Person" shall mean any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Predecessor Security" of any particular Debt Security means every
previous Debt Security evidencing all or a portion of the same debt as that
evidenced by such particular Debt Security; and, for the purposes of this
definition, any Debt Security authenticated and delivered under Section 2.08 in
lieu of a lost, destroyed or stolen Debt Security shall be deemed to evidence
the same debt as the lost, destroyed or stolen Debt Security.
"Principal Office of the Trustee", or other similar term, shall mean
the office of the Trustee, at which at any particular time its corporate trust
business shall be principally administered.
"Responsible Officer", when used with respect to the Trustee, shall
mean the chairman and vice chairman of the board of directors, the chairman or
vice chairman of the executive committee of the board of directors, the
president, any vice president, any assistant vice president, the cashier, any
assistant cashier, the secretary, any assistant secretary, the treasurer, any
assistant treasurer, any senior trust officer, any trust officer, the
controller, any assistant controller or any other officer or assistant officer
of the Trustee customarily performing functions similar to those performed by
the Persons who at the time shall be such officers,
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respectively, or to whom any corporate trust matter is referred because of his
knowledge of and familiarity with the particular subject.
"Securityholder", "holder of Debt Securities", or other similar terms,
shall mean any Person in whose name at the time a particular Debt Security is
registered on the register kept by the Company or the Trustee for that purpose
in accordance with the terms hereof.
"Senior Indebtedness" means, with respect to the Company, (i) the
principal, premium, if any, and interest in respect of (A) indebtedness of the
Company for money borrowed and (B) indebtedness evidenced by securities,
debentures, notes, bonds or other similar instruments issued by the Company,
including, without limitation, any current or future indebtedness under any
indenture (other than this Indenture) to which the Company is a party; (ii) the
Company's 8 1/2% Convertible Subordinated Notes due 1997; (iii) any current or
future indebtedness issued under that certain indenture dated as of July 15,
1993 between the Company and Chemical Bank, as Trustee, as such indenture may be
amended from time to time; (iv) all capital lease obligations of the Company;
(v) all obligations of the Company issued or assumed as the deferred purchase
price of property, all conditional sale obligations of the Company and all
obligations of the Company under any title retention agreement; (vi) all
obligations of the Company for the reimbursement on any letter of credit, any
banker's acceptance, any security purchase facility, any repurchase agreement or
similar arrangement, any interest rate swap, any other hedging arrangement, any
obligation under options or any similar credit or other transaction; (vii) all
obligations of the type referred to in clauses (i) through (vi) above of other
Persons for the payment of which the Company is responsible or liable as
obligor, guarantor or otherwise; and (viii) all obligations of the type referred
to in clauses (i) through (vii) of other Persons secured by any lien on any
property or asset of the Company (whether or not such obligation is assumed by
the Company), except for (1) any indebtedness between or among the Company and
any Affiliate of the Company and (2) any other debt securities issued pursuant
to this Indenture and guarantees in respect of those debt securities and (3) any
obligation as to which, in the instrument creating or evidencing the same or
pursuant to which the same is outstanding, it is specifically designated by
express provision that such obligation is not Senior Indebtedness.
"Subsidiary" shall mean with respect to any Person, (i) any
corporation at least a majority of the outstanding voting stock of which is
owned, directly or indirectly, by such Person or by one or more of its
Subsidiaries, or by such Person and one or more of its Subsidiaries, (ii) any
general partnership, joint venture or similar entity, at least a majority of the
outstanding partnership or similar interests of which shall at the time be owned
by such Person, or by one or more of its Subsidiaries, or by such Person and one
or more of its Subsidiaries and (iii) any limited partnership of which such
Person or any of its Subsidiaries is a general partner. For the purposes of this
definition, "voting stock" means shares, interests, participations or other
equivalents in the equity interest (however designated) in such Person having
ordinary voting power for the election of a majority of the directors (or the
equivalent) of such Person, other than shares, interests, participations or
other equivalents having such power only by reason of the occurrence of a
contingency.
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"Trust Indenture Act" shall mean the Trust Indenture Act of 1939 as in
force at the date of execution of this Indenture, except as provided in Section
9.03.
"Trust Securities" shall mean Common Securities and Capital
Securities of a Marshall & Ilsley Trust.
"Trustee" shall mean the Person identified as "Trustee" in the first
paragraph hereof, and, subject to the provisions of Article VI hereof, shall
also include its successors and assigns as Trustee hereunder. The term "Trustee"
as used with respect to a particular series of Debt Securities shall mean the
trustee with respect to that series.
"Yield to Maturity" shall mean the yield to maturity on a series of
Debt Securities, calculated at the time of issuance of such series of Debt
Securities, or if applicable, at the most recent redetermination of interest on
such series and calculated in accordance with accepted financial practice.
ARTICLE II
DEBT SECURITIES
SECTION 2.01. Forms Generally.
The Debt Securities of each series shall be in substantially the form
as shall be established by or pursuant to a Board Resolution and as set forth in
an Officers' Certificate of the Company or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with any law or with any rules made pursuant thereto or with any rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the Debt
Securities.
In the event the Debt Securities are issued in definitive form
pursuant to this Indenture, such Debt Securities shall be typed, printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Debt Securities,
as evidenced by their execution of such Debt Securities.
SECTION 2.02. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication on all Debt Securities
shall be in substantially the following form:
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This is one of the Debt Securities of the series designated therein
referred to in the within-mentioned Indenture.
The Chase Manhattan Bank, as Trustee
By
-------------------------
Authorized Officer
SECTION 2.03. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Debt Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Debt Securities may be issued in one or more series up to the
aggregate principal amount of Debt Securities of that series from time to time
authorized by or pursuant to a Board Resolution of the Company or pursuant to
one or more indentures supplemental hereto. Prior to the initial issuance of
Debt Securities of any series, there shall be established in or pursuant to a
Board Resolution of the Company and set forth in an Officers' Certificate of the
Company or established in one or more indentures supplemental:
(1) the title of the Debt Securities of the series (which shall
distinguish Debt Securities of the series from all other Debt Securities);
(2) any limit upon the aggregate principal amount of the Debt
Securities of the series which may be authenticated and delivered under
this Indenture (except for Debt Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Debt
Securities of the series pursuant to Section 2.07, 2.08, 2.09, 9.04 or
14.03);
(3) the date or dates on which the principal of and premium, if
any, on the Debt Securities of the series is payable;
(4) the rate or rates at which the Debt Securities of the series
shall bear interest, if any, or the method by which such interest may be
determined, the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest shall be payable or the
manner of determination of such Interest Payment Dates and the record dates
for the determination of holders to whom interest is payable on any such
Interest Payment Dates;
(5) the place or places where the principal of, and premium, if
any, and any interest on Debt Securities of the series shall be payable;
(6) the right, if any, to extend the interest payment periods and
the duration of such extension;
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(7) the price or prices at which, the period or periods within
which and the terms and conditions upon which Debt Securities of the series
may be redeemed, in whole or in part, at the option of the Company,
pursuant to any sinking fund or otherwise;
(8) the obligation, if any, of the Company to redeem, purchase or
repay Debt Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Securityholder thereof and the
price or prices at which and the period or periods within which, and the
terms and conditions upon which Debt Securities of the series shall be
redeemed, purchased or repaid, in whole or in part, pursuant to such
obligation;
(9) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Debt Securities of the series
shall be issuable;
(10) if other than the principal amount thereof, the portion of
the principal amount of Debt Securities of the series which shall be
payable upon declaration of acceleration of the maturity thereof pursuant
to Section 5.01 or provable in bankruptcy pursuant to Section 5.02;
(11) any Events of Default with respect to the Debt Securities of
a particular series, if not set forth herein;
(12) the form of the Debt Securities of the series including the
form of the certificate of authentication of such series;
(13) any trustee, authenticating or paying agents, warrant
agents, transfer agents or registrars with respect to the Debt Securities
of such series;
(14) whether the Debt Securities of the series shall be issued in
whole or in part in the form of one or more Global Securities and, in such
case, the Depositary for such Global Security or Securities, and whether
beneficial owners of interests in any such Global Securities may exchange
such interests for other Debt Securities of such series in the manner
provided in Section 2.07, and the manner and the circumstances under which
and the place or places where any such exchanges may occur if other than in
the manner provided in Section 2.07, and any other terms of the series
relating to the global nature of the Global Securities of such series and
the exchange, registration or transfer thereof and the payment of any
principal thereof, or interest or premium, if any, thereon;
(15) if the Debt Securities of the series are issued pursuant to
an exemption from registration under the Securities Act; and
(16) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
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All Debt Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to such resolution of the Board of Directors or in any such indenture
supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution of the Company, a copy of an appropriate record
of such action shall be certified by the Secretary or an Assistant Secretary of
the Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate of the Company setting forth the terms of the series.
SECTION 2.04. Authentication and Dating.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Debt Securities of any series executed
by the Company to the Trustee for authentication, and the Trustee shall
thereupon authenticate and make available for delivery said Debt Securities to
or upon the written order of the Company, signed by its Chairman of the Board of
Directors, Vice Chairman, the President, one of its Managing Directors or one of
its Vice Presidents and by its Secretary, any Assistant Secretary, Treasurer or
any Assistant Treasurer, without any further action by the Company hereunder. In
authenticating such Debt Securities, and accepting the additional
responsibilities under this Indenture in relation to such Debt Securities, the
Trustee shall be entitled to receive, and (subject to Section 6.01) shall be
fully protected in relying upon:
(1) a copy of any Board Resolution or Resolutions relating
thereto and, if applicable, an appropriate record of any action taken
pursuant to such resolution, in each case certified by the Secretary or an
Assistant Secretary of the Company as the case may be;
(2) an executed supplemental indenture, if any;
(3) an Officers' Certificate setting forth the form and terms of
the Debt Securities if and as required pursuant to Sections 2.01 and 2.03,
respectively; and
(4) an Opinion of Counsel prepared in accordance with Section
13.06 which shall also state:
(a) that the form of such Debt Securities has been established by or
pursuant to a resolution of the Board of Directors or by a supplemental
indenture as permitted by Section 2.01 in conformity with the provisions of
this Indenture;
(b) that the terms of such Debt Securities have been established by or
pursuant to a resolution of the Board of Directors or by a supplemental
indenture as permitted by Section 2.03 in conformity with the provisions of
this Indenture;
(c) that such Debt Securities, when authenticated and delivered by the
Trustee and issued by the Company in each case in the manner and subject to
any conditions
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specified in such Opinion of Counsel, will constitute valid and legally
binding obligations of the Company;
(d) that all laws and requirements in respect of the execution and
delivery by the Company of the Debt Securities, have been complied with and
that authentication and delivery of the Debt Securities by the Trustee will
not violate the terms of the Indenture; and
(e) such other matters as the Trustee may reasonably request.
The Trustee shall have the right to decline to authenticate and
deliver any Debt Securities under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken or if the Trustee
in good faith by its board of directors or trustees, executive committee, or a
trust committee of directors or trustees and/or vice presidents shall determine
that such action would expose the Trustee to personal liability to existing
holders.
SECTION 2.05. Date and Denomination of Debt Securities.
The Debt Securities shall be issuable as registered Debt Securities
without coupons and in such denominations as shall be specified as contemplated
by Section 2.03. In the absence of any such specification with respect to the
Debt Securities of any series, the Debt Securities of such series shall be
issuable in the denominations of $1,000 and any multiple thereof. The Debt
Securities shall be numbered, lettered, or otherwise distinguished in such
manner or in accordance with such plans as the officers executing the same may
determine with the approval of the Trustee as evidenced by the execution and
authentication thereof.
Every Debt Security shall be dated the date of its authentication,
shall bear interest, if any, from such date and shall be payable on such dates,
in each case, as contemplated by Section 2.03. The interest installment on any
Security that is payable, and is punctually paid or duly provided for, on any
Interest Payment Date for Debt Securities of that series shall be paid to the
Person in whose name said Debt Security (or one or more Predecessor Securities)
is registered at the close of business on the regular record date for such
interest installment. In the event that any Debt Security of a particular
series or portion thereof is called for redemption and the redemption date is
subsequent to a regular record date with respect to any Interest Payment Date
and prior to such Interest Payment Date, interest on such Debt Security will be
paid upon presentation and surrender of such Debt Security as provided in
Section 14.03.
Any interest on any Debt Security that is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date for a Debt
Security of the same series (herein called "Defaulted Interest") shall forthwith
cease to be payable to the registered holder on the relevant regular record date
by virtue of having been such holder; and such Defaulted Interest shall be paid
by the Company, at its election, as provided in clause (1) or clause (2) below:
(1) The Company may make payment of any Defaulted Interest on
Securities to the Persons in whose names such Debt Securities (or their
respective Predecessor Securities) are registered at the close of business
on a special record date for
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the payment of such Defaulted Interest, which shall be fixed in the
following manner: the Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each such Debt Security
and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or shall
make arrangements satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Interest as in
this clause provided. Thereupon the Trustee shall fix a special record date
for the payment of such Defaulted Interest which shall not be more than 15
nor less than ten days prior to the date of the proposed payment and not
less than ten days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
special record date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and
the special record date therefor to be mailed, first class postage prepaid,
to each Securityholder at his or her address as it appears in the Debt
Security Register (as hereinafter defined), not less than ten days prior to
such special record date. Notice of the proposed payment of such Defaulted
Interest and the special record date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons in whose
names such Debt Securities (or their respective Predecessor Securities) are
registered on such special record date and shall be no longer payable
pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on any
Debt Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to this clause, such manner of payment shall be deemed practicable by the
Trustee.
In respect of any series of Debt Securities in which the right to extend the
interest payment periods has been provided pursuant to Section 2.03(6), any
interest scheduled to become payable on an Interest Payment Date occurring
during a valid extension of an interest payment period shall not be Defaulted
Interest and shall be payable on such other date as may be specified in the
terms of such Debt Securities.
Unless otherwise set forth in a Board Resolution of the Company or one
or more indentures supplemental hereto establishing the terms of any series of
Debt Securities pursuant to Section 2.01 hereof, the term "regular record date"
as used in this Section with respect to a series of Debt Securities with respect
to any Interest Payment Date for such series shall mean either the fifteenth day
of the month immediately preceding the month in which an Interest Payment Date
established for such series pursuant to Section 2.01 hereof shall occur, if such
Interest Payment Date is the first day of a month, or the last day of the month
immediately preceding the month in which an Interest Payment Date established
for such series pursuant to Section 2.01 hereof shall occur, if such Interest
Payment Date is the fifteenth day of a month, whether or not such date is a
Business Day.
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Subject to the foregoing provisions of this Section, each Debt
Security of a series delivered under this Indenture upon transfer of or in
exchange for or in lieu of any other Debt Security of such series shall carry
the rights to interest accrued and unpaid, and to accrue, that were carried by
such other Debt Security.
SECTION 2.06. Execution of Debt Securities.
The Debt Securities shall be signed in the name and on behalf of the
Company by the manual or facsimile signature of its Chairman of the Board of
Directors, Vice Chairman, President, one of its Managing Directors or one of its
Executive Vice Presidents, Senior Vice Presidents or Vice Presidents and by the
manual or facsimile signature of its Secretary, one of its Assistant
Secretaries, its Treasurer or one of its Assistant Treasurers, under its
corporate seal which may be affixed thereto or printed, engraved or otherwise
reproduced thereon, by facsimile or otherwise, and which need not be attested.
Only such Debt Securities as shall bear thereon a certificate of authentication
substantially in the form herein before recited, executed by the Trustee or the
Authenticating Agent by the manual signature of an authorized officer, shall be
entitled to the benefits of this Indenture or be valid or obligatory for any
purpose. Such certificate by the Trustee or the Authenticating Agent upon any
Debt Security executed by the Company shall be conclusive evidence that the Debt
Security so authenticated has been duly authenticated and delivered hereunder
and that the holder is entitled to the benefits of this Indenture.
In case any officer of the Company who shall have signed any of the
Debt Securities shall cease to be such officer before the Debt Securities so
signed shall have been authenticated and delivered by the Trustee or the
Authenticating Agent, or disposed of by the Company, such Debt Securities
nevertheless may be authenticated and delivered or disposed of as though the
Person who signed such Debt Securities had not ceased to be such officer of the
Company; and any Debt Security may be signed on behalf of the Company by such
Persons as, at the actual date of the execution of such Debt Security, shall be
the proper officers of the Company, although at the date of the execution of
this Indenture any such person was not such an officer.
SECTION 2.07. Exchange and Registration of Transfer of Debt
Securities
Subject to Section 2.03(14), Debt Securities of any series may be
exchanged for a like aggregate principal amount of Debt Securities of the same
series of other authorized denominations. Debt Securities to be exchanged may be
surrendered at the principal corporate trust office of the Trustee or at any
office or agency to be maintained by the Company for such purpose as provided in
Section 3.02, and the Company shall execute, the Company or the Trustee shall
register and the Trustee or the Authenticating Agent shall authenticate and make
available for delivery in exchange therefor the Debt Security or Debt Securities
which the Securityholder making the exchange shall be entitled to receive.
Subject to Section 2.03(14), upon due presentment for registration of transfer
of any Debt Security of any series at the principal corporate trust office of
the Trustee or at any office or agency of the Company maintained for such
purpose as provided in Section 3.02, the Company shall execute, the Company or
the
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Trustee shall register and the Trustee or the Authenticating Agent shall
authenticate and make available for delivery in the name of the transferee or
transferees a new Debt Security or Debt Securities of the same series for a like
aggregate principal amount. Registration or registration of transfer of any Debt
Security by the Trustee or by any agent of the Company appointed pursuant to
Section 3.02, and delivery of such Debt Security, shall be deemed to complete
the registration or registration of transfer of such Debt Security.
The Company shall cause to be kept, at the office or agency maintained
for the purpose of registration of transfer and for exchange as provided in
Section 3.02, a register (the "Debt Security Register") for each series of Debt
Securities issued hereunder in which, subject to such reasonable regulations as
it may prescribe, the Company shall provide for the registration and transfer of
all Debt Securities as in this Article Two provided. Such register shall be in
written form or in any other form capable of being converted into written form
within a reasonable time.
All Debt Securities presented for registration of transfer or for
exchange or payment shall (if so required by the Company or the Trustee or the
Authenticating Agent) be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Company and
the Trustee or the Authenticating Agent duly executed by, the holder or his
attorney duly authorized in writing.
No service charge shall be made for any exchange or registration of
transfer of Debt Securities, but the Company or the Trustee may require payment
of a sum sufficient to cover any tax, fee or other governmental charge that may
be imposed in connection therewith.
The Company or the Trustee shall not be required to exchange or
register a transfer of (a) any Debt Security for a period of 15 days next
preceding the date of selection of Debt Securities of such series for
redemption, or (b) any Debt Securities of any series selected, called or being
called for redemption in whole or in part, except in the case of any Debt
Securities of any series to be redeemed in part, the portion thereof not so to
be redeemed.
Notwithstanding the foregoing, if pursuant to Section 2.03, a series
of Debt Securities are issued pursuant to an exemption from registration under
the Securities Act, such Debt Securities may not be transferred except in
compliance with the restricted securities legend set forth below (the
"Restrictive Securities Legend"), unless otherwise determined by the Company in
accordance with applicable law:
THE DEBT SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS.
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF
THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE
TRANSFER SUCH SECURITY PRIOR TO THE DATE WHICH WAS THREE
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YEARS (OR SUCH LESSER PERIOD OF TIME AS SPECIFIED IN RULE 144(k) UNDER THE
SECURITIES ACT) AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST
DATE ON WHICH MARSHALL & ILSLEY CORPORATION (THE "COMPANY") OR ANY AFFILIATE OF
THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY)
(THE "RESALE RESTRICTIONS TERMINATION DATE") ONLY (A) TO THE COMPANY, (B)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C)
FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A
UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE
IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a) (1),
(2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE DEBT
SECURITIES FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
"ACCREDITED INVESTOR", FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR
OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S RIGHT
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO IT IN ACCORDANCE WITH THE INDENTURE, A COPY OF WHICH
MAY BE OBTAINED FROM THE COMPANY. THIS LEGEND WILL BE REMOVED UPON THE REQUEST
OF A HOLDER AFTER THE RESALE RESTRICTIONS TERMINATION DATE.
Prior to any distribution of the Debt Securities to the holders of
Capital Securities in accordance with the related Declaration, the Company and
the Trustee shall, if necessary, enter into a supplemental indenture pursuant to
Article IX to provide for transfer procedures and restrictions with respect to
the Debt Securities substantially similar to those contained in the Declaration
with respect to the corresponding series of Capital Securities to the extent
applicable in the circumstances existing at the time of such distribution for
purposes of assuring that no registration of such Debt Securities is required
under the Securities Act of 1933, as amended.
SECTION 2.08. Mutilated, Destroyed, Lost or Stolen Debt Securities.
In case any temporary or definitive Debt Security shall become
mutilated or be destroyed, lost or stolen, the Company shall execute, and upon
its request the Trustee shall authenticate and deliver, a new Debt Security of
the same series bearing a number not contemporaneously outstanding, in exchange
and substitution for the mutilated Debt Security, or in lieu of and in
substitution for the Debt Security so destroyed, lost or stolen. In every case
the applicant for a substituted Debt Security shall furnish to the Company and
the Trustee such security or indemnity as may be required by them to save each
of them harmless, and, in every
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case of destruction, loss or theft, the applicant shall also furnish to the
Company and the Trustee evidence to their satisfaction of the destruction, loss
or theft of such Debt Security and of the ownership thereof.
The Trustee may authenticate any such substituted Debt Security and
deliver the same upon the written request or authorization of any officer of the
Company. Upon the issuance of any substituted Debt Security, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses connected
therewith. In case any Debt Security which has matured or is about to mature or
has been called for redemption in full shall become mutilated or be destroyed,
lost or stolen, the Company may, instead of issuing a substitute Debt Security,
pay or authorize the payment of the same (without surrender thereof except in
the case of a mutilated Debt Security) if the applicant for such payment shall
furnish to the Company and the Trustee such security or indemnity as may be
required by them to save each of them harmless and, in case of destruction, loss
or theft, evidence satisfactory to the Company and to the Trustee of the
destruction, loss or theft of such Security and of the ownership thereof.
Every substituted Debt Security of any series issued pursuant to the
provisions of this Section 2.08 by virtue of the fact that any such Debt
Security is destroyed, lost or stolen shall constitute an additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Debt
Security shall be found at any time, and shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all other Debt
Securities of the same series duly issued hereunder. All Debt Securities shall
be held and owned upon the express condition that, to the extent permitted by
applicable law, the foregoing provisions are exclusive with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Debt Securities
and shall preclude any and all other rights or remedies notwithstanding any law
or statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without
their surrender.
SECTION 2.09. Temporary Debt Securities.
Pending the preparation of definitive Debt Securities of any series,
the Company may execute and the Trustee shall authenticate and make available
for delivery temporary Debt Securities that are typed, printed or lithographed.
Temporary Debt Securities shall be issuable in any authorized denomination, and
substantially in the form of the definitive Debt Securities but with such
omissions, insertions and variations as may be appropriate for temporary Debt
Securities, all as may be determined by the Company. Every such temporary Debt
Security shall be executed by the Company and be authenticated by the Trustee
upon the same conditions and in substantially the same manner, and with the same
effect, as the definitive Debt Securities. Without unreasonable delay the
Company will execute and deliver to the Trustee or the Authenticating Agent
definitive Debt Securities and thereupon any or all temporary Debt Securities of
such series may be surrendered in exchange therefor, at the principal corporate
trust office of the Trustee or at any office or agency maintained by the Company
for such purpose as provided in Section 3.02, and the Trustee or the
Authenticating Agent shall authenticate and make available for delivery in
exchange for such temporary Debt Securities a like aggregate
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principal amount of such definitive Debt Securities. Such exchange shall be made
by the Company at its own expense and without any charge therefor except that in
case of any such exchange involving a registration of transfer the Company may
require payment of a sum sufficient to cover any tax, fee or other governmental
charge that may be imposed in relation thereto. Until so exchanged, the
temporary Debt Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Debt Securities of the same
series authenticated and delivered hereunder.
SECTION 2.10. Cancellation of Debt Securities Paid, etc.
-----------------------------------------
All Debt Securities surrendered for the purpose of payment,
redemption, exchange or registration of transfer, shall, if surrendered to the
Company or any paying agent, be surrendered to the Trustee and promptly canceled
by it, or, if surrendered to the Trustee or any Authenticating Agent, shall be
promptly canceled by it, and no Debt Securities shall be issued in lieu thereof
except as expressly permitted by any of the provisions of this Indenture. All
Debt Securities canceled by any Authenticating Agent shall be delivered to the
Trustee. The Trustee shall deliver all canceled Debt Securities to the Company.
If the Company shall acquire any of the Debt Securities, however, such
acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Debt Securities unless and until the same are
surrendered to the Trustee for cancellation.
SECTION 2.11. Global Securities.
-----------------
(a) If the Company shall establish pursuant to Section 2.03 that the
Debt Securities of a particular series are to be issued as a Global Security,
then the Company shall execute and the Trustee shall, in accordance with Section
2.04, authenticate and deliver, a Global Security that (i) shall represent, and
shall be denominated in an amount equal to the aggregate principal amount of,
all or a specified portion of the outstanding Debt Securities of such series,
(ii) shall be registered in the name of the Depositary or its nominee, (iii)
shall be delivered by the Trustee to the Depositary or pursuant to the
Depositary's instruction and (iv) shall bear a legend substantially to the
following effect: "Except as otherwise provided in Section 2.11 of the
Indenture, this Security may be transferred, in whole but not in part, only to
another nominee of the Depositary or to a successor Depositary or to a nominee
of such successor Depositary."
(b) Notwithstanding the provisions of Section 2.07, the Global
Security of a series may be transferred, in whole but not in part and only in
the manner provided in Section 2.07, only to another nominee of the Depositary
for such series, or to a successor Depositary for such series selected or
approved by the Company or to a nominee of such successor Depositary.
(c) If at any time the Depositary for a series of the Debt Securities
notifies the Company that it is unwilling or unable to continue as Depositary
for such series or if at any time the Depositary for such series shall no longer
be registered or in good standing under the Exchange Act, or other applicable
statute or regulation, and a successor Depositary for such series is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such condition, as the case may be, this Section 2.11 shall
no longer be applicable to the Debt Securities of such series and the Company
will execute, and subject to
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Section 2.07, the Trustee will authenticate and make available for delivery the
Debt Securities of such series in definitive registered form without coupons, in
authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Security of such series in exchange for such
Global Security. In addition, the Company may at any time determine that the
Debt Securities of any series shall no longer be represented by a Global
Security and that the provisions of this Section 2.11 shall no longer apply to
the Debt Securities of such series. In such event the Company will execute and
subject to Section 2.07, the Trustee, upon receipt of an Officers' Certificate
evidencing such determination by the Company, will authenticate and make
available for delivery the Debt Securities of such series in definitive
registered form without coupons, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of the Global Security
of such series in exchange for such Global Security. Upon the exchange of the
Global Security for such Debt Securities in definitive registered form without
coupons, in authorized denominations, the Global Security shall be canceled by
the Trustee. Such Debt Securities in definitive registered form issued in
exchange for the Global Security pursuant to this Section 2.11(c) shall be
registered in such names and in such authorized denominations as the Depositary,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee. The Trustee shall deliver such Debt Securities to
the Depositary for delivery to the Persons in whose names such Debt Securities
are so registered.
SECTION 2.12. CUSIP Numbers.
-------------
The Company in issuing the Debt Securities may use "CUSIP" numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Securityholders; provided that any
such notice may state that no representation is made as to the correctness of
such numbers either as printed on the Debt Securities or as contained in any
notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Debt Securities, and any such redemption
shall not be affected by any defect in or omission of such numbers. The Company
will promptly notify the Trustee of any change in the CUSIP numbers.
ARTICLE III
PARTICULAR COVENANTS OF THE COMPANY
SECTION 3.01. Payment of Principal, Premium and Interest.
------------------------------------------
The Company covenants and agrees for the benefit of each series of
Debt Securities that it will duly and punctually pay or cause to be paid the
principal of and premium, if any, and interest on each of the Debt Securities of
that series at the place, at the respective times and in the manner provided in
such Debt Securities. At the option of the Company, each installment of interest
on the Debt Securities of any series may be paid (i) by mailing checks for such
interest payable to the order of the holders of Debt Securities entitled thereto
as they appear on the registry books of the Company or (ii) if so specified with
respect to the Debt Securities of such series as contemplated by Section 2.03,
by wire transfer to any account with a banking institution located in the United
States designated by such Person to the paying agent no later than the related
record date.
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SECTION 3.02. Offices for Notices and Payments, etc.
-------------------------------------
So long as any of the Debt Securities remain outstanding, the Company
will maintain in the Borough of Manhattan, The City of New York, an office or
agency where the Debt Securities of each series may be presented for payment, an
office or agency where the Debt Securities of that series may be presented for
registration of transfer and for exchange as in this Indenture provided and an
office or agency where notices and demands to or upon the Company in respect of
the Debt Securities of that series or of this Indenture may be served. The
Company will give to the Trustee written notice of the location of any such
office or agency and of any change of location thereof. Until otherwise
designated from time to time by the Company in a notice to the Trustee, or
specified as contemplated by Section 2.03, such office or agency for all of the
above purposes shall be the office or agency of the Trustee. In case the Company
shall fail to maintain any such office or agency in the Borough of Manhattan,
The City of New York, or shall fail to give such notice of the location or of
any change in the location thereof, presentations and demands may be made and
notices may be served at the principal corporate trust office of the Trustee.
In addition to any such office or agency, the Company may from time to
time designate one or more offices or agencies outside the Borough of Manhattan,
The City of New York, where the Debt Securities may be presented for
registration of transfer and for exchange in the manner provided in this
Indenture, and the Company may from time to time rescind such designation, as
the Company may deem desirable or expedient; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain any such office or agency in the Borough of Manhattan,
The City of New York, for the purposes above mentioned. The Company will give to
the Trustee prompt written notice of any such designation or rescission thereof.
SECTION 3.03. Appointments to Fill Vacancies in Trustee's Office.
--------------------------------------------------
The Company, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will appoint, in the manner provided in Section 6.10, a
Trustee, so that there shall at all times be a Trustee hereunder.
SECTION 3.04. Provision as to Paying Agent.
----------------------------
(a) If the Company shall appoint a paying agent other than the Trustee
with respect to the Debt Securities of any series, it will cause such paying
agent to execute and deliver to the Trustee an instrument in which such agent
shall agree with the Trustee, subject to the provision of this Section 3.04,
(1) that it will hold all sums held by it as such agent for the
payment of the principal of and premium, if any, or interest, if any, on the
Debt Securities of such series (whether such sums have been paid to it by the
Company or by any other obligor on the Debt Securities of such series) in trust
for the benefit of the holders of the Debt Securities of such series;
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(2) that it will give the Trustee notice of any failure by the Company
(or by any other obligor on the Debt Securities of such series) to make any
payment of the principal of and premium, if any, or interest, if any, on the
Debt Securities of such series when the same shall be due and payable; and
(3) that it will, at any time during the continuance of any such
failure, upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such paying agent.
(b) If the Company shall act as its own paying agent, it will, on or
before each due date of the principal of and premium, if any, or interest, if
any, on the Debt Securities of any series, set aside, segregate and hold in
trust for the benefit of the holders of the Debt Securities of such series a sum
sufficient to pay such principal, premium or interest so becoming due and will
notify the Trustee of any failure to take such action and of any failure by the
Company (or by any other obligor under the Debt Securities of such series) to
make any payment of the principal of and premium, if any, or interest, if any,
on the Debt Securities of such series when the same shall become due and
payable.
Whenever the Company shall have one or more paying agents for any
series of Debt Securities, it will, on or prior to each due date of the
principal of and premium, if any, or interest, if any, on any Debt Securities of
such series, deposit with a paying agent a sum sufficient to pay the principal,
premium or interest so becoming due, such sum to be held in trust for the
benefit of the Persons entitled thereto and (unless such paying agent is the
Trustee) the Company shall promptly notify the Trustee of its action or failure
to act.
(c) Anything in this Section 3.04 to the contrary notwithstanding, the
Company may, at any time, for the purpose of obtaining a satisfaction and
discharge with respect to one or more or all series of Debt Securities
hereunder, or for any other reason, pay, or direct any paying agent to pay to
the Trustee all sums held in trust for any such series by the Company or any
such paying agent, such sums to be held by the Trustee upon the trusts herein
contained.
(d) Anything in this Section 3.04 to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section 3.04 is subject to
Sections 11.03 and 11.04.
SECTION 3.05. Certificate to Trustee.
----------------------
The Company will deliver to the Trustee on or before 120 days after
the end of each fiscal year in each year, so long as Debt Securities of any
series are outstanding hereunder, a Certificate stating that in the course of
the performance by the signers of their duties as officers of the Company they
would normally have knowledge of any default by the Company in the performance
of any covenants contained herein, stating whether or not they have knowledge of
any such default and, if so, specifying each such default of which the signers
have knowledge and the nature thereof.
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SECTION 3.06. Compliance with Consolidation Provisions.
----------------------------------------
The Company will not, while any of the Debt Securities remain
outstanding, consolidate with, or merge into, or merge into itself, or sell or
convey all or substantially all of its property to any other company unless the
provisions of Article X hereof are complied with.
SECTION 3.07. Limitation on Dividends.
-----------------------
If Debt Securities of a series are initially issued to a Marshall &
Ilsley Trust or a trustee of such trust in connection with the issuance of Trust
Securities by such Marshall & Ilsley Trust (regardless of whether Debt
Securities continue to be held by such trust) and (i) there shall have occurred
and be continuing any event that would constitute an Event of Default, (ii) the
Company shall be in default with respect to its payment of any obligations under
a Capital Securities Guarantee or a Common Securities Guarantee with respect to
securities issued by such trust, or (iii) the Company shall have given notice of
its election to defer payments of interest on the Debt Securities of such series
by extending the interest payment period as provided herein and such period, or
any extension thereof, shall be continuing, then (a) the Company shall not
declare or pay any dividend on, make any distribution with respect to, or
redeem, purchase, acquire or make a liquidation payment with respect to, any of
its capital stock or rights to acquire such capital stock (other than (i)
purchases or acquisitions of shares of the Company's capital stock or rights to
acquire such capital stock in connection with the satisfaction by the Company of
its obligations under any employee benefit plans, (ii) as a result of a
reclassification of the Company's capital stock or rights to acquire such
capital stock or the exchange or conversion of one class or series of the
Company's capital stock or rights to acquire such capital stock for another
class or series of the Company's capital stock or rights to acquire such capital
stock, (iii) the purchase of fractional interests in shares of the Company's
capital stock pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged or (iv) dividends and
distributions made on the Company's capital stock or rights to acquire such
capital stock with the Company's capital stock or rights to acquire such capital
stock) or make any guarantee payments with respect to the foregoing, and (b) the
Company shall not make any payment of interest, principal or premium, if any, on
or repay, repurchase or redeem any debt securities (including guarantees) issued
by the Company which rank pari passu with or junior to the Debt Securities of
such series.
SECTION 3.08. Covenants as to Marshall & Ilsley Trusts.
----------------------------------------
In the event Debt Securities of a series are initially issued to a
Marshall & Ilsley Trust or a trustee of such trust in connection with the
issuance of Trust Securities by such Marshall & Ilsley Trust, for so long as
such Trust Securities remain outstanding, the Company will (i) maintain 100%
ownership of the Common Securities of such Marshall & Ilsley Trust; provided,
however, than any permitted successor of the Company under this Indenture may
succeed to the Company's ownership of such Common Securities, (ii) use its
reasonable efforts to cause such Marshall & Ilsley Trust (a) to remain a
statutory business trust, except in connection with a distribution of Debt
Securities of such series to the holders of such Trust Securities in liquidation
of such Trust, the redemption of all of the Trust Securities of such
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Marshall & Ilsley Trust or mergers, consolidations or amalgamations, each as
permitted by the Declaration of such Marshall & Ilsley Trust, and (b) to
otherwise continue to be classified as a grantor trust for United States federal
income tax purposes and (iii) use its reasonable efforts to cause each holder of
Trust Securities issued by such Trust to be treated as owning an undivided
beneficial interest in the Debt Securities of such series issued to such Trust.
SECTION 3.09. Calculation of Original Issue Discount.
--------------------------------------
The Company shall file with the Trustee promptly at the end of each
calendar year a written notice specifying the amount of original issue discount
(including daily rates and accrual periods), if any, accrued on outstanding Debt
Securities as of the end of such year.
ARTICLE IV
SECURITYHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECTION 4.01. Securityholders' Lists.
----------------------
The Company covenants and agrees that it will furnish or caused to be
furnished to the Trustee:
(a) on each regular record date for each series of Debt Securities, a
list, in such form as the Trustee may reasonably require, of the names and
addresses of the Securityholders of such series of Debt Securities as of such
record date (and on dates to be determined pursuant to Section 2.03 for non-
interest bearing securities in each year); and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished; except that no such lists need be furnished under this Section
4.01 so long as the Trustee is in possession thereof by reason of its acting as
Debt Security registrar for such series.
SECTION 4.02. Preservation and Disclosure of Lists.
------------------------------------
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the holders of
each series of Debt Securities (1) contained in the most recent list furnished
to it as provided in Section 4.01 or (2) received by it in the capacity of Debt
Securities registrar (if so acting) hereunder. The Trustee may destroy any list
furnished to it as provided in Section 4.01 upon receipt of a new list so
furnished.
(b) In case three or more holders of Debt Securities of any series
(hereinafter referred to as "applicants") apply in writing to the Trustee and
furnish to the Trustee reasonable proof that each such applicant has owned a
Debt Security of such series for a period of at least six months preceding the
date of such application, and such application states that the applicants desire
to communicate with other holders of Debt Securities of such series or with
holders of all
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<PAGE>
Debt Securities with respect to their rights under this Indenture or under such
Debt Securities and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee shall
within five Business Days after the receipt of such application, at its
election, either:
(1) afford such applicants access to the information preserved at
the time by the Trustee in accordance with the provisions of subsection (a)
of this Section 4.02, or
(2) inform such applicants as to the approximate number of
holders of such series or all Debt Securities, as the case may be, whose
names and addresses appear in the information preserved at the time by the
Trustee in accordance with the provisions of subsection (a) of this Section
4.02, and as to the approximate cost of mailing to such Securityholders the
form of proxy or other communication, if any, specified in such
application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Securityholder of such series or all Debt Securities, as the case
may be, whose name and address appear in the information preserved at the time
by the Trustee in accordance with the provisions of subsection (a) of this
Section 4.02 a copy of the form of proxy or other communication which is
specified in such request with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five days after
such tender, the Trustee shall mail to such applicants and file with the
Securities and Exchange Commission, if permitted or required by applicable law,
together with a copy of the material to be mailed, a written statement to the
effect that, in the opinion of the Trustee, such mailing would be contrary to
the best interests of the holders of Debt Securities of such series or all Debt
Securities, as the case may be, or would be in violation of applicable law. Such
written statement shall specify the basis of such opinion. If said Commission,
as permitted or required by applicable law, after opportunity for a hearing upon
the objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order
sustaining 1 or more of such objections, said Commission shall find, after
notice and opportunity for hearing, that all the objections so sustained have
been met and shall enter an order so declaring, the Trustee shall mail copies of
such material to all such Securityholders with reasonable promptness after the
entry of such order and the renewal of such tender; otherwise the Trustee shall
be relieved of any obligation or duty to such applicants respecting their
application.
(c) Each and every holder of Debt Securities, by receiving and holding
the same, agrees with Company and the Trustee that neither the Company nor the
Trustee nor any paying agent shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the holders
of Debt Securities in accordance with the provisions of subsection (b) of this
Section 4.02, regardless of the source from which such information was derived,
and that the Trustee shall not be held accountable by reason of mailing any
material pursuant to a request made under said subsection (b).
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SECTION 4.03. [Reserved]
SECTION 4.04. Reports by the Trustee.
----------------------
(a) The Trustee shall transmit to Securityholders such reports
concerning the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant thereto. If required by Section 313(a) of the Trust Indenture Act, the
Trustee shall, within 60 days after each May 15 following the date of this
Indenture deliver to Securityholders a brief report, dated as of such May 15,
which complies with the provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of such transmission
to Securityholders, be filed by the Trustee with each stock exchange, if any,
upon which the Securities are listed, with the Commission, if required by
applicable law, and with the Company. The Company will promptly notify the
Trustee when the Debt Securities are listed on any stock exchange.
ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
UPON AN EVENT OF DEFAULT
SECTION 5.01. Events of Default.
-----------------
The following Events of Default with respect to Debt Securities of any
series or such other events as may be established with respect to the Debt
Securities of that series as contemplated by Section 2.03 hereof shall be
"Events of Default" with respect to Debt Securities of that series:
(a) the Company defaults in the payment of any interest upon any Debt
Securities of that series when it becomes due and payable, and continuance of
such default for a period of 30 days; provided, however, that a valid extension
of an interest payment period by the Company in accordance with the terms of
such Debt Securities shall not constitute a default in the payment of interest
for this purpose; or
(b) the Company defaults in the payment of all or any part of the
principal of (or premium, if any, on) any Debt Securities of that series as and
when the same shall become due and payable either at maturity, upon redemption
(including redemption for any sinking fund), by declaration or otherwise;
provided, however, that a valid extension of the maturity of such Debt
Securities in accordance with the terms of such Debt Securities shall not
constitute a default in the payment of principal or premium, if any; or
(c) the Company defaults in the performance of, or breaches, any of
its covenants or warranties in this Indenture (other than a covenant or warranty
a default in whose
24
<PAGE>
performance or whose breach is elsewhere in this Section specifically dealt with
and other than those set forth exclusively in terms of any particular series of
Debt Securities established as contemplated in this Indenture solely for the
benefit of the holders of such Debt Securities), and continuance of such default
or breach for a period of 90 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the Trustee
by the holders of at least 25% in aggregate principal amount of the outstanding
Debt Securities of all series (voting as a class), a written notice specifying
such default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(d) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of the Company in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of the Company or for any substantial part of
its property, or ordering the winding-up or liquidation of its affairs and such
decree or order shall remain unstayed and in effect for a period of 90
consecutive days; or
(e) the Company shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, shall
consent to the entry of an order for relief in an involuntary case under any
such law, or shall consent to the appointment of or taking possession by a
receiver, liquidator, assignee, trustee, custodian, sequestrator (or other
similar official) of the Company or of any substantial part of its property, or
shall make any general assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due; or
(f) as to Debt Securities of any series issued to a Marshall & Ilsley
Trust, such Marshall & Ilsley Trust shall have voluntarily or involuntarily
dissolved, wound-up its business or otherwise terminated its existence except in
connection with (i) the distribution of the Debt Securities of such series to
holders of such Trust Securities in liquidation of their interests in such
Marshall & Ilsley Trust, (ii) the redemption of all of the outstanding Trust
Securities of such Marshall & Ilsley Trust or (iii) certain mergers,
consolidations or amalgamations, each as permitted by the Declaration of such
Marshall & Ilsley Trust.
If an Event of Default occurs and is continuing with respect to any
series of Debt Securities, then, and in each and every such case, unless the
principal of all of the Debt Securities of that series shall have already become
due and payable, either the Trustee or the holders of not less than 25% in
aggregate principal amount of the Debt Securities of that series then
outstanding hereunder, by notice in writing to the Company (and to the Trustee
if given by Securityholders), may declare the entire principal (or, if the Debt
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of that series) of all
Debt Securities of that series and the interest accrued thereon, if any, to be
due and payable immediately, and upon any such declaration the same shall become
immediately due and payable.
The foregoing provisions, however, are subject to the condition that
if, at any time after the principal (or, if the Debt Securities are Original
Issue Discount Securities, such portion
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of the principal as may be specified in the terms thereof) of the Debt
Securities of any series shall have been so declared due and payable, and before
any judgment or decree for the payment of the moneys due shall have been
obtained or entered as hereinafter provided, the Company shall pay or shall
deposit with the Trustee a sum sufficient to pay all matured installments of
interest upon all the Debt Securities of such series and the principal of and
premium, if any, on any and all Debt Securities of such series which shall have
become due otherwise than by acceleration (with interest upon such principal and
premium, if any, and, to the extent that payment of such interest is enforceable
under applicable law) on overdue installments of interest, at the same rate as
the rate of interest or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in the Debt Securities of such series, to the
date of such payment or deposit) and such amount as shall be sufficient to cover
reasonable compensation to the Trustee and each predecessor Trustee, their
respective agents, attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor Trustee
except as a result of negligence or bad faith, and if any and all Events of
Default under the Indenture, other than the non-payment of the principal of or
premium, if any, on Debt Securities which shall have become due by acceleration,
shall have been cured, waived or otherwise remedied as provided herein -- then
and in every such case the holders of a majority in aggregate principal amount
of the Debt Securities of such series then outstanding, by written notice to the
Company and to the Trustee, may waive all defaults with respect to that series
and rescind and annul such declaration and its consequences, but no such waiver
or rescission and annulment shall extend to or shall affect any subsequent
default or shall impair any right consequent thereon.
In case the Trustee shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discontinued or abandoned
because of such rescission or annulment or for any other reason or shall have
been determined adversely to the Trustee, then and in every such case the
Company, the Trustee and the holders of the Debt Securities shall be restored
respectively to their several positions and rights hereunder, and all rights,
remedies and powers of the Company, the Trustee and the holders of the Debt
Securities shall continue as though no such proceeding had been taken.
SECTION 5.02. Payment of Debt Securities on Default; Suit Therefor.
----------------------------------------------------
The Company covenants that (a) in case default shall be made in the
payment of any installment of interest upon any of the Debt Securities of any
series as and when the same shall become due and payable, and such default shall
have continued for a period of 30 days, or (b) in case default shall be made in
the payment of the principal of or premium, if any, on any of the Debt
Securities of any series as and when the same shall have become due and payable,
whether at maturity of the Debt Securities of that series or upon redemption or
by declaration or otherwise -- then, upon demand of the Trustee, the Company
will pay to the Trustee, for the benefit of the holders of the Debt Securities
of that series the whole amount that then shall have become due and payable on
all such Debt Securities of that series for principal and premium, if any, or
interest, or both, as the case may be, with interest upon the overdue principal
and premium, if any, and (to the extent that payment of such interest is
enforceable under applicable law) upon the overdue installments of interest at
the rate or Yield to Maturity (in the case of Original Issue Discount
Securities) borne by the Debt Securities of that series; and, in addition
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thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including a reasonable compensation to the Trustee, its
agents, attorneys and counsel, and any expenses or liabilities incurred by the
Trustee hereunder other than through its negligence or bad faith. In case the
Company shall fail forthwith to pay such amounts upon such demand, the Trustee,
in its own name and as trustee of an express trust, shall be entitled and
empowered to institute any actions or proceedings at law or in equity for the
collection of the sums so due and unpaid, and may prosecute any such action or
proceeding to judgment or final decree, and may enforce any such judgment or
final decree against the Company or any other obligor on such Debt Securities
and collect in the manner provided by law out of the property of the Company or
any other obligor on such Debt Securities wherever situated the moneys adjudged
or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy or for
the reorganization of the Company or any other obligor on the Debt Securities of
any series under Title 11, United States Code, or any other applicable law, or
in case a receiver or trustee shall have been appointed for the property of the
Company or such other obligor, or in the case of any other similar judicial
proceedings relative to the Company or other obligor upon the Debt Securities of
any series, or to the creditors or property of the Company or such other
obligor, the Trustee, irrespective of whether the principal of the Debt
Securities of any series shall then be due and payable as therein expressed or
by declaration or otherwise and irrespective of whether the Trustee shall have
made any demand pursuant to the provisions of this Section 5.02, shall be
entitled and empowered, by intervention in such proceedings or otherwise, to
file and prove a claim or claims for the whole amount of principal and interest
(or, if the Debt Securities of that series are Original Issue Discount
Securities such portion of the principal amount as may be specified in the terms
of that series) owing and unpaid in respect of the Debt Securities of such
series and, in case of any judicial proceedings, to file such proofs of claim
and other papers or documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for reasonable compensation to
the Trustee and each predecessor Trustee, and their respective agents, attorneys
and counsel, and for reimbursement of all expenses and liabilities incurred, and
all advances made, by the Trustee and each predecessor Trustee, except as a
result of negligence or bad faith) and of the Securityholders allowed in such
judicial proceedings relative to the Company or any other obligor on the Debt
Securities of any series, or to the creditors or property of the Company or such
other obligor, unless prohibited by applicable law and regulations, to vote on
behalf of the holders of the Debt Securities or any series in any election of a
trustee or a standby trustee in arrangement, reorganization, liquidation or
other bankruptcy or insolvency proceedings or person performing similar
functions in comparable proceedings, and to collect and receive any moneys or
other property payable or deliverable on any such claims, and to distribute the
same after the deduction of its charges and expenses; and any receiver, assignee
or trustee in bankruptcy or reorganization is hereby authorized by each of the
Securityholders to make such payments to the Trustee, and, in the event that the
Trustee shall consent to the making of such payments directly to the
Securityholders, to pay to the Trustee such amounts as shall be sufficient to
cover reasonable compensation to the Trustee, each predecessor Trustee and their
respective agents, attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor Trustee
except as a result of negligence or bad faith.
27
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Nothing herein contained shall be construed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Securityholder
any plan of reorganization, arrangement, adjustment or composition affecting the
Debt Securities of any series or the rights of any holder thereof or to
authorize the Trustee to vote in respect of the claim of any Securityholder in
any such proceeding.
All rights of action and of asserting claims under this Indenture, or
under any of the Debt Securities, may be enforced by the Trustee without the
possession of any of the Debt Securities, or the production thereof at any trial
or other proceeding relative thereto, and any such suit or proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall be for the ratable benefit of the holders of
the Debt Securities.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the holders
of the Debt Securities, and it shall not be necessary to make any holders of the
Debt Securities parties to any such proceedings.
SECTION 5.03. Application of Moneys Collected by Trustee.
------------------------------------------
Any moneys collected by the Trustee shall be applied in the following
order, at the date or dates fixed by the Trustee for the distribution of such
moneys, upon presentation of the several Debt Securities in respect of which
moneys have been collected, and stamping thereon the payment, if only partially
paid, and upon surrender thereof if fully paid:
First: To the payment of costs and expenses of collection applicable
to such series and reasonable compensation to the Trustee, its agents, attorneys
and counsel, and of all other expenses and liabilities incurred, and all
advances made, by the Trustee except as a result of its negligence or bad faith;
Second: To the payment of all Senior Indebtedness of the Company if
and to the extent required by Article XV;
Third: To the payment of the amounts then due and unpaid upon Debt
Securities of such series for principal (and premium, if any), and interest on
the Debt Securities of such series, in respect of which or for the benefit of
which money has been collected, ratably, without preference or priority of any
kind, according to the amounts due on such Debt Securities for principal (and
premium, if any) and interest, respectively; and
Fourth: The balance, if any, to the Company.
SECTION 5.04. Proceedings by Securityholders.
------------------------------
No holder of any Debt Security of any series shall have any right by
virtue of or by availing of any provision of this Indenture to institute any
suit, action or proceeding in equity or at law upon or under or with respect to
this Indenture or for the appointment of a receiver or
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<PAGE>
trustee, or for any other remedy hereunder, unless such holder previously shall
have given to the Trustee written notice of an Event of Default and of the
continuance thereof with respect to the Debt Securities of such series
specifying such Event of Default, as hereinbefore provided, and unless also the
holders of not less than 25% in aggregate principal amount of the Debt
Securities of that series then outstanding shall have made written request upon
the Trustee to institute such action, suit or proceeding in its own name as
Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee for 60 days after its receipt of
such notice, request and offer of indemnity shall have failed to institute any
such action, suit or proceeding, it being understood and intended, and being
expressly covenanted by the taker and holder of every Debt Security with every
other taker and holder and the Trustee, that no one or more holders of Debt
Securities of any series shall have any right in any manner whatever by virtue
of or by availing of any provision of this Indenture to affect, disturb or
prejudice the rights of any other holder of Debt Securities of such series, or
to obtain or seek to obtain priority over or preference to any other such
holder, or to enforce any right under this Indenture, except in the manner
herein provided and for the equal, ratable and common benefit of all holders of
Debt Securities of the applicable series.
Notwithstanding any other provisions in this Indenture, however, the
right of any holder of any Debt Security to receive payment of the principal of
(and premium, if any) and interest, if any, on such Debt Security, on or after
the same shall have become due and payable, or to institute suit for the
enforcement of any such payment, shall not be impaired or affected without the
consent of such holder. For the protection and enforcement of the provisions of
this Section, each and every Securityholder and the Trustee shall be entitled to
such relief as can be given either at law or in equity.
SECTION 5.05. Proceedings by Trustee.
----------------------
In case of an Event of Default hereunder the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either by suit in
equity or by action at law or by proceeding in bankruptcy or otherwise, whether
for the specific enforcement of any covenant or agreement contained in this
Indenture or in aid of the exercise of any power granted in this Indenture, or
to enforce any other legal or equitable right vested in the Trustee by this
Indenture or by law.
SECTION 5.06. Remedies Cumulative and Continuing.
----------------------------------
Except as otherwise provided in Section 2.08, all powers and remedies
given by this Article V to the Trustee or to the Securityholders shall, to the
extent permitted by law, be deemed cumulative and not exclusive of any other
powers and remedies available to the Trustee or the holders of the Debt
Securities, by judicial proceedings or otherwise, to enforce the performance or
observance of the covenants and agreements contained in this Indenture or
otherwise established with respect to such series, and no delay or omission of
the Trustee or of any holder of any of the Debt Securities to exercise any right
or power accruing upon any Event
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<PAGE>
of Default occurring and continuing as aforesaid shall impair any such right or
power, or shall be construed to be a waiver of any such default or an
acquiescence therein; and, subject to the provisions of Section 5.04, every
power and remedy given by this Article V or by law to the Trustee or to the
Securityholders may be exercised from time to time, and as often as shall be
deemed expedient, by the Trustee or by the Securityholders.
SECTION 5.07. Direction of Proceedings and Waiver of Defaults by
--------------------------------------------------
Majority of Securityholders.
- ----------------------------
The holders of a majority in aggregate principal amount of the Debt
Securities of any or all series affected (voting as one class) at the time
outstanding shall have the right to direct the time, method, and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee with respect to such series;
provided, however, that (subject to the provisions of Section 6.01) the Trustee
shall have the right to decline to follow any such direction if the Trustee
shall determine that the action so directed would be unjustly prejudicial to the
holders not taking part in such direction or if the Trustee being advised by
counsel determines that the action or proceeding so directed may not lawfully be
taken or if the Trustee in good faith by its board of directors or trustees,
executive committee, or a trust committee of directors or trustees and/or
Responsible Officers shall determine that the action or proceedings so directed
would involve the Trustee in personal liability. Prior to any declaration
accelerating the maturity of any series of the Debt Securities, the holders of a
majority in aggregate principal amount of the Debt Securities of that series at
the time outstanding may on behalf of the holders of all of the Debt Securities
of such series waive (or modify any previously granted waiver of) any past
default or Event of Default, including any default or Event of Default the
conditions for the occurrence of which are established pursuant to Section 2.03,
and its consequences, except a default (a) in the payment of principal of,
premium, if any, or interest on any of the Debt Securities, (b) in respect of
covenants or provisions hereof which cannot be modified or amended without the
consent of the holder of each Debt Security affected, or (c) a default of the
covenants contained in Section 3.08; provided, however, that if the Debt
Securities of such series are held by a Marshall & Ilsley Trust or a trustee of
such trust, such waiver or modification to such waiver shall not be effective
until the holders of a majority in liquidation preference of Trust Securities of
the applicable Marshall & Ilsley Trust shall have consented to such waiver or
modification to such waiver; provided, further, that if the consent of the
holder of each outstanding Debt Security is required, such waiver shall not be
effective until each holder of the Trust Securities of the applicable Marshall &
Ilsley Trust shall have consented to such waiver. Upon any such waiver, the
default covered thereby shall be deemed to be cured for all purposes of this
Indenture and the Company, the Trustee and the holders of the Debt Securities of
such series shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other default
or Event of Default or impair any right consequent thereon. Whenever any default
or Event of Default hereunder shall have been waived as permitted by this
Section 5.07, said default or Event of Default shall for all purposes of the
Debt Securities of that series (or of all Securities, as the case may be) and
this Indenture be deemed to have been cured and to be not continuing.
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SECTION 5.08. Notice of Defaults.
------------------
The Trustee shall, within 90 days after the occurrence of a default
with respect to the Debt Securities of any series, mail to all Securityholders
of that series, as the names and addresses of such holders appear upon the Debt
Security Register, notice of all defaults with respect to that series known to
the Trustee, unless such defaults shall have been cured before the giving of
such notice (the term "defaults" for the purpose of this Section 5.08 being
hereby defined to be the events specified in clauses (a), (b), (c), (d), (e) and
(f) of Section 5.01, not including periods of grace, if any, provided for
therein, and irrespective of the giving of written notice specified in clause
(c) of Section 5.01); and provided that, except in the case of default in the
payment of the principal of, premium, if any, or interest on any of the Debt
Securities of such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee, or a
trust committee of directors and/or Responsible Officers of the Trustee in good
faith determines that the withholding of such notice is in the interests of the
Securityholders of such series; and provided further, that in the case of any
default of the character specified in Section 5.01(c) no such notice to
Securityholders of such series shall be given until at least 60 days after the
occurrence thereof but shall be given within 90 days after such occurrence.
SECTION 5.09. Undertaking to Pay Costs.
------------------------
All parties to this Indenture agree, and each holder of any Debt
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for any
action taken or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys'
fees and expenses, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section 5.09 shall not apply to any suit instituted
by the Trustee, to any suit instituted by any Securityholder, or group of
Securityholders of any series, holding in the aggregate more than 10% in
principal amount of the Debt Securities of that series outstanding, or to any
suit instituted by any Securityholder for the enforcement of the payment of the
principal of (or premium, if any) or interest on any Debt Security against the
Company on or after the same shall have become due and payable.
ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.01. Duties and Responsibilities of Trustee.
--------------------------------------
With respect to the holders of any series of Debt Securities issued
hereunder, the Trustee, prior to the occurrence of an Event of Default with
respect to Debt Securities of that series and after the curing or waiving of all
Events of Default which may have occurred, with respect to Debt Securities of
that series, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of Default with
respect to the Debt
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Securities of a series has occurred (which has not been cured or waived) the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that:
(a) prior to the occurrence of an Event of Default with respect to
Debt Securities of a series and after the curing or waiving of all Events of
Default with respect to that series which may have occurred
(1) the duties and obligations of the Trustee with respect to
Debt Securities of such series shall be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable except
for the performance of such duties and obligations with respect to such
series as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee, and
(2) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture; but, in the case of any such certificates or opinions which
by any provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Officers of the Trustee, unless it shall
be proved that the Trustee was negligent in ascertaining the pertinent facts;
and
(c) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith, in accordance with the direction of
the Securityholders pursuant to Section 5.07, relating to the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there is reasonable ground for believing that the
repayment of such funds or liability is not reasonably assured to it under the
terms of this Indenture or adequate indemnity against such risk is not
reasonably assured to it.
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SECTION 6.02. Reliance on Documents, Opinions, etc.
------------------------------------
Except as otherwise provided in Section 6.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, bond, note, debenture or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless other
evidence in respect thereof be herein specifically prescribed); and any Board
Resolution may be evidenced to the Trustee by a copy thereof certified by the
Secretary or an Assistant Secretary of the Company;
(c) the Trustee may consult with counsel of its selection and any
advice or Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders, pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which may be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by
it in good faith and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture; nothing contained herein
shall, however, relieve the Trustee of the obligation, upon the occurrence of an
Event of Default with respect to a series of the Debt Securities (that has not
been cured or waived) to exercise with respect to Debt Securities of that series
such of the rights and powers vested in it by this Indenture, and to use the
same degree of care and skill in their exercise, as a prudent man would exercise
or use under the circumstances in the conduct of his own affairs;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond, debenture,
coupon or other paper or document, unless requested in writing to do so by the
holders of not less than a majority in principal amount of the outstanding Debt
Securities of the series affected thereby; provided, however, that if the
payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation is,
in the opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such expense or liability as a condition to so
proceeding; and
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(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents (including
any Authenticating Agent) or attorneys, and the Trustee shall not be responsible
for any misconduct or negligence on the part of any such agent or attorney
appointed by it with due care.
SECTION 6.03. No Responsibility for Recitals, etc.
-----------------------------------
The recitals contained herein and in the Debt Securities (except in
the certificate of authentication of the Trustee or the Authenticating Agent)
shall be taken as the statements of the Company and the Trustee and the
Authenticating Agent assume no responsibility for the correctness of the same.
The Trustee and the Authenticating Agent make no representations as to the
validity or sufficiency of this Indenture or of the Debt Securities. The Trustee
and the Authenticating Agent shall not be accountable for the use or application
by the Company of any Debt Securities or the proceeds of any Debt Securities
authenticated and delivered by the Trustee or the Authenticating Agent in
conformity with the provisions of this Indenture.
SECTION 6.04. Trustee, Authenticating Agent, Paying Agents, Transfer
------------------------------------------------------
Agents or Registrar May Own Debt Securities.
- -------------------------------------------
The Trustee or any Authenticating Agent or any paying agent or any
transfer agent or any Debt Security registrar, in its individual or any other
capacity, may become the owner or pledgee of Debt Securities with the same
rights it would have if it were not Trustee, Authenticating Agent, paying agent,
transfer agent or Debt Security registrar.
SECTION 6.05. Moneys to be Held in Trust.
--------------------------
Subject to the provisions of Section 11.04, all moneys received by the
Trustee or any paying agent shall, until used or applied as herein provided, be
held in trust for the purpose for which they were received, but need not be
segregated from other funds except to the extent required by law. The Trustee
and any paying agent shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing with the Company.
So long as no Event of Default shall have occurred and be continuing, all
interest allowed on any such moneys shall be paid from time to time upon the
written order of the Company, signed by the Chairman of the Board of Directors,
the President, a Managing Director, a Vice President, the Treasurer or an
Assistant Treasurer of the Company.
SECTION 6.06. Compensation and Expenses of Trustee.
------------------------------------
The Company covenants and agrees to pay to the Trustee from time to
time, and the Trustee shall be entitled to, such compensation as shall be agreed
to in writing between the Company and the Trustee (which shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust), and the Company will pay or reimburse the Trustee upon its request for
all reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any of the provisions of this Indenture (including
the reasonable compensation and the expenses and disbursements of its counsel
and of all persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from
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<PAGE>
its negligence or bad faith. The Company also covenants to indemnify each of the
Trustee or any predecessor Trustee (and its officers, agents, directors and
employees) for, and to hold it harmless against, any and all loss, damage,
claim, liability or expense including taxes (other than taxes based on the
income of the Trustee) incurred without negligence or bad faith on the part of
the Trustee and arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of defending
itself against any claim of liability in the premises. The obligations of the
Company under this Section 6.06 to compensate and indemnify the Trustee and to
pay or reimburse the Trustee for expenses, disbursements and advances shall
constitute additional indebtedness hereunder. Such additional indebtedness shall
be secured by a lien prior to that of the Debt Securities upon all property and
funds held or collected by the Trustee as such, except funds held in trust for
the benefit of the holders of particular Debt Securities.
Without prejudice to any other rights available to the Trustee under
applicable law, when the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.01(d), Section
5.01(e) or Section 5.01(f), the expenses (including the reasonable charges and
expenses of its counsel) and the compensation for the services are intended to
constitute expenses of administration under any applicable federal or state
bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 6.07. Officers' Certificate as Evidence.
---------------------------------
Except as otherwise provided in Sections 6.01 and 6.02, whenever in
the administration of the provisions of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking or
omitting any action hereunder, such matter (unless other evidence in respect
thereof be herein specifically prescribed) may, in the absence of negligence or
bad faith on the part of the Trustee, be deemed to be conclusively proved and
established by an Officers' Certificate delivered to the Trustee, and such
certificate, in the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action taken or omitted by
it under the provisions of this Indenture upon the faith thereof.
SECTION 6.08. Conflicting Interest of Trustee.
-------------------------------
If the Trustee has or shall acquire any "conflicting interest" within
the meaning of Section 310(b) of the Trust Indenture Act, the Trustee and the
Company shall in all respects comply with the provisions of Section 310(b) of
the Trust Indenture Act, subject to the penultimate paragraph of such section.
SECTION 6.09. Eligibility of Trustee.
----------------------
The Trustee hereunder shall at all times be a corporation organized
and doing business under the laws of the United States of America or any state
or territory thereof or of the District of Columbia or a corporation or other
Person permitted to act as trustee by the Securities
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and Exchange Commission authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least 50 million U.S.
dollars ($50,000,000) and subject to supervision or examination by federal,
state, territorial, or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section 6.09 the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent records of condition so published.
The Company may not, nor may any person directly or indirectly
controlling, controlled by, or under common control with the Company, serve as
Trustee.
In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 6.09, the Trustee shall resign
immediately in the manner and with the effect specified in Section 6.10.
SECTION 6.10. Resignation or Removal of Trustee.
---------------------------------
(a) The Trustee, or any trustee or trustees hereafter appointed, may
at any time resign with respect to one or more or all series of Debt Securities
by giving written notice of such resignation to the Company and by mailing
notice thereof to the holders of the applicable series of Debt Securities at
their addresses as they shall appear on the Debt Security Register. Upon
receiving such notice of resignation, the Company shall promptly appoint a
successor trustee or trustees with respect to the applicable series by written
instrument, in duplicate, executed by order of its Board of Directors, one copy
of which instrument shall be delivered to the resigning Trustee and one copy to
the successor Trustee. If no successor Trustee shall have been so appointed with
respect to any series of Debt Securities and have accepted appointment within 30
days after the mailing of such notice of resignation to the affected
Securityholders, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee, or any Securityholder
who has been a bona fide holder of a Debt Security or Debt Securities of the
applicable series for at least six months may, subject to the provisions of
Section 5.09, on behalf of himself and all others similarly situated, petition
any such court for the appointment of a successor Trustee. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor Trustee.
(b) In case at any time any of the following shall occur --
(1) the Trustee shall fail to comply with the provisions of Section
6.08 after written request therefor by the Company or by any Securityholder who
has been a bona fide holder of a Debt Security or Debt Securities for at least
six months, or
(2) the Trustee shall cease to be eligible in accordance with the
provisions of Section 6.09 and shall fail to resign after written request
therefor by the Company or by any such Securityholder, or
(3) the Trustee shall become incapable of acting, or shall be adjudged
a bankrupt or insolvent, or a receiver of the Trustee or of its property shall
be appointed, or any
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public officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then, in
any such case, the Company may remove the Trustee and appoint a successor
Trustee by written instrument, in duplicate, executed by order of the Board of
Directors, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor Trustee, or, subject to the provisions of
Section 5.09, any Securityholder who has been a bona fide holder of a Debt
Security or Debt Securities of the applicable series for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee and the appointment of
a successor Trustee. Such court may thereupon, after such notice, if any, as it
may deem proper and prescribe, remove the Trustee and appoint successor Trustee.
(c) Upon prior written notice to the Company and the Trustee, the
holders of a majority in aggregate principal amount of the Debt Securities of
any series at the time outstanding may at any time remove the Trustee with
respect to such series and nominate a successor Trustee with respect to the
applicable series of Debt Securities, which shall be deemed appointed as
successor Trustee with respect to the applicable series unless within ten
Business Days after such nomination the Company objects thereto, in which case
the Trustee so removed or any Securityholder of the applicable series, upon the
terms and conditions and otherwise as in subsection (a) of this Section 6.10
provided, may petition any court of competent jurisdiction for an appointment of
a successor Trustee with respect to such series.
(d) Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this Section 6.10 shall
become effective upon acceptance of appointment by the successor Trustee as
provided in Section 6.11.
SECTION 6.11. Acceptance by Successor Trustee.
-------------------------------
Any successor Trustee appointed as provided in Section 6.10 shall
execute, acknowledge and deliver to the Company and to its predecessor Trustee
an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the retiring Trustee with respect to all or any
applicable series shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, duties and obligations with respect to such series of its predecessor
hereunder, with like effect as if originally named as Trustee herein; but,
nevertheless, on the written request of the Company or of the successor Trustee,
the Trustee ceasing to act shall, upon payment of any amounts then due it
pursuant to the provisions of Section 6.06, execute and deliver an instrument
transferring to such successor Trustee all the rights and powers of the Trustee
so ceasing to act and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee thereunder. Upon
request of any such successor Trustee, the Company shall execute any and all
instruments in writing for more fully and certainly vesting in and confirming to
such successor Trustee all such rights and powers. Any Trustee ceasing to act
shall, nevertheless, retain a lien upon all property or funds held or collected
by such Trustee to secure any amounts then due it pursuant to the provisions of
Section 6.06.
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If a successor Trustee is appointed with respect to the Debt
Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Debt Securities of any
applicable series shall execute and deliver an indenture supplemental hereto
which shall contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Debt Securities of any series as to which the predecessor
Trustee is not retiring shall continue to be vested in the predecessor Trustee,
and shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the Trust hereunder
by more than one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same
trust and that each such Trustee shall be Trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any other
such Trustee.
No successor Trustee shall accept appointment as provided in this
Section 6.11 unless at the time of such acceptance such successor Trustee shall
be qualified under the provisions of Section 6.08 and eligible under the
provisions of Section 6.09.
Upon acceptance of appointment by a successor Trustee as provided in
this Section 6.11, the Company shall mail notice of the succession of such
Trustee hereunder to the holders of Debt Securities of any applicable series at
their addresses as they shall appear on the Debt Security Register. If the
Company fails to mail such notice within ten Business Days after the acceptance
of appointment by the successor Trustee, the successor Trustee shall cause such
notice to be mailed at the expense of the Company.
SECTION 6.12. Succession by Merger, etc.
-------------------------
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder without
the execution or filing of any paper or any further act on the part of any of
the parties hereto.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Debt Securities of any series shall
have been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor Trustee, and deliver
such Debt Securities so authenticated; and in case at that time any of the Debt
Securities of any series shall not have been authenticated, any successor to the
Trustee may authenticate such Debt Securities either in the name of any
predecessor hereunder or in the name of the successor Trustee; and in all such
cases such certificates shall have the full force which it is anywhere in the
Debt Securities of such series or in this Indenture provided that the
certificate of the Trustee shall have; provided, however, that the right to
adopt the certificate of authentication of any predecessor Trustee or
authenticate Debt Securities of any series in the name of any predecessor
Trustee shall apply only to its successor or successors by merger, conversion or
consolidation.
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SECTION 6.13. Limitation on Rights of Trustee as a Creditor.
The Trustee shall comply with Section 311(a) of the Trust Indenture
Act, excluding any creditor relationship described in Section 311(b) of the
Trust Indenture Act. A Trustee who has resigned or been removed shall be
subject to Section 311(a) of the Trust Indenture Act to the extent included
therein.
SECTION 6.14. Authenticating Agents.
There may be one or more Authenticating Agents appointed by the
Trustee upon the request of the Company with power to act on its behalf and
subject to its direction in the authentication and delivery of Debt Securities
of any series issued upon exchange or transfer thereof as fully to all intents
and purposes as though any such Authenticating Agent had been expressly
authorized to authenticate and deliver Debt Securities of such series; provided
that the Trustee shall have no liability to the Company for any acts or
omissions of the Authenticating Agent with respect to the authentication and
delivery of Debt Securities of any series. Any such Authenticating Agent shall
at all times be a corporation organized and doing business under the laws of the
United States or of any state or territory thereof or of the District of
Columbia authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of at least $5,000,000 and being subject to
supervision or examination by federal, state, territorial or District of
Columbia authority. If such corporation publishes reports of condition at least
annually pursuant to law or the requirements of such authority, then for the
purposes of this Section 6.14 the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect herein specified in this Section.
Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate trust business
of any Authenticating Agent, shall be the successor of such Authenticating Agent
hereunder, if such successor corporation is otherwise eligible under this
Section 6.14 without the execution or filing of any paper or any further act on
the part of the parties hereto or such Authenticating Agent.
Any Authenticating Agent may at any time resign with respect to one or
more or all series of Debt Securities by giving written notice of resignation to
the Trustee and to the Company. The Trustee may at any time terminate the
agency of any Authenticating Agent with respect to one or more or all series of
Debt Securities by giving written notice of termination to such Authenticating
Agent and to the Company. Upon receiving such a notice of resignation or upon
such a termination, or in case at any time any Authenticating Agent shall cease
to be eligible under this Section 6.14, the Trustee may, and upon the request of
the Company shall, promptly appoint a successor Authenticating Agent with
respect to the applicable series eligible under this Section 6.14, shall give
written notice of such appointment to the Company and shall
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mail notice of such appointment to all holders of the applicable series of Debt
Securities as the names and addresses of such holders appear on the Debt
Security Register. Any successor Authenticating Agent with respect to all or any
series upon acceptance of its appointment hereunder shall become vested with all
rights, powers, duties and responsibilities with respect to such series of its
predecessor hereunder, with like effect as if originally named as Authenticating
Agent herein.
The Company agrees to pay to any Authenticating Agent from time to
time reasonable compensation for its services. Any Authenticating Agent shall
have no responsibility or liability for any action taken by it as such in
accordance with the directions of the Trustee.
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
SECTION 7.01. Action by Securityholders.
Whenever in this Indenture it is provided that the holders of a
specified percentage in aggregate principal amount of the Debt Securities of any
or all series may take any action (including the making of any demand or
request, the giving of any notice, consent or waiver or the taking of any other
action) the fact that at the time of taking any such action the holders of such
specified percentage have joined therein may be evidenced (a) by any instrument
or any number of instruments of similar tenor executed by such Securityholders
in person or by agent or proxy appointed in writing, or (b) by the record of
such holders of Debt Securities voting in favor thereof at any meeting of such
Securityholders duly called and held in accordance with the provisions of
Article Eight, or (c) by a combination of such instrument or instruments and any
such record of such a meeting of such Securityholders or (d) by any other method
the Trustee deems satisfactory.
If the Company shall solicit from the Securityholders of any series
any request, demand, authorization, direction, notice, consent, waiver or other
action or revocation of the same, the Company may, at its option, as evidenced
by an Officers' Certificate, fix in advance a record date for such series for
the determination of Securityholders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other action or revocation
of the same, but the Company shall have no obligation to do so. If such a
record date is fixed, such request, demand, authorization, direction, notice,
consent, waiver or other action or revocation of the same may be given before or
after the record date, but only the Securityholders of record at the close of
business on the record date shall be deemed to be Securityholders for the
purposes of determining whether Securityholders of the requisite proportion of
outstanding Debt Securities of that series have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other action or revocation of the same, and for that purpose the
outstanding Debt Securities of that series shall be computed as of the record
date; provided, however, that no such authorization, agreement or consent by
such Securityholders on the record date shall be deemed effective unless it
shall become effective pursuant to the provisions of this Indenture not later
than six months after the record date.
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SECTION 7.02. Proof of Execution by Securityholders.
Subject to the provisions of Section 6.01, 6.02 and 8.05, proof of the
execution of any instrument by a Securityholder or his agent or proxy shall be
sufficient if made in accordance with such reasonable rules and regulations as
may be prescribed by the Trustee or in such manner as shall be satisfactory to
the Trustee. The ownership of Debt Securities shall be proved by the Debt
Security Register or by a certificate of the Debt Security registrar. The
Trustee may require such additional proof of any matter referred to in this
Section as it shall deem necessary.
The record of any Securityholders' meeting shall be proved in the
manner provided in Section 8.06.
SECTION 7.03. Who Are Deemed Absolute Owners.
Prior to due presentment for registration of transfer of any Debt
Security, the Company, the Trustee, any Authenticating Agent, any paying agent,
any transfer agent and any Security registrar may deem the person in whose name
such Debt Security shall be registered upon the Debt Security Register to be,
and may treat him as, the absolute owner of such Debt Security (whether or not
such Debt Security shall be overdue) for the purpose of receiving payment of or
on account of the principal of, premium, if any, and (subject to Section 2.05)
interest on such Debt Security and for all other purposes; and neither the
Company nor the Trustee nor any Authenticating Agent nor any paying agent nor
any transfer agent nor any Security registrar shall be affected by any notice to
the contrary. All such payments so made to any holder for the time being or
upon his order shall be valid, and, to the extent of the sum or sums so paid,
effectual to satisfy and discharge the liability for moneys payable upon any
such Debt Security.
SECTION 7.04. Debt Securities Owned by Company Deemed Not
Outstanding.
In determining whether the holders of the requisite aggregate
principal amount of Debt Securities have concurred in any direction, consent or
waiver under this Indenture, Debt Securities which are owned by the Company or
any other obligor on the Debt Securities or by any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Company or any other obligor on the Debt Securities shall be disregarded and
deemed not to be outstanding for the purpose of any such determination; provided
that for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, consent or waiver, only Debt Securities which the
Trustee actually knows are so owned shall be so disregarded. Debt Securities so
owned which have been pledged in good faith may be regarded as outstanding for
the purposes of this Section 7.04 if the pledgee shall establish to the
satisfaction of the Trustee the pledgee's right to vote such Debt Securities and
that the pledgee is not the Company or any such other obligor or Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with the Company or any such other obligor. In the case of a dispute as
to such right, any decision by the Trustee taken upon the advice of counsel
shall be full protection to the Trustee.
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SECTION 7.05. Revocation of Consents; Future Holders Bound.
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 7.01, of the taking of any action by the holders of the
percentage in aggregate principal amount of the Debt Securities specified in
this Indenture in connection with such action, any holder (in cases where no
record date has been set pursuant to Section 7.01) or any holder as of an
applicable record date (in cases where a record date has been set pursuant to
Section 7.01) of a Debt Security (or any Debt Security issued in whole or in
part in exchange or substitution therefor) the serial number of which is shown
by the evidence to be included in the Debt Securities the holders of which have
consented to such action may, by filing written notice with the Trustee at the
Principal Office of the Trustee and upon proof of holding as provided in Section
7.02, revoke such action so far as concerns such Debt Security (or so far as
concerns the principal amount represented by any exchanged or substituted Debt
Security). Except as aforesaid any such action taken by the holder of any Debt
Security shall be conclusive and binding upon such holder and upon all future
holders and owners of such Debt Security, and of any Debt Security issued in
exchange or substitution therefor or on registration of transfer thereof,
irrespective of whether or not any notation in regard thereto is made upon such
Debt Security or any Debt Security issued in exchange or substitution therefor.
ARTICLE VIII
SECURITYHOLDERS' MEETINGS
SECTION 8.01. Purposes of Meetings.
A meeting of Securityholders of any or all series may be called at any
time and from time to time pursuant to the provisions of this Article Eight for
any of the following purposes:
(a) to give any notice to the Company or to the Trustee, or to give
any directions to the Trustee, or to consent to the waiving of any default
hereunder and its consequences, or to take any other action authorized to be
taken by Securityholders pursuant to any of the provisions of Article V;
(b) to remove the Trustee and nominate a successor trustee pursuant to
the provisions of Article VI;
(c) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 9.02; or
(d) to take any other action authorized to be taken by or on behalf of
the holders of any specified aggregate principal amount of such Debt Securities
under any other provision of this Indenture or under applicable law.
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SECTION 8.02. Call of Meetings by Trustee.
The Trustee may at any time call a meeting of Securityholders of any
or all series to take any action specified in Section 8.01, to be held at such
time and at such place in the Borough of Manhattan, The City of New York, as the
Trustee shall determine. Notice of every meeting of the Securityholders of any
or all series, setting forth the time and the place of such meeting and in
general terms the action proposed to be taken at such meeting, shall be mailed
to holders of Debt Securities of each series affected at their addresses as they
shall appear on the Debt Securities Register for each series affected. Such
notice shall be mailed not less than 20 nor more than 180 days prior to the date
fixed for the meeting.
SECTION 8.03. Call of Meetings by Company or Securityholders.
In case at any time the Company pursuant to a resolution of the Board
of Directors, or the holders of at least 10% in aggregate principal amount of
the Debt Securities of any or all series, as the case may be, then outstanding,
shall have requested the Trustee to call a meeting of Securityholders of any or
all series, as the case may be, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee shall not
have mailed the notice of such meeting within 20 days after receipt of such
request, then the Company or such Securityholders may determine the time and the
place in said Borough of Manhattan for such meeting and may call such meeting to
take any action authorized in Section 8.01, by mailing notice thereof as
provided in Section 8.02.
SECTION 8.04. Qualifications for Voting.
To be entitled to vote at any meeting of Securityholders a Person
shall (a) be a holder of one or more Debt Securities with respect to which the
meeting is being held or (b) a Person appointed by an instrument in writing as
proxy by a holder of one or more such Debt Securities. The only Persons who
shall be entitled to be present or to speak at any meeting of Securityholders
shall be the Persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 8.05. Regulations.
Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting of
Securityholders, in regard to proof of the holding of Debt Securities and of the
appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Securityholders as provided in Section 8.03, in which case the
Company or the Securityholders calling the meeting,
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as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
majority vote of the meeting.
Subject to the provisions of Section 7.04, at any meeting each holder
of Debt Securities with respect to which such meeting is being held or proxy
therefor shall be entitled to one vote for each $1,000 principal amount (in the
case of Original Issue Discount Securities, such principal amount to be
determined as provided in the definition "outstanding") of Debt Securities held
or represented by him; provided, however, that no vote shall be cast or counted
at any meeting in respect of any Debt Security challenged as not outstanding and
ruled by the chairman of the meeting to be not outstanding. The chairman of the
meeting shall have no right to vote other than by virtue of Debt Securities held
by him or instruments in writing as aforesaid duly designating him as the Person
to vote on behalf of other Securityholders. Any meeting of Securityholders duly
called pursuant to the provisions of Section 8.02 or 8.03 may be adjourned from
time to time by a majority of those present, whether or not constituting a
quorum, and the meeting may be held as so adjourned without further notice.
SECTION 8.06. Voting.
The vote upon any resolution submitted to any meeting of holders of
Debt Securities with respect to which such meeting is being held shall be by
written ballots on which shall be subscribed the signatures of such holders or
of their representatives by proxy and the serial number or numbers of the Debt
Securities held or represented by them. The permanent chairman of the meeting
shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in triplicate of all
votes cast at the meeting. A record in duplicate of the proceedings of each
meeting of Securityholders shall be prepared by the secretary of the meeting and
there shall be attached to said record the original reports of the inspectors of
votes on any vote by ballot taken thereat and affidavits by one or more Persons
having knowledge of the facts setting forth a copy of the notice of the meeting
and showing that said notice was mailed as provided in Section 8.02. The record
shall show the serial numbers of the Debt Securities voting in favor of or
against any resolution. The record shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one of the
duplicates shall be delivered to the Company and the other to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 8.07. Quorum; Actions.
The Persons entitled to vote a majority in principal amount of the
Debt Securities of a series shall constitute a quorum for a meeting of
Securityholders of such series; provided, however, that if any action is to be
taken at such meeting with respect to a consent, waiver, request, demand,
notice, authorization, direction or other action which may be given by the
holders of not less than a specified percentage in principal amount of the Debt
Securities of a series, the Persons holding or representing such specified
percentage in principal amount of the
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Debt Securities of such series will constitute a quorum. In the absence of a
quorum within 30 minutes of the time appointed for any such meeting, the meeting
shall, if convened at the request of Securityholders of such series, be
dissolved. In any other case the meeting may be adjourned for a period of not
less than 10 days as determined by the permanent chairman of the meeting prior
to the adjournment of such meeting. In the absence of a quorum at any such
adjourned meeting, such adjourned meeting may be further adjourned for a period
of not less than 10 days as determined by the permanent chairman of the meeting
prior to the adjournment of such adjourned meeting. Notice of the reconvening of
any adjourned meeting shall be given as provided in Section 8.02, except that
such notice need be given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened. Notice of the reconvening of an
adjourned meeting shall state expressly the percentage, as provided above, of
the principal amount of the Debt Securities of such series which shall
constitute a quorum.
Except as limited by the proviso in the first paragraph of Section
9.02, any resolution presented to a meeting or adjourned meeting duly reconvened
at which a quorum is present as aforesaid may be adopted by the affirmative vote
of the Holders of a majority in principal amount of the Debt Securities of that
series; provided, however, that, except as limited by the proviso in the first
paragraph of Section 9.02, any resolution with respect to any consent, waiver,
request, demand, notice, authorization, direction or other action which this
Indenture expressly provides may be given by the holders of not less than a
specified percentage in principal amount of the Debt Securities of a series may
be adopted at a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid only by the affirmative vote of the holders of a
not less than such specified percentage in principal amount of the Debt
Securities of that series.
Any resolution passed or decision taken at any meeting of holders of
Debt Securities of any series duly held in accordance with this Section shall be
binding on all the Securityholders of such series, whether or not present or
represented at the meeting.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures without Consent of
Securityholders.
The Company, when authorized by a Board Resolution, and the Trustee
may from time to time and at any time enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the Trust
Indenture Act as then in effect), without the consent of the Securityholders,
for one or more of the following purposes:
(a) to evidence the succession of another corporation to the Company,
or successive successions, and the assumption by the successor corporation of
the covenants, agreements and obligations of the Company, pursuant to Article X
hereof;
(b) to add to the covenants of the Company such further covenants,
restrictions or conditions for the protection of the holders of all or any
series of Debt Securities (and if such
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covenants are to be for the benefit of less than all series of Debt Securities
stating that such covenants are expressly being included for the benefit of such
series) as the Board of Directors and the Trustee shall consider to be for the
protection of the holders of such Debt Securities, and to make the occurrence,
or the occurrence and continuance, of a default in any of such additional
covenants, restrictions or conditions a default or an Event of Default
permitting the enforcement of all or any of the several remedies provided in
this Indenture as herein set forth; provided, however, that in respect of any
such additional covenant, restriction or condition such supplemental indenture
may provide for a particular period of grace after default (which period may be
shorter or longer than that allowed in the case of other defaults) or may
provide for an immediate enforcement upon such default or may limit the remedies
available to the Trustee upon such default;
(c) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any supplemental
indenture, or to make such other provisions in regard to matters or questions
arising under this Indenture; provided that any such action shall not adversely
affect the interests of the holders of the Debt Securities of any series;
(d) to add to, delete from, or revise the terms of Debt Securities of
any series as required by Section 2.07, including, without limitation, any terms
relating to the issuance, exchange, registration or transfer of Debt Securities,
including to provide for transfer procedures and restrictions substantially
similar to those applicable to the Capital Securities relating to such series
(for purposes of assuring that no registration of Debt Securities of a series
subject to transfer restrictions is required under the Securities Act of 1933,
as amended); provided that any such action shall not adversely affect the
interests of the holders of the Debt Securities of any series then outstanding
(it being understood, for purposes of this proviso, that transfer restrictions
on Debt Securities of a series substantially similar to those that were
applicable to Capital Securities of the related series shall not be deemed to
adversely affect the holders of the Debt Securities);
(e) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Debt Securities of one or
more series and to add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
6.11;
(f) to make any change (other than as elsewhere provided in this
paragraph) that does not adversely affect the rights of any Securityholder in
any material respect; or
(g) to provide for the issuance of and establish the form and terms
and conditions of the Debt Securities of any series, to establish the form of
any certifications required to be furnished pursuant to the terms of this
Indenture or any series of Debt Securities, or to add to the rights of the
holders of any series of Debt Securities.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations
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which may be therein contained and to accept the conveyance, transfer and
assignment of any property thereunder, but the Trustee shall not be obligated
to, but may in its discretion, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
Any supplemental indenture authorized by the provisions of this
Section 9.01 may be executed by the Company and the Trustee without the consent
of the holders of any of the Debt Securities at the time outstanding,
notwithstanding any of the provisions of Section 9.02.
SECTION 9.02. Supplemental Indentures with Consent of
Securityholders.
With the consent (evidenced as provided in Section 7.01) of the
holders of not less than a majority in aggregate principal amount of the Debt
Securities at the time outstanding of all series affected by such supplemental
indenture (voting as a class), the Company and the Trustee may from time to time
and at any time enter into an indenture or indentures supplemental hereto (which
shall conform to the provisions of the Trust Indenture Act, then in effect,
applicable to indentures qualified thereunder) for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of any supplemental indenture or of modifying in any manner
the rights of the holders of the Debt Securities of each series so affected;
provided, however, that no such supplemental indenture shall without the consent
of the holders of each Debt Security then outstanding and affected thereby (i)
extend the fixed maturity of any Debt Security of any series, or reduce the
principal amount thereof, or any premium thereon, or reduce the rate or extend
the time of payment of interest thereon, or reduce any amount payable on
redemption thereof or make the principal thereof or any interest or premium
thereon payable in any coin or currency other than that provided in the Debt
Securities, or reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon an acceleration of the maturity
thereof pursuant to Section 5.01 or the amount thereof provable in bankruptcy
pursuant to Section 5.02, or impair or affect the right of any Securityholder to
institute suit for payment thereof or impair the right of repayment, if any, at
the option of the holder, or (ii) reduce the aforesaid percentage of Debt
Securities the holders of which are required to consent to any such supplemental
indenture; provided, further, that if the Debt Securities of such series are
held by a Marshall & Ilsley Trust or a trustee of such trust, such supplemental
indenture shall not be effective until the holders of a majority in liquidation
preference of Trust Securities of the applicable Trust shall have consented to
such supplemental indenture; provided further, that if the consent of the
Securityholder of each outstanding Debt Security is required, such supplemental
indenture shall not be effective until each holder of the Trust Securities of
the applicable Marshall & Ilsley Trust shall have consented to such supplemental
indenture.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Debt Securities, or which
modifies the rights of Securityholders of such series with respect to such
covenant or provision, shall be deemed not to affect the rights under this
Indenture or the Securityholders of any other series.
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Upon the request of the Company accompanied by a Board Resolution
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Securityholders as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee
shall transmit by mail, first class postage prepaid, a notice, prepared by the
Company, setting forth in general terms the substance of such supplemental
indenture, to the Securityholders of all series affected thereby as their names
and addresses appear upon the Debt Security Register. Any failure of the
Trustee to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under
this Section 9.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
SECTION 9.03. Compliance with Trust Indenture Act; Effect of
Supplemental Indentures.
Any supplemental indenture executed pursuant to the provisions of this
Article IX shall comply with the Trust Indenture Act, as then in effect to the
extent applicable to indentures qualified under the Trust Indenture Act. Upon
the execution of any supplemental indenture pursuant to the provisions of this
Article IX, this Indenture shall be and be deemed to be modified and amended in
accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee, the
Company and the holders of Debt Securities of each series affected thereby shall
thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
SECTION 9.04. Notation on Debt Securities.
Debt Securities of any series authenticated and delivered after the
execution of any supplemental indenture affecting such series pursuant to the
provisions of this Article IX may bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company or the Trustee shall so determine, new Debt Securities of any series so
modified as to conform, in the opinion of the Trustee and the Board of Directors
of the Company, to any modification of this Indenture contained in any such
supplemental indenture may be prepared and executed by the Company,
authenticated by the Trustee or the Authenticating Agent and delivered in
exchange for the Debt Securities of any series then outstanding.
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SECTION 9.05. Evidence of Compliance of Supplemental Indenture to be
Furnished Trustee.
The Trustee, subject to the provisions of Sections 6.01 and 6.02, may
receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant hereto complies with
the requirements of this Article IX. The Trustee may receive an Opinion of
Counsel as conclusive evidence that any supplemental indenture executed pursuant
to this Article IX is authorized or permitted by, and conforms to, the terms of
this Article IX and that it is proper for the Trustee under the provisions of
this Article IX to join in the execution thereof.
ARTICLE X
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 10.01. Company May Consolidate, etc., on Certain Terms.
Nothing contained in this Indenture or in the Debt Securities of any
series shall prevent any consolidation or merger of the Company with or into any
other corporation or corporations (whether or not affiliated with the Company)
or successive consolidations or mergers in which the Company or its successor or
successors shall be a party or parties, or shall prevent any sale, conveyance,
transfer or other disposition of the property of the Company or its successor or
successors as an entirety, or substantially as an entirety, to any other
corporation (whether or not affiliated with the Company, or its successor or
successors) authorized to acquire and operate the same; provided, however, that
the Company hereby covenants and agrees that, upon any such consolidation,
merger (where the Company is not the surviving corporation), sale, conveyance,
transfer or other disposition, the due and punctual payment of the principal of
(and premium, if any) and interest on all of the Debt Securities of all series
in accordance with the terms of each series, according to their tenor, and the
due and punctual performance and observance of all the covenants and conditions
of this Indenture with respect to each series or established with respect to
such series to be kept or performed by the Company, shall be expressly assumed
by supplemental indenture (which shall conform to the provisions of the Trust
Indenture Act, as then in effect, applicable to indentures qualified thereunder)
satisfactory in form to the Trustee executed and delivered to the Trustee by the
entity formed by such consolidation, or into which the Company shall have been
merged, or by the entity which shall have acquired such property.
SECTION 10.02. Successor Corporation to be Substituted.
In case of any such consolidation, merger, sale, conveyance, transfer
or other disposition and upon the assumption by the successor corporation, by
supplemental indenture, executed and delivered to the Trustee and satisfactory
in form to the Trustee, of the due and punctual payment of the principal of and
premium, if any, and interest on all of the Debt Securities and the due and
punctual performance and observance of all of the covenants and conditions of
this Indenture to be performed or observed by the Company, such successor
corporation shall succeed to and be substituted for the Company, with the same
effect as if it had
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been named herein as the Company, and thereupon the predecessor corporation
shall be relieved of any further liability or obligation hereunder or upon the
Debt Securities. Such successor corporation thereupon may cause to be signed,
and may issue either in its own name or in the name of Marshall & Ilsley
Corporation, any or all of the Debt Securities issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee or the Authenticating Agent; and, upon the order of such successor
corporation instead of the Company and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee or the Authenticating
Agent shall authenticate and deliver any Debt Securities which previously shall
have been signed and delivered by the officers of the Company, to the Trustee or
the Authenticating Agent for authentication, and any Debt Securities which such
successor corporation thereafter shall cause to be signed and delivered to the
Trustee or the Authenticating Agent for that purpose. All the Debt Securities so
issued shall in all respects have the same legal rank and benefit under this
Indenture as the Debt Securities theretofore or thereafter issued in accordance
with the terms of this Indenture as though all of such Debt Securities had been
issued at the date of the execution hereof.
SECTION 10.03. Opinion of Counsel to be Given Trustee.
The Trustee, subject to the provisions of Sections 6.01 and 6.02, may
receive an Opinion of Counsel as conclusive evidence that any consolidation,
merger, sale, conveyance, transfer or other disposition, and any assumption,
permitted or required by the terms of this Article X complies with the
provisions of this Article X.
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 11.01. Discharge of Indenture.
When (a) the Company shall deliver to the Trustee for cancellation all
Debt Securities theretofore authenticated (other than any Debt Securities which
shall have been destroyed, lost or stolen and which shall have been replaced or
paid as provided in Section 2.08) and not theretofore canceled, or (b) all the
Debt Securities not theretofore canceled or delivered to the Trustee for
cancellation shall have become due and payable, or are by their terms to become
due and payable within one year or are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the giving of notice of
redemption, and the Company shall deposit with the Trustee, in trust, funds,
which shall be immediately due and payable, sufficient to pay at maturity or
upon redemption all of the Debt Securities (other than any Debt Securities which
shall have been destroyed, lost or stolen and which shall have been replaced or
paid as provided in Section 2.08) not theretofore canceled or delivered to the
Trustee for cancellation, including principal and premium, if any, and interest
due or to become due to such date of maturity or redemption date, as the case
may be, but excluding, however, the amount of any moneys for the payment of
principal of, and premium, if any, or interest on the Debt Securities (1)
theretofore repaid to the Company in accordance with the provisions of Section
11.04, or (2) paid to any state or to the District of Columbia pursuant to its
unclaimed property or similar laws, and if in either case the Company shall also
pay or cause to be paid all other sums
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payable hereunder by the Company, then this Indenture shall cease to be of
further effect except for the provisions of Sections 2.05, 2.07, 2.08, 3.01,
3.02, 3.04, 6.06, 6.10 and 11.04 hereof shall survive until such Debt Securities
shall mature and be paid. Thereafter, Sections 6.10 and 11.04 shall survive, and
the Trustee, on demand of the Company accompanied by an Officers' Certificate
and an Opinion of Counsel and at the cost and expense of the Company, shall
execute proper instruments acknowledging satisfaction of and discharging this
Indenture, the Company, however, hereby agreeing to reimburse the Trustee for
any costs or expenses thereafter reasonably and properly incurred by the Trustee
in connection with this Indenture or the Debt Securities.
SECTION 11.02. Deposited Moneys to be Held in Trust by Trustee.
Subject to the provisions of Section 11.04, all moneys deposited with
the Trustee pursuant to Section 11.01 shall be held in trust and applied by it
to the payment, either directly or through any paying agent (including the
Company if acting as its own paying agent), to the holders of the particular
Debt Securities for the payment of which such moneys have been deposited with
the Trustee, of all sums due and to become due thereon for principal, and
premium, if any, and interest.
SECTION 11.03. Paying Agent to Repay Moneys Held.
Upon the satisfaction and discharge of this Indenture all moneys then
held by any paying agent of the Debt Securities (other than the Trustee) shall,
upon demand of the Company, be repaid to it or paid to the Trustee, and
thereupon such paying agent shall be released from all further liability with
respect to such moneys.
SECTION 11.04. Return of Unclaimed Moneys.
Any moneys deposited with or paid to the Trustee or any paying agent
for payment of the principal of, and premium, if any, or interest on Debt
Securities and not applied but remaining unclaimed by the holders of Debt
Securities for two years after the date upon which the principal of, and
premium, if any, or interest on such Debt Securities, as the case may be, shall
have become due and payable, shall be repaid to the Company by the Trustee or
such paying agent on written demand; and the holder of any of the Debt
Securities shall thereafter look only to the Company for any payment which such
holder may be entitled to collect and all liability of the Trustee or such
paying agent with respect to such moneys shall thereupon cease.
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01. Indenture and Debt Securities Solely Corporate
Obligations.
No recourse for the payment of the principal of or premium, if any, or
interest on any Debt Security, or for any claim based thereon or otherwise in
respect thereof, and no
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recourse under or upon any obligation, covenant or agreement of the Company in
this Indenture or in any supplemental indenture, or in any such Debt Security,
or because of the creation of any indebtedness represented thereby, shall be had
against any incorporator, stockholder, officer or director, as such, past,
present or future, of the Company or of any successor corporation of the
Company, either directly or through the Company or any successor corporation of
the Company, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise; it being expressly
understood that all such liability is hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this Indenture and
the issue of the Debt Securities.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01. Successors.
All the covenants, stipulations, promises and agreements in this
Indenture contained by the Company shall bind its successors and assigns whether
so expressed or not.
SECTION 13.02. Official Acts by Successor Corporation.
Any act or proceeding by any provision of this Indenture authorized or
required to be done or performed by any board, committee or officer of the
Company shall and may be done and performed with like force and effect by the
like board, committee or officer of any corporation that shall at the time be
the lawful sole successor of the Company.
SECTION 13.03. Surrender of Company Powers.
The Company by instrument in writing executed by authority of 2/3
(two-thirds) of its Board of Directors and delivered to the Trustee may
surrender any of the powers reserved to the Company as the case may be, and
thereupon such power so surrendered shall terminate both as to the Company, and
as to any successor corporation.
SECTION 13.04. Addresses for Notices, etc.
Any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Trustee or by the holders of
Debt Securities on the Company may be given or served by being deposited postage
prepaid by registered or certified mail in a post office letter box addressed
(until another address is filed by the Company, with the Trustee for the
purpose) to the Company, 770 North Water Street, Milwaukee, Wisconsin 53202,
Attention:Secretary. Any notice, direction, request or demand by any
Securityholder or the Company to or upon the Trustee shall be deemed to have
been sufficiently given or made, for all purposes, if given or made in writing
at the Principal Office of the Trustee, addressed to the Trustee, 450 West 33rd
Street, New York, New York 10001, Attention: Corporate Trustee Administration
Department.
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SECTION 13.05. Governing Law.
This Indenture and each Debt Security shall be deemed to be a contract
made under the laws of the State of New York, and for all purposes shall be
governed by and construed in accordance with the laws of said State, without
regard to conflict of laws principles thereof.
SECTION 13.06. Evidence of Compliance with Conditions Precedent.
Upon any application or demand by the Company to the Trustee to take
any action under any of the provisions of this Indenture, the Company, shall
furnish to the Trustee an Officers' Certificate stating that in the opinion of
the signers all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with and an Opinion of
Counsel stating that, in the opinion of such counsel, all such conditions
precedent have been complied with.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (1) a statement that the person
making such certificate or opinion has read such covenant or condition; (2) a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based; (3) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and (4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
SECTION 13.07. Non-Business Days.
Subject to Section 2.03, in any case where the date of payment of
interest on or principal of the Debt Securities will be a Saturday, Sunday or a
day on which banking institutions in New York City (in the State of New York)
are permitted or required by any applicable law to close, the payment of such
interest on or principal of the Debt Securities need not be made on such date
but may be made on the next succeeding day not a Saturday, Sunday or a day on
which banking institutions in such City are permitted or required by any
applicable law to close, with the same force and effect as if made on the date
of payment and no interest shall accrue for the period from and after such date.
SECTION 13.08. Trust Indenture Act to Control.
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
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SECTION 13.09. Table of Contents, Headings, etc.
The table of contents and the titles and headings of the articles and
sections of this Indenture have been inserted for convenience of reference only,
are not to be considered a part hereof, and shall in no way modify or restrict
any of the terms or provisions hereof.
SECTION 13.10. Execution in Counterparts.
This Indenture may be executed in any number of counterparts, each of
which shall be an original, but such counterparts shall together constitute but
one and the same instrument.
SECTION 13.11. Separability.
In case any one or more of the provisions contained in this Indenture
or in the Debt Securities of any series shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Indenture or of
such Debt Securities, but this Indenture and such Debt Securities shall be
construed as if such invalid or illegal or unenforceable provision had never
been contained herein or therein.
SECTION 13.12. Assignment.
The Company will have the right at all times to assign any of its
respective rights or obligations under this Indenture to a direct or indirect
wholly owned Subsidiary of the Company, provided that, in the event of any such
assignment, the Company, will remain liable for all such obligations. Subject to
the foregoing, this Indenture is binding upon and inures to the benefit of the
parties hereto and their respective successors and assigns. This Indenture may
not otherwise be assigned by the parties thereto.
SECTION 13.13. Acknowledgment of Rights.
The Company acknowledges that, with respect to any Debt Securities
held by any Marshall & Ilsley Trust or a trustee of such trust, if the
Institutional Trustee of such trust fails to enforce its rights under this
Indenture as the holder of the series of Debt Securities held as the assets of
such Marshall & Ilsley Trust any holder of Capital Securities may institute
legal proceedings directly against the Company to enforce such Institutional
Trustee's rights under this Indenture without first instituting any legal
proceedings against such Institutional Trustee or any other person or entity.
Notwithstanding the foregoing, if an Event of Default has occurred and is
continuing and such event is attributable to the failure of the Company to pay
interest (or premium, if any) or principal on the applicable series of Debt
Securities on the date such interest (or premium, if any) or principal is
otherwise payable (or in the case of redemption, on the redemption date), the
Company acknowledges that a holder of record of Capital Securities of the
Marshall & Ilsley Trust that purchased the applicable series of Debt Securities
may directly institute a proceeding for enforcement of payment to such holder of
the principal of (or premium, if any) or interest on the applicable series of
Debt Securities having a principal amount equal to
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the aggregate liquidation amount of the Capital Securities of such holder on or
after the respective due date specified in the applicable series of Debt
Securities.
ARTICLE XIV
REDEMPTION OF SECURITIES -- MANDATORY AND
OPTIONAL SINKING FUND
SECTION 14.01. Applicability of Article.
The provisions of this Article shall be applicable to the Debt
Securities of any series which are redeemable before their maturity or to any
sinking fund for the retirement of Debt Securities of a series except as
otherwise specified as contemplated by Section 2.03 for Debt Securities of such
series.
SECTION 14.02. Notice of Redemption; Selection of Debt Securities.
In case the Company shall desire to exercise the right to redeem all,
or, as the case may be, any part of the Debt Securities of any series in
accordance with their terms, it shall fix a date for redemption and shall mail a
notice of such redemption at least 30 and not more than 60 days prior to the
date fixed for redemption to the holders of Debt Securities of such series so to
be redeemed as a whole or in part at their last addresses as the same appear on
the Debt Security Register. Such mailing shall be by first class mail. The
notice if mailed in the manner herein provided shall be conclusively presumed to
have been duly given, whether or not the holder receives such notice. In any
case, failure to give such notice by mail or any defect in the notice to the
holder of any Debt Security of a series designated for redemption as a whole or
in part shall not affect the validity of the proceedings for the redemption of
any other Debt Security of such series.
Each such notice of redemption shall specify the CUSIP number of the
Debt Securities to be redeemed, the date fixed for redemption, the redemption
price at which Debt Securities of such series are to be redeemed, the place or
places of payment, that payment will be made upon presentation and surrender of
such Debt Securities, that interest accrued to the date fixed for redemption
will be paid as specified in said notice, and that on and after said date
interest thereon or on the portions thereof to be redeemed will cease to accrue.
If less than all the Debt Securities of such series are to be redeemed the
notice of redemption shall specify the numbers of the Debt Securities of that
series to be redeemed. In case any Debt Security of a series is to be redeemed
in part only, the notice of redemption shall state the portion of the principal
amount thereof to be redeemed and shall state that on and after the date fixed
for redemption, upon surrender of such Debt Security, a new Debt Security or
Debt Securities of that series in principal amount equal to the unredeemed
portion thereof will be issued.
On or prior to the redemption date specified in the notice of
redemption given as provided in this Section, the Company will deposit with the
Trustee or with one or more paying agents an amount of money sufficient to
redeem on the redemption date all the Debt Securities so
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called for redemption at the appropriate redemption price, together with accrued
interest to the date fixed for redemption.
If all, or less than all, the Debt Securities of a series are to be
redeemed, the Company will give the Trustee notice not less than 45 or 60 days,
respectively, prior to the redemption date as to the aggregate principal amount
of Debt Securities of that series to be redeemed and the Trustee shall select,
in such manner as in its sole discretion it shall deem appropriate and fair, the
Debt Securities of that series or portions thereof (in integral multiples of
$1,000, except as otherwise set forth in the applicable form of Debt Security)
to be redeemed.
SECTION 14.03. Payment of Debt Securities Called for Redemption.
If notice of redemption has been given as provided in Section 14.02 or
Section 14.04, the Debt Securities or portions of Debt Securities of the series
with respect to which such notice has been given shall become due and payable on
the date and at the place or places stated in such notice at the applicable
redemption price, together with interest accrued to the date fixed for
redemption, and on and after said date (unless the Company shall default in the
payment of such Debt Securities at the redemption price, together with interest
accrued to said date) interest on the Debt Securities or portions of Debt
Securities of any series so called for redemption shall cease to accrue. On
presentation and surrender of such Debt Securities at a place of payment
specified in said notice, the said Debt Securities or the specified portions
thereof shall be paid and redeemed by the Company at the applicable redemption
price, together with interest accrued thereon to the date fixed for redemption.
Upon presentation of any Debt Security of any series redeemed in part
only, the Company shall execute and the Trustee shall authenticate and make
available for delivery to the holder thereof, at the expense of the Company, a
new Debt Security or Debt Securities of such series of authorized denominations,
in principal amount equal to the unredeemed portion of the Debt Security so
presented.
SECTION 14.04. Mandatory and Optional Sinking Fund.
The minimum amount of any sinking fund payment provided for by the
terms of Debt Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount provided
for by the terms of Debt Securities of any series is herein referred to as an
"optional sinking fund payment". The last date on which any such payment may be
made is herein referred to as a "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any Debt Securities of a series in cash, the Company may
at its option (a) deliver to the Trustee Debt Securities of that series
theretofore purchased by the Company and (b) may apply as a credit Debt
Securities of that series which have been redeemed either at the election of the
Company pursuant to the terms of such Debt Securities or through the application
of optional sinking fund payments pursuant to the next succeeding paragraph, in
each case in satisfaction of all or any part of any mandatory sinking fund
payment, provided that such Debt Securities have not been previously so
credited. Each such Debt Security so delivered or applied as a credit shall
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be credited at the sinking fund redemption price for such Debt Securities and
the amount of any mandatory sinking fund shall be reduced accordingly. If the
Company intends so to deliver or credit such Debt Securities with respect to any
mandatory sinking fund payment it shall deliver to the Trustee at least 60 days
prior to the next succeeding sinking fund payment date for such series (a) a
certificate signed by the Secretary, an Assistant Secretary, the Treasurer or an
Assistant Treasurer of the Company specifying the portion of such sinking fund
payment, if any, to be satisfied by payment of cash and the portion of such
sinking fund payment, if any, which is to be satisfied by delivering and
crediting such Debt Securities and the basis for such credit and stating that
such Debt Securities have not been previously so credited and (b) any Debt
Securities to be so delivered. All Debt Securities so delivered to the Trustee
shall be canceled by the Trustee and no Debt Securities shall be authenticated
in lieu thereof. If the Company fails to deliver such certificate and Debt
Securities at or before the time provided above, the Company shall not be
permitted to satisfy any portion of such mandatory sinking fund payment by
delivery or credit of Debt Securities.
At its option the Company may pay into the sinking fund for the
retirement of Debt Securities of any particular series, on or before each
sinking fund payment date for such series, any additional sum in cash as
specified by the terms of such series of Debt Securities. If the Company
intends to exercise its right to make any such optional sinking fund payment, it
shall deliver to the Trustee at least 60 days prior to the next succeeding
sinking fund payment date for such series a certificate signed by the Secretary,
an Assistant Secretary, the Treasurer or an Assistant Treasurer of the Company
stating that the Company intends to exercise such optional right and specifying
the amount which the Company intends to pay on such sinking fund payment date.
If the Company fails to deliver such certificate at or before the time provided
above, the Company shall not be permitted to make any optional sinking fund
payment with respect to such sinking fund payment date. To the extent that such
right is not exercised in any year it shall not be cumulative or carried forward
to any subsequent year.
If the sinking fund payment or payments (mandatory or optional) made
in cash plus any unused balance of any preceding sinking fund payments made in
cash shall exceed $50,000 (or a lesser sum if the Company shall so request) with
respect to the Debt Securities of any particular series, it shall be applied by
the Trustee or one or more paying agents on the next succeeding sinking fund
payment date to the redemption of Debt Securities of such series at the sinking
fund redemption price together with accrued interest to the date fixed for
redemption. The Trustee shall select, in the manner provided in Section 14.02,
for redemption on such sinking fund payment date a sufficient principal amount
of Debt Securities of such series to absorb said cash, as nearly as may be, and
the Trustee shall, at the expense and in the name of the Company, thereupon
cause notice of redemption of Debt Securities of such series to be given in
substantially the manner and with the effect provided in Sections 14.02 and
14.03 for the redemption of Debt Securities of that series in part at the option
of the Company, except that the notice of redemption shall also state that the
Debt Securities of such series are being redeemed for the sinking fund. Any
sinking fund moneys not so applied or allocated by the Trustee or any paying
agent to the redemption of Debt Securities of that series shall be added to the
next cash sinking fund payment received by the Trustee or such paying agent and,
together with such payment, shall be applied in accordance with the provisions
of this Section 14.04. Any and all
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sinking fund moneys held by the Trustee or any paying agent on the maturity date
of the Debt Securities of any particular series, and not held for the payment or
redemption of particular Debt Securities of such series, shall be applied by the
Trustee or such paying agent, together with other moneys, if necessary, to be
deposited sufficient for the purpose, to the payment of the principal of the
Debt Securities of that series at maturity.
On or before each sinking fund payment date, the Company shall pay to
the Trustee or to one or more paying agents in cash a sum equal to all interest
accrued to the date fixed for redemption on Debt Securities to be redeemed on
the next following sinking fund payment date pursuant to this Section.
Neither the Trustee nor any paying agent shall redeem any Debt
Securities of a series with sinking fund moneys, and the Trustee shall not mail
any notice of redemption of Debt Securities for such series by operation of the
sinking fund, during the continuance of a default in payment of interest on such
Debt Securities or of any Event of Default (other than an Event of Default
occurring as a consequence of this paragraph), except that if the notice of
redemption of any Debt Securities shall theretofore have been mailed in
accordance with the provisions hereof, the Trustee or any paying agent shall
redeem such Debt Securities if cash sufficient for that purpose shall be
deposited with the Trustee or such paying agent for that purpose in accordance
with the terms of this Article XIV. Except as aforesaid, any moneys in the
sinking fund for such series at the time when any such default or Event of
Default shall occur and any moneys thereafter paid into the sinking fund shall,
during the continuance of such default or Event of Default, be held as security
for the payment of all such Debt Securities; provided, however, that in case
such Event of Default or default, shall have been cured or waived as provided
herein, such moneys shall thereafter be applied on the next succeeding sinking
fund payment date on which such moneys may be applied pursuant to the provisions
of this Section 14.04.
ARTICLE XV
SUBORDINATION OF DEBT SECURITIES
SECTION 15.01. Agreement to Subordinate.
The Company covenants and agrees, and each holder of Debt Securities
issued hereunder and under any supplemental indenture or by any Board Resolution
("Additional Provisions") by such Securityholder's acceptance thereof likewise
covenants and agrees, that all Debt Securities shall be issued subject to the
provisions of this Article XV; and each holder of a Debt Security, whether upon
original issue or upon transfer or assignment thereof, accepts and agrees to be
bound by such provisions.
The payment by the Company of the principal of, and premium, if any,
and interest on all Debt Securities issued hereunder and under any Additional
Provisions shall, to the extent and in the manner hereinafter set forth, be
subordinated and junior in right of payment to the prior payment in full of all
Senior Indebtedness of the Company, whether outstanding at the date of this
Indenture or thereafter incurred.
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No provision of this Article XV shall prevent the occurrence of any
default or Event of Default hereunder.
SECTION 15.02. Default on Senior Indebtedness.
In the event and during the continuation of any default by the Company
in the payment of principal, premium, interest or any other payment due on any
Senior Indebtedness of the Company following any grace period, or in the event
that the maturity of any Senior Indebtedness of the Company has been accelerated
because of a default, then, in either case, no payment shall be made by the
Company, with respect to the principal (including redemption and sinking fund
payments) of, or premium, if any, or interest on the Debt Securities.
In the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee when such payment is prohibited by the preceding
paragraph of this Section 15.02, such payment shall be held in trust for the
benefit of, and shall be paid over or delivered to, the holders of Senior
Indebtedness or their respective representatives, or to the trustee or trustees
under any indenture pursuant to which any of such Senior Indebtedness may have
been issued, as their respective interests may appear, but only to the extent
that the holders of the Senior Indebtedness (or their representative or
representatives or a trustee) notify the Trustee in writing within 90 days of
such payment of the amounts then due and owing on the Senior Indebtedness and
only the amounts specified in such notice to the Trustee shall be paid to the
holders of Senior Indebtedness.
SECTION 15.03. Liquidation; Dissolution; Bankruptcy.
Upon any payment by the Company or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
creditors upon any dissolution or winding-up or liquidation or reorganization of
the Company, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all amounts due upon all Senior Indebtedness
of the Company, shall first be paid in full, or payment thereof provided for in
money in accordance with its terms, before any payment is made by the Company,
on account of the principal (and premium, if any) or interest on the Debt
Securities; and upon any such dissolution or winding-up or liquidation or
reorganization, any payment by the Company, or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
which the Securityholders or the Trustee would be entitled to receive from the
Company, except for the provisions of this Article XV, shall be paid by the
Company, or by any receiver, trustee in bankruptcy, liquidating trustee, agent
or other Person making such payment or distribution, or by the Securityholders
or by the Trustee under the Indenture if received by them or it, directly to the
holders of Senior Indebtedness of the Company (pro rata to such holders on the
basis of the respective amounts of Senior Indebtedness held by such holders, as
calculated by the Company) or their representative or representatives, or to the
trustee or trustees under any indenture pursuant to which any instruments
evidencing such Senior Indebtedness may have been issued, as their respective
interests may appear, to the extent necessary to pay such Senior Indebtedness in
full, in money or money's worth, after giving effect to any concurrent payment
or distribution to or for the holders of such Senior Indebtedness, before any
payment or
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distribution is made to the Securityholders or to the Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, prohibited by the foregoing, shall be received by the
Trustee before all Senior Indebtedness of the Company is paid in full, or
provision is made for such payment in money in accordance with its terms, such
payment or distribution shall be held in trust for the benefit of and shall be
paid over or delivered to the holders of such Senior Indebtedness or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such Senior Indebtedness
may have been issued, as their respective interests may appear, as calculated by
the Company, for application to the payment of all Senior Indebtedness of the
Company, remaining unpaid to the extent necessary to pay such Senior
Indebtedness in full in money in accordance with its terms, after giving effect
to any concurrent payment or distribution to or for the benefit of the holders
of such Senior Indebtedness.
For purposes of this Article XV, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment, the payment of which
is subordinated at least to the extent provided in this Article Fifteen with
respect to the Debt Securities to the payment of all Senior Indebtedness of the
Company, that may at the time be outstanding, provided that (i) such Senior
Indebtedness is assumed by the new corporation, if any, resulting from any such
reorganization or readjustment, and (ii) the rights of the holders of such
Senior Indebtedness are not, without the consent of such holders, altered by
such reorganization or readjustment. The consolidation of the Company with, or
the merger of the Company into, another corporation or the liquidation or
dissolution of the Company following the conveyance or transfer of its property
as an entirety, or substantially as an entirety, to another corporation upon the
terms and conditions provided for in Article X of this Indenture shall not be
deemed a dissolution, winding-up, liquidation or reorganization for the purposes
of this Section 15.03 if such other corporation shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the conditions stated
in Article X of this Indenture. Nothing in Section 15.02 or in this Section
15.03 shall apply to claims of, or payments to, the Trustee under or pursuant to
Section 6.06 of this Indenture.
SECTION 15.04. Subrogation.
Subject to the payment in full of all Senior Indebtedness of the
Company, the Securityholders shall be subrogated to the rights of the holders of
such Senior Indebtedness to receive payments or distributions of cash, property
or securities of the Company, applicable to such Senior Indebtedness until the
principal of (and premium, if any) and interest on the Debt Securities shall be
paid in full; and, for the purposes of such subrogation, no payments or
distributions to the holders of such Senior Indebtedness of any cash, property
or securities to which the Securityholders or the Trustee would be entitled
except for the provisions of this Article XV, and no payment over pursuant to
the provisions of this Article XV to or for the benefit of the holders of such
Senior Indebtedness by Securityholders or the Trustee, shall, as between the
Company, its creditors other than holders of Senior Indebtedness of the Company,
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and the holders of the Debt Securities be deemed to be a payment or distribution
by the Company to or on account of such Senior Indebtedness. It is understood
that the provisions of this Article XV are and are intended solely for the
purposes of defining the relative rights of the holders of the Securities, on
the one hand, and the holders of such Senior Indebtedness, on the other hand.
Nothing contained in this Article XV or elsewhere in this Indenture,
any Additional Provisions or in the Debt Securities is intended to or shall
impair, as between the Company, its creditors other than the holders of Senior
Indebtedness of the Company, and the holders of the Debt Securities, the
obligation of the Company, which is absolute and unconditional, to pay to the
holders of the Debt Securities the principal of (and premium, if any) and
interest on the Debt Securities as and when the same shall become due and
payable in accordance with their terms, or is intended to or shall affect the
relative rights of the holders of the Debt Securities and creditors of the
Company, other than the holders of Senior Indebtedness of the Company, nor shall
anything herein or therein prevent the Trustee or the holder of any Debt
Security from exercising all remedies otherwise permitted by applicable law upon
default under the Indenture, subject to the rights, if any, under this Article
XV of the holders of such Senior Indebtedness in respect of cash, property or
securities of the Company, received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company referred to
in this Article Fifteen, the Trustee, subject to the provisions of Article VI of
this Indenture, and the Securityholders shall be entitled to conclusively rely
upon any order or decree made by any court of competent jurisdiction in which
such dissolution, winding-up, liquidation or reorganization proceedings are
pending, or a certificate of the receiver, trustee in bankruptcy, liquidation
trustee, agent or other Person making such payment or distribution, delivered to
the Trustee or to the Securityholders, for the purposes of ascertaining the
Persons entitled to participate in such distribution, the holders of Senior
Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article XV.
SECTION 15.05. Trustee to Effectuate Subordination.
Each Securityholder by such Securityholder's acceptance thereof
authorizes and directs the Trustee on such Securityholder's behalf to take such
action as may be necessary or appropriate to effectuate the subordination
provided in this Article Fifteen and appoints the Trustee such Securityholder's
attorney-in-fact for any and all such purposes.
SECTION 15.06. Notice by the Company.
The Company shall give prompt written notice to a Responsible Officer
of the Trustee at the Principal Office of the Trustee of any fact known to the
Company that would prohibit the making of any payment of monies to or by the
Trustee in respect of the Debt Securities pursuant to the provisions of this
Article XV. Notwithstanding the provisions of this Article XV or any other
provision of this Indenture or any Additional Provisions, the Trustee shall not
be charged with knowledge of the existence of any facts that would prohibit the
making of any payment of monies to or by the Trustee in respect of the Debt
Securities pursuant to the
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provisions of this Article XV, unless and until a Responsible Officer of the
Trustee at the Principal Office of the Trustee shall have received written
notice thereof from the Company or a holder or holders of Senior Indebtedness or
from any trustee therefor; and before the receipt of any such written notice,
the Trustee, subject to the provisions of Article VI of this Indenture, shall be
entitled in all respects to assume that no such facts exist; provided, however,
that if the Trustee shall not have received the notice provided for in this
Section 15.06 at least two Business Days prior to the date upon which by the
terms hereof any money may become payable for any purpose (including, without
limitation, the payment of the principal of (or premium, if any) or interest on
any Debt Security), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive such
money and to apply the same to the purposes for which they were received, and
shall not be affected by any notice to the contrary that may be received by it
within two Business Days prior to such date.
The Trustee, subject to the provisions of Article VI of this
Indenture, shall be entitled to conclusively rely on the delivery to it of a
written notice by a Person representing himself to be a holder of Senior
Indebtedness of the Company (or a trustee or representative on behalf of such
holder), to establish that such notice has been given by a holder of such Senior
Indebtedness or a trustee or representative on behalf of any such holder or
holders. In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder of such
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article XV, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of such Senior
Indebtedness held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to the
rights of such Person under this Article XV, and, if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
SECTION 15.07. Rights of the Trustee; Holders of Senior Indebtedness.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article XV in respect of any Senior Indebtedness at any
time held by it, to the same extent as any other holder of Senior Indebtedness,
and nothing in this Indenture or any Additional Provisions shall deprive the
Trustee of any of its rights as such holder.
With respect to the holders of Senior Indebtedness of the Company, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article XV, and no implied
covenants or obligations with respect to the holders of such Senior Indebtedness
shall be read into this Indenture or any Additional Provisions against the
Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of such Senior Indebtedness and, subject to the provisions of Article VI
of this Indenture, the Trustee shall not be liable to any holder of such Senior
Indebtedness if it shall pay over or deliver to Securityholders, the Company or
any other Person money or assets to which any holder of such Senior Indebtedness
shall be entitled by virtue of this Article XV or otherwise.
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Nothing in this Article XV shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 6.06.
SECTION 15.08. Subordination May Not Be Impaired.
No right of any present or future holder of any Senior Indebtedness of
the Company to enforce subordination as herein provided shall at any time in any
way be prejudiced or impaired by any act or failure to act on the part of the
Company, or by any act or failure to act, in good faith, by any such holder, or
by any noncompliance by the Company, with the terms, provisions and covenants of
this Indenture, regardless of any knowledge thereof that any such holder may
have or otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness of the Company may, at any time and from time
to time, without the consent of or notice to the Trustee or the Securityholders,
without incurring responsibility to the Securityholders and without impairing or
releasing the subordination provided in this Article XV or the obligations
hereunder of the holders of the Debt Securities to the holders of such Senior
Indebtedness, do any one or more of the following: (i) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter, such
Senior Indebtedness, or otherwise amend or supplement in any manner such Senior
Indebtedness or any instrument evidencing the same or any agreement under which
such Senior Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing such
Senior Indebtedness; (iii) release any Person liable in any manner for the
collection of such Senior Indebtedness; and (iv) exercise or refrain from
exercising any rights against the Company, and any other Person.
The Chase Manhattan Bank hereby accepts the trusts in this Indenture
declared and provided, upon the terms and conditions herein above set forth.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed by their respective officers thereunto duly authorized, as of
the day and year first above written.
MARSHALL & ILSLEY CORPORATION
By: /s/ G. H. Gunnlaugsson
----------------------------------------
Name: G. H. Gunnlaugsson
Title: Executive Vice President
Attest: /s/ M. A. Hatfield
----------------------------------------
Title: Senior Vice President's Secretary
THE CHASE MANHATTAN BANK, as Trustee
By: /s/ Gregory P. Shea
----------------------------------------
Name: Gregory P. Shea
Title: Senior Trust Officer
<PAGE>
FIRST SUPPLEMENTAL INDENTURE
between
MARSHALL & ILSLEY CORPORATION, as Issuer,
and
THE CHASE MANHATTAN BANK, as Trustee
Dated as of December 9, 1996
--------------------------------
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS.........................................................2
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES......................3
ARTICLE III
REDEMPTION OF THE DEBENTURES........................................8
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD...............................10
ARTICLE V
EXPENSES AND GUARANTEE.............................................11
ARTICLE VI
FORM OF DEBENTURE..................................................12
ARTICLE VII
MISCELLANEOUS......................................................22
i
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FIRST SUPPLEMENTAL INDENTURE, dated as of December 9, 1996 (the "First
Supplemental Indenture"), between Marshall & Ilsley Corporation, a Wisconsin
corporation (the "Company") and The Chase Manhattan Bank, as trustee (the
"Trustee"), under the Indenture dated as of December 9, 1996 among the Company
and the Trustee (the "Indenture").
WHEREAS, the Company executed and delivered the Indenture to the
Trustee to provide for the issuance of the Company's unsecured junior
subordinated debt securities to be issued from time to time in one or more
series as might be determined by the Company under the Indenture, in an
unlimited aggregate principal amount which may be authenticated and delivered as
provided in the Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company desires
to provide for the establishment of a series of its Debt Securities to be known
as 7.65% Junior Subordinated Deferrable Interest Debentures due 2026 (the
"Initial Debentures"), and to provide for, if and when issued in exchange for
the Initial Debentures pursuant to the Indenture and the Registration Agreement,
a series of its Debt Securities to be known as 7.65% Junior Subordinated
Deferrable Interest Debentures due 2026 (the "Exchange Debentures" and together
with the Initial Debentures, the "Debentures"), the form and substance of each
such series of Debentures and the terms, provisions and conditions thereof to be
set forth as provided in the Indenture and this First Supplemental Indenture;
WHEREAS, M&I Capital Trust A, a Delaware statutory business trust (the
"Trust"), has offered for sale pursuant to an exemption from the registration
requirements of the Securities Act of 1933, $200,000,000 aggregate liquidation
amount of 7.65% Capital Trust Pass-through Securities (the "Initial Capital
Securities"), representing undivided beneficial interests in the assets of the
Trust and proposes to invest the proceeds from such offering, together with the
proceeds of the issuance and sale by the Trust to the Company of its common
securities, in $206,186,000 aggregate principal amount of the Debentures;
WHEREAS, the Trust may offer and issue 7.65% Capital Trust Pass-
through Securities (the "Exchange Capital Securities") in exchange for the
Initial Capital Securities; and
WHEREAS, the Company has requested that the Trustee execute and
deliver this First Supplemental Indenture; all requirements necessary to make
this First Supplemental Indenture a valid instrument in accordance with its
terms, and to make the Debentures, when executed by the Company and
authenticated and delivered by the Trustee, the valid obligations of the
Company, have been performed; and the execution and delivery of this First
Supplemental Indenture has been duly authorized in all respects;
NOW THEREFORE, in consideration of the purchase and acceptance of the
Initial Debentures by the holders thereof, and for the purpose of setting forth,
as provided in the Indenture, the form and substance of each series of
Debentures and the terms, provisions and conditions thereof, the Company
covenants and agrees with the Trustee as follows:
<PAGE>
ARTICLE I
DEFINITIONS
SECTION 1.1
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Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when used in
this First Supplemental Indenture;
(b) a term defined anywhere in this First Supplemental Indenture has
the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or Article of
this First Supplemental Indenture;
(e) headings are for convenience of reference only and do not affect
interpretation;
(f) the following terms have the meanings given to them in the
Declaration: (i) Business Day; (ii) Capital Security Certificate; (iii)
Clearing Agency; (iv) Delaware Trustee; (v) Depositary; (vi) Distribution; (vii)
Institutional Trustee; (viii) Purchase Agreement; (ix) Redemption Tax Opinion;
(x) Regular Trustees; (xi) Securities; and (xii) Tax Event;
(g) the following terms have the meanings given to them in this
Section 1.1(g):
"Additional Interest" shall have the meaning set forth in Section
2.5(c).
"Call Price" shall have the meaning set forth in Section 3.2.
"Compounded Interest" shall have the meaning set forth in Section 4.1.
"Declaration" means the Amended and Restated Declaration of Trust of
the Trust, dated as of December 9, 1996.
"Deferred Interest" shall have the meaning set forth in Section 4.1.
"Dissolution Event" means that, subject to the receipt of prior
approval by the Board of Governors of the Federal Reserve System (the "Federal
Reserve") if then required under applicable capital guidelines or policies of
the Federal Reserve, the Trust is to be dissolved in accordance with the
Declaration, and the Debentures held by the Institutional Trustee are to be
distributed to the holders of the Trust Securities issued by the Trust pro rata
in accordance with the Declaration.
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"Extension Period" shall have the meaning set forth in Section 4.1.
"Global Debenture" shall have the meaning set forth in Section
2.4(a)(i).
"interest" shall include all interest payable on a series of
Debentures including any Additional Interest, Compounded Interest and Special
Interest, if applicable.
"Maturity Date" means December 1, 2026.
"Non Book-Entry Capital Securities" shall have the meaning set forth
in Section 2.4(a)(ii).
"Record Date" shall have the meaning set forth in the Debentures.
"Registration Agreement" means the Registration Agreement, dated
December 2, 1996, relating to the Debentures and the other securities described
therein among the Company, the Trust and the initial purchasers named therein.
"Registered Exchange Offer" has the meaning set forth in the
Registration Agreement.
"Special Interest" has the meaning set forth in Section 2.5(e).
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1
-----------
The Initial Debentures and the Exchange Debentures are hereby
authorized as two series of Debt Securities. The aggregate principal amount of
Debentures outstanding at any time shall not exceed $206,186,000. Upon receipt
of a written order of the Company for the authentication and delivery of a
series of Debentures and satisfaction of the requirements of Section 2.04 of the
Indenture, the Trustee shall authenticate (a) Initial Debentures for original
issuance in an aggregate principal amount not to exceed $206,186,000 (except as
set forth in Section 2.03(2) of the Indenture) or (b) Exchange Debentures for
issuance pursuant to a Registered Exchange Offer for Initial Debentures in a
principal amount equal to the principal amount of Initial Debentures exchanged
in such Registered Exchange Offer.
The Initial Debentures shall be issued pursuant to an exemption from
registration under the Securities Act and the Restricted Securities Legend shall
appear thereon, unless otherwise determined by the Company in accordance with
applicable law. The Initial Debentures may not be transferred except in
compliance with the Restricted Securities Legend set forth in Section 2.07 of
the Indenture, unless otherwise determined by the Company in accordance with
applicable law.
3
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SECTION 2.2
-----------
At the Maturity Date, the Debentures shall mature and the principal
thereof shall be due and payable together with all accrued and unpaid interest
thereon including Compounded Interest, Additional Interest and Special Interest
thereon, if any.
SECTION 2.3
-----------
Except as provided in Section 2.4, Debentures of a series shall be
issued in fully registered certificated form without interest coupons. Principal
and interest on Debentures of a series issued in certificated form will be
payable, the transfer of such Debentures will be registrable and such Debentures
will be exchangeable for Debentures of such series bearing identical terms and
provisions at the office or agency of the Company in the Borough of Manhattan,
The City of New York, which office or agency shall initially be the corporate
trust office of the Trustee; provided, however, that payment of interest may be
made at the option of the Company by check mailed to the holder of any Debenture
at such address as shall appear in the Debt Security Register for such series of
Debentures or by wire transfer to an account appropriately designated by such
holder. Notwithstanding the foregoing, so long as the holder of any Debentures
of a series is the Institutional Trustee, the payment of the principal of (and
premium, if any) and interest (including Compounded Interest, Additional
Interest and Special Interest, if any) on the Debentures held by such
Institutional Trustee will be made at such place and to such account as may be
designated by such Institutional Trustee.
SECTION 2.4
-----------
(a) In connection with a Dissolution Event,
(i) except as provided in clause (ii) of this sentence,
Debentures of a series in certificated form may be presented to the Trustee
by the Institutional Trustee in exchange for a Global Security for such
series in an aggregate principal amount equal to the aggregate principal
amount of all outstanding Debentures of such series (a "Global Debenture"),
to be registered in the name of the The Depository Trust Company, New York,
New York, or its nominee (hereby designated to be the Depositary for
Debentures of such series), and delivered by the Trustee to the Depositary
or its custodian for crediting to the accounts of the Depositary's
participants pursuant to the instructions of the Regular Trustees of the
Trust, which instructions shall be provided in accordance with the terms of
the Declaration; the Company upon any such presentation shall execute a
Global Debenture for such series in such aggregate principal amount and
deliver the same to the Trustee for authentication and delivery in
accordance with the Indenture and this First Supplemental Indenture;
payments on the Debentures of a series issued as a Global Debenture will be
made to the Depositary;
(ii) if any Capital Securities of a series are not held by the
Clearing Agency or its nominee ("Non Book-Entry Capital Securities"), the
Debentures in certificated form of the series held by the Trust
corresponding to such series of Capital Securities may be presented to the
Trustee by the Institutional Trustee and any Capital
4
<PAGE>
Security Certificate which represents such Non Book-Entry Capital
Securities will be deemed to represent beneficial interests in Debentures
so presented to the Trustee by the Institutional Trustee having an
aggregate principal amount equal to the aggregate liquidation amount of
such Non Book-Entry Capital Securities until such Capital Security
Certificates are presented to the Debt Security registrar for transfer or
reissuance at which time such Capital Security Certificates will be
canceled and a Debenture of the series previously held by the Trust
registered in the name of the holder of the Capital Security Certificate or
the transferee of the holder of such Capital Security Certificate, as the
case may be, with an aggregate principal amount equal to the aggregate
liquidation amount of the Capital Security Certificate canceled, will be
executed by the Company and delivered to the Trustee for authentication and
delivery in accordance with the Indenture and this First Supplemental
Indenture; upon issue of such Debentures of such series, Debentures of such
series with an equivalent aggregate principal amount that were presented by
such Institutional Trustee to the Trustee will be deemed to have been
canceled; and
(iii) prior to the distribution of Debentures of a series held
by the Institutional Trustee to the holders of Trust Securities of the
Trust, the Company and the Trustee shall, if necessary, enter into a
supplemental indenture pursuant to Article IX of the Indenture to provide
for transfer procedures and restrictions with respect to such Debentures
substantially similar to those contained in the Declaration with respect to
the corresponding series of Capital Securities to the extent applicable in
the circumstances existing at the time of distribution of such Debentures
in connection with a Dissolution Event for purposes of assuring that no
registration of such Debentures is required under the Securities Act of
1933, as amended.
(b) A Global Debenture may be transferred, in whole but not in part,
only by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary, or to a
successor Depositary selected or approved by the Company or to a nominee of such
successor Depositary.
(c) If at any time the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary or if at any time the Depositary
shall no longer be registered or in good standing under the Securities Exchange
Act of 1934, as amended, or other applicable statute or regulation, and a
successor Depositary is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such condition, as the case may
be, the Company will execute, and, subject to Article II of the Indenture, the
Trustee, upon written notice from the Company, will authenticate and make
available for delivery Debentures of each series in definitive registered form
without coupons, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Debenture of such series in
exchange for such Global Debenture. In addition, the Company may at any time
determine that the Debentures of a series shall no longer be represented by a
Global Debenture. In such event the Company will execute, and subject to Section
2.07 of the Indenture, the Trustee, upon receipt of an Officers' Certificate
evidencing such determination by the Company, will authenticate and deliver
Debentures of such series in definitive registered form without coupons, in
authorized denominations, and in an aggregate principal amount equal to the
principal amount
5
<PAGE>
of the Global Debenture of such series in exchange for such Global Debenture. A
Global Debenture shall also be exchangeable for Debentures in definitive form
upon the occurrence of an Event of Default. Upon the exchange of a Global
Debenture for Debentures in definitive registered form without coupons, in
authorized denominations, such Global Debenture shall be canceled by the
Trustee. Such Debentures in definitive registered form issued in exchange for
such Global Debenture shall be registered in such names and in such authorized
denominations as the Depositary, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Debentures to the Depositary for delivery to the Persons in
whose names such Debentures are so registered.
SECTION 2.5
-----------
(a) The amount of interest payable for any period will be computed on
the basis of a 360-day year of twelve 30-day months. Except as provided in the
following sentence, the amount of interest payable for any period shorter than a
full semiannual period for which interest is computed, will be computed on the
basis of the actual number of days elapsed in such a period (assuming each full
month elapsed in such period consists of 30 days). In the event that any date on
which interest is payable on the Debentures of a series is not a Business Day,
then payment of interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date.
(b) The indebtedness evidenced by all Debentures of a series is
subordinate and junior in right of payment to the prior payment in full of all
present and future Senior Indebtedness and pari passu in right of payment with
all Debentures of each other series.
(c) If, at any time while the holder of any Debentures of a series is
the Institutional Trustee, the Trust is required to pay any taxes, duties,
assessments or governmental charges of whatever nature (other than withholding
taxes) imposed by the United States, or any other taxing authority, then, in any
such case, the Company shall pay as additional interest ("Additional Interest")
on the Debentures held by the Institutional Trustee, such additional amounts as
shall be required so that the net amounts received and retained by the Trust
after paying such taxes, duties, assessments or other governmental charges will
be equal to the amounts the Trust and the Institutional Trustee would have
received had no such taxes, duties, assessments or other governmental charges
been imposed.
(d) If an Initial Debenture is exchanged in a Registered Exchange
Offer prior to the Record Date for the first Interest Payment Date following
such exchange, accrued and unpaid interest, if any, on such Initial Debenture,
up to but not including the date of issuance of the Exchange Debenture or
Exchange Debentures issued in exchange for such Initial Debenture, shall be paid
on the first Interest Payment Date for such Exchange Debenture or Exchange
Debentures to the Securityholder or Securityholders of such Exchange Debenture
or Exchange Debentures on the first Record Date with respect to such Exchange
Debenture or Exchange
6
<PAGE>
Debentures. If an Initial Debenture is exchanged in a Registered Exchange Offer
subsequent to the Record Date for the first Interest Payment Date following such
exchange but on or prior to such Interest Payment Date, then any such accrued
and unpaid interest with respect to such Initial Debenture and any accrued and
unpaid interest on the Exchange Debenture or Exchange Debentures issued in
exchange for such Initial Debenture, through the day before such Interest
Payment Date, shall be paid on such Interest Payment Date to the Securityholder
of such Initial Debenture on such Record Date.
(e) The following terms relate to Special Interest:
(i) In the event that either (A) the Exchange Offer Registration
Statement (as such term is defined in the Registration Agreement) is not
filed with the Securities and Exchange Commission (the "Commission") on or
prior to the 60th day following the Closing Date (as such term is defined
in the Registration Agreement), (B) the Exchange Offer Registration
Statement is not declared effective by the Commission [on or] prior to the
150th day following the Closing Date or (C) the Exchange Offer (as such
term is defined in the Registration Agreement) is not consummated on or
prior to the 180th day or a Shelf Registration Statement (as such term is
defined in the Registration Agreement) is not declared effective by the
Commission on or prior to the 210th day following the Closing Date,
interest shall accrue on Initial Debentures (in addition to the stated
interest on Initial Debentures) from and including the next day following
each of (1) such 60-day period in the case of clause (A) above, (2) such
150-day period in the case of clause (B) above and (3) such 180-day or 210-
day period, as applicable, in the case of clause (C) above. In each case,
such additional interest will accrue at a rate per annum equal to 0.25% of
the principal amount of the Initial Debentures (determined daily). The
aggregate amount of additional interest payable pursuant to the above
provisions will in no event exceed 0.75% per annum of the principal amount
of the Initial Debentures (determined daily). Upon (X) the filing of the
Exchange Offer Registration Statement after the 60-day period described in
clause (A) above, (Y) the effectiveness of the Exchange Offer Registration
Statement after the 150-day period described in clause (B) above or (Z) the
consummation of the Exchange Offer after the 180-day period or the
effectiveness of a Shelf Registration Statement after the 210-day period,
as the case may be, described in clause (C) above, the additional interest
payable on the Initial Debentures, with respect to such clause (A), (B) or
(C), as the case may be, from the date of such filing, effectiveness or
consummation, as the case may be, shall cease to accrue. Following the
occurrence of (X), (Y) and (Z) above, the interest terms of the Initial
Debentures shall revert to the original terms set forth above.
(ii) Notwithstanding clause (C) of paragraph (i) above, in the
event that as of the 180th day following the Closing Date, the Company
shall determine in good faith that there is a reasonable likelihood that,
or a material uncertainty exists as to whether, consummation of the
Exchange Offer would result in an adverse tax consequence to the Company,
the Company and the Trust may, at the Company's option and cost, in lieu of
consummating the Exchange Offer, file and cause to be declared effective a
Shelf Registration Statement covering resales of the Initial Debentures. In
7
<PAGE>
such event, additional interest shall accrue if such Shelf Registration
Statement is not declared effective on or prior to the 210th day following
the Closing Date.
(iii) In the event that a Shelf Registration Statement is
declared effective pursuant to the terms of the Registration Agreement, if
the Company or the Trust fails to keep such Shelf Registration Statement
continuously effective for the period required by the Registration
Agreement, then from and including the next day following such time as the
Shelf Registration Statement is no longer effective until the earlier of
(A) the date that the Shelf Registration Statement is again deemed
effective, (B) the date that is the third anniversary of the Closing Date
(or such shorter period if then required by Rule 144(k) under the
Securities Act, or, in the case of a Shelf Registration Statement filed at
the request of an Initial Purchaser (as such term is defined in the
Registration Agreement), the first anniversary of the Closing Date) or (C)
the date as of which all of the Initial Debentures are sold pursuant to the
Shelf Registration Statement, interest shall accrue on the Initial
Debentures (in addition to the stated interest on Initial Debentures) at a
rate per annum equal to 0.25% of the principal amount of the Initial
Debentures (determined daily).
(iv) Any additional interest that accrues with respect to the
Initial Debentures as provided in this paragraph is referred to as "Special
Interest." For all purposes of the Indenture, this Supplemental Indenture
and the Initial Debentures, Special Interest shall be treated as interest
and shall be payable on the same Interest Payment Dates and to the
Securityholders of record on the same record dates as would be the case for
stated interest.
SECTION 2.6
-----------
If at any time the holder of all Debentures of a series ceases to be
the Institutional Trustee and, at such time, the Capital Securities issued by
the Trust are rated by at least one nationally recognized statistical rating
agency, then the Company shall use its best efforts to obtain from at least one
nationally recognized statistical rating agency a rating for the Debentures of
such series.
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1
-----------
If a Tax Event with respect to the Trust has occurred and is
continuing and the Company has received a Redemption Tax Opinion then, subject
to the receipt of prior approval by the Federal Reserve if then required under
applicable capital guidelines or policies of the Federal Reserve, the Company
shall have the right upon not less than 30 days nor more than 60 days' notice to
redeem the Debentures held by the Institutional Trustee, in whole or in part,
for cash within 90 days following the occurrence of the Tax Event (the "90 Day
Period") at a redemption price equal to 100% of the principal amount to be
redeemed plus any accrued and
8
<PAGE>
unpaid interest thereon to the date of such redemption (the "Tax Event
Redemption Price"), provided that if (i) there is available to the Company or
the Trust the opportunity to eliminate, within the 90 Day Period, the adverse
effects of such Tax Event by taking some ministerial action ("Ministerial
Action"), such as filing a form or making an election, or pursuing some other
similar reasonable measure which has no adverse effect on the Company, the Trust
or the holders of the Trust Securities and (ii) such notice has not been given,
the Company or the Trust shall pursue such Ministerial Action in lieu of
redemption, and, provided, further, that the Company shall have no right to
redeem such Debentures while the Trust is pursuing any Ministerial Action
pursuant to its obligations under the Declaration. The Tax Event Redemption
Price shall be paid prior to 11:00 a.m., New York City time, on the date of such
redemption or such earlier time as the Company determines, provided that the
Company shall deposit with the Trustee an amount sufficient to pay the Tax Event
Redemption Price by 10:00 a.m., New York City time, on the date the Tax Event
Redemption Price is to be paid.
SECTION 3.2
-----------
Subject to the provisions of Article XIV of the Indenture and the
receipt of prior approval by the Federal Reserve if then required under
applicable guidelines or policies of the Federal Reserve, and in addition to the
rights set forth in Section 3.1 of this First Supplemental Indenture, except as
otherwise may be specified in this First Supplemental Indenture, the Company
shall have the right to redeem the Debentures, in whole or in part, from time to
time, on or after December 1, 2006, at call prices (expressed as a percentage of
principal amount per Debenture being redeemed) specified below (the "Call
Prices") plus any accrued and unpaid interest thereon to the date of such
redemption:
If redeemed during the 12-month period:
<TABLE>
<CAPTION>
beginning December 1, Call Price
------------------------- --------------
<S> <C>
2006 103.5820%
2007 103.2238
2008 102.8656
2009 102.5074
2010 102.1492
2011 101.7910
2012 101.4328
2013 101.0746
2014 100.7164
2015 100.3582
2016 100
2017 100
2018 100
2019 100
2020 100
2021 100
</TABLE>
9
<PAGE>
<TABLE>
<CAPTION>
beginning December 1, Call Price
------------------------- --------------
<S> <C>
2022 100
2023 100
2024 100
2025 100
</TABLE>
Any redemption pursuant to this paragraph will be made upon not less
than 30 days nor more than 60 days' notice to the holder of the Debentures, at
the Call Price plus any accrued and unpaid interest to the date of such
redemption. If Debentures are only partially redeemed pursuant to this Section
3.2, Debentures shall be redeemed pro rata or by lot or by any other method
utilized by the Trustee. The Call Price (plus accrued and unpaid interest, if
any) shall be paid prior to 11:00 a.m., New York City time, on the date of such
redemption or at such earlier time as the Company determines, provided that the
Company shall deposit with the Trustee an amount sufficient to pay the Call
Price (plus accrued and unpaid interest, if any) by 10:00 a.m., New York City
time, on the date such Call Price is to be paid.
The Debentures are not entitled to the benefit of any sinking fund.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1
-----------
The Company shall have the right, at any time and from time to time
during the term of the Debentures, to defer payments of interest by extending
the interest payment period of the Debentures of a series for a period not
exceeding 10 consecutive semiannual periods (the "Extension Period"), during
which Extension Period no interest shall be due and payable; provided that (i)
no Extension Period may extend beyond the Maturity Date and (ii) no Extension
Period may commence or be extended so long as the Company is in default in the
payment of any interest upon any Debentures of such series or has not paid all
Deferred Interest from a prior completed Extension Period. To the extent
permitted by applicable law, interest on the Debentures of a series, the payment
of which has been deferred because of the extension of the interest payment
period pursuant to this Section 4.1, will bear interest thereon at a rate equal
to the original interest rate borne by the principal of the Debentures (without
regard to any increase or increases from time to time in respect of Additional
Interest or Special Interest, if any), compounded semiannually for each
semiannual period of the Extension Period ("Compounded Interest"). At the
termination of an Extension Period for the Debentures of a series or, if not an
Interest Payment Date, on the Interest Payment Date immediately following
termination of such Extension Period for the Debentures of such series, the
Company shall pay all interest accrued and unpaid on the Debentures, including
any Additional Interest and Compounded Interest (together, "Deferred Interest"),
which Deferred Interest shall be payable to the holders of the Debentures of
such series in whose names the Debentures are registered in the Debt Security
Register on the record date for the payment of interest on such Interest Payment
Date. Before the termination of any Extension Period, the Company may further
extend such period, provided that
10
<PAGE>
such period together with all such previous and further consecutive extensions
thereof shall not exceed 10 consecutive semiannual periods, or extend beyond the
Maturity Date. Upon the termination of any Extension Period and upon the payment
of all Deferred Interest then due, the Company may commence a new Extension
Period, subject to the foregoing requirements.
SECTION 4.2
(a) If the Institutional Trustee is the only registered holder of the
Debentures of a series at the time the Company initiates an Extension Period,
the Company shall give written notice to the Regular Trustees, the Institutional
Trustee and the Trustee of its initiation of such Extension Period one Business
Day before the earlier of (i) the date on which distributions on the Capital
Securities of the corresponding series are payable, or (ii) the date the Regular
Trustees are required to give notice to holders of the Capital Securities of the
corresponding series (or any national securities exchange or other organization
on which such Capital Securities are listed, if any) of the record date or the
distribution payment date, in each case with respect to distributions on the
Trust Securities the payment of which is being deferred.
(b) If the Institutional Trustee is not the only registered holder of
the Debentures of a series at the time the Company initiates an Extension
Period, the Company shall give the holders of the Debentures of such series and
the Trustee written notice of its initiation of such Extension Period at least
ten Business Days before the earlier of (i) the Interest Payment Date, or (ii)
the date the Company is required to give notice to holders of the Debentures of
such series (or any national securities exchange or other organization on which
the Capital Securities of the corresponding series are listed, if any) of the
record or payment date of such interest, in each case with respect to interest
payments the payment of which is being deferred.
ARTICLE V
EXPENSES AND GUARANTEE
SECTION 5.1
In connection with the offering, sale and issuance of the Debentures
of a series and in connection with the sale of any Trust Securities by the
Trust, the Company, in its capacity as borrower with respect to the Debentures,
shall:
(a) pay all costs and expenses relating to the offering, sale and
issuance of Debentures of such series, including commissions to the underwriters
payable pursuant to the Purchase Agreement and compensation of the Trustee under
the Indenture in accordance with the provisions of Section 6.06 of the
Indenture;
(b) pay all costs and expenses of the Trust (including, but not
limited to, costs and expenses relating to the organization of the Trust, the
offering, sale and issuance of each series of Trust Securities (including
commissions to the underwriters in connection therewith), the fees and expenses
of the Institutional Trustee, the Delaware Trustee and each Regular Trustee, the
costs and expenses relating to the operation of the Trust, including without
11
<PAGE>
limitation, costs and expenses of accountants, attorneys, statistical or
bookkeeping services, expenses for printing and engraving and computing or
accounting equipment, paying agent(s), registrar(s), transfer agent(s),
duplicating, travel and telephone and other telecommunications expenses and
costs and expenses incurred in connection with the acquisition, financing, and
disposition of Trust assets of the Trust);
(c) be primarily and fully liable for any indemnification obligations
arising with respect to the Declaration; and
(d) pay any and all taxes (other than United States withholding taxes
attributable to the Trust or assets of the Trust) and all liabilities, costs and
expenses with respect to such taxes of the Trust.
SECTION 5.2
Upon termination of the Declaration or the removal or resignation of
the Delaware Trustee or the Institutional Trustee, as the case may be, pursuant
to Section 5.7 of the Declaration, the Company shall pay to the Delaware Trustee
or the Institutional Trustee, as the case may be, all amounts owing to the
Delaware Trustee or the Institutional Trustee, as the case may be, under
Sections 10.4 and 10.6 of the Declaration accrued to the date of such
termination, removal or resignation.
ARTICLE VI
FORM OF DEBENTURE
The Debentures and the Trustee's certificate of authentication to be
endorsed thereon are to be substantially in the following forms and are
expressly made a part of this First Supplemental Indenture:
(FACE OF DEBENTURE)
[IF THE DEBENTURE IS TO BE A GLOBAL DEBENTURE, INSERT: This Debenture
is a Global Debenture within the meaning of the Indenture hereinafter referred
to and is registered in the name of a Depositary or a nominee of a Depositary.
This Debenture is exchangeable for Debentures of this series registered in the
name of a person other than the Depositary or its nominee only in the limited
circumstances described in the Indenture, and no transfer of this Debenture
(other than a transfer of this Debenture as a whole by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary or to a successor Depositary or its nominee)
may be registered except in limited circumstances.
Unless this Debenture is presented by an authorized representative of
The Depository Trust Company (55 Water Street, New York, New York) to the issuer
or its agent for registration of transfer, exchange or payment, and any
Debenture of this series issued is registered in the name of Cede & Co. or such
other name as requested by an authorized
12
<PAGE>
representative of The Depository Trust Company and any payment hereon is made to
Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A
PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an
interest herein.]
[IF THIS DEBENTURE IS ONE OF A SERIES ORIGINALLY ISSUED PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT, AS SPECIFIED PURSUANT TO
SECTION 2.03 OF THE INDENTURE, INSERT THE FOLLOWING UNLESS OTHERWISE DETERMINED
BY THE COMPANY -- THIS DEBENTURE HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS.
NEITHER THIS DEBENTURE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. THE HOLDER OF THIS DEBENTURE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL
OR OTHERWISE TRANSFER SUCH DEBENTURE PRIOR TO THE DATE WHICH WAS THREE YEARS (OR
SUCH LESSER PERIOD OF TIME AS SPECIFIED IN RULE 144(k) UNDER THE SECURITIES ACT)
AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH
MARSHALL & ILSLEY CORPORATION (THE "COMPANY") OR ANY AFFILIATE OF THE COMPANY
WAS THE OWNER OF THIS DEBENTURE (OR ANY PREDECESSOR OF THIS DEBENTURE) (THE
"RESALE RESTRICTIONS TERMINATION DATE") ONLY (A) TO THE COMPANY, (B) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C) FOR SO LONG AS
THE DEBENTURES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a) (1),
(2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE
DEBENTURE FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
"ACCREDITED INVESTOR", FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR
OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S RIGHT
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO IT IN ACCORDANCE WITH THE INDENTURE, A COPY OF WHICH
MAY BE OBTAINED FROM THE COMPANY. THIS LEGEND WILL BE REMOVED UPON THE REQUEST
OF A HOLDER AFTER THE RESALE RESTRICTIONS TERMINATION DATE.]
13
<PAGE>
No. _________________
MARSHALL & ILSLEY CORPORATION
7.65% JUNIOR SUBORDINATED DEFERRABLE
INTEREST DEBENTURE DUE 2026
MARSHALL & ILSLEY CORPORATION, a Wisconsin corporation (the "Company",
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to ____________ or
registered assigns, the principal sum of ________________ Dollars ($_________ )
on December 1, 2026, and to pay interest on said principal sum from December 9,
1996, or from the most recent interest payment date (each such date, an
"Interest Payment Date") to which interest has been paid or duly provided for,
semiannually (subject to deferral as set forth herein) in arrears on June 1 and
December 1 of each year commencing June 1, 1997, at the rate of 7.65% per annum
until the principal hereof shall have become due and payable, and on any overdue
principal and premium, if any, and (without duplication and to the extent that
payment of such interest is enforceable under applicable law) on any overdue
installment of interest at the same rate per annum compounded semiannually. The
amount of interest payable on any Interest Payment Date shall be computed on the
basis of a 360-day year of twelve 30-day months. In the event that any date on
which interest is payable on this Debenture is not a Business Day, then payment
of interest payable on such date will be made on the next succeeding day that is
a Business Day (and without any interest or other payment in respect of any such
delay), except that, if such Business Day is in the next succeeding calendar
year, such payment shall be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on such date. The interest
installment so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, be paid to the Person
in whose name this Debenture (or one or more Predecessor Securities, as defined
in said Indenture) is registered at the close of business on the Record Date for
such interest installment, [which shall be the close of business on the Business
Day next preceding such Interest Payment Date]. [IF PURSUANT TO THE PROVISIONS
OF THE INDENTURE THE DEBENTURES OF THIS SERIES ARE NO LONGER REPRESENTED SOLELY
BY A GLOBAL DEBENTURE, SUBSTITUTE THE FOLLOWING FOR FOREGOING BRACKETED TEXT --
which shall be the close of business on the 15th Business Day next preceding
such Interest Payment Date.] Any such interest installment not punctually paid
or duly provided for shall forthwith cease to be payable to the registered
holders on such Record Date and may be paid to the Person in whose name this
Debenture (or one or more Predecessor Securities) is registered at the close of
business on a special record date to be fixed by the Trustee for the payment of
such defaulted interest, notice whereof shall be given to the registered holders
of this series of Debentures not less than 10 days prior to such special record
date, or may be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Debentures of this
series may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in the Indenture. In the event the Debentures of this
series are issued in non-book entry form, the principal of (and premium, if any)
and the interest on this Debenture shall be payable at the office or agency of
the Trustee (or other paying agent appointed by the Company) maintained for that
purpose in any coin or currency of the United States of America that at the time
of
14
<PAGE>
payment is legal tender for payment of public and private debts; provided,
however, that payment of interest may be made at the option of the Company by
check mailed to the registered holder at such address as shall appear in the
Debt Security Register or by wire transfer to an account appropriately
designated by the holder hereof. Notwithstanding the foregoing, so long as the
holder of this Debenture is the Institutional Trustee, the payment of the
principal of (and premium, if any) and interest on this Debenture will be made
at such place and to such account as may be designated by such Institutional
Trustee.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full of all Senior Indebtedness, and this Debenture is issued
subject to the provisions of the Indenture with respect thereto. Each holder of
this Debenture, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his or her behalf to take
such action as may be necessary or appropriate to acknowledge or effectuate the
subordination so provided and (c) appoints the Trustee his or her attorney-in-
fact for any and all such purposes. Each holder hereof, by his or her acceptance
hereof, hereby waives all notice of the acceptance of the subordination
provisions contained herein and in the Indenture by each holder of Senior
Indebtedness, whether now outstanding or hereafter incurred, and waives reliance
by each such holder upon said provisions.
If this Debenture is exchanged in a Registered Exchange Offer prior to
the Record Date for the first Interest Payment Date following such exchange,
accrued and unpaid interest, if any, on this Debenture, up to but not including
the date of issuance of the Exchange Debenture or Exchange Debentures issued in
exchange for this Debenture, shall be paid on the first Interest Payment Date
for such Exchange Debenture or Exchange Debentures to the Securityholder or
Securityholders of such Exchange Debenture or Exchange Debentures on the first
Record Date with respect to such Exchange Debenture or Exchange Debentures. If
this Debenture is exchanged in a Registered Exchange Offer subsequent to the
Record Date for the first Interest Payment Date following such exchange but on
or prior to such Interest Payment Date, then any such accrued and unpaid
interest with respect to this Debenture and any accrued and unpaid interest on
the Exchange Debenture or Exchange Debentures issued in exchange for this
Debenture, through the day before such Interest Payment Date, shall be paid on
such Interest Payment Date to the Securityholder of this Debenture on such
Record Date.
If at any time the Trust shall be required to pay any taxes, duties,
assessments or governmental charges of whatever nature (other than withholding
taxes) imposed by the United States or any other taxing authority, then, in any
such case, the Company shall pay as additional interest on the Debentures held
by the Institutional Trustee such additional amounts as shall be required so
that the net amounts received and retained by the Trust after paying any such
taxes, duties, assessments or other governmental charges will equal the amounts
the Trust and the Institutional Trustee would have received had no such taxes,
duties, assessments or other governmental charges been imposed. [IF THE
DEBENTURE IS AN INITIAL DEBENTURE INSERT - In addition, the interest rate
payable on the Debentures of this series is subject to increase as provided in
the Indenture under certain circumstances if, pursuant to the Registration
Agreement, either (A) the Exchange Offer Registration Statement (as such term is
defined in the
15
<PAGE>
Registration Agreement) is not filed with the Securities and Exchange Commission
(the "Commission") on or prior to the 60th day following the Closing Date (as
such term is defined in the Registration Agreement), (B) the Exchange Offer
Registration Statement is not declared effective by the Commission on or prior
to the 150th day following the Closing Date or (C) the Exchange Offer (as such
term is defined in the Registration Agreement) is not consummated on or prior to
the 180th day or a Shelf Registration Statement (as such term is defined in the
Registration Agreement) is not declared effective by the Commission on or prior
to the 210th day following the Closing Date.]
This Debenture shall not be entitled to any benefit under the
Indenture hereinafter referred to, be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been signed by or on
behalf of the Trustee.
The provisions of this Debenture are continued on the reverse side
hereof and such continued provisions shall for all purposes have the same effect
as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
MARSHALL & ILSLEY CORPORATION
By:
--------------------------
Name:
Title:
[Seal]
By:
--------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated
----------------
THE CHASE MANHATTAN BANK, as Trustee
16
<PAGE>
By
-----------------------------
Authorized Officer
17
<PAGE>
(REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of Debt Securities
of the Company, all issued or to be issued in one or more series under and
pursuant to an Indenture dated as of December 9, 1996, duly executed and
delivered between the Company and The Chase Manhattan Bank, as Trustee (the
"Trustee"), as supplemented by the First Supplemented Indenture dated as of
December 9, 1996, between the Company and the Trustee (the Indenture as so
supplemented, the "Indenture"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the holders of this series of Debt Securities (referred
to herein as the "Debentures") of which this Debenture is a part. The summary of
the terms of this Debenture contained herein does not purport to be complete and
is qualified by reference to the Indenture. By the terms of the Indenture, the
Debt Securities are issuable in series that may vary as to amount, date of
maturity, rate of interest and in other respects as provided in the Indenture.
This series of Debentures is limited in aggregate principal amount as specified
in said First Supplemental Indenture.
Upon the occurrence and continuation of a Tax Event, in certain
circumstances, this Debenture may become due and payable in whole, but not in
part, at a redemption price equal to 100% of the principal amount being redeemed
together with any accrued and unpaid interest thereon, which shall be paid prior
to 11:00 a.m., New York City time, on the date of such redemption or at such
earlier time as the Company determines. The Company shall also have the right to
redeem this Debenture at the option of the Company, in whole or in part, at any
time or from time to time on or after December 1, 2006 (an "Optional
Redemption"), at the call price (the "Call Price") (expressed as a percentage of
the principal amount being redeemed) specified below, plus accrued and unpaid
interest to the redemption date:
<TABLE>
<CAPTION>
If redeemed during the 12-month
period commencing December 1, Call Price
------------------------------- ----------
<S> <C>
2006 103.5820%
2007 103.2238
2008 102.8656
2009 102.5074
2010 102.1492
2011 101.7910
2012 101.4328
2013 101.0746
2014 100.7164
2015 100.3582
2016 100
2017 100
2018 100
2019 100
2020 100
</TABLE>
18
<PAGE>
<TABLE>
<CAPTION>
If redeemed during the 12-month
period commencing December 1, Call Price
------------------------------- ------------
<S> <C>
2021 100
2022 100
2023 100
2024 100
2025 100
</TABLE>
Any redemption pursuant to the preceding paragraph will be made,
subject to the receipt of prior approval by the Board of Governors of the
Federal Reserve System (the "Federal Reserve") if then required under applicable
guidelines or policies of the Federal Reserve, upon not less than 30 days nor
more than 60 days' notice, at a redemption price equal to 100% of the principal
amount being redeemed or at the Call Price, as the case may be, plus any accrued
and unpaid interest to the date of such redemption. If the Debentures are only
partially redeemed by the Company pursuant to an Optional Redemption, the
Debentures will be redeemed pro rata or by lot or by any other method utilized
by the Trustee; provided that if, at the time of redemption, the Debentures are
registered as a Global Debenture, the Depositary shall determine the principal
amount of such Debentures held by each of its direct participants to be redeemed
in accordance with its procedures.
In the event of redemption of this Debenture in part only, a new
Debenture or Debentures of this series for the unredeemed portion hereof will be
issued in the name of the holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Debentures may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than a majority in
aggregate principal amount of the Debt Securities of all series affected at the
time outstanding (voting as a class), as specified in the Indenture, to execute
supplemental indentures for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of the Indenture or of any
supplemental indenture or of modifying in any manner the rights of the holders
of the Debt Securities; provided, however, that no such supplemental indenture
shall among other things, without the consent of the holders of each Debt
Security then outstanding and affected thereby (i) extend the fixed maturity of
any Debt Securities of any series, or reduce the principal amount thereof or any
premium thereon, or reduce any amount payable on redemption thereof, or reduce
the rate or extend the time of payment of interest thereon, or make the
principal of, or interest or premium on, the Debt Securities payable in any coin
or currency other that that provided in the Debt Securities, or reduce the
amount of principal of an Original Issue Discount Security that would be due and
payable upon an acceleration of the maturity thereof or the amount thereof
provable in bankruptcy or impair or affect the right of a holder of Debt
Securities to institute suit for the payment thereof, or (ii) reduce the
aforesaid percentage of Debt Securities, the holders of
19
<PAGE>
which are required to consent to any such supplemental indenture. The Indenture
also contains provisions permitting the holders of a majority in aggregate
principal amount of the Debt Securities of a series at the time outstanding
affected thereby as provided in the Indenture, on behalf of all of the holders
of the Debt Securities of such series, to waive any past default in the
performance of any of the covenants contained in the Indenture, or established
pursuant to the Indenture with respect to such series, and its consequences,
except a default in the payment of the principal of or premium, if any, or
interest on any of the Debt Securities of such series. Any such consent or
waiver by the registered holder of this Debenture (unless revoked as provided in
the Indenture) shall be conclusive and binding upon such holder and upon all
future holders and owners of this Debenture and of any Debenture issued in
exchange herefor or in place hereof (whether by registration of transfer or
otherwise), irrespective of whether or not any notation of such consent or
waiver is made upon this Debenture.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
premium, if any, and interest on this Debenture at the time and place and at the
rate and in the money herein prescribed.
The Company shall have the right, subject to certain conditions, at
any time during the term of the Debentures and from time to time to extend the
interest payment period of the Debentures for up to 10 consecutive semiannual
periods (each, an "Extension Period") as provided in the Indenture.
Notwithstanding the foregoing, no Extension Period may extend beyond the
maturity date of the Debentures. In the event that the Company exercises its
right to extend an interest payment period, then during any Extension Period,
subject to certain exceptions as provided in the Indenture, (i) the Company
shall not declare or pay any dividend on, make any distributions with respect
to, or redeem, purchase, acquire, or make a liquidation payment with respect to,
any of its capital stock or rights to acquire such capital stock, or make any
guarantee payments with respect to the foregoing and (ii) the Company shall not
make any payment of interest on or principal of (or premium, if any, on), or
repay, repurchase or redeem, any debt securities issued by the Company that rank
pari passu with or junior to the Debentures. Upon the termination of any
Extension Period and the payment of all amounts then due, the Company may
commence a new Extension Period, subject to the requirements contained in the
Indenture.
As provided in the Indenture and subject to certain limitations herein
and therein set forth, this Debenture is transferable by the registered holder
hereof on the Debt Security Register of the Company, upon surrender of this
Debenture for registration of transfer at the office or agency of the Trustee in
the City and State of New York accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company or the Trustee duly
executed by the registered holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Debentures of authorized denominations
and for the same aggregate principal amount and series will be issued to the
designated transferee or transferees. No service charge will be made for any
such transfer, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in relation thereto.
20
<PAGE>
Prior to due presentment for registration of transfer of this
Debenture, the Company, the Trustee, any Authenticating Agent, any paying agent,
any transfer agent and the Debt Security registrar may deem and treat the
registered holder hereof as the absolute owner hereof (whether or not this
Debenture shall be overdue and notwithstanding any notice of ownership or
writing hereon) for the purpose of receiving payment of or on account of the
principal hereof and premium, if any, and interest due hereon and for all other
purposes, and neither the Company nor the Trustee nor any Authenticating Agent
nor any paying agent nor any transfer agent nor any Debt Security registrar
shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of, the
premium, if any, on or the interest on this Debenture, or for any claim based
hereon, or otherwise in respect hereof, or based on or in respect of the
Indenture, against any incorporator, stockholder, officer or director, past,
present or future, as such, of the Company or of any predecessor or successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the
issuance hereof, expressly waived and released.
The Debentures of this series are issuable only in registered form
without coupons in minimum denominations of $100,000 and any integral multiple
of $1,000 in excess thereof. A Global Debenture is exchangeable for Debentures
in definitive form only under certain limited circumstances set forth in the
Indenture. Debentures of this series so issued are issuable only in registered
form without coupons in minimum denominations of $100,000 and any integral
multiple of $1,000 in excess thereof. As provided in the Indenture and subject
to certain limitations herein and therein set forth, Debentures of this series
are exchangeable for a like aggregate principal amount of Debentures of this
series of a different authorized denomination, as requested by the holder
surrendering the same.
The Debentures of this series may be transferred only in blocks having
an aggregate principal amount of not less than $100,000. Any transfer of
Debentures of this series in a block having an aggregate principal amount of
less than $100,000 shall be deemed to be void and of no legal effect whatsoever.
Any transferee of Debentures of this series having an aggregate principal amount
of less than $100,000 shall be deemed not to be the holder of such Debentures
for any purpose, including, but not limited to, the receipt of payments on such
Debentures, and such transferee shall be deemed to have no interest whatsoever
in such Debentures.
All terms used in this Debenture that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE
AND THE DEBENTURES WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.
21
<PAGE>
ARTICLE VII
MISCELLANEOUS
SECTION 7.1
The Indenture, as supplemented by this First Supplemental Indenture,
is in all respects ratified and confirmed, and this First Supplemental Indenture
shall be deemed part of the Indenture in the manner and to the extent herein and
therein provided.
SECTION 7.2
The recitals herein contained are made by the Company and not by the
Trustee, and the Trustee assumes no responsibility for the correctness thereof.
The Trustee makes no representation as to the validity or sufficiency of this
First Supplemental Indenture.
SECTION 7.3
This First Supplemental Indenture and each Debenture shall be deemed
to be a contract made under the internal laws of the State of New York, and for
all purposes shall be construed in accordance with the laws of said State
without regard to conflict of laws principles thereof.
SECTION 7.4
In case any one or more of the provisions contained in this First
Supplemental Indenture or in a series of Debentures shall for any reason be held
to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of this
First Supplemental Indenture or of such series of Debentures, but this First
Supplemental Indenture and such series of Debentures shall be construed as if
such invalid or illegal or unenforceable provision had never been contained
herein or therein.
This First Supplemental Indenture may be executed in any number of
counterparts each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
22
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, as of the day and year first above written.
MARSHALL & ILSLEY CORPORATION
By:
--------------------------
Name:
Title:
[SEAL] Attest:
-----------------------
Name:
Title:
THE CHASE MANHATTAN BANK, as
Trustee
By:/s/ Gregory P. Shea
---------------------------
Name: Gregory P. Shea
Title: Senior Trust Officer
[SEAL] Attest:/s/
----------------------------
Name:
Title: Senior Trust Officer
23
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, as of the day and year first above written.
MARSHALL & ILSLEY CORPORATION
By: /s/ G. H. Gunnlaugsson
--------------------------------
Name: G. H. Gunnlaugsson
Title: Executive Vice President
Attest: /s/
----------------------------
Title: Senior Vice President
& Secretary
THE CHASE MANHATTAN BANK, as
Trustee
By:
--------------------------------
Name:
Title:
Attest:
----------------------------
Title:
24
<PAGE>
================================================================================
CAPITAL SECURITIES GUARANTEE AGREEMENT
M&I Capital Trust A
Dated as of December 9, 1996
================================================================================
<PAGE>
CROSS-REFERENCE TABLE*
Section of Trust Indenture Section of Capital Securities Guarantee
Act of 1939, as amended Agreement
310(a) ..................................... 4.1(a)
310(b) ..................................... 4.1(c)
310(c) ................................. Inapplicable
311(a) ..................................... 2.2(a)
311(b) ..................................... 2.2(b)
311(c) ................................. Inapplicable
312(a) ..................................... 2.2(a)
312(b) ..................................... 2.2(b)
313 ........................................ 2.3
314(a) ..................................... 2.4
314(b) ................................. Inapplicable
314(c) ..................................... 2.5
314(d) ................................. Inapplicable
314(f) ................................. Inapplicable
315(a) ..................................... 3.1(b)
315(b) ..................................... 2.7
315(c) ..................................... 3.1(a)
315(d) ..................................... 3.1(a)
316(a) ................................. 5.4(a), 2.6
_____________
* This Cross-Reference Table does not constitute part of this Guarantee
Agreement and shall not affect the interpretation of any of its terms or
provisions.
i
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
CROSS-REFERENCE TABLE*...................................................... i
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation.................................. 1
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application................................ 4
SECTION 2.2 Lists of Holders of Securities.................................. 4
SECTION 2.3 Reports by the Guarantee Trustee................................ 5
SECTION 2.4 Periodic Reports to Guarantee Trustee........................... 5
SECTION 2.5 Evidence of Compliance with Conditions Precedent................ 5
SECTION 2.6 Events of Default; Waiver....................................... 5
SECTION 2.7 Events of Default; Notice....................................... 6
SECTION 2.8 Conflicting Interests........................................... 6
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Guarantee Trustee...................... 6
SECTION 3.2 Certain Rights of Guarantee Trustee............................. 8
SECTION 3.3 Not Responsible for Recitals or Issuance of Capital Securities
Guarantee..................................................... 10
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1 Guarantee Trustee; Eligibility.................................. 10
SECTION 4.2 Appointment, Removal and Resignation of Guarantee Trustee....... 11
ARTICLE V
GUARANTEE
SECTION 5.1 Capital Securities Guarantee.................................... 11
SECTION 5.2 Waiver of Notice and Demand..................................... 12
SECTION 5.3 Obligations Not Affected........................................ 12
SECTION 5.4 Rights of Holders............................................... 13
SECTION 5.5 Guarantee of Payment............................................ 13
</TABLE>
ii
<PAGE>
<TABLE>
<CAPTION>
Page
<S> <C>
SECTION 5.6 Subrogation..................................................... 13
SECTION 5.7 Independent Obligations......................................... 14
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions...................................... 14
SECTION 6.2 Ranking......................................................... 14
ARTICLE VII
TERMINATION
SECTION 7.1 Termination..................................................... 15
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation..................................................... 15
SECTION 8.2 Indemnification................................................. 16
SECTION 8.3 Compensation; Expenses.......................................... 16
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns.......................................... 16
SECTION 9.2 Amendments...................................................... 16
SECTION 9.3 Notices......................................................... 17
SECTION 9.4 Benefit......................................................... 17
SECTION 9.5 Governing Law................................................... 18
</TABLE>
iii
<PAGE>
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Capital Securities Guarantee"), dated
as of December 9, 1996, is executed and delivered by Marshall & Ilsley
Corporation, a Wisconsin corporation (the "Guarantor"), and The Chase Manhattan
Bank, a New York State banking corporation, as trustee (the "Guarantee
Trustee"), for the benefit of the Holders (as defined herein) from time to time
of the Capital Securities (as defined herein) of M&I Capital Trust A, a Delaware
statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration"), dated as of December 9, 1996, among the trustees named therein
of the Issuer, Marshall & Ilsley Corporation, as sponsor, and the holders from
time to time of undivided beneficial interests in the assets of the Issuer, the
Issuer is issuing on the date hereof securities, having an aggregate liquidation
amount of up to $200,000,000, designated the 7.65% Capital Trust Pass-through
Securities/SM/ (the "Initial Capital Securities") and may issue in the future,
pursuant to the Registration Agreement (as defined in the Declaration)
securities solely to be exchanged for Initial Capital Securities, with terms
that are substantially identical to those of the Initial Capital Securities (the
"Exchange Capital Securities" and together with the Initial Capital Securities,
the "Capital Securities");
WHEREAS, as incentive for the Holders to purchase the Capital
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth in this Capital Securities Guarantee, to pay to the Holders
of Capital Securities the Guarantee Payments (as defined herein) and to make
certain other payments on the terms and conditions set forth herein; and
WHEREAS, the Guarantor is also executing and delivering a guarantee
agreement (the "Common Securities Guarantee") in substantially identical terms
to this Capital Securities Guarantee for the benefit of the holders of the
Common Securities (as defined in the Declaration) of the Issuer, except that if
an Event of Default (as defined in the Declaration), has occurred and is
continuing, the rights of holders of the Common Securities to receive Guarantee
Payments under the Common Securities Guarantee are subordinated to the rights of
Holders of Capital Securities to receive Guarantee Payments under this Capital
Securities Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Capital Securities, which purchase the Guarantor hereby agrees shall benefit the
Guarantor, the Guarantor executes and delivers this Capital Securities Guarantee
for the benefit of the Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation
------------------------------
In this Capital Securities Guarantee, unless the context otherwise
requires:
<PAGE>
(a) capitalized terms used in this Capital Securities Guarantee but
not defined in the preamble above have the respective meanings assigned to
them in this Section 1.1;
(b) a term defined anywhere in this Capital Securities Guarantee has
the same meaning throughout;
(c) all references to "the Capital Securities Guarantee" or "this
Capital Securities Guarantee" are to this Capital Securities Guarantee as
modified, supplemented or amended from time to time;
(d) all references in this Capital Securities Guarantee to Articles
and Sections are to Articles and Sections of this Capital Securities
Guarantee, unless otherwise specified;
(e) terms defined in the Declaration as at the date of execution of
this Capital Securities Guarantee or in the Trust Indenture Act, as the
case may be, have the same meanings when used in this Capital Securities
Guarantee, unless otherwise defined in this Capital Securities Guarantee or
unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice versa.
"Corporate Trust Office" means the office of the Guarantee Trustee at
which the corporate trust business of the Guarantee Trustee shall, at any
particular time, be principally administered, which office at the date of
execution of this Agreement is located at 450 West 33rd Street, New York, NY
10001.
"Covered Person" means any Holder or beneficial owner of Capital
Securities.
"Debentures " means the junior subordinated debentures of the Marshall
& Ilsley Corporation designated the 7.65% Junior Subordinated Deferrable
Interest Debentures due 2026, held by the Institutional Trustee (as defined in
the Declaration) of the Issuer.
"Declaration Event of Default" means an "Event of Default" as defined
in the Declaration.
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Capital Securities Guarantee.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Capital Securities, to the extent not
paid or made by the Issuer: (i) any accrued and unpaid Distributions (as defined
in the Declaration) that are required to be paid on such Capital Securities to
the extent the Issuer shall have funds available therefor, (ii) the redemption
price, including all accrued and unpaid Distributions to the date of redemption
(the "Redemption Price") to the extent the Issuer has funds available therefor,
with respect to any Capital Securities called for redemption by the Issuer, and
(iii) upon a voluntary or involuntary dissolution, winding-up or termination of
the Issuer (other than in connection with the distribution of Debentures to the
Holders in exchange for Capital Securities as provided in the
2
<PAGE>
Declaration), the lesser of (a) the aggregate of the liquidation amount and all
accrued and unpaid Distributions on the Capital Securities to the date of
payment, to the extent the Issuer shall have funds available therefor, and (b)
the amount of assets of the Issuer remaining available for distribution to
Holders in liquidation of the Issuer (in either case, the "Liquidation
Distribution").
"Guarantee Trustee" means The Chase Manhattan Bank, a New York State
banking corporation, until a Successor Guarantee Trustee has been appointed and
has accepted such appointment pursuant to the terms of this Capital Securities
Guarantee and thereafter means each such Successor Guarantee Trustee.
"Holder" shall mean any holder, as registered on the books and records
of the Issuer, of any Capital Securities; provided, however, that, in
determining whether the holders of the requisite percentage of Capital
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor or any Affiliate of the Guarantor.
"Indemnified Person" means the Guarantee Trustee, any Affiliate of the
Guarantee Trustee, or any officers, directors, shareholders, members, partners,
employees, representatives, nominees, custodians or agents of the Guarantee
Trustee.
"Indenture" means the Indenture dated as of December 9, 1996, among
the Guarantor and The Chase Manhattan Bank, not in its individual capacity but
solely as trustee, and any indenture supplemental thereto pursuant to which the
Debentures are to be issued to the Institutional Trustee of the Issuer.
"Liquidation Distribution" has the meaning set forth in the definition
of "Guarantee Payments" herein.
"Majority in liquidation amount of the Capital Securities" means,
except as provided by the Trust Indenture Act, a vote by Holder(s) of Initial
Capital Securities and Exchange Capital Securities, voting together as a class,
but separately from the holders of Common Securities, of more than 50% of the
aggregate liquidation amount (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus accrued and unpaid Distributions to
the date upon which the voting percentages are determined) of all Initial
Capital Securities and Exchange Capital Securities then outstanding.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two Authorized Officers of such Person. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Capital Securities Guarantee shall include:
(a) a statement that each officer signing the Officers' Certificate
has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers'
Certificate;
3
<PAGE>
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such
officer to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Responsible Officer" means, with respect to the Guarantee Trustee,
any officer within the Corporate Trust Office of the Guarantee Trustee,
including any vice president, any assistant vice president, any assistant
secretary, the treasurer, any assistant treasurer or other officer of the
Corporate Trust Office of the Guarantee Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of that officer's knowledge of and
familiarity with the particular subject.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
"Trust Securities" means the Common Securities and the Capital
Securities.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application
--------------------------------
(a) This Capital Securities Guarantee is subject to the provisions of
the Trust Indenture Act that would be required to be part of this Capital
Securities Guarantee if this Capital Securities Guarantee were qualified
under the Trust Indenture Act and shall, to the extent applicable, be
governed by such provisions; and
(b) if and to the extent that any provision of this Capital Securities
Guarantee limits, qualifies or conflicts with the duties imposed by
Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed
duties shall control.
SECTION 2.2 Lists of Holders of Securities
------------------------------
(a) The Guarantor shall provide the Guarantee Trustee (i) within 14
days after each record date for payment of Distributions, a list, in such
form as the Guarantee Trustee may reasonably require, of the names and
addresses of the Holders of the Capital Securities ("List of Holders") as
of such record date, provided that the Guarantor shall not
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be obligated to provide such List of Holders at any time the List of
Holders does not differ from the most recent List of Holders given to the
Guarantee Trustee by the Guarantor, and (ii) at any other time within 30
days of receipt by the Guarantor of a written request for a List of Holders
as of a date no more than 14 days before such List of Holders is given to
the Guarantee Trustee. The Guarantee Trustee may destroy any List of
Holders previously given to it on receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with its obligations under
Sections 311(a), 311(b) and Section 312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Guarantee Trustee
Within 60 days after May 15 of each year, the Guarantee Trustee shall
provide to the Holders of the Capital Securities such reports as are required by
Section 313(a) of the Trust Indenture Act, if any, in the form and in the manner
provided by Section 313 of the Trust Indenture Act. The Guarantee Trustee shall
also comply with the requirements of Section 313 (d) of the Trust Indenture Act.
The Guarantor will notify the Guarantee Trustee if and when any Capital
Securities are listed on any stock exchange.
SECTION 2.4 Periodic Reports to Guarantee Trustee
The Guarantor shall provide to the Guarantee Trustee such documents,
reports and information (if any) as required by Section 314 and the compliance
certificate required by Section 314 of the Trust Indenture Act in the form, in
the manner and at the times required by Section 314 of the Trust Indenture Act.
SECTION 2.5 Evidence of Compliance with Conditions Precedent
The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with any conditions precedent provided for in this Capital Securities
Guarantee that relate to any of the matters set forth in Section 314(c) of the
Trust Indenture Act. Any certificate or opinion required to be given by an
officer pursuant to Section 314(c)(1) may be given in the form of an Officers'
Certificate.
SECTION 2.6 Events of Default; Waiver
The Holders of a Majority in liquidation amount of Capital Securities
may, voting or consenting as a class, on behalf of the Holders of all of the
Capital Securities, waive any past Event of Default and its consequences. Upon
such waiver, any such Event of Default shall cease to exist, and shall be deemed
to have been cured, for every purpose of this Capital Securities Guarantee, but
no such waiver shall extend to any subsequent or other default or Event of
Default or impair any right consequent thereon.
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SECTION 2.7 Events of Default; Notice
(a) The Guarantee Trustee shall, within 90 days after the occurrence
of an Event of Default, transmit by mail, first class postage prepaid, to
the Holders of the Capital Securities, notices of all Events of Default
actually known to a Responsible Officer of the Guarantee Trustee, unless
such defaults have been cured before the giving of such notice, provided,
however, that the Guarantee Trustee shall be protected in withholding such
notice if and so long as a Responsible Officer of the Guarantee Trustee in
good faith determines that the withholding of such notice is in the
interests of the Holders of the Capital Securities.
(b) The Guarantee Trustee shall not be deemed to have knowledge of
any Event of Default unless the Guarantee Trustee shall have received
written notice, or a Responsible Officer of the Guarantee Trustee charged
with the administration of this Capital Securities Guarantee shall have
obtained actual knowledge, thereof.
SECTION 2.8 Conflicting Interests
The Indenture, the Debentures (as defined therein) issued or to be
issued thereunder, the Declaration, the Trust Securities issued or to be issued
thereunder and the Capital Securities Guarantee and Common Securities Guarantee
in connection therewith shall be deemed to be specifically described in this
Capital Securities Guarantee for the purposes of clause (i) of the proviso
contained in Section 310(b)(1) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Guarantee Trustee
(a) This Capital Securities Guarantee shall be held by the Guarantee
Trustee for the benefit of the Holders of the Capital Securities, and the
Guarantee Trustee shall not transfer this Capital Securities Guarantee to
any Person except a Holder of Capital Securities exercising his or her
rights pursuant to Section 5.4 (b) or to a Successor Guarantee Trustee on
acceptance by such Successor Guarantee Trustee of its appointment to act as
Successor Guarantee Trustee. The right, title and interest of the
Guarantee Trustee shall automatically vest in any Successor Guarantee
Trustee, and such vesting and cessation of title shall be effective whether
or not conveyancing documents have been executed and delivered pursuant to
the appointment of such Successor Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible Officer of
the Guarantee Trustee has occurred and is continuing, the Guarantee Trustee
shall enforce this Capital Securities Guarantee for the benefit of the
Holders of the Capital Securities.
(c) The Guarantee Trustee, before the occurrence of any Event of
Default and after the curing of all Events of Default that may have
occurred, shall undertake to
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perform only such duties as are specifically set forth in this Capital
Securities Guarantee, and no implied covenants shall be read into this
Capital Securities Guarantee against the Guarantee Trustee. In case an
Event of Default has occurred (that has not been cured or waived pursuant
to Section 2.6) and is actually known to a Responsible Officer of the
Guarantee Trustee, the Guarantee Trustee shall exercise such of the rights
and powers vested in it by this Capital Securities Guarantee, and use the
same degree of care and skill in its exercise thereof, as a prudent person
would exercise or use under the circumstances in the conduct of his or her
own affairs.
(d) No provision of this Capital Securities Guarantee shall be
construed to relieve the Guarantee Trustee from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) prior to the occurrence of any Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Guarantee Trustee
shall be determined solely by the express provisions of this
Capital Securities Guarantee, and the Guarantee Trustee shall not
be liable except for the performance of such duties and
obligations as are specifically set forth in this Capital
Securities Guarantee, and no implied covenants or obligations
shall be read into this Capital Securities Guarantee against the
Guarantee Trustee; and
(B) in the absence of bad faith on the part of the
Guarantee Trustee, the Guarantee Trustee may conclusively rely,
as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions
furnished to the Guarantee Trustee and conforming to the
requirements of this Capital Securities Guarantee; but in the
case of any such certificates or opinions that by any provision
hereof are specifically required to be furnished to the Guarantee
Trustee, the Guarantee Trustee shall be under a duty to examine
the same to determine whether or not they conform to the
requirements of this Capital Securities Guarantee;
(ii) the Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Guarantee
Trustee, unless it shall be proved that such Responsible Officer of
the Guarantee Trustee or the Guarantee Trustee was negligent in
ascertaining the pertinent facts upon which such judgment was made;
(iii) the Guarantee Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a
Majority in liquidation amount of the Capital Securities relating to
the time, method and place of conducting any proceeding for
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any remedy available to the Guarantee Trustee, or exercising any trust
or power conferred upon the Guarantee Trustee under this Capital
Securities Guarantee; and
(iv) no provision of this Capital Securities Guarantee shall
require the Guarantee Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the performance of any
of its duties or in the exercise of any of its rights or powers, if
the Guarantee Trustee shall have reasonable grounds for believing that
the repayment of such funds is not reasonably assured to it under the
terms of this Capital Securities Guarantee or indemnity, reasonably
satisfactory to the Guarantee Trustee, against such risk or liability
is not reasonably assured to it.
SECTION 3.2 Certain Rights of Guarantee Trustee
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may conclusively rely, and shall be
fully protected in acting or refraining from acting upon, any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by
it to be genuine and to have been signed, sent or presented by the
proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by this
Capital Securities Guarantee shall be sufficiently evidenced by an
Officers' Certificate.
(iii) Whenever, in the administration of this Capital Securities
Guarantee, the Guarantee Trustee shall deem it desirable that a matter
be proved or established before taking, suffering or omitting any
action hereunder, the Guarantee Trustee (unless other evidence is
herein specifically prescribed) may, in the absence of bad faith on
its part, request and conclusively rely upon an Officers' Certificate
which, upon receipt of such request, shall be promptly delivered by
the Guarantor.
(iv) The Guarantee Trustee shall have no duty to see to any
recording, filing or registration of any instrument (or any
rerecording, refiling or registration thereof).
(v) The Guarantee Trustee may consult with counsel of its
selection, and the advice or opinion of such counsel with respect to
legal matters shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it hereunder in
good faith and in accordance with such advice or opinion. Such
counsel may be counsel to the Guarantor or any of its Affiliates and
may include any of its employees. The Guarantee Trustee shall have
the right at any time to seek instructions concerning the
administration of this Guarantee from any court of competent
jurisdiction.
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(vi) The Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Capital
Securities Guarantee at the request or direction of any Holder, unless
such Holder shall have provided to the Guarantee Trustee such security
and indemnity, reasonably satisfactory to the Guarantee Trustee,
against the costs, expenses (including attorneys' fees and expenses
and the expenses of the Guarantee Trustee's agents, nominees or
custodians) and liabilities that might be incurred by it in complying
with such request or direction, including such reasonable advances as
may be requested by the Guarantee Trustee; provided, however, that
nothing contained in this Section 3.2(a) (vi) shall be taken to
relieve the Guarantee Trustee, upon the occurrence of an Event of
Default, of its obligation to exercise the rights and powers vested in
it by this Capital Securities Guarantee.
(vii) The Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Guarantee Trustee, in
its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit.
(viii) The Guarantee Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through agents, nominees, custodians or attorneys, and the
Guarantee Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due
care by it hereunder.
(ix) Any action taken by the Guarantee Trustee or its agents
hereunder shall bind the Holders of the Capital Securities, and the
signature of the Guarantee Trustee or its agents alone shall be
sufficient and effective to perform any such action. No third party
shall be required to inquire as to the authority of the Guarantee
Trustee to so act or as to its compliance with any of the terms and
provisions of this Capital Securities Guarantee, both of which shall
be conclusively evidenced by the Guarantee Trustee's or its agent's
taking such action.
(x) Whenever in the administration of this Capital Securities
Guarantee the Guarantee Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or taking
any other action hereunder, the Guarantee Trustee (i) may request
instructions from the Holders of a Majority in liquidation amount of
the Capital Securities, (ii) may refrain from enforcing such remedy or
right or taking such other action until such instructions are
received, and (iii) shall be protected in conclusively relying on or
acting in accordance with such instructions.
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(xi) The Guarantee Trustee shall not be liable for any action
taken, suffered, or omitted to be taken by it in good faith and
reasonably believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Capital Securities
Guarantee.
(b) No provision of this Capital Securities Guarantee shall be deemed
to impose any duty or obligation on Guarantee Trustee to perform any act or
acts or exercise any right, power, duty or obligation conferred or imposed
on it, in any jurisdiction in which it shall be illegal or in which the
Guarantee Trustee shall be unqualified or incompetent in accordance with
applicable law to perform any such act or acts or to exercise any such
right, power, duty or obligation. No permissive power or authority
available to the Guarantee Trustee shall be construed to be a duty.
SECTION 3.3 Not Responsible for Recitals or Issuance of Capital Securities
Guarantee
The recitals contained in this Capital Securities Guarantee shall be
taken as the statements of the Guarantor, and the Guarantee Trustee does not
assume any responsibility for their correctness. The Guarantee Trustee makes no
representation as to the validity or sufficiency of this Capital Securities
Guarantee.
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1 Guarantee Trustee; Eligibility
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the
laws of the United States of America or any State or Territory thereof
or of the District of Columbia, or a corporation or Person permitted
by the Securities and Exchange Commission to act as an institutional
trustee under the Trust Indenture Act, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus
of at least 50 million U.S. dollars ($50,000,000), and subject to
supervision or examination by Federal, State, Territorial or District
of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of
the supervising or examining authority referred to above, then, for
the purposes of this Section 4.1(a) (ii), the combined capital and
surplus of such corporation shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Guarantee Trustee shall cease to be eligible
to so act under Section 4.1(a), the Guarantee Trustee shall immediately
resign in the manner and with the effect set out in Section 4.2(c).
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(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act,
the Guarantee Trustee and Guarantor shall in all respects comply with the
provisions of Section 310(b) of the Trust Indenture Act.
SECTION 4.2 Appointment, Removal and Resignation of Guarantee Trustee
(a) Subject to Section 4.2(b), the Guarantee Trustee may be appointed
or removed without cause at any time by the Guarantor except during an
Event of Default.
(b) The Guarantee Trustee shall not be removed in accordance with
Section 4.2(a) until a Successor Guarantee Trustee has been appointed and
has accepted such appointment by written instrument executed by such
Successor Guarantee Trustee and delivered to the Guarantor.
(c) The Guarantee Trustee appointed to office shall hold office until
a Successor Guarantee Trustee shall have been appointed or until its
removal or resignation. The Guarantee Trustee may resign from office
(without need for prior or subsequent accounting) by an instrument in
writing executed by the Guarantee Trustee and delivered to the Guarantor,
which resignation shall not take effect until a Successor Guarantee Trustee
has been appointed and has accepted such appointment by an instrument in
writing executed by such Successor Guarantee Trustee and delivered to the
Guarantor and the resigning Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.2 within 60 days after
delivery of an instrument of removal or resignation, the Guarantee Trustee
resigning or being removed may petition any court of competent jurisdiction
for appointment of a Successor Guarantee Trustee. Such court may
thereupon, after prescribing such notice, if any, as it may deem proper,
appoint a Successor Guarantee Trustee.
(e) No Guarantee Trustee shall be liable for the acts or omissions to
act of any Successor Guarantee Trustee.
(f) Upon termination of this Capital Securities Guarantee or removal
or resignation of the Guarantee Trustee pursuant to this Section 4.2, the
Guarantor shall pay to the Guarantee Trustee all amounts owing to the
Guarantee Trustee under Sections 8.2 and 8.3 accrued to the date of such
termination, removal or resignation.
ARTICLE V
GUARANTEE
SECTION 5.1 Capital Securities Guarantee
The Guarantor irrevocably and unconditionally agrees to pay in full to
the Holders the Guarantee Payments (without duplication of amounts theretofore
paid by the Issuer), as and
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when due, regardless of any defense, right of set-off or counterclaim that the
Issuer may have or assert. Such obligations will not be discharged except by
payment of the Guarantee Payments in full. The Guarantor's obligation to make a
Guarantee Payment may be satisfied by direct payment of the required amounts by
the Guarantor to the Holders or by causing the Issuer to pay such amounts to the
Holders.
SECTION 5.2 Waiver of Notice and Demand
The Guarantor hereby waives notice of acceptance of this Capital
Securities Guarantee and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first against
the Issuer or any other Person before proceeding against the Guarantor, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
SECTION 5.3 Obligations Not Affected
The obligations, covenants, agreements and duties of the Guarantor
under this Capital Securities Guarantee shall in no way be affected or impaired
by reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied
agreement, covenant, term or condition relating to the Capital Securities
to be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions, Redemption Price, Liquidation Distribution or
any other sums payable under the terms of the Capital Securities or the
extension of time for the performance of any other obligation under,
arising out of, or in connection with, the Capital Securities (other than
an extension of time for payment of Distributions, Redemption Price,
Liquidation Distribution or other sum payable that results from the
extension of any interest payment period on the Debentures or any extension
of the maturity date of the Debentures permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Holders pursuant to the terms of the Capital
Securities, or any action on the part of the Issuer granting indulgence or
extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the Issuer
or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the Capital
Securities;
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(f) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute
a legal or equitable discharge or defense of a guarantor, it being the
intent of this Section 5.3 that the obligations of the Guarantor hereunder
shall be absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.4 Rights of Holders
(a) The Holders of a Majority in liquidation amount of the Capital
Securities have the right to direct the time, method and place of
conducting of any proceeding for any remedy available to the Guarantee
Trustee in respect of this Capital Securities Guarantee or exercising any
trust or power conferred upon the Guarantee Trustee under this Capital
Securities Guarantee; provided however, that (subject to Section 3.1) the
Guarantee Trustee shall have the right to decline to follow any such
direction if the Guarantee Trustee shall determine that the actions so
directed would be unjustly prejudicial to the Holders not taking part in
such direction or if the Guarantee Trustee being advised by counsel
determines that the action or proceeding so directed may not lawfully be
taken or if the Guarantor Trustee in good faith by its board of directors
or trustees, executive committees or a trust committee of directors or
trustees and/or Responsible Officers shall determine that the action or
proceedings so directed would involve the Guarantee Trustee in personal
liability.
(b) Any Holder of Capital Securities may institute a legal proceeding
directly against the Guarantor to enforce the Guarantee Trustee's rights
under this Capital Securities Guarantee, without first instituting a legal
proceeding against the Issuer, the Guarantee Trustee or any other Person.
The Guarantor waives any right or remedy to require that any such action be
brought first against the Issuer or any other Person before so proceeding
directly against the Guarantor.
SECTION 5.5 Guarantee of Payment
This Capital Securities Guarantee creates a guarantee of payment and
not of collection.
SECTION 5.6 Subrogation
The Guarantor shall be subrogated to all (if any) rights of the
Holders of Capital Securities against the Issuer in respect of any amounts paid
to such Holders by the Guarantor under this Capital Securities Guarantee;
provided, however, that the Guarantor shall not (except to the extent required
by mandatory provisions of law) be entitled to enforce or exercise any right
that it may acquire by way of subrogation or any indemnity, reimbursement or
other agreement,
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in all cases as a result of payment under this Capital Securities Guarantee, if,
after giving effect to any such payment, any amounts are due and unpaid under
this Capital Securities Guarantee. If any amount shall be paid to the Guarantor
in violation of the preceding sentence, the Guarantor agrees to hold such amount
in trust for the Holders and to pay over such amount to the Holders.
SECTION 5.7 Independent Obligations
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Capital
Securities and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Capital
Securities Guarantee notwithstanding the occurrence of any event referred to in
subsections (a) through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions
So long as any Capital Securities remain outstanding, if (i) the
Guarantor shall be in default with respect to its Guarantee Payments or other
obligations hereunder, (ii) there shall have occurred and be continuing an Event
of Default or an event of default under the Declaration, or (iii) the Guarantor
shall have selected an Extension Period as provided in the Declaration and such
period, or any extension thereof, shall be continuing, then (a) the Guarantor
shall not declare or pay any dividend on, make any distributions with respect
to, or redeem, purchase, acquire or make a liquidation payment with respect to,
any of the Guarantor's capital stock or rights to acquire such capital stock
(other than (i) purchases or acquisitions of shares of the Guarantor's capital
stock or rights to acquire such capital stock in connection with the
satisfaction by the Guarantor of its obligations under any employee benefit
plans, (ii) as a result of a reclassification of the Guarantor's capital stock
or rights to acquire such capital stock or the exchange or conversion of one
class or series of the Guarantor's capital stock or rights to acquire such
capital stock for another class or series of the Guarantor's capital stock, or
rights to acquire any such stock, (iii) the purchase of fractional interests in
shares of the Guarantor's capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or exchanged or
(iv) dividends or distributions made on the Guarantor's capital stock or rights
to acquire such capital stock with the Guarantor's capital stock or rights to
acquire such capital stock) or make any guarantee payments with respect to the
foregoing and (b) the Guarantor shall not make any payment of interest,
principal or premium, if any, on or repay, repurchase or redeem any debt
securities issued by the Guarantor which rank pari passu with or junior to the
Debentures.
SECTION 6.2 Ranking
This Capital Securities Guarantee will constitute an unsecured
obligation of the Guarantor and will rank subordinate and junior in right of
payment to all present and future Senior Indebtedness (as defined in the
Indenture) of the Guarantor. By their acceptance thereof,
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each Holder of Capital Securities agrees to the foregoing provisions of this
Capital Securities Guarantee and the other terms set forth herein.
If a Declaration Event of Default has occurred and is continuing, the
rights of holders of the Common Securities of the Issuer to receive payments
under the Common Securities Guarantee are subordinated to the rights of Holders
of Capital Securities to receive Guarantee Payments.
ARTICLE VII
TERMINATION
SECTION 7.1 Termination
This Capital Securities Guarantee shall terminate (i) upon full
payment of the Redemption Price of all Capital Securities, (ii) upon the
distribution of the Debentures to the Holders of all of the Capital Securities
or (iii) upon full payment of the amounts payable in accordance with the
Declaration upon liquidation of the Issuer. Notwithstanding the foregoing, this
Capital Securities Guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any Holder of Capital Securities
must restore payment of any sums paid under the Capital Securities or under this
Capital Securities Guarantee.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Guarantor or any Covered Person for any
loss, damage or claim incurred by reason of any act or omission performed
or omitted by such Indemnified Person in good faith in accordance with this
Capital Securities Guarantee and in a manner that such Indemnified Person
reasonably believed to be within the scope of the authority conferred on
such Indemnified Person by this Capital Securities Guarantee or by law,
except that an Indemnified Person shall be liable for any such loss, damage
or claim incurred by reason of such Indemnified Person's negligence or
willful misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Issuer or the Guarantor and upon such
information, opinions, reports or statements presented to the Trust or the
Guarantor by any Person as to matters the Indemnified Person reasonably
believes are within such other Person's professional or expert competence
and who, if selected by such Indemnified Person, has been selected with
reasonable care by such Indemnified Person, including information,
opinions, reports or statements as to the value and amount of the assets,
liabilities, profits, losses, or any other facts pertinent to the existence
and amount of assets from which Distributions to Holders of Capital
Securities might properly be paid.
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SECTION 8.2 Indemnification
The Guarantor agrees to indemnify each Indemnified Person for, and to
hold each Indemnified Person harmless against, any and all loss, liability,
damage, claim or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against, or
investigating, any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The obligation to
indemnify as set forth in this Section 8.2 shall survive the termination of this
Capital Securities Guarantee.
SECTION 8.3 Compensation; Reimbursement of Expenses
The Guarantor agrees:
(a) to pay to the Guarantee Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which compensation shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust); and
(b) except as otherwise expressly provided herein, to reimburse the
Guarantee Trustee upon request for all reasonable expenses, disbursements and
advances incurred or made by it in accordance with any provision of this Capital
Securities Guarantee (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith.
The provisions of this Section 8.3 shall survive the termination of
this Capital Securities Guarantee.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns
All guarantees and agreements contained in this Capital Securities
Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
of the Capital Securities then outstanding. Except in connection with any
merger or consolidation of the Guarantor with or into another entity or any
sale, transfer or lease of the Guarantor's assets to another entity, in each
case, to the extent permitted under the Indenture, the Guarantor may not assign
its rights or delegate its obligations under this Capital Securities Guarantee
without the prior approval of the Holders of at least a Majority in liquidation
amount of the Capital Securities.
SECTION 9.2 Amendments
Except with respect to any changes that do not adversely affect the
rights of Holders of Capital Securities in any material respect (in which case
no consent of Holders will be
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required), this Capital Securities Guarantee may only be amended with the prior
approval of the Holders of at least a Majority in liquidation amount of the
Capital Securities. The provisions of the Declaration with respect to amendments
thereof apply to the giving of such approval.
SECTION 9.3 Notices
All notices provided for in this Capital Securities Guarantee shall be
in writing, duly signed by the party giving such notice, and shall be delivered,
telecopied or mailed by first class mail, as follows:
(a) If given to the Guarantee Trustee, at the Guarantee Trustee's
mailing address set forth below (or such other address as the Guarantee
Trustee may give notice of to the Holders of the Capital Securities):
The Chase Manhattan Bank
450 West 33rd Street
New York, NY 10001
Attention: Corporate Trustee Administration Department
Telecopy: 212-946-8158/8159/8160
(b) If given to the Guarantor, at the Guarantor's mailing address set
forth below (or such other address as the Guarantor may give notice of to
the Holders of the Capital Securities and to the Guarantee Trustee):
Marshall & Ilsley Corporation
770 North Water Street
Milwaukee, Wisconsin 53207
Attention: Secretary
Telecopy: (414) 765-7899
(c) If given to any Holder of Capital Securities, at the address set
forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 9.4 Benefit
This Capital Securities Guarantee is solely for the benefit of the
Holders of the Capital Securities and, subject to Section 3.1(a), is not
separately transferable from the Capital Securities.
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SECTION 9.5 Governing Law
THIS CAPITAL SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.
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THIS CAPITAL SECURITIES GUARANTEE is executed as of the day and year
first above written.
MARSHALL & ILSLEY CORPORATION,
as Guarantor
/s/ G.H. Gunn/Augsson
By:_______________________________
Name: G.H. Gunn/Augsson
Title: Executive Vice President
THE CHASE MANHATTAN BANK, as
Guarantee Trustee
/s/ Gregory P. Shea
By:_______________________________
Name: Gregory P. Shea
Title: Senior Trust Officer
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EXECUTION COPY
M&I CAPITAL TRUST A
$200,000,000 7.65% CAPITAL TRUST PASS-THROUGH SECURITIES(SM) (TRUPS(SM))
FULLY AND UNCONDITIONALLY GUARANTEED AS TO DISTRIBUTIONS
AND OTHER PAYMENTS BY
MARSHALL & ILSLEY CORPORATION
REGISTRATION AGREEMENT
New York, New York
December 2, 1996
Salomon Brothers Inc
As Representative of the several Initial Purchasers
Seven World Trade Center
New York, New York 10048
Dear Sirs:
M&I Capital Trust A (the "Trust") a statutory business trust formed
under the laws of the state of Delaware by Marshall & Ilsley Corporation (the
"Company"), propose to issue and sell to the Initial Purchasers (the "Initial
Purchasers") named in the Purchase Agreement of even date herewith (the
"Purchase Agreement"), for whom you are acting as representative (the
"Representative"), the 7.65% Capital Trust Pass-through Securities (the "Capital
Securities") of M&I Capital Trust A. The issue and sale of the Capital
Securities pursuant to the Purchase Agreement is referred to herein as the
"Initial Placement". The Capital Securities, together with the guarantee of the
Company with respect thereto (the "Guarantee"), the 7.65% Junior Subordinated
Deferrable Interest Debentures due 2026 of the Company (the "Subordinated Debt
Securities"), are collectively referred to herein as the "Registrable
Securities". As an inducement to the Initial Purchasers to enter into the
Purchase Agreement and in satisfaction of a condition to the obligations of the
Initial Purchasers thereunder, the Company and the Trust agree with you, (i) for
your benefit and the benefit of the other Initial Purchasers and (ii) for the
benefit of the holders from time to time of the Registrable Securities and the
Exchange Securities (as defined below), including the Initial Purchasers (each
of the foregoing a "Holder" and together the "Holders"), as follows:
<PAGE>
1. Definitions. Capitalized terms used herein without definition shall
have their respective meanings set forth in the Purchase Agreement. As used in
this Agreement, the following capitalized defined terms shall have the following
meanings:
"Act" means the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.
"Affiliate" of any specified person means any other person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such specified person. For purposes of this definition, control of
a person means the power, direct or indirect, to direct or cause the direction
of the management and policies of such person whether by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Capital Securities" has the meaning set forth in the preamble hereto.
"Closing Date" has the meaning set forth in the Purchase Agreement.
"Commission" means the Securities and Exchange Commission.
"Company" has the meaning set forth in the preamble hereto.
"DTC" means the Depository Trust Company.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Exchange Offer Registration Period" means the 1 year period following
the Closing Date, exclusive of any period during which any stop order shall be
in effect suspending the effectiveness of the Exchange Offer Registration
Statement.
"Exchange Offer Registration Statement" means a registration statement
of the Company and the Trust on an appropriate form under the Act with respect
to the Registered Exchange Offer, all amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Exchange Securities" means the securities of the Company and the
Trust issued pursuant to a Registered Exchange Offer containing terms that are
identical in all material respects to the terms of the Registrable Securities
except (i) the Exchange Securities shall have been registered for sale under the
Act to Holders and (ii) the interest rate step-up provisions and the transfer
restrictions in the Registrable Securities will be modified or eliminated, as
appropriate, in the Exchange Securities.
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<PAGE>
"Exchanging Dealer" means any Holder (which may include the Initial
Purchasers) which is a broker-dealer, electing to exchange Registrable
Securities acquired for its own account as a result of market-making activities
or other trading activities, for Exchange Securities.
"Final Offering Memorandum" means the final Offering Memorandum issued
in connection with the Initial Placement and dated as of December 2, 1996, as
supplemented, relating to the Registrable Securities.
"Guarantee" has the meaning set forth in the preamble hereto.
"Holder" has the meaning set forth in the preamble hereto.
"Initial Placement" has the meaning set forth in the preamble hereto.
"Initial Purchasers" has the meaning set forth in the preamble hereto.
"Managing Underwriters" means the investment banker or investment
bankers and manager or managers that shall administer an underwritten offering.
"Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Registrable Securities or the Exchange
Securities, covered by such Registration Statement, and all amendments and
supplements to the Prospectus, including post-effective amendments.
"Purchase Agreement" has the meaning set forth in the preamble hereto.
"Registered Exchange Offer" means the proposed offer to the Holders to
issue and deliver to such Holders, in exchange for the Registrable Securities, a
like principal amount or number, as the case may be, of the Exchange Securities.
"Registrable Securities" has the meaning set forth in the preamble
hereto.
"Registration Statement" means any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Registrable
Securities or the Exchange Securities pursuant to the provisions of this
Agreement, amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"Representative" has the meaning set forth in the preamble hereto.
3
<PAGE>
"Shelf Registration" means a registration effected pursuant to Section
3 hereof.
"Shelf Registration Period" has the meaning set forth in Section 3(b)
hereof.
"Shelf Registration Statement" means a "shelf" registration statement
of the Company and the Trust pursuant to the provisions of Section 3 hereof
which covers some or all of the Registrable Securities or Exchange Securities,
as applicable, on an appropriate form under Rule 415 under the Act, or any
similar rule that may be adopted by the Commission, amendments and supplements
to such registration statement, including post-effective amendments, in each
case including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Subordinated Debt Securities" has the meaning set forth in the
preamble hereto.
"Trust" has the meaning set forth in the preamble hereto.
"underwriter" means any underwriter of Registrable Securities in
connection with an offering thereof under a Shelf Registration Statement.
2. Registered Exchange Offer; Resales of Exchange Securities by
Exchanging Dealers; Private Exchange. (a) The Company and the Trust shall
prepare and, not later than 60 days following the Closing Date, shall file with
the Commission the Exchange Offer Registration Statement with respect to the
Registered Exchange Offer. The Company and the Trust shall use their best
efforts to cause the Exchange Offer Registration Statement to become effective
under the Act within 150 days of the Closing Date. The Company and the Trust
shall use their best efforts to consummate the Registered Exchange Offer within
180 days of the Closing Date.
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Company and the Trust shall promptly commence the Registered
Exchange Offer. Each Holder who participates in the Registered Exchange Offer
will be required to represent that (i) it is not an affiliate of either the
Company or the Trust, (ii) if it is a broker-dealer, that it did not acquire
such Registrable Securities in a transaction other than as part of its market-
making or other trading activities, (iii) if it is not a broker-dealer, any
Exchange Securities to be received by it were acquired in the ordinary course of
its business, (iv) at the time of commencement of the Registered Exchange Offer,
it has no arrangement with any person to participate in the distribution (within
the meaning of the Act) of the Exchange Securities and (v) any additional
representations that in the opinion of counsel for the Company are reasonably
necessary under then existing interpretations of the staff of the Commission in
order for the Exchange Offer Registration Statement to be declared effective.
(c) In connection with the Registered Exchange Offer, the Company and
the Trust shall:
4
<PAGE>
(i) mail to each Holder a copy of the Prospectus forming part
of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) keep the Registered Exchange Offer open for not less than
30 days and not more than 45 days after the date notice thereof is
mailed to the Holders (or longer if required by applicable law);
(iii) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan, The City
of New York; and
(iv) comply in all material respects with all applicable laws.
(d) As soon as practicable after the close of the Registered Exchange
Offer, the Company and the Trust shall:
(i) accept for exchange and cancel all Registrable Securities
tendered and not validly withdrawn pursuant to the Registered Exchange
Offer; and
(ii) issue Exchange Securities to each Holder in a principal
amount or number, as the case may be, equal to the Registrable
Securities accepted for exchange and canceled pursuant to the
Registered Exchange Offer.
(e) The Company, the Trust and the Initial Purchasers on behalf of
the Holders hereby acknowledge that, in order to effect a Registered Exchange
Offer, (i) the Company will be required to issue new subordinated debt
securities to the Trust in exchange for a like principal amount of Subordinated
Debt Securities and (ii) the Trust will be required to issue new capital
securities in exchange for a like number of Capital Securities. The parties
hereto further acknowledge that the new subordinated debt securities and capital
securities issuable as described in this paragraph, which together with the
Guarantee collectively constitute the Exchange Securities, shall be identical in
all material respects to the securities they replace, except that (x) such
Exchange Securities shall be registered for sale under the Act to the Holders
and (y) the interest rate step-up provisions and the transfer restrictions in
the securities being replaced by the Exchange Securities will be modified or
eliminated, as appropriate, in the Exchange Securities.
(f) The Initial Purchasers, the Company and the Trust acknowledge
that, pursuant to interpretations by the Commission's staff of Section 5 of the
Act, and in the absence of an applicable exemption therefrom, each Exchanging
Dealer is required to deliver a Prospectus in connection with a sale of any
Exchange Securities received by such Exchanging Dealer pursuant to the
Registered Exchange Offer in exchange for Registrable Securities acquired for
its own account as a result of market-making activities or other trading
activities. Accordingly, the Company and the Trust shall:
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<PAGE>
(i) include the information set forth in Annex A hereto on the
cover of the Exchange Offer Registration Statement, in Annex B hereto
in the forepart of the Exchange Offer Registration Statement in a
section setting forth details of the Exchange Offer, and in Annex C
hereto in the underwriting or plan of distribution section of the
Prospectus forming a part of the Exchange Offer Registration
Statement, and include the information set forth in Annex D hereto in
the Letter of Transmittal delivered pursuant to the Registered
Exchange Offer; and
(ii) use their best efforts to keep the Exchange Offer
Registration Statement continuously effective under the Act during the
Exchange Offer Registration Period for delivery by Exchanging Dealers
in connection with sales of Exchange Securities received pursuant to
the Registered Exchange Offer, as contemplated by Section 4(h) below.
(g) In the event that the Company shall determine in good faith that
there is a reasonable likelihood that, or a material uncertainty exists as to
whether, consummation of the Registered Exchange Offer would result in an
adverse tax consequence to the Company, the Company and the Trust may, in lieu
of any obligation under this Section 2, effect a Shelf Registration of
Registrable Securities pursuant to Section 3.
(h) Following consummation of the Registered Exchange Offer, the
Company and the Trust shall have no obligation to effect any Shelf Registration,
except pursuant to Section 3(iii).
3. Shelf Registration. If, (i) because of any change in law or
applicable interpretations thereof by the Commission's staff, the Company and
the Trust determine upon advice of its outside counsel that they are not
permitted to effect the Registered Exchange Offer as contemplated by Section 2
hereof, or (ii) if for any other reason the Registered Exchange Offer is not
declared effective by the Commission within 150 days of the Closing Date, or
(iii) in the case of any Initial Purchaser, such Initial Purchaser does not
receive freely tradeable Exchange Securities in exchange for Registrable
Securities; provided that this clause (iii) shall not apply to Registrable
Securities for which the Initial Purchaser could participate in the Registered
Exchange Offer and receive freely tradeable Exchange Securities and fails to do
so (it being understood that, for purposes of this Section 3, (x) the
requirement that an Initial Purchaser deliver a Prospectus containing the
information required by Items 507 and/or 508 of Regulation S-K under the Act in
connection with sales of Exchange Securities acquired in exchange for such
Registrable Securities shall result in such Exchange Securities being not
"freely tradable" but (y) the requirement that an Exchanging Dealer deliver a
Prospectus in connection with sales of Exchange Securities acquired in the
Registered Exchange Offer in exchange for Registrable Securities acquired as a
result of market-making activities or other trading activities shall not result
in such Exchange Securities being not "freely tradable"), the following
provisions shall apply:
(a) The Company and the Trust shall as promptly as practicable file
with the Commission, and shall thereafter use their reasonable best efforts to
cause to be declared
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<PAGE>
effective under the Act within 210 days of the Closing Date (or promptly in the
event of a request by an Initial Purchaser), a Shelf Registration Statement
relating to the offer and sale of the Registrable Securities or the Exchange
Securities, as applicable, by the Holders from time to time in accordance with
the methods of distribution designated by the Holders of a majority of
Registrable Securities and reasonably satisfactory to the Company and set forth
in such Shelf Registration Statement; provided, that with respect to Exchange
Securities received by an Initial Purchaser in exchange for Registrable
Securities constituting any portion of an unsold allotment, the Company and the
Trust may, if permitted by current interpretations by the Commission's staff,
file a post-effective amendment to the Exchange Offer Registration Statement
containing the information required by Regulation S-K Items 507 and/or 508, as
applicable, in satisfaction of their obligations under this paragraph (a) with
respect thereto, and any such Exchange Offer Registration Statement, as so
amended, shall be referred to herein as, and governed by the provisions herein
applicable to, a Shelf Registration Statement.
(b) The Company and the Trust shall each use its reasonable best
efforts to keep the Shelf Registration Statement continuously effective in order
to permit the Prospectus forming part thereof to be usable by Holders for a
period of three years (or, if Rule 144(k) under the Act is amended to permit
unlimited resales by nonaffiliates within a lesser period, such lesser period)
from the Closing Date or such shorter period that will terminate upon the
earlier of the following: (A) when all the Capital Securities or Exchange
Securities corresponding to such Capital Securities covered by the Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement, or (B) when all the Subordinated Debt Securities or the Exchange
Securities relating to such Subordinated Debt Securities issued to Holders in
respect of Capital Securities or Exchange Securities that had not been sold
pursuant to the Shelf Registration Statement have been sold pursuant to the
Shelf Registration Statement (in any such case, such period being called the
"Shelf Registration Period"). Furthermore, the Company and the Trust shall each
use its reasonable best efforts to identify each selling Holder as a selling
securityholder, subject to Section 4(p) hereof. The Company and the Trust shall
be deemed not to have used their best efforts to keep the Shelf Registration
Statement effective during the requisite period if either the Company or the
Trust voluntarily takes any action that would result in Holders of securities
covered thereby not being able to offer and sell such securities during that
period, unless (i) such action is required by applicable law, or (ii) such
action is taken by the Company in good faith and for valid business reasons (not
including avoidance of the Company's obligations hereunder), including without
limitation the acquisition or divestiture of assets, so long as the Company
promptly thereafter complies with the requirements of Section 4(l) hereof, if
applicable.
4. Registration Procedures. In connection with any Shelf
Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply:
(a) The Company and the Trust shall furnish to the Initial
Purchasers, prior to the filing thereof with the Commission, a copy of any
Registration Statement, and each amendment thereof and each amendment or
supplement, if any, to the Prospectus included therein and shall
7
<PAGE>
use their best efforts to reflect in each such document, when so filed with the
Commission, such comments as the Initial Purchasers reasonably may propose.
(b) The Company and the Trust shall ensure that (i) any Registration
Statement and any amendment thereto and any Prospectus forming part thereof and
any amendment or supplement thereto (and each document incorporated therein by
reference) complies in all material respects with the Act and the Exchange Act
and the respective rules and regulations thereunder, (ii) any Registration
Statement and any amendment thereto does not, when it becomes effective, 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
and (iii) any Prospectus forming part of any Registration Statement, and any
amendment or supplement to such Prospectus, does not include an untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements, in the light of the circumstances under which they were made,
not misleading.
(c) (1) The Company and the Trust shall advise the Initial Purchasers
and, in the case of a Shelf Registration Statement, the Holders of securities
covered thereby, and, if requested by the Initial Purchasers or any such Holder,
confirm such advice in writing:
(i) when the Registration Statement and any amendment thereto
has been filed with the Commission and when the Registration Statement
or any post-effective amendment thereto has become effective; and
(ii) of any request by the Commission for amendments or
supplements to the Registration Statement or the Prospectus included
therein or for additional information.
(2) The Company and the Trust shall advise the Initial Purchasers
and, in the case of a Shelf Registration Statement, the Holders of securities
covered thereby, and, in the case of an Exchange Offer Registration Statement,
any Exchanging Dealer that has provided in writing to the Company a telephone or
facsimile number and address for notices, and, if requested by the Initial
Purchasers or any such Holder or Exchanging Dealer, confirm such advice in
writing of:
(i) the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose;
(ii) the receipt by the Company or the Trust of any notification
with respect to the suspension of the qualification of the securities
included therein for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and
(iii) the happening of any event that requires the making of any
changes in the Registration Statement or the Prospectus so that, as of
such date, the statements therein are not misleading and do not omit
to state a material fact
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<PAGE>
required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in light of the circumstances
under which they were made) not misleading (which advice shall be
accompanied by an instruction to suspend the use of the Prospectus
until the requisite changes have been made).
(d) The Company and the Trust shall use their best efforts to prevent
the issuance, and if issued to obtain the withdrawal, of any order suspending
the effectiveness of any Registration Statement at the earliest possible time.
(e) Reserved.
(f) The Company and the Trust shall furnish to each Holder of
securities included within the coverage of any Shelf Registration Statement,
upon request in writing and without charge, one copy of such Shelf Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules, and, if the Holder so requests in writing and agrees
to pay the Company's reasonable duplication costs, all exhibits filed therewith
(including those incorporated by reference).
(g) The Company and the Trust shall, during the Shelf Registration
Period, deliver to each Holder of securities included within the coverage of any
Shelf Registration Statement, without charge, as many copies of the Prospectus
(including each preliminary Prospectus) included in such Shelf Registration
Statement and any amendment or supplement thereto as such Holder may reasonably
request; and the Company and the Trust each consent to the use of the Prospectus
or any amendment or supplement thereto by each of the selling Holders of
securities in connection with the offering and sale of the securities covered by
the Prospectus or any amendment or supplement thereto.
(h) The Company and the Trust shall furnish to each Exchanging Dealer
that so requests, without charge, one copy of the Exchange Offer Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules, any documents incorporated by reference therein, and,
if the Exchanging Dealer so requests in writing and agrees to pay the Company's
reasonable duplication costs, all exhibits filed therewith (including those
incorporated by reference).
(i) The Company and the Trust shall, during the Exchange Offer
Registration Period, promptly deliver to each Exchanging Dealer, without charge,
as many copies of the Prospectus included in such Exchange Offer Registration
Statement and any amendment or supplement thereto as such Exchanging Dealer may
reasonably request for delivery by such Exchanging Dealer in connection with a
sale of Exchange Securities received by it pursuant to the Registered Exchange
Offer; and the Company and the Trust each consent to the use of the Prospectus
or any amendment or supplement thereto by any such Exchanging Dealer, as
aforesaid.
(j) Prior to the Registered Exchange Offer or any other offering of
securities pursuant to any Registration Statement, the Company and the Trust
shall register or qualify or
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cooperate with the Holders of securities included therein and their respective
counsel in connection with the registration or qualification of such securities
for offer and sale under the securities or blue sky laws of such jurisdictions
as any such Holders reasonably request in writing and do any and all other acts
or things necessary or advisable to enable the offer and sale in such
jurisdictions of the securities covered by such Registration Statement;
provided, however, that in no event shall the Company or the Trust be required
to qualify generally to do business in any jurisdiction where they are not then
so qualified or to take any action which would subject them to general service
of process or to taxation in any such jurisdiction where they are not then so
subject.
(k) The Company and the Trust shall cooperate with the Holders of
Registrable Securities or Exchange Securities, as the case may be, to facilitate
the timely preparation and delivery within the times required under normal-way
settlement of certificates representing securities to be sold pursuant to any
Registration Statement free of any restrictive legends and in such denominations
and registered in such names as Holders may request prior to sales of securities
pursuant to such Registration Statement.
(l) Upon the occurrence of any event contemplated by paragraph
(c)(2)(iii) of this Section 4, the Company and the Trust shall promptly prepare
a post-effective amendment to any Registration Statement or an amendment or
supplement to the related Prospectus or file any other required document so
that, as thereafter delivered to purchasers of the securities included therein,
the Prospectus will not include an untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading. The
Company and the Trust shall be entitled to postpone for a reasonable period of
time (but not exceeding 90 days) the filing, effectiveness, supplementing or
amending of any Registration Statement otherwise required to be prepared and
filed by them pursuant to Section 3, or to prohibit the Holders from making any
sales under the Shelf Registration Statement, if the Company in its good faith
judgment determines that any material financing, acquisition, disposition,
corporate reorganization or other material transaction or event involving the
Company is then planned, pending or in progress which would require public
disclosure thereof in such Registration Statement, unless public disclosure
thereof has previously been made, and, pursuant to Section 3, gives the Holders
prompt written notice of such determination and an approximation of the
anticipated delay; provided, however, that after any exercise of their rights to
postpone the filing, effectiveness, supplementing or amending of a Registration
Statement under this Section 4(l), or to prohibit the Holders from making any
sales under the Shelf Registration Statement, the Company and the Trust shall
not, within six months of the expiration of any such postponement, exercise
again their right of postponement under this Section 4(l). The Initial
Purchasers hereby acknowledge that any notice given by the Company pursuant to
this Section 4(l) may constitute material non-public information and that the
United States securities laws prohibit any person who has material non-public
information about a company from purchasing or selling securities of such
company or from communicating such information to any other person under
circumstances in which it is reasonably foreseeable that such person is likely
to purchase or sell such securities.
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(m) Not later than the effective date of any such Registration
Statement hereunder, the Company and the Trust shall provide a CUSIP number for
the Capital Securities or the Exchange Securities corresponding to the Capital
Securities, as the case may be, registered under such Registration Statement. In
the event of and at the time of any distribution of the Subordinated Debt
Securities to Holders, the Company and the Trust shall provide a CUSIP number
for the Subordinated Debt Securities and provide the applicable trustee with
certificates for such securities, in a form eligible for deposit with DTC.
(n) The Company and the Trust shall use their best efforts to comply
with all applicable rules and regulations of the Commission and shall make
generally available to their security holders as soon as practicable after the
effective date of the applicable Registration Statement an earnings statement
satisfying the provisions of Section 11(a) of the Act.
(o) The Company and the Trust shall cause the indenture relating to
the Subordinated Debt Securities, the agreement of the Company providing for the
Guarantee and the declaration of trust of the Trust, or any corresponding
documents in respect of the Exchange Securities, as the case may be, to be
qualified under the Trust Indenture Act in a timely manner.
(p) The Company and the Trust may require each Holder of securities
to be sold pursuant to any Shelf Registration Statement (i) to furnish to the
Company and the Trust such information regarding the holder and the distribution
of such securities as the Company and the Trust may from time to time reasonably
require for inclusion in such Registration Statement, (ii) to consent to the
plan of distribution designated by the Holders of a majority of Registrable
Securities and to use only the most recent Prospectus, (iii) to agree to the
indemnification provisions contained herein, (iv) to comply with applicable laws
in connection with the Holder's offers and sales under such Registration
Statement including without limitation the prospectus delivery requirements
under the Act and the applicable requirement of Rules 10b-5 and 10b-6 under the
Exchange Act and (v) to discontinue offers and sales as provided in Section
4(l).
(q) The Company and the Trust shall, if requested, promptly
incorporate in a Prospectus supplement or post-effective amendment to a Shelf
Registration Statement, such information as the Managing Underwriters reasonably
agree should be included therein and shall make all required filings of such
Prospectus supplement or post-effective amendment as soon as practically after
they are notified of the matters to be incorporated in such Prospectus
supplement or post-effective amendment.
(r) In the case of any Shelf Registration Statement, the Company and
the Trust shall enter into such agreements (including underwriting agreements)
and take all other appropriate actions reasonably necessary in order to expedite
or facilitate the registration or the disposition of the Registrable Securities
or the Exchange Securities, as the case may be, to be registered thereunder. In
connection therewith, if an underwriting agreement is entered into, the Company
and the Trust shall cause the same to contain indemnification provisions and
procedures no less favorable than those set forth in Section 6, with respect to
all parties to be indemnified pursuant to Section 6.
11
<PAGE>
(s) In the case of any underwritten offering under the Shelf
Registration Statement or at the request of an Initial Purchaser to the extent
that an Initial Purchaser has Registrable Securities eligible for resale
thereunder, the Company and the Trust shall (i) make reasonably available for
inspection by a representative of the Holders of a majority of the securities to
be registered thereunder, any underwriter participating in any disposition
pursuant to such Registration Statement, and any attorney, accountant or other
agent retained by the Holders or any such underwriter all relevant financial and
other records, pertinent corporate documents and properties of the Company, its
subsidiaries and the Trust as shall be reasonably necessary to enable such
persons to exercise any due diligence responsibilities; (ii) cause the Company's
officers, directors and employees and the trustees of the Trust to supply all
relevant information reasonably requested by the representative of the Holders
or any such underwriter, attorney, accountant or agent in connection with any
such Registration Statement as shall be reasonably necessary to enable such
persons to exercise any due diligence responsibilities; provided, however, that
any information that is designated in writing by the Company or the Trust, in
good faith, as confidential shall be kept confidential by the Holders or any
such underwriter, attorney, accountant or agent, unless such disclosure is
required by law, or such information becomes available to the public generally
or through a third party without an accompanying obligation of confidentiality;
(iii) make such representations and warranties to the underwriters, in form,
substance and scope as are customarily made by issuers to underwriters in
primary underwritten offerings and covering matters including, but not limited
to, those set forth in the Purchase Agreement; (iv) obtain opinions of counsel
to the Company and the Trust (who may be the general counsel of the Company) and
updates thereof (which counsel and opinions (in form, scope and substance) shall
be reasonably satisfactory to the Managing Underwriters, if any) addressed to
the Initial Purchaser (if applicable) and the underwriters, if any, covering
such matters as are customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably requested by such Initial
Purchaser and underwriters; (v) obtain "cold comfort" letters and updates
thereof from the independent certified public accountants of the Company (and,
if necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company for which
financial statements and financial data are, or are required to be, included in
the Registration Statement), addressed to the Initial Purchaser (if applicable)
and the underwriters, if any, in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with primary
underwritten offerings; and (vi) deliver such documents and certificates as may
be reasonably requested by the Initial Purchaser (if applicable) and the
Managing Underwriters, if any, including those to evidence compliance with
Section 4(l) and with any customary conditions contained in the underwriting
agreement or other agreement entered into by the Company and the Trust. The
foregoing actions set forth in clauses (iii), (iv), (v) and (vi) of this Section
4(s) shall be performed at (A) the effectiveness of such Registration Statement
and each post-effective amendment thereto and (B) each closing under any
underwriting or similar agreement as and to the extent required thereunder.
5. Registration Expenses. The Company shall bear all expenses
incurred in connection with the performance of its obligations under Sections 2,
3 and 4 hereof and, in the event of the first offering under the Shelf
Registration Statement, will reimburse the Holders for the reasonable fees and
disbursements of one firm or counsel designated by the majority of the
12
<PAGE>
Holders of the Registrable Securities or Exchange Securities, as the case may
be, covered by such Shelf Registration Statement to act as counsel for the
Holders in connection therewith and, in the case of any Exchange Offer
Registration Statement, will reimburse the Initial Purchasers for the reasonable
fees and disbursements of Cleary, Gottlieb, Steen & Hamilton acting in
connection therewith.
6. Indemnification and Contribution. (a) In connection with any
Registration Statement, the Company agrees to indemnify and hold harmless the
Trust, each Holder of securities covered thereby (including each Initial
Purchaser and, with respect to any Prospectus delivery as contemplated in
Section 4(i) hereof, each Exchanging Dealer), the directors, officers, employees
and agents of each such Holder and each person who controls any such Holder
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (including all documents
incorporated by referenced therein) as originally filed or in any amendment
thereof, or in any preliminary prospectus or Prospectus, or in any amendment
thereof 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 agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any such Holder specifically for inclusion
therein; and provided, further, that the Company shall not be liable if such
untrue statement or omission or alleged untrue statement or omission was
contained or made in any preliminary prospectus and corrected in the Prospectus,
if a copy of the Prospectus was not sent or given by or on behalf of such Holder
to the purchaser, if required by law so to have been delivered, at or prior to
the written confirmation of the sale, or such untrue statement or omission was
contained or made in any Prospectus used by the Holder following notification
from the Company that the Prospectus must be updated or supplemented. This
indemnity agreement will be in addition to any liability which the Company may
otherwise have.
The Company also agrees to indemnify or contribute to Losses of, as
provided in Section 6(d), any underwriters of Securities registered under a
Shelf Registration Statement, their officers and directors and each person who
controls such underwriters on substantially the same basis as that of the
indemnification of the Initial Purchasers and the selling Holders provided in
this Section 6(a) and shall, if requested by any Holder, enter into an
underwriting agreement reflecting such agreement, as provided in Section 4(r)
hereof.
(b) Each Holder of securities covered by a Registration Statement
(including each Initial Purchaser and, with respect to any Prospectus delivery
as contemplated in Section 4(i)
13
<PAGE>
hereof, each Exchanging Dealer) severally agrees to indemnify and hold harmless
the Company, the Trust, their respective directors, officers and trustees
(including each officer or trustee of the Company or the Trust who signs such
Registration Statement), and each person who controls the Company or the Trust
within the meaning of either the Act or the Exchange Act to the same extent as
the foregoing indemnity from the Company to each such Holder, but only with
reference to written information relating to such Holder furnished to the
Company by or on behalf of such Holder specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
6 or notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 6, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
satisfactory to the indemnified party. Notwithstanding the indemnifying party's
election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel (and local counsel) if (i) the use of
counsel chosen by the indemnifying party to represent the indemnified party
would present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of
such action or (iv) the indemnifying party shall authorize the indemnified party
to employ separate counsel at the expense of the indemnifying party. The
indemnifying party will not be required to engage more than one separate counsel
for all the indemnified parties (plus one local counsel in each relevant
jurisdiction). Any counsel designated for the Holders and their directors,
officers, employees, agents and control persons may be approved by Holders who
sold a majority of the securities sold under the Registration Statement. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action)
14
<PAGE>
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 6 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall have a joint and several
obligation to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively "Losses") to which such
indemnified party may be subject in such proportion as is appropriate to reflect
the relative benefits received by such indemnifying party, on the one hand, and
such indemnified party, on the other hand, from the Initial Placement and the
Registration Statement which resulted in such Losses; provided, however, that in
no case shall any Initial Purchaser or any subsequent Holder of any Registrable
Security or Exchange Security be responsible, in the aggregate, for any amount
in excess of the purchase discount or commission applicable to such security, or
in the case of a Exchange Security, applicable to the Security which was
exchangeable into such Exchange Security, as set forth on the cover page of the
Final Offering Memorandum, nor shall any underwriter be responsible for any
amount in excess of the underwriting discount or commission applicable to the
securities purchased by such underwriter under the Registration Statement which
resulted in such Losses. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the indemnifying party and the
indemnified party shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of such
indemnifying party, on the one hand, and such indemnified party, on the other
hand, in connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable considerations. Benefits received
by the Company shall be deemed to be equal to the sum of the total net proceeds
from the Initial Placement (before deducting expenses) as set forth on the cover
page of the Final Offering Memorandum. Benefits received by the Initial
Purchasers shall be deemed to be equal to the total purchase discounts and
commissions as set forth on the cover page of the Final Offering Memorandum, and
benefits received by any other Holders shall be deemed to be equal to the value
of receiving Registrable Securities or Exchange Securities, as applicable,
registered under the Act. Benefits received by any underwriter shall be deemed
to be equal to the total underwriting discounts and commissions, as set forth on
the cover page of the Prospectus forming a part of the Registration Statement
which resulted in such Losses. Relative fault shall be determined by reference
to whether any alleged untrue statement or omission relates to information
provided by the indemnifying party, on the one hand, or by the indemnified
party, on the other hand. The parties agree that it would not be just and
equitable if contribution were determined by pro rata allocation or any other
method of allocation which does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this paragraph (d), 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. For purposes of this Section 6,
each person who controls a Holder within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of such Holder shall
have the same rights to contribution as such Holder, and each person who
controls the Company and the Trust within the meaning of either the Act or the
Exchange Act, each officer of the Company or trustee of the Trust who shall have
signed the
15
<PAGE>
Registration Statement and each director of the Company or trustee of the Trust
shall have the same rights to contribution as the Company, subject in each case
to the applicable terms and conditions of this paragraph (d).
(e) The provisions of this Section 6 will remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder or
the Company or any of the officers, directors or controlling persons referred to
in Section 6 hereof, and will survive the sale by a Holder of securities covered
by a Registration Statement.
7. Miscellaneous.
(a) No Inconsistent Agreements. The Company and the Trust have not, as
of the date hereof, entered into, nor shall they, on or after the date hereof,
enter into, any agreement with respect to their securities that is inconsistent
with the rights granted to the Holders herein or otherwise conflicts with the
provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company and the Trust have
obtained the written consent of the Holders of at least a majority of the
Capital Securities then outstanding (or, after the consummation of any Exchange
Offer in accordance with Section 2 hereof, of Exchange Securities then
outstanding); provided that, with respect to any matter that directly or
indirectly affects the rights of any Initial Purchaser hereunder, the Company
shall obtain the written consent of each such Initial Purchaser against which
such amendment, qualification, supplement, waiver or consent is to be effective.
Notwithstanding the foregoing (except the foregoing proviso), a waiver or
consent to departure from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders whose securities are being sold
pursuant to a Registration Statement and that does not directly or indirectly
affect the rights of other Holders may be given by the majority of such Holders,
determined on the basis of securities being sold rather than registered under
such Registration Statement.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the most current address given by such
Holder to the Company or, if no such address has been received by the
Company, to the Institutional Trustee under the Declaration;
(ii) if to the Initial Purchasers, initially at the respective
addresses set forth in the Purchase Agreement; and
(iii) if to the Company or the Trust, initially at their
addresses set forth in the Purchase Agreement.
16
<PAGE>
All such notices and communications shall be deemed to have been duly
given when received. The Initial Purchasers, the Company or the Trust by notice
to the others may designate additional or different addresses for subsequent
notices or communications.
(d) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including, without the need for an express assignment or any consent by the
Company and the Trust thereto, subsequent Holders of Registrable Securities
and/or Exchange Securities. The Company and the Trust hereby agree to extend the
benefits of this Agreement to any Holder of Registrable Securities and/or
Exchange Securities and any such Holder may specifically enforce the provisions
of this Agreement as if an original party hereto.
(e) Counterparts. This agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) Headings. The headings in this agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. This agreement shall be governed by and construed in
accordance with the internal laws of the State of New York applicable to
agreements made and to be performed in said State.
(h) Severability. In the event that any one of more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
shall be enforceable to the fullest extent permitted by law.
(i) Securities Held by the Company, etc. Whenever the consent or
approval of Holders of a specified number, or percentage of principal amount of,
Registrable Securities or Exchange Securities is required hereunder, Registrable
Securities or Exchange Securities, as applicable, held by the Company or its
Affiliates (other than subsequent Holders of Registrable Securities or Exchange
Securities if such subsequent Holders are deemed to be Affiliates solely by
reason of their holdings of such Registrable Securities or Exchange Securities)
shall not be counted in determining whether such consent or approval was given
by the Holders of such required percentage.
17
<PAGE>
Please confirm your agreement by having your authorized officer sign a
copy of this Registration Agreement in the space set forth below and returning
the signed copy to us.
Very truly yours,
MARSHALL & ILSLEY CORPORATION
By: /s/ G.H. Gunnlaugsson
------------------------------------
Name: G.H. Gunnlaugsson
Title: Executive Vice President
M&I Capital Trust A
By: /s/ M.A. Hatfield
------------------------------------
Name: M.A. Hatfield, as Trustee
By: /s/ G.H. Gunnlaugsson
------------------------------------
Name: G.H. Gunnlaugsson, as Trustee
Accepted:
SALOMON BROTHERS INC
By: /s/ Gautam Colawla
-----------------------
Name: Gautam Colawla
Title: Associate
Date: December 2, 1996
<PAGE>
ANNEX A
Based on interpretations by the staff of the Securities and Exchange
Commission (the "Commission"), as set forth in no-action letters issued to third
parties, the Company and the Trust believe that the Exchange Securities issued
pursuant to the Exchange Offer may be offered for resale, resold or otherwise
transferred by holders thereof (other than any holder that is an "affiliate" of
the Company or the Trust as defined under Rule 405 of the Securities Act),
provided that such Exchange Securities are acquired in the ordinary course of
such holders' business and such holders are not engaged in, and do not intend to
engage in, a distribution of such Exchange Securities and have no arrangement or
understanding with any person to participate in the distribution of such
Exchange Securities. However, the staff of the Commission has not considered the
Exchange Offer in the context of a no-action letter, and there can be no
assurance that the staff of the Commission would make a similar determination
with respect to the Exchange Offer as in such other circumstances. By tendering
the Registrable Securities in exchange for Exchange Securities, each holder,
other than a broker-dealer, will represent to the Company and the Trust that:
(i) it is not an affiliate of either the Company or the Trust (as defined under
Rule 405 of the Securities Act); (ii) any Exchange Securities to be received by
it were acquired in the ordinary course of its business; and (iii) at the time
of commencement of the Exchange Offer, it has no arrangement with any person to
participate in the distribution (within the meaning of the Securities Act) of
the Exchange Securities.
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. The Letter
of Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of Exchange Securities received in exchange for Registrable
Securities where such Registrable Securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities. The Company and the Trust have agreed that, starting on the date of
the original issuance of the Registrable Securities and ending on the close of
business one year after such date, they will make this Prospectus available to
any broker-dealer for use in connection with any such resale. See "Plan of
Distribution."
<PAGE>
ANNEX B
Based on interpretations by the staff of the Commission, as set forth
in no-action letters issued to third parties, the Company and the Trust believe
that holders of Registrable Securities (other than any holder that is an
"affiliate" of the Company or the Trust as defined under Rule 405 of the
Securities Act) who exchange their Registrable Securities for Exchange
Securities pursuant to the Exchange Offer may offer such Exchange Securities for
resale, resell such Exchange Securities and otherwise transfer such Exchange
Securities without compliance with the registration and prospectus delivery
provisions of the Securities Act, provided that such Exchange Securities are
acquired in the ordinary course of such holders' business and such holders are
not engaged in, and do not intend to engage in, a distribution of such Exchange
Securities and have no arrangement or understanding with any person to
participate in the distribution of such Exchange Securities. However, the staff
of the Commission has not considered the Exchange Offer in the context of a
no-action letter, and there can be no assurance that the staff of the Commission
would make a similar determination with respect to the Exchange Offer. Each
broker-dealer that receives Exchange Securities for its own account in exchange
for Registrable Securities, where such Registrable Securities were acquired by
such broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution."
<PAGE>
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resale of Exchange Securities received in
exchange for Registrable Securities where such Registrable Securities were
acquired as a result of Market-making activities or other trading activities.
The Company and the Trust have agreed that, starting on the date of the original
issuance of the Registrable Securities and ending on the close of business one
year after such date, they will make this prospectus, as amended or
supplemented, available to any broker-dealer for use in connection with any such
resale. In addition, until _____________, 199_, all dealers effecting
transactions in the Exchange Securities may be required to deliver a prospectus.
The Company and the Trust will not receive any proceeds from any sale
of Exchange Securities by broker-dealers. Exchange Securities received by
broker-dealers for their own account pursuant to the Exchange offer may be sold
from time to time in one or more transactions in the over-the-counter market, in
negotiated transactions, through the writing of options on the Exchange
Securities or a combination of such methods of resale at market prices
prevailing at the time of resale, at prices related to such prevailing market
prices or negotiated prices. Any such resale may be made directly to purchasers
or to or through brokers or dealers who may receive compensation in the form of
commissions or concessions from any such broker-dealer and/or the purchasers of
any such Exchange Securities. Any broker-dealer that resells Exchange Securities
that were received by it for its own account pursuant to the Exchange Offer and
any broker or dealer that participates in a distribution of such Exchange
Securities may be deemed to be an "underwriter" within the meaning of the
Securities Act and any profit of any such resale of Exchange Securities and any
commissions or concessions received by any such persons may be deemed to be
underwriting compensation under the Securities Act. The Letter of Transmittal
states that by acknowledging that it will deliver and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" with the meaning of the Securities Act.
For a period of one year after the date of the original issuance of
the Registrable Securities, the Company and the Trust will promptly send
additional copies of this Prospectus and any amendment or supplement to this
Prospectus to any broker-dealer that requests such documents in the Letter of
Transmittal. The Company and the Trust have agreed to pay all expenses incident
to the Exchange Offer (including the expenses of one counsel for the Holders of
the Registrable Securities) other than commissions or concessions of any broker
or dealers and will indemnify the Holders of the Registrable Securities
(including any broker-dealers) against certain liabilities, including
liabilities under the Securities Act.
[If applicable, add information required by Regulation S-K Items 507
and/or 508.]
<PAGE>
ANNEX D
Rider A
- -------
[_] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR
SUPPLEMENTS THERETO.
Name:
------------------------------
Address:
---------------------------
Rider B
- -------
The undersigned acknowledges that this Exchange Offer is being made by
the Company and the Trust based upon the Company's and Trust's understanding of
an interpretation by the staff of the Securities and Exchange Commission (the
"Commission") as set forth in no-action letters issued to third parties, that
the Exchange Securities issued in exchange for Registrable Securities by holders
thereof (other than any such holder that is an "affiliate" of the Company or the
Trust within the meaning of Rule 405 under the Securities Act), may be so
exchanged without compliance with the registration and prospectus delivery
provisions of the Securities Act, provided that: (1) such holders are not
affiliates of the Company or the Trust within the meaning of Rule 405 under the
Securities Act; (2) such Exchange Securities are acquired in the ordinary course
of such holders' business; and (3) at the time of commencement of the Exchange
Offer, such holders have no arrangement with any person to participate in the
distribution (within the meaning of the Securities Act) of the Exchange
Securities. However, the staff of the Commission has not considered the Exchange
Offer in the context of a no-action letter and there can be no assurance that
the staff of the Commission would make a similar determination with respect to
the Exchange Offer as in other circumstances. If a holder of Registrable
Securities is an affiliate of the Company or the Trust, and is engaged in or
intends to engage in a distribution of the Exchange Securities or has any
arrangement or understanding with respect to the distribution of the Exchange
Securities to be acquired pursuant to the Exchange Offer, such holder could not
rely on the applicable interpretations of the staff of the Commission and must
comply with the registration and prospectus delivery requirements of the
Securities Act in connection with any secondary resale transaction. If the
undersigned is a broker-dealer that will receive Exchange Securities for its own
account in exchange for Registrable Securities, it represents that the
Registrable Securities to be exchanged for Exchange Securities were acquired by
it as a result of market-making activities or other trading activities and
acknowledges that it will deliver a prospectus in connection with any resale of
such Exchange Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
<PAGE>
Exhibit 23.1
Consent of Independent Public Accountants
-----------------------------------------
As independent public accountants, we hereby consent to the incorporation by
reference in the Form S-4 registration statement to register Capital Securities
of M&I Capital Trust A of our report dated January 26, 1996, included in
Marshall & Ilsley Corporation's Form 10-K for the year ended December 31, 1995,
and to all references to our Firm included in such registration statement.
ARTHUR ANDERSEN LLP
Milwaukee, Wisconsin,
January 13, 1997
<PAGE>
DIRECTOR'S POWER OF ATTORNEY
----------------------------
The undersigned director of Marshall & Ilsley Corporation (the
"Company") hereby constitutes and appoints G. H. Gunnlaugsson and M.A. Hatfield,
the undersigned's true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign for the undersigned
and in the undersigned's name in the capacity as a director of the Company the
Registration Statement on Form S-4, to which this Power of Attorney is filed as
an exhibit, including any amendments thereto, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission and any other regulatory authority, granting
unto said attorney-in-fact and agent full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, hereby ratifying and confirming all that said attorney-in-
fact and agent, or the undersigned's substitute, may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney, on this 12th day of December, 1996.
/s/ Oscar C. Boldt
----------------------------
Oscar C. Boldt
<PAGE>
DIRECTOR'S POWER OF ATTORNEY
----------------------------
The undersigned director of Marshall & Ilsley Corporation (the
"Company") hereby constitutes and appoints G. H. Gunnlaugsson and M.A. Hatfield,
the undersigned's true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign for the undersigned
and in the undersigned's name in the capacity as a director of the Company the
Registration Statement on Form S-4, to which this Power of Attorney is filed as
an exhibit, including any amendments thereto, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission and any other regulatory authority, granting
unto said attorney-in-fact and agent full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, hereby ratifying and confirming all that said attorney-in-
fact and agent, or the undersigned's substitute, may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney, on this 12th day of December, 1996.
/s/ Jack F. Kellner
----------------------------
Jack F. Kellner
<PAGE>
DIRECTOR'S POWER OF ATTORNEY
----------------------------
The undersigned director of Marshall & Ilsley Corporation (the
"Company") hereby constitutes and appoints G. H. Gunnlaugsson and M.A. Hatfield,
the undersigned's true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign for the undersigned
and in the undersigned's name in the capacity as a director of the Company the
Registration Statement on Form S-4, to which this Power of Attorney is filed as
an exhibit, including any amendments thereto, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission and any other regulatory authority, granting
unto said attorney-in-fact and agent full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, hereby ratifying and confirming all that said attorney-in-
fact and agent, or the undersigned's substitute, may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney, on this 12th day of December, 1996.
/s/ James O. Wright
----------------------------
James O. Wright
<PAGE>
DIRECTOR'S POWER OF ATTORNEY
----------------------------
The undersigned director of Marshall & Ilsley Corporation (the
"Company") hereby constitutes and appoints G. H. Gunnlaugsson and M.A. Hatfield,
the undersigned's true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign for the undersigned
and in the undersigned's name in the capacity as a director of the Company the
Registration Statement on Form S-4, to which this Power of Attorney is filed as
an exhibit, including any amendments thereto, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission and any other regulatory authority, granting
unto said attorney-in-fact and agent full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, hereby ratifying and confirming all that said attorney-in-
fact and agent, or the undersigned's substitute, may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney, on this 12th day of December, 1996.
/s/ James F. Kress
----------------------------
James F. Kress
<PAGE>
DIRECTOR'S POWER OF ATTORNEY
----------------------------
The undersigned director of Marshall & Ilsley Corporation (the
"Company") hereby constitutes and appoints G. H. Gunnlaugsson and M.A. Hatfield,
the undersigned's true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign for the undersigned
and in the undersigned's name in the capacity as a director of the Company the
Registration Statement on Form S-4, to which this Power of Attorney is filed as
an exhibit, including any amendments thereto, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission and any other regulatory authority, granting
unto said attorney-in-fact and agent full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, hereby ratifying and confirming all that said attorney-in-
fact and agent, or the undersigned's substitute, may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney, on this 12th day of December, 1996.
/s/ Don R. O'Hare
----------------------------
Don R. O'Hare
<PAGE>
DIRECTOR'S POWER OF ATTORNEY
----------------------------
The undersigned director of Marshall & Ilsley Corporation (the
"Company") hereby constitutes and appoints G. H. Gunnlaugsson and M.A. Hatfield,
the undersigned's true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign for the undersigned
and in the undersigned's name in the capacity as a director of the Company the
Registration Statement on Form S-4, to which this Power of Attorney is filed as
an exhibit, including any amendments thereto, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission and any other regulatory authority, granting
unto said attorney-in-fact and agent full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, hereby ratifying and confirming all that said attorney-in-
fact and agent, or the undersigned's substitute, may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney, on this 12th day of December, 1996.
/s/ Glenn A. Francke
----------------------------
Glenn A. Francke
<PAGE>
DIRECTOR'S POWER OF ATTORNEY
----------------------------
The undersigned director of Marshall & Ilsley Corporation (the
"Company") hereby constitutes and appoints G. H. Gunnlaugsson and M.A. Hatfield,
the undersigned's true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign for the undersigned
and in the undersigned's name in the capacity as a director of the Company the
Registration Statement on Form S-4, to which this Power of Attorney is filed as
an exhibit, including any amendments thereto, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission and any other regulatory authority, granting
unto said attorney-in-fact and agent full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, hereby ratifying and confirming all that said attorney-in-
fact and agent, or the undersigned's substitute, may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney, on this 12th day of December, 1996.
/s/ G.H. Gunnlaugsson
----------------------------
G.H. Gunnlaugsson
<PAGE>
DIRECTOR'S POWER OF ATTORNEY
----------------------------
The undersigned director of Marshall & Ilsley Corporation (the
"Company") hereby constitutes and appoints G. H. Gunnlaugsson and M.A. Hatfield,
the undersigned's true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign for the undersigned
and in the undersigned's name in the capacity as a director of the Company the
Registration Statement on Form S-4, to which this Power of Attorney is filed as
an exhibit, including any amendments thereto, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission and any other regulatory authority, granting
unto said attorney-in-fact and agent full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, hereby ratifying and confirming all that said attorney-in-
fact and agent, or the undersigned's substitute, may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney, on this 12th day of December, 1996.
/s/ Peter M. Platten, III
----------------------------
Peter M. Platten, III
<PAGE>
DIRECTOR'S POWER OF ATTORNEY
----------------------------
The undersigned director of Marshall & Ilsley Corporation (the
"Company") hereby constitutes and appoints G. H. Gunnlaugsson and M.A. Hatfield,
the undersigned's true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign for the undersigned
and in the undersigned's name in the capacity as a director of the Company the
Registration Statement on Form S-4, to which this Power of Attorney is filed as
an exhibit, including any amendments thereto, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission and any other regulatory authority, granting
unto said attorney-in-fact and agent full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, hereby ratifying and confirming all that said attorney-in-
fact and agent, or the undersigned's substitute, may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney, on this 12th day of December, 1996.
/s/ D.J. Kuester
----------------------------
D.J. Kuester
<PAGE>
DIRECTOR'S POWER OF ATTORNEY
----------------------------
The undersigned director of Marshall & Ilsley Corporation (the
"Company") hereby constitutes and appoints G. H. Gunnlaugsson and M.A. Hatfield,
the undersigned's true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign for the undersigned
and in the undersigned's name in the capacity as a director of the Company the
Registration Statement on Form S-4, to which this Power of Attorney is filed as
an exhibit, including any amendments thereto, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission and any other regulatory authority, granting
unto said attorney-in-fact and agent full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, hereby ratifying and confirming all that said attorney-in-
fact and agent, or the undersigned's substitute, may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney, on this 12th day of December, 1996.
/s/ Edward L. Meyer, Jr.
----------------------------
Edward L. Meyer, Jr.
<PAGE>
DIRECTOR'S POWER OF ATTORNEY
----------------------------
The undersigned director of Marshall & Ilsley Corporation (the
"Company") hereby constitutes and appoints G. H. Gunnlaugsson and M.A. Hatfield,
the undersigned's true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign for the undersigned
and in the undersigned's name in the capacity as a director of the Company the
Registration Statement on Form S-4, to which this Power of Attorney is filed as
an exhibit, including any amendments thereto, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission and any other regulatory authority, granting
unto said attorney-in-fact and agent full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, hereby ratifying and confirming all that said attorney-in-
fact and agent, or the undersigned's substitute, may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney, on this 12th day of December, 1996.
/s/ Sam W. Orr, Jr.
----------------------------
Sam W. Orr, Jr.
<PAGE>
DIRECTOR'S POWER OF ATTORNEY
----------------------------
The undersigned director of Marshall & Ilsley Corporation (the
"Company") hereby constitutes and appoints G. H. Gunnlaugsson and M.A. Hatfield,
the undersigned's true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign for the undersigned
and in the undersigned's name in the capacity as a director of the Company the
Registration Statement on Form S-4, to which this Power of Attorney is filed as
an exhibit, including any amendments thereto, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission and any other regulatory authority, granting
unto said attorney-in-fact and agent full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, hereby ratifying and confirming all that said attorney-in-
fact and agent, or the undersigned's substitute, may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney, on this 12th day of December, 1996.
/s/ J.A. Puelicher
----------------------------
J.A. Puelicher
<PAGE>
DIRECTOR'S POWER OF ATTORNEY
----------------------------
The undersigned director of Marshall & Ilsley Corporation (the
"Company") hereby constitutes and appoints G. H. Gunnlaugsson and M.A. Hatfield,
the undersigned's true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign for the undersigned
and in the undersigned's name in the capacity as a director of the Company the
Registration Statement on Form S-4, to which this Power of Attorney is filed as
an exhibit, including any amendments thereto, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission and any other regulatory authority, granting
unto said attorney-in-fact and agent full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, hereby ratifying and confirming all that said attorney-in-
fact and agent, or the undersigned's substitute, may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney, on this 12th day of December, 1996.
/s/ Stuart W. Tisdale
----------------------------
Stuart W. Tisdale
<PAGE>
DIRECTOR'S POWER OF ATTORNEY
----------------------------
The undersigned director of Marshall & Ilsley Corporation (the
"Company") hereby constitutes and appoints G. H. Gunnlaugsson and M.A. Hatfield,
the undersigned's true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign for the undersigned
and in the undersigned's name in the capacity as a director of the Company the
Registration Statement on Form S-4, to which this Power of Attorney is filed as
an exhibit, including any amendments thereto, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission and any other regulatory authority, granting
unto said attorney-in-fact and agent full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, hereby ratifying and confirming all that said attorney-in-
fact and agent, or the undersigned's substitute, may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney, on this 12th day of December, 1996.
/s/ Wendell F. Bueche
----------------------------
Wendell F. Bueche
<PAGE>
DIRECTOR'S POWER OF ATTORNEY
----------------------------
The undersigned director of Marshall & Ilsley Corporation (the
"Company") hereby constitutes and appoints G. H. Gunnlaugsson and M.A. Hatfield,
the undersigned's true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign for the undersigned
and in the undersigned's name in the capacity as a director of the Company the
Registration Statement on Form S-4, to which this Power of Attorney is filed as
an exhibit, including any amendments thereto, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission and any other regulatory authority, granting
unto said attorney-in-fact and agent full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, hereby ratifying and confirming all that said attorney-in-
fact and agent, or the undersigned's substitute, may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney, on this 12th day of December, 1996.
/s/ J.B. Wigdale
----------------------------
J.B. Wigdale
<PAGE>
DIRECTOR'S POWER OF ATTORNEY
----------------------------
The undersigned director of Marshall & Ilsley Corporation (the
"Company") hereby constitutes and appoints G. H. Gunnlaugsson and M.A. Hatfield,
the undersigned's true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for the undersigned and in the undersigned's
name, place and stead, in any and all capacities, to sign for the undersigned
and in the undersigned's name in the capacity as a director of the Company the
Registration Statement on Form S-4, to which this Power of Attorney is filed as
an exhibit, including any amendments thereto, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission and any other regulatory authority, granting
unto said attorney-in-fact and agent full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as the undersigned might or
could do in person, hereby ratifying and confirming all that said attorney-in-
fact and agent, or the undersigned's substitute, may lawfully do or cause to be
done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney, on this 12th day of December, 1996.
/s/ Burleigh E. Jacobs
----------------------------
Burleigh E. Jacobs
<PAGE>
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
---------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
---------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2)_________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------
MARSHALL & ILSLEY CORPORATION
(Exact name of obligor as specified in its charter)
WISCONSIN 39-0968604
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
770 NORTH WATER STREET
MILWAUKEE, WISCONSIN 53202
(Address of principal executive offices) (Zip Code)
---------------------------------------------
JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES
DUE 2026 OF MARSHALL & ILSLEY CORPORATION
(Title of the indenture securities)
---------------------------------------------
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty Street,
New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
- 2 -
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of Eligibility.
1. A copy of the Articles of Association of the Trustee as now in effect,
including the Organization Certificate and the Certificates of Amendment dated
February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996,
in connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being contained
in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form
T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act (see
Exhibit 6 to Form T-1 filed in connection with Registration Statement No. 33-
50010, which is incorporated by reference. On July 14, 1996, in connection with
the merger of Chemical Bank and The Chase Manhattan Bank (National Association),
Chemical Bank, the surviving corporation, was renamed The Chase Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 31ST day of DECEMBER, 1996.
THE CHASE MANHATTAN BANK
By /s/ Gregory P. Shea
--------------------------
Gregory P. Shea
Assistant Vice President
- 3 -
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business September 30, 1996, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
ASSETS IN MILLIONS
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ........................................... $ 11,095
Interest-bearing balances ................................... 4,998
Securities: ...................................................
Held to maturity securities.................................... 3,231
Available for sale securities.................................. 38,078
Federal Funds sold and securities purchased under
agreements to resell in domestic offices of the
bank and of its Edge and Agreement subsidiaries,
and in IBF's:
Federal funds sold........................................... 8,018
Securities purchased under agreements to resell.............. 731
Loans and lease financing receivables:
Loans and leases, net of unearned income $130,513
Less: Allowance for loan and lease losses 2,938
Less: Allocated transfer risk reserve............. 27
--------
Loans and leases, net of unearned income,
allowance, and reserve....................................... 127,548
Trading Assets................................................. 48,576
Premises and fixed assets (including capitalized
leases)...................................................... 2,850
Other real estate owned........................................ 300
Investments in unconsolidated subsidiaries and
associated companies......................................... 92
Customer's liability to this bank on acceptances
outstanding.................................................. 2,777
Intangible assets.............................................. 1,361
Other assets................................................... 12,204
--------
TOTAL ASSETS................................................... $261,859
========
</TABLE>
-4-
<PAGE>
LIABILITIES
<TABLE>
<CAPTION>
Deposits
<S> <C>
In domestic offices.................................... $ 80,163
Noninterest-bearing.............................$30,596
Interest-bearing................................ 49,567
------
In foreign offices, Edge and Agreement
subsidiaries, and IBF's............................... 65,173
Noninterest-bearing.............................$ 3,616
Interest-bearing.................................61,557
Federal funds purchased and securities sold
under agreements to repurchase in domestic
offices of the bank and of its Edge and
Agreement subsidiaries, and in IBF's
Federal funds purchased................................ 14,594
Securities sold under agreements to repurchase......... 14,110
Demand notes issued to the U.S. Treasury................. 2,200
Trading liabilities...................................... 30,136
Other Borrowed money:
With a remaining maturity of one year or less.......... 16,895
With a remaining maturity of more than one year........ 449
Mortgage indebtedness and obligations under
capitalized leases...................................... 49
Bank's liability on acceptances executed and
outstanding............................................. 2,764
Subordinated notes and debentures........................ 5,471
Other liabilities........................................ 13,997
TOTAL LIABILITIES........................................ 246,001
--------
Limited-Life Preferred stock and related surplus......... 550
EQUITY CAPITAL
Common stock............................................. 1,209
Surplus.................................................. 10,176
Undivided profits and capital reserves................... 4,385
Net unrealized holding gains (Losses)
On available-for-sale securities......................... (481)
Cumulative foreign currency translation adjustments...... 19
TOTAL EQUITY CAPITAL..................................... 15,308
--------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED
STOCK AND EQUITY CAPITAL............................... $261,859
========
</TABLE>
I, Joseph L. Sclafani, S.V.P. & Controller of the
above-named bank, do hereby declare that this Report of
Condition has been prepared in conformance with the in-
structions issued by the appropriate Federal regulatory
authority and is true to the best of my knowledge and
belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness
of this Report of Condition and declare that it has been
examined by us, and to the best of our knowledge and
belief has been prepared in conformance with the in-
structions issued by the appropriate Federal regulatory
authority and is true and correct.
WALTER V. SHIPLEY )
EDWARD D. MILLER )DIRECTORS
THOMAS G. LABRECQUE )
-5-
<PAGE>
- -------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
-------------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------
M&I CAPITAL TRUST A
(Exact name of obligor as specified in its charter)
DELAWARE 39-6643782
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
770 NORTH WATER STREET
MILWAUKEE, WISCONSIN 53202
(Address of principal executive offices) (Zip Code)
-----------------------------------------------------
CAPITAL SECURITIES OF M&I CAPITAL TRUST A
(Title of the indenture securities)
-------------------------------------------------------------
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty Street,
New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of Eligibility.
1. A copy of the Articles of Association of the Trustee as now in effect,
including the Organization Certificate and the Certificates of Amendment dated
February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being contained
in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form T-
1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act (see
Exhibit 6 to Form T-1 filed in connection with Registration Statement No. 33-
50010, which is incorporated by reference. On July 14, 1996, in connection with
the merger of Chemical Bank and The Chase Manhattan Bank (National Association),
Chemical Bank, the surviving corporation, was renamed The Chase Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 31ST day of DECEMBER, 1996.
THE CHASE MANHATTAN BANK
By /s/ Gregory P. Shea
---------------------------------
Gregory P. Shea
Assistant Vice President
-3-
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business September 30, 1996, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
ASSETS IN MILLIONS
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin................................................. $ 11,095
Interest-bearing balances......................................... 4,998
Securities:
Held to maturity securities......................................... 3,231
Available for sale securities....................................... 38,078
Federal Funds sold and securities purchased under
agreements to resell in domestic offices of the
bank and of its Edge and Agreement subsidiaries,
and in IBF's:
Federal funds sold................................................ 8,018
Securities purchased under agreements to resell................... 731
Loans and lease financing receivables:
Loans and leases, net of unearned income $130,513
Less: Allowance for loan and lease losses 2,938
Less: Allocated transfer risk reserve..... 27
Loans and leases, net of unearned income, -------
allowance, and reserve............................................ 127,548
Trading Assets...................................................... 48,576
Premises and fixed assets (including capitalized
leases)........................................................... 2,850
Other real estate owned............................................. 300
Investments in unconsolidated subsidiaries and
associated companies.............................................. 92
Customer's liability to this bank on acceptances
outstanding....................................................... 2,777
Intangible assets................................................... 1,361
Other assets........................................................ 12,204
--------
TOTAL ASSETS........................................................ $261,859
========
</TABLE>
-4-
<PAGE>
LIABILITIES
<TABLE>
<CAPTION>
Deposits
<S> <C>
In domestic offices................................. $ 80,163
Noninterest-bearing........................ $30,596
Interest-bearing........................... 49,567
------
In foreign offices, Edge and Agreement
subsidiaries, and IBF's............................ 65,173
Noninterest-bearing........................ $ 3,616
Interest-bearing........................... 61,557
Federal funds purchased and securities sold
under agreements to repurchase in domestic
offices of the bank and of its Edge and
Agreement subsidiaries, and in IBF's
Federal funds purchased............................. 14,594
Securities sold under agreements to repurchase...... 14,110
Demand notes issued to the U.S. Treasury.............. 2,200
Trading liabilities................................... 30,136
Other Borrowed money:
With a remaining maturity of one year or less....... 16,895
With a remaining maturity of more than one year..... 449
Mortgage indebtedness and obligations under
capitalized leases................................... 49
Bank's liability on acceptances executed and
outstanding.......................................... 2,764
Subordinated notes and debentures..................... 5,471
Other liabilities..................................... 13,997
TOTAL LIABILITIES..................................... 246,001
--------
Limited-Life Preferred stock and related surplus...... 550
EQUITY CAPITAL
Common stock.......................................... 1,209
Surplus............................................... 10,176
Undivided profits and capital reserves................ 4,385
Net unrealized holding gains (Losses)
on available-for-sale securities...................... (481)
Cumulative foreign currency translation adjustments... 19
TOTAL EQUITY CAPITAL.................................. 15,308
--------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED
STOCK AND EQUITY CAPITAL............................ $261,859
========
</TABLE>
I, Joseph L. Sclafani, S.V.P. & Controller of the
above-named bank, do hereby declare that this Report of
Condition has been prepared in conformance with the in-
structions issued by the appropriate Federal regulatory
authority and is true to the best of my knowledge and
belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness
of this Report of Condition and declare that it has been
examined by us, and to the best of our knowledge and
belief has been prepared in conformance with the in-
structions issued by the appropriate Federal regulatory
authority and is true and correct.
WALTER V. SHIPLEY )
EDWARD D. MILLER )DIRECTORS
THOMAS G. LABRECQUE )
-5-
<PAGE>
___________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
_________________________
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
___________________________________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
________________________________________
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
_____________________________________________
MARSHALL & ILSLEY CORPORATION
(Exact name of obligor as specified in its charter)
WISCONSIN 39-0968604
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
770 NORTH WATER STREET
MILWAUKEE, WISCONSIN 53202
(Address of principal executive offices) (Zip Code)
---------------------------------------
MARSHALL & ILSLEY CORPORATION GUARANTEE
WITH RESPECT TO CAPITAL SECURITIES
(Title of the indenture securities)
-------------------------------------------------
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty Street,
New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of Eligibility.
1. A copy of the Articles of Association of the Trustee as now in effect,
including the Organization Certificate and the Certificates of Amendment dated
February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being contained
in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act (see
Exhibit 6 to Form T-1 filed in connection with Registration Statement No. 33-
50010, which is incorporated by reference. On July 14, 1996, in connection with
the merger of Chemical Bank and The Chase Manhattan Bank (National Association),
Chemical Bank, the surviving corporation, was renamed The Chase Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 31ST day of DECEMBER, 1996.
THE CHASE MANHATTAN BANK
By /s/ Gregory P. Shea
----------------------------
Gregory P. Shea
Assistant Vice President
-3-
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business September 30, 1996, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
ASSETS IN MILLIONS
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin....................................... $ 11,095
Interest-bearing balances............................... 4,998
Securities:
Held to maturity securities............................... 3,231
Available for sale securities............................. 38,078
Federal Funds sold and securities purchased under
agreements to resell in domestic offices of the
bank and of its Edge and Agreement subsidiaries,
and in IBF's:
Federal funds sold...................................... 8,018
Securities purchased under agreements to resell......... 731
Loans and lease financing receivables:
Loans and leases, net of unearned income $130,513
Less: Allowance for loan and lease losses 2,938
Less: Allocated transfer risk reserve.... 27
--------
Loans and leases, net of unearned income,
allowance, and reserve.................................. 127,548
Trading Assets............................................ 48,576
Premises and fixed assets (including capitalized
leases)................................................. 2,850
Other real estate owned................................... 300
Investments in unconsolidated subsidiaries and
associated companies.................................... 92
Customer's liability to this bank on acceptances
outstanding............................................. 2,777
Intangible assets......................................... 1,361
Other assets.............................................. 12,204
--------
TOTAL ASSETS.............................................. $261,859
========
</TABLE>
-4-
<PAGE>
LIABILITIES
<TABLE>
<CAPTION>
Deposits
<S> <C>
In domestic offices.................................... $ 80,163
Noninterest-bearing.............................$30,596
Interest-bearing................................ 49,567
------
In foreign offices, Edge and Agreement
subsidiaries, and IBF's........................ 65,173
Noninterest-bearing.............................$ 3,616
Interest-bearing.................................61,557
Federal funds purchased and securities sold
under agreements to repurchase in domestic
offices of the bank and of its Edge and
Agreement subsidiaries, and in IBF's
Federal funds purchased................................ 14,594
Securities sold under agreements to repurchase......... 14,110
Demand notes issued to the U.S. Treasury................. 2,200
Trading liabilities...................................... 30,136
Other Borrowed money:
With a remaining maturity of one year or less.......... 16,895
With a remaining maturity of more than one year........ 449
Mortgage indebtedness and obligations under
capitalized leases...................................... 49
Bank's liability on acceptances executed and
outstanding............................................. 2,764
Subordinated notes and debentures........................ 5,471
Other liabilities........................................ 13,997
TOTAL LIABILITIES........................................ 246,001
--------
Limited-Life Preferred stock and related surplus......... 550
EQUITY CAPITAL
Common stock............................................. 1,209
Surplus.................................................. 10,176
Undivided profits and capital reserves................... 4,385
Net unrealized holding gains (Losses)
on available-for-sale securities......................... (481)
Cumulative foreign currency translation adjustments...... 19
TOTAL EQUITY CAPITAL..................................... 15,308
--------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED
STOCK AND EQUITY CAPITAL............................... $261,859
========
</TABLE>
I, Joseph L. Sclafani, S.V.P. & Controller of the
above-named bank, do hereby declare that this Report of
Condition has been prepared in conformance with the in-
structions issued by the appropriate Federal regulatory
authority and is true to the best of my knowledge and
belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness
of this Report of Condition and declare that it has been
examined by us, and to the best of our knowledge and
belief has been prepared in conformance with the in-
structions issued by the appropriate Federal regulatory
authority and is true and correct.
WALTER V. SHIPLEY )
EDWARD D. MILLER )DIRECTORS
THOMAS G. LABRECQUE )
-5-
