MARSHALL & ILSLEY CORPORATION
$500,000,000
MEDIUM-TERM NOTES
DISTRIBUTION AGREEMENT
May 31, 2000
Salomon Smith Barney Inc. J.P. Morgan Securities Inc.
388 Greenwich Street, 35th Floor 60 Wall Street
New York, New York 10013 New York, New York 10260
Donaldson, Lufkin & Jenrette Morgan Stanley & Co. Incorporated
Securities Corporation 1585 Broadway
277 Park Avenue New York, New York 10036
New York, New York 10172
Goldman, Sachs & Co. Robert W. Baird & Co. Incorporated
85 Broad Street 777 East Wisconsin Avenue
New York, New York 10004 Milwaukee, Wisconsin 53202
Lehman Brothers Inc.
3 World Financial Center
New York, New York 10285
Dear Ladies and Gentlemen:
Marshall & Ilsley Corporation, a Wisconsin
corporation (the "Company"), proposes to issue and sell
from time to time its Medium-Term Notes, Series E (the
"Securities") in an aggregate amount up to $500,000,000
and agrees with each of you (individually, an "Agent",
and collectively, the "Agents") as set forth in this
Agreement.
Subject to the terms and conditions stated
herein and to the reservation by the Company of the
right to sell Securities directly on its own behalf,
the Company hereby (i) appoints each Agent as an agent
of the Company for the purpose of soliciting and
receiving offers to purchase Securities from the
Company pursuant to Section 2(a) hereof and (ii) agrees
that, except as otherwise contemplated herein, whenever
it determines to sell Securities directly to any Agent
as principal, it will enter into a separate agreement
(each a "Terms Agreement"), substantially in the form
of Annex I hereto, relating to such sale in accordance
with Section 2(b) hereof.
<PAGE>
The Securities will be issued under an
indenture, dated as of November 15, 1985, (the
"Indenture"), between the Company and The Chase
Manhattan Bank (formerly known as Chemical Bank, as
successor to Manufacturers Hanover Trust Company), as
Trustee (the "Trustee"), as supplemented by a First
Supplemental Indenture dated as of May 31, 1990 and a
Second Supplemental Indenture dated as of July 15,
1993. The Securities shall have the maturity ranges,
interest rates, if any, redemption provisions and other
terms set forth in the Prospectus referred to below as
it may be amended or supplemented from time to time.
The Securities will be issued, and the terms and rights
thereof established, from time to time by the Company
in accordance with the Indenture.
1. The Company represents and warrants to, and
agrees with, each Agent that:
(a) A registration statement on Form S-3 in
respect of $1,500,000,000 aggregate amount of debt securities
of the Company, including the Securities, has been filed
with the Securities and Exchange Commission (the
"Commission"); such registration statement and any post-
effective amendment thereto, each in the form
heretofore delivered or to be delivered to such Agent
and, excluding exhibits to such registration statement,
but including all documents incorporated by reference
in the prospectus contained therein, have been declared
effective by the Commission in such form; no other
document with respect to such registration statement or
document incorporated by reference therein has
heretofore been filed or transmitted for filing with
the Commission; and no stop order suspending the
effectiveness of such registration statement has been
issued and no proceeding for that purpose has been
initiated or threatened by the Commission (any
preliminary prospectus included in such registration
statement or filed with the Commission pursuant to Rule
424(a) of the rules and regulations of the Commission
under the Securities Act of 1933, as amended (the
"Act"), being hereinafter called a "Preliminary
Prospectus"; the various parts of such registration
statement, including all exhibits thereto and the
documents incorporated by reference in the prospectus
contained in the registration statement or filed with
the Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the Securities Act
of 1933, as amended (the "Act"), being hereinafter
called a "Preliminary Prospectus"; the various parts of
such registration statement, including all exhibits
thereto and the documents incorporated by reference in
the prospectus contained in the registration statement
at the time such part of the registration statement
became effective but excluding Form T-1 and, if
applicable, including the information contained in the
form of final prospectus filed with the Commission
pursuant to Rule 424(b) under the Act, each as amended
at the time such part of the registration statement
became effective, being hereinafter called the
"Registration Statement"; the prospectus (including, if
applicable, any prospectus supplement) relating to the
Securities, in the form in which it has most recently
been filed, or transmitted for filing, with the
Commission on or prior to the date of this Agreement,
being hereinafter called the "Prospectus"; any
reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to
the applicable form under the Act, as of the date of
such Preliminary Prospectus or Prospectus, as the case
may be; any reference to any amendment or supplement to
any Preliminary Prospectus or the Prospectus, including
any supplement to the Prospectus that sets forth only
the terms
<PAGE>
of a particular issue of the Securities (a
"Pricing Supplement"), shall be deemed to refer to and
include any documents filed after the date of such
Preliminary Prospectus or Prospectus, as the case may
be, under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and incorporated therein
by reference; any reference to any amendment to the
Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant
to Section 13(a) or 15(d) of the Exchange Act after the
effective date of the Registration Statement that is
incorporated by reference in the Registration
Statement; and any reference to the Prospectus as
amended or supplemented shall be deemed to refer to and
include the Prospectus as amended or supplemented
(including by the applicable Pricing Supplement filed
in accordance with Section 4(a) hereof) in relation to
Securities under the Act and in accordance with Section
4(a) hereof, including any documents incorporated by
reference therein as of the date of such filing);
(b) The documents incorporated by reference
in the Prospectus, when they became effective or were
filed with the Commission, as the case may be, conformed
in all material respects to the requirements of the
Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of
such documents contained an untrue statement of a
material fact or omitted to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading; and any further
documents so filed and incorporated by reference in the
Prospectus, or any further amendment or supplement
thereto, when such documents become effective or are
filed with the Commission, as the case may be, will
conform in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and
will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading; provided, however, that this representation
and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with
information furnished in writing to the Company by any
Agent expressly for use in the Prospectus as amended or
supplemented to relate to a particular issuance of
Securities;
(c) The Registration Statement and the Prospectus
conform, and any further amendments or supplements to
the Registration Statement or the Prospectus will
conform, in all material respects to the requirements
of the Act and the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and the rules and
regulations of the Commission thereunder and do not and
will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as
of the applicable filing date as to the Prospectus and
any amendment or supplement thereto, contain an untrue
statement of a material fact or omit to state a
material fact required to be stated therein or
necessary to make the statements therein not
misleading; provided, however, that this representation
and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with
information furnished in writing to the Company by any
Agent expressly for use in the Prospectus as amended or
supplemented to relate to a particular issuance of
Securities;
<PAGE>
(d) Neither the Company nor any of its subsidiaries
has sustained since the date of the latest audited
financial statements included or incorporated by
reference in the Prospectus any material loss or
interference with its business from fire, explosion,
flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as
set forth or contemplated in the Prospectus; and, since
the respective dates as of which information is given
in the Registration Statement and the Prospectus, there
has not been any material adverse change, or any
development involving a prospective material adverse
change, in or affecting the general affairs,
management, financial position, shareholders' equity or
results of operations of the Company and its
subsidiaries, otherwise than as set forth or
contemplated in the Prospectus;
(e) The Company has been duly incorporated and
is validly existing as a corporation in good standing
under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and
other) to own its properties and conduct its business
as described in the Prospectus, and has been duly
qualified as a foreign corporation for the transaction
of business and is in good standing under the laws of
each other jurisdiction in which it owns or leases
properties, or conducts any business so as to require
such qualification, or is subject to no material
liability or disability by reason of the failure to be
so qualified in any such jurisdiction; M&I Marshall &
Ilsley Bank ("M&I Bank") has been duly incorporated and
is validly existing as a banking corporation in good
standing under the laws of the State of Wisconsin;
(f) The Company has an authorized capitalization
as set forth in the Prospectus, and all of the issued
shares of capital stock of the Company have been duly
and validly authorized and issued and are fully paid
and non-assessable (except to the extent provided in
Section 180.0622(2)(b) of the Wisconsin Business
Corporation Law); all of the issued shares of capital
stock of M&I Bank have been duly and validly authorized
and issued, are fully paid and non-assessable (except
to the extent provided in Section 220.07 of the
Wisconsin Statute, respectively) and are owned directly
by the Company, free and clear of all liens,
encumbrances, equities or claims;
(g) The Securities have been duly authorized, and,
when issued and delivered pursuant to this Agreement
and any Terms Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute
valid and legally binding obligations of the Company
entitled to the benefits provided by the Indenture,
which will be substantially in the form filed as an
exhibit to the Registration Statement; the Indenture
has been duly authorized and duly qualified under the
Trust Indenture Act and constitutes a valid and legally
binding instrument, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general
applicability relating to or affecting creditors'
rights and to general equity principles; and the
Indenture conforms and the Securities of any particular
issuance of Securities will conform to the descriptions
thereof contained in the Prospectus as amended or
supplemented to relate to such issuance of Securities;
(h) The Company and each of its subsidiaries have
conducted their businesses and are in compliance in all
material respects with all applicable federal and state laws
<PAGE>
and regulations, including, without limitation,
all laws and regulations restricting activities of bank
holding companies and banking organizations, except for
any noncompliance which would not have a material
adverse effect on the Company and its subsidiaries
considered as a whole.
(i) The issue and sale of the Securities, the
compliance by the Company with all of the provisions of
the Securities, the Indenture, this Agreement and any
Terms Agreement, and the consummation of the
transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound
or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will
such action result in any violation of the provisions
of the Amended and Restated Articles of Incorporation
or the By-Laws, as amended, of the Company or any
statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over
the Company or any of its properties; and no consent,
approval, authorization, order, registration or
qualification of or with any court or governmental
agency or body is required for the solicitation of
offers to purchase Securities, the issue and sale of
the Securities or the consummation by the Company of
the other transactions contemplated by this Agreement,
any Terms Agreement or the Indenture, except such as
have been, or will have been prior to the Commencement
Date (as defined in Section 3 hereof), obtained under
the Act or the Trust Indenture Act and such consents,
approvals, authorizations, registrations or
qualifications as may be required under state
securities or Blue Sky laws in connection with the
solicitation by such Agent of offers to purchase
Securities from the Company and with purchases of
Securities by such Agent as principal, as the case may
be, in each case in the manner contemplated hereby;
(j) Other than as set forth in the Prospectus, there
are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party
or to which any property of the Company or any of its
subsidiaries is subject, which are of a character which
are required to be disclosed in the Prospectus which
have not been properly disclosed therein; and, to the
best of the Company's knowledge, no such proceedings
are threatened or contemplated by governmental
authorities or threatened by others; and
(k) Immediately after any sale of Securities by the
Company hereunder or under any Terms Agreement, the
aggregate amount of Securities which shall have been
issued and sold by the Company hereunder or under any
Terms Agreement and of any debt securities of the
Company (other than such Securities) that shall have
been issued and sold pursuant to the Registration
Statement will not exceed the amount of debt securities
registered under the Registration Statement.
2. (a) On the basis of the representations
and warranties, and subject to the terms and conditions
herein set forth, each of the Agents hereby severally
and not jointly agrees, as agent of the Company, to use
its reasonable efforts to solicit and receive offers to
purchase the Securities from the Company upon the terms
and conditions set forth in the Prospectus as
<PAGE>
amended or supplemented from time to time. So long as this
Agreement is in effect the Company will not appoint any
other agent (it being understood that "agent" does not
include the Company or any of its subsidiaries or any
employee thereof) for the purpose of soliciting
purchases of debt securities (which debt securities
have a maturity at the time of original issuance of 9
months to 30 years) on a continuous basis, unless the
Agents are notified and such prospective agent executes
a counterpart of this Agreement or a substantially
similar agreement with the Company. It is understood,
however, that if from time to time the Company is
approached by or approaches a prospective agent
offering to solicit a specific purchase of Securities,
the Company may engage such agent with respect to such
specific purchase provided that (i) such agent is
engaged on terms substantially similar (including the
same commission schedule) to the applicable terms of
this Agreement and (ii) the Agents are given notice of
such purchase promptly after it is agreed to.
Procedural details relating to the issue and
delivery of Securities, the solicitation of offers to
purchase Securities and the payment in each case
therefor shall be as set forth in the Administrative
Procedures attached hereto as Annex II as they may be
amended from time to time by written agreement between
the Agents and the Company (the "Administrative
Procedures"). Unless otherwise agreed or as may be
otherwise set forth in a Terms Agreement, the
provisions of the Administrative Procedures shall apply
to all transactions contemplated hereunder. Each Agent
and the Company agree to perform the respective duties
and obligations specifically provided to be performed
by each of them in the Administrative Procedures. The
Company will furnish to the Trustee a copy of the
Administrative Procedures as from time to time in
effect.
The Company reserves the right, in its sole
discretion, to instruct the Agents to suspend at any
time, for any period of time or permanently, the
solicitation of offers to purchase the Securities. As
soon as practicable, but in any event not later than
one business day in New York City, after receipt of
written notice from the Company, the Agents will
suspend solicitation of offers to purchase Securities
from the Company until such time as the Company has
advised the Agents in writing that such solicitation
may be resumed.
The Company agrees to pay each Agent a
commission (which may be in the form of a discount), at
the time of settlement of any sale of a Security by the
Company as a result of a solicitation made by such
Agent, in an amount equal to the following applicable
percentage of the principal amount of such Security
sold.
Commission
(percentage of aggregate
principal amount
Range of Maturities of Securities sold)
From 9 months to less than 1 year .125%
From 1 year to less than 18 months .150%
From 18 months to less than 2 years .200%
From 2 years to less than 3 years .250%
From 3 years to less than 4 years .350%
From 4 years to less than 5 years .450%
<PAGE>
From 5 years to less than 6 years .500%
From 6 years to less than 7 years .550%
From 7 years to less than 10 years .600%
From 10 years to less than 15 years .625%
From 15 years to less than 20 years .675%
From 20 years to 30 years .750%
(b) Unless otherwise agreed to pursuant to Section
2(a) hereof, each sale of Securities shall be to the
Agent as principal in accordance with the terms of this
Agreement and (unless the Company and such Agent shall
otherwise agree) a Terms Agreement (which may be oral
or written) which will provide for the sale of such
Securities to, and the purchase thereof by, such Agent.
A Terms Agreement may also specify certain provisions
relating to the reoffering of such Securities by such
Agent. The commitment of any Agent to purchase
Securities as principal, whether pursuant to any Terms
Agreement or otherwise, shall be deemed to have been
made on the basis of the representations and warranties
of the Company herein contained and shall be subject to
the terms and conditions herein set forth. Each Terms
Agreement shall specify the principal amount of
Securities to be purchased by any Agent pursuant
thereto, the price to be paid to the Company for such
Securities, any provisions relating to rights of, and
default by, underwriters acting together with such
Agent in the reoffering of the Securities and the time
and date and place of delivery of and payment for such
Securities. Such Terms Agreement shall also specify
any requirements for opinions of counsel, accountants'
letters and officers' certificates pursuant to Section
4 hereof.
For each sale of Securities to an Agent as
principal, the procedural details relating to the issue
and delivery of such Securities and payment thereof
shall be as set forth in the Administrative Procedures,
except as otherwise set forth in the applicable Terms
Agreement, if any.
Each time and date of delivery of and payment
for Securities to be purchased by an Agent as
principal, whether set forth in a Terms Agreement or in
accordance with the Administrative Procedures is
referred to herein as a "Time of Delivery".
(c) Each Agent agrees, with respect to any
Security denominated in a currency other than U.S.
dollars, as agent, directly or indirectly, not to
solicit offers to purchase, and as principal under any
Terms Agreement or otherwise, directly or indirectly,
not to offer, sell or deliver, such Security in, or to
residents of, the country issuing such currency, except
as permitted by applicable law.
3. The documents required to be delivered pursuant
to Section 6 hereof on the Commencement Date (as defined
below) shall be delivered to the Agents at the offices
of the Company, 770 North Water Street, Milwaukee,
Wisconsin, 53202 at 10:00 a.m., Milwaukee time, on the
date of this Agreement, which date and time of such
delivery may be postponed by agreement between the
Agents and the Company but in no event shall be later
than the day prior to the date on which solicitation of
offers to purchase Securities is commenced or on which
any Terms Agreement is executed (such time and date
being referred to herein as the "Commencement Date").
<PAGE>
4. The Company covenants and agrees with each Agent:
(a) (i) To make no amendment or supplement to
the Registration Statement or the Prospectus (A) prior
to the Commencement Date which shall be disapproved by
any Agent promptly after reasonable notice thereof or
(B) after the date of any Terms Agreement or other
agreement by an Agent to purchase Securities as
principal and prior to the related Time of Delivery
which shall be disapproved by any Agent party to such
Terms Agreement or so purchasing as principal promptly
after reasonable notice thereof; (ii) to prepare, with
respect to any Securities to be sold through or to
such Agent pursuant to this Agreement, a Pricing
Supplement with respect to such Securities in a form
previously approved by such Agent and to file such
Pricing Supplement pursuant to Rule 424(b) within the
applicable time period prescribed for such filing by
the rules and regulations under the Act and in
accordance with Section 5(a) hereof; (iii) to make no
amendment or supplement to the Registration Statement
or Prospectus, other than any Pricing Supplement, at
any time prior to having afforded each Agent a
reasonable opportunity to review and comment; (iv) to
file promptly all reports and any definitive proxy or
information statements required to be filed by the
Company with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act for so long as
the delivery of a prospectus is required in connection
with the offering or sale of the Securities, and during
such same period to advise such Agent, promptly after
the Company receives notice thereof, of the time when
any amendment to the Registration Statement has been
filed or has become effective or any supplement to the
Prospectus or any amended Prospectus (other than any
Pricing Supplement that relates to Securities not
purchased through or by such Agent) has been filed with
the Commission, of the issuance by the Commission of
any stop order or of any order preventing or suspending
the use of any prospectus relating to the Securities,
of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, of
the initiation or threatening of any proceeding for any
such purpose, or of any request by the Commission for
the amendment or supplement of the Registration
Statement or Prospectus or for additional information;
and (v) in the event of the issuance of any such stop
order or of any such order preventing or suspending the
use of any such prospectus or suspending any such
qualification, to use promptly its best efforts to
obtain its withdrawal;
(b) Promptly from time to time to take such action
as such Agent may reasonably request to qualify the
Securities for offering and sale under the securities
laws of such jurisdictions as such Agent may request
and to comply with such laws so as to permit the
continuance of sales and dealings therein for as long
as may be necessary to complete the distribution or
sale of the Securities; provided, however, that in
connection therewith the Company shall not be required
to qualify as a foreign corporation or to file a
general consent to service of process in any
jurisdiction;
(c) To furnish such Agent with copies of the
Registration Statement and each amendment thereto, with
copies of the Prospectus as each time amended or
supplemented, other than any Pricing Supplement (except
as provided in the Administrative Procedures), in the
form in which it is filed with the Commission pursuant
to Rule 424 under the Act, and with copies of the
documents incorporated by reference therein, all in
such quantities as such Agent may reasonably request
from time to time;
<PAGE>
and, if the delivery of a prospectus
is required at any time in connection with the offering
or sale of the Securities (including Securities
purchased from the Company by such Agent as principal)
and if at such time any event shall have occurred as a
result of which the Prospectus as then amended or
supplemented would include an untrue statement of a
material fact or omit to state any material fact
necessary in order to make the statements therein, in
the light of the circumstances under which they were
made when such Prospectus is delivered, not misleading,
or, if for any other reason it shall be necessary
during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus in
order to comply with the Act, the Exchange Act or the
Trust Indenture Act, to notify such Agent and request
such Agent, in its capacity as agent of the Company, to
suspend solicitation of offers to purchase Securities
from the Company (and, if so notified, such Agent shall
cease such solicitations as soon as practicable, but in
any event not later than one business day later); and
if the Company shall decide to amend or supplement the
Registration Statement or the Prospectus as then
amended or supplemented, to so advise such Agent
promptly by telephone (with confirmation in writing)
and to prepare and cause to be filed promptly with the
Commission an amendment or supplement to the
Registration Statement or the Prospectus as then
amended or supplemented that will correct such
statement or omission or effect such compliance;
provided, however, that if during such same period such
Agent continues to own Securities purchased from the
Company by such Agent as principal or such Agent is
otherwise required to deliver a prospectus in respect
of transactions in the Securities, the Company shall
promptly prepare and file with the Commission such an
amendment or supplement;
(d) To make generally available to its security
holders as soon as practicable, but in any event not
later than eighteen months after the effective date of
the Registration Statement (as defined in Rule 158(c)),
an earning statement of the Company and its
subsidiaries (which need not be audited) complying with
Section 11(a) of the Act and the rules and regulations
of the Commission thereunder (including, at the option
of the Company, Rule 158);
(e) So long as any Securities are outstanding, to
furnish to such Agent copies of all reports or other
communications (financial or other) furnished to
stockholders, and deliver to such Agent, to the extent
not easily accessible through alternative electronic
sources, (i) as soon as they are available, copies of
any reports and financial statements furnished to or
filed with the Commission or any national securities
exchange on which any class of securities of the
Company is listed; and (ii) such additional information
concerning the business and financial condition of the
Company as such Agent may from time to time reasonably
request (such financial statements to be on a
consolidated basis to the extent the accounts of the
Company and its subsidiaries are consolidated in
reports furnished to its stockholders generally or to
the Commission);
(f) That, from the date of any Terms Agreement with
such Agent or other agreement by such Agent to purchase
Securities as principal and continuing to and including
the earlier of (i) the termination of the trading
restrictions for the Securities purchased thereunder,
as notified to the Company by such Agent and (ii) the
related Time of Delivery, not to offer, sell, contract
to sell or otherwise dispose of any debt securities
<PAGE>
of the Company which both mature more than 9 months after
such Time of Delivery and are substantially similar to
the Securities, without the prior written consent of
such Agent;
(g) That each acceptance by the Company of an offer
to purchase Securities hereunder (including any purchase
by such Agent as principal not pursuant to a Terms
Agreement), and each execution and delivery by the
Company of a Terms Agreement with such Agent, shall be
deemed to be an affirmation to such Agent that the
representations and warranties of the Company contained
in or made pursuant to this Agreement are true and
correct as of the date of such acceptance or of such
Terms Agreement, as the case may be, as though made at
and as of such date, and an undertaking that such
representations and warranties will be true and correct
as of the settlement date for the Securities relating
to such acceptance or as of the Time of Delivery
relating to such sale, as the case may be, as though
made at and as of such date (except that such
representations and warranties shall be deemed to
relate to the Registration Statement and the Prospectus
as amended and supplemented relating to such
Securities);
(h) That reasonably in advance of each time
the Registration Statement or the Prospectus shall be
amended or supplemented (other than by a Pricing
Supplement), each time a document filed under the Act
or the Exchange Act is incorporated by reference in the
Prospectus (other than at any time in which the Company
is not currently marketing or contemplating the sale of
any Securities pursuant to this Agreement), and each
time the Company sells Securities to such Agent as
principal pursuant to a Terms Agreement and such Terms
Agreement specifies the delivery of an opinion or
opinions by Sidley & Austin, counsel to the Agents, as
a condition to the purchase of Securities pursuant to
such Terms Agreement, the Company shall furnish to such
counsel such papers and information as they may
reasonably request to enable them to furnish to such
Agent the opinion or opinions referred to in Section
6(b) hereof;
(i) That each time the Registration Statement or
the Prospectus shall be amended or supplemented (other than
by a Pricing Supplement), each time a document filed
under the Act or the Exchange Act is incorporated by
reference in the Prospectus (other than at any time in
which the Company is not currently marketing or
contemplating the sale of any Securities pursuant to
this Agreement), and each time the Company sells
Securities to such Agent as principal pursuant to a
Terms Agreement and such Terms Agreement specifies the
delivery of an opinion under this Section 4(i) as a
condition to the purchase of Securities pursuant to
such Terms Agreement, the Company shall furnish or
cause to be furnished forthwith to such Agent a written
opinion of Godfrey & Kahn, S.C., counsel for the
Company, or other counsel for the Company satisfactory
to such Agent, dated the date of such amendment,
supplement, incorporation or Time of Delivery relating
to such sale, as the case may be, in form satisfactory
to such Agent, to the effect that such Agent may rely
on the opinion of such counsel referred to in Section
6(c) hereof which was last furnished to such Agent to
the same extent as though it were dated the date of
such letter authorizing reliance (except that the
statements in such last opinion shall be deemed to
relate to the Registration Statement and the Prospectus
as amended and supplemented to such date) or, in lieu
of such opinion, an opinion of the same tenor as the
opinion of such counsel referred to in Section 6(c) hereof
<PAGE>
but modified to relate to the Registration
Statement and the Prospectus as amended and
supplemented to such date;
(j) That each time the Registration Statement or
the Prospectus shall be amended or supplemented and each
time that a document filed under the Act or the
Exchange Act is incorporated by reference into the
Prospectus (other than at any time in which the Company
is not currently marketing or contemplating the sale of
any Securities pursuant to this Agreement, but in any
event at least annually), in either case to set forth
financial information included in or derived from the
Company's consolidated financial statements or
accounting records, and each time the Company sells
Securities to such Agent as principal pursuant to a
Terms Agreement and such Terms Agreement specifies the
delivery of a letter under this Section 4(j) as a
condition to the purchase of Securities pursuant to
such Terms Agreement, the Company shall cause the
independent certified public accountants who have
certified the financial statements of the Company and
its subsidiaries included or incorporated by reference
in the Registration Statement forthwith to furnish such
Agent a letter, dated the date of such amendment,
supplement, incorporation or Time of Delivery relating
to such sale, as the case may be, in form satisfactory
to such Agent, of the same tenor as the letter referred
to in Section 6(d) hereof but modified to relate to the
Registration Statement and the Prospectus as amended or
supplemented to the date of such letter, with such
changes as may be necessary to reflect changes in the
financial statements and other information derived from
the accounting records of the Company, to the extent
such financial statements and other information are
available as of a date not more than five business days
prior to the date of such letter; provided, however,
that, with respect to any financial information or
other matter, such letter may reconfirm as true and
correct at such date as though made at and as of such
date, rather than repeat, statements with respect to
such financial information or other matter made in the
letter referred to in Section 6(d) hereof which was
last furnished to such Agent;
(k) That each time the Registration Statement or
the Prospectus shall be amended or supplemented (other than
by a Pricing Supplement), each time a document filed
under the Act or the Exchange Act is incorporated by
reference in the Prospectus (other than at any time in
which the Company is not currently marketing or
contemplating the sale of any Securities pursuant to
this Agreement), and each time the Company sells
Securities to such Agent as principal and the
applicable Terms Agreement specifies the delivery of a
certificate under this Section 4(k) as a condition to
the purchase of Securities pursuant to such Terms
Agreement, the Company shall furnish or cause to be
furnished forthwith to such Agent a certificate of two
executive officers of the Company, dated the date of
such amendment, supplement, incorporation or Time of
Delivery relating to such sale, as the case may be, in
such form and executed by such officers of the Company
as shall be satisfactory to such Agent, to the effect
that the statements contained in the certificate
referred to in Section 6(g) hereof which was last
furnished to such Agent are true and correct at such
date as though made at and as of such date (except that
such statements shall be deemed to relate to the
Registration Statement and the Prospectus as amended
and supplemented to such date) or, in lieu of such
certificate, certificates of the same tenor as the
certificates referred to in said Section 6(g)
<PAGE>
but modified to relate to the Registration Statement and
the Prospectus as amended and supplemented to such
date; and
(l) To offer to any person who has agreed to purchase
Securities as the result of an offer to purchase
solicited by such Agent the right to refuse to purchase
and pay for such Securities if, on the related
settlement date fixed pursuant to the Administrative
Procedures, any condition set forth in Section 6(a),
6(e) or 6(f) hereof shall not have been satisfied (it
being understood that the judgment of such person with
respect to the impracticability or inadvisability of
such purchase of Securities shall be substituted, for
purposes of this Section 4(1), for the respective
judgments of an Agent with respect to certain matters
referred to in such Sections 6(a), 6(e) and 6(f), and
that such Agent shall have no duty or obligation
whatsoever to exercise the judgment permitted under
such Sections 6(a), 6(e) and 6(f) on behalf of any such
person).
5. The Company covenants and agrees with each Agent
that the Company will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of
the Company's counsel and accountants in connection
with the registration of the Securities under the Act
and all other expenses in connection with the
preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus, the Prospectus
and any Pricing Supplements and all other amendments
and supplements thereto and the mailing and delivering
of copies thereof to such Agent; (ii) the fees,
disbursements and expenses of counsel for the Agents in
connection with the establishment of the program
contemplated hereby, any opinions to be rendered by
such counsel hereunder and under any Terms Agreement
and the transactions contemplated hereunder and under
any Terms Agreement; (iii) the cost of printing,
producing or reproducing this Agreement, any Terms
Agreement, any Indenture, any Blue Sky and Legal
Investment Memoranda and any other documents in
connection with the offering, purchase, sale and
delivery of the Securities; (iv) all expenses in
connection with the qualification of the Securities for
offering and sale under state securities laws as
provided in Section 4(b) hereof, including the fees and
disbursements of counsel for the Agents in connection
with such qualification and in connection with the Blue
Sky and legal investment surveys; (v) any fees charged
by securities rating services for rating the
Securities; (vi) any filing fees incident to any
required review by the National Association of
Securities Dealers, Inc. of the terms of the sale of
the Securities; (vii) the cost of preparing the
Securities; (viii) the fees and expenses of any Trustee
and any agent of any Trustee and any transfer or paying
agent of the Company and the fees and disbursements of
counsel for any Trustee or such agent in connection
with any Indenture and the Securities; (ix) any
advertising expenses connected with the solicitation of
offers to purchase and the sale of Securities so long
as such advertising expenses have been approved by the
Company; and (x) all other costs and expenses incident
to the performance of its obligations hereunder which
are not otherwise specifically provided for in this
Section. Except as provided in Sections 7 and 8
hereof, each Agent shall pay all other expenses it
incurs.
6. The obligation of any Agent, as agent of the
Company, at any time ("Solicitation Time") to solicit
offers to purchase the Securities and the obligation of
any Agent to purchase Securities as principal, pursuant
to any Terms Agreement or otherwise, shall in each case
be subject, in such Agent's discretion, to the
condition that all representations and warranties and
other statements of the Company herein (and, in the
case of an obligation of an Agent under a Terms
Agreement, in or incorporated in such Terms Agreement
by reference) are
<PAGE>
true and correct at and as of the Commencement Date and
any applicable date referred to in Section 4(k) hereof
that is prior to such Solicitation Time or Time of Delivery,
as the case may be, and at and as of such Solicitation Time
or Time of Delivery, as the case may be, the condition that
prior to such Solicitation Time or Time of Delivery, as the
case may be, the Company shall have performed all of
its obligations hereunder theretofore to be performed,
and the following additional conditions:
(a) (i) With respect to any Securities sold at or
prior to such Solicitation Time or Time of Delivery, as
the case may be, the Prospectus as amended or
supplemented (including the Pricing Supplement) with
respect to such Securities shall have been filed with
the Commission pursuant to Rule 424(b) under the Act
within the applicable time period prescribed for such
filing by the rules and regulations under the Act and
in accordance with Section 4(a) hereof, (ii) no stop
order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by
the Commission; and (iii) all requests for additional
information on the part of the Commission shall have
been complied with to the reasonable satisfaction of
such Agent;
(b) Sidley & Austin, counsel to the Agents, shall have
furnished to such Agent (i) such opinion or opinions,
dated the Commencement Date, with respect to the
incorporation of the Company, this Agreement, the
validity of the Indenture, the Securities, the
Registration Statement, the Prospectus as amended or
supplemented and other related matters as such Agent
may reasonably request, and (ii) if and to the extent
requested by such Agent, with respect to each
applicable date referred to in Section 4(h) hereof that
is on or prior to such Solicitation Time or Time of
Delivery, as the case may be, an opinion or opinions,
dated such applicable date, to the effect that such
Agent may rely on the opinion or opinions which were
last furnished to such Agent pursuant to this Section
6(b) to the same extent as though it or they were dated
the date of such letter authorizing reliance (except
that the statements in such last opinion or opinions
shall be deemed to relate to the Registration Statement
and the Prospectus as amended and supplemented to such
date) or, in any case, in lieu of such an opinion or
opinions, an opinion or opinions of the same tenor as
the opinion or opinions referred to in clause (i) but
modified to relate to the Registration Statement and
the Prospectus as amended and supplemented to such
date; and in each case such counsel shall have received
such papers and information as they may reasonably
request to enable them to pass upon such matters;
(c) Godfrey & Kahn, S.C., counsel for the Company, or
other counsel for the Company satisfactory to such
Agent, shall have furnished to such Agent their written
opinions, dated the Commencement Date and each
applicable date referred to in Section 4(i) hereof that
is on or prior to such Solicitation Time or Time of
Delivery, as the case may be, in form and substance
satisfactory to such Agent, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing
(meaning it has filed its most recent annual report,
paid any applicable state taxes and fees, and has not
filed articles of dissolution) under the laws of the
State of Wisconsin, with power and authority (corporate and
<PAGE>
other) to own its properties and conduct its
business as described in the Prospectus as amended or
supplemented;
(ii) The Company has an authorized capitalization as
set forth in the Prospectus as amended or supplemented;
(iii) The Company has been duly qualified as a
foreign corporation for the transaction of business and
is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or
conducts any business so as to require such
qualification or is subject to no material liability or
disability by reason of the failure to be so qualified
in any jurisdiction;
(iv) M&I Bank has been incorporated and is validly
existing as a banking corporation in good standing
under the laws of the State of Wisconsin; all of the
issued shares of capital stock of M&I Bank have been
duly and validly authorized and issued, are fully paid
and non-assessable (except to the extent provided in
Section 220.07 of the Wisconsin Statutes), and are
owned directly by the Company, free and clear of any
perfected security interests and, to the knowledge of
such counsel, after due inquiry, any other liens,
encumbrances, equities or claims;
(v) To the best of such counsel's knowledge and other
than as set forth in the Prospectus, there are no legal
or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or to
which any property of the Company or any of its
subsidiaries is subject, which, if determined adversely
to the Company or any of its subsidiaries, would
individually or in the aggregate have a material
adverse effect on the consolidated financial position,
shareholders' equity or results of operations of the
Company and its subsidiaries and, to the best of such
counsel's knowledge, no such proceedings are threatened
or contemplated by governmental authorities or
threatened by others;
(vi) This Agreement and any applicable Terms Agreement
have been duly authorized, executed and delivered by
the Company;
(vii) The Securities have been duly authorized and,
when duly executed, authenticated, issued and delivered
by the Company, will constitute valid, legally binding
and enforceable obligations of the Company entitled to
the benefits provided by the Indenture (subject,
however, as to enforcement of the obligations
thereunder, to the limitation set forth in the
following paragraph); and the Indenture conforms and
the Securities will conform to the descriptions thereof
in the Prospectus as amended or supplemented;
(viii) The Indenture has been duly authorized,
executed and delivered by the parties thereto and
constitutes a valid and legally binding instrument,
enforceable in accordance with its terms, subject, as
to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability
<PAGE>
relating to or affecting creditors' rights and to
general equity principles; and the Indenture has been
duly qualified under the Trust Indenture Act;
(ix) The issue and sale of the Securities, the
compliance by the Company with all of the provisions of
the Securities, the Indenture, this Agreement and any
applicable Terms Agreement and the consummation of the
transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to
such counsel to which the Company is a party or by
which the Company is bound or to which any of the
property or assets of the Company is subject, nor will
such action result in any violation of the provisions
of the Amended and Restated Articles of Incorporation
of the Company or the By-Laws, as amended, of the
Company or any statute or any order, rule or regulation
known to such counsel of any court or governmental
agency or body having jurisdiction over the Company or
any of its subsidiaries or any of their properties;
(x) No consent, approval, authorization, order,
registration or qualification of or with any court or
governmental agency or body is required for the
solicitation of offers to purchase Securities, the
issue and sale of the Securities or the consummation by
the Company of the other transactions contemplated by
this Agreement, any applicable Terms Agreement, or the
Indenture, except such as have been obtained under the
Act and the Trust Indenture Act and such consents,
approvals, authorizations, registrations or
qualifications as may be required under state
securities or Blue Sky laws in connection with the
solicitation by the Agents of offers to purchase
Securities from the Company and with purchases of
Securities by an Agent as principal, as the case may
be, in each case in the manner contemplated hereby;
(xi) The documents incorporated by reference in the
Prospectus (other than the financial statements,
schedules, loan performance data, capital ratios and
other financial and statistical data therein or
excluded therefrom, as to which such counsel need
express no opinion), when they became effective or were
filed with the Commission, as the case may be, complied
as to form in all material respects with the
requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the
Commission thereunder; and they have no reason to
believe that any of such documents, when they became
effective or were so filed, as the case may be,
contained, in the case of a registration statement
which became effective under the Act, an untrue
statement of a material fact or omitted to state a
material fact required to be stated therein or
necessary to make the statements therein not
misleading, and, in the case of other documents which
were filed under the Act or the Exchange Act with the
Commission, an untrue statement of a material fact or
omitted to state a material fact necessary in order to
make the statements therein, in the light of the
circumstances under which they were made when such
documents were so filed, not misleading; and
<PAGE>
(xii) The Registration Statement and the Prospectus
as amended and supplemented and any further amendments
and supplements thereto made by the Company prior to
the date of such opinion (other than the financial
statements, schedules, loan performance data, capital
ratios and other financial and statistical data therein
or excluded therefrom, as to which such counsel need
express no opinion) comply as to form in all material
respects with the requirements of the Act and the Trust
Indenture Act and the rules and regulations thereunder;
they have no reason to believe that, as of the
effective date, the Registration Statement or any
further amendment or supplement thereto made by the
Company prior to the date of such opinion (other than
the financial statements, schedules, loan performance
data, capital ratios and other financial and
statistical data therein or excluded therefrom, as to
which such counsel need express no opinion) contained
an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading
or that, as of the date of such opinion, the Prospectus
as amended or supplemented or any further amendment or
supplement thereto made by the Company prior to the
date of such opinion (other than the financial
statements, schedules, loan performance data, capital
ratios and other financial and statistical data therein
or excluded therefrom, as to which such counsel need
express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact
necessary to make the statements therein, in light of
the circumstances in which they were made, not
misleading; and they do not know of any amendment to
the Registration Statement required to be filed or any
contracts or other documents of a character required to
be filed as an exhibit to the Registration Statement or
required to be incorporated by reference into the
Prospectus as amended or supplemented or required to be
described in the Registration Statement or the
Prospectus as amended or supplemented which are not
filed or incorporated by reference or described as
required.
In rendering its opinion, Godfrey & Kahn, S.C., shall
be entitled to rely as to matters involving
subsidiaries of the Company on the opinions of local
counsel and as to matters of fact upon certificates of
officers of the Company, provided, in each case, that
such counsel shall state that they believe that both
the Agents and they are justified in relying upon such
opinions and certificates.
(d) Not later than 10:00 a.m., New York City time, on
the Commencement Date and on each applicable date
referred to in Section 4(j) hereof that is on or prior
to such Solicitation Time or Time of Delivery, as the
case may be, Arthur Andersen & Co. or such other
independent certified public accountants who have
certified the financial statements of the Company and
its subsidiaries included or incorporated by reference
in the Registration Statement shall have furnished to
such Agent a letter, dated the Commencement Date or
such applicable date, as the case may be, in form and
substance satisfactory to such Agent, to the effect set
forth in Annex III hereto.
(e) (i) Neither the Company nor any of its
subsidiaries shall have sustained since the date of the
latest audited financial statements included or
incorporated by reference in the Prospectus as amended
or supplemented any loss or interference with its
<PAGE>
business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in
the Prospectus as amended or supplemented and (ii)
since the respective dates as of which information is
given in the Prospectus as amended or supplemented
there shall not have been any change, or any
development involving a prospective change, in or
affecting the general affairs, management, financial
position, shareholders' equity or results of operations
of the Company and its subsidiaries, otherwise than as
set forth or contemplated in the Prospectus as amended
or supplemented, the effect of which, in any such case
described in clause (i) or (ii), is in the judgment of
such Agent so material and adverse as to make it
impracticable or inadvisable to proceed with the
solicitation by such Agent of offers to purchase
Securities from the Company or the purchase by such
Agent of Securities from the Company as principal, as
the case may be, on the terms and in the manner
contemplated in the Prospectus as amended or
supplemented;
(f) There shall not have occurred any of the
following: (i) a suspension or material limitation in
trading in securities generally on the New York Stock
Exchange; (ii) a general moratorium on commercial
banking activities in New York declared by either
Federal or New York State authorities; (iii) outbreak
or escalation of hostilities involving the United
States or the declaration by the United States of a
national emergency or war or other calamity or crisis,
if the effect of any such event specified in this
clause (iii) in the judgment of such Agent makes it
impracticable or inadvisable to proceed with the
solicitation of offers to purchase Securities or the
purchase of Securities from the Company as principal,
pursuant to the applicable Terms Agreement or
otherwise, as the case may be, on the terms and in the
manner contemplated by the Prospectus as amended or
supplemented; (iv) any downgrading in the rating
accorded the Company's debt securities by any
"nationally recognized statistical rating
organization", as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the
Act; or (v) no such nationally recognized statistical
rating organization shall have publicly announced that
it has under surveillance or review, with possible
negative implications, its rating of any of the
Company's debt securities; and
(g) The Company shall have furnished or caused to be
furnished to such Agent certificates of two executive
officers of the Company dated the Commencement Date and
each applicable date referred to in Section 4(k) hereof
that is on or prior to such Solicitation Time or Time
of Delivery, as the case may be, in such form and
executed by such officers of the Company as shall be
satisfactory to such Agent, as to the accuracy of the
representations and warranties of the Company herein at
and as of the Commencement Date or such applicable
date, as the case may be, as to the performance by the
Company of all of its obligations hereunder to be
performed at or prior to the Commencement Date or such
applicable date, as the case may be, as to the matters
set forth in subsections (a) and (e) of this Section 6,
and as to such other matters as such Agent may
reasonably request.
7. (a) The Company will indemnify and hold harmless
each Agent against any losses, claims, damages or
liabilities, joint or several, to which such Agent may
become subject, under the Act or otherwise, insofar as
such losses, claims, damages or
<PAGE>
liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Prospectus,
the Registration Statement, the Prospectus, the
Prospectus as amended or supplemented or any other
prospectus relating to the Securities, or any amendment
or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein
a material fact required to be stated therein or
necessary to make the statements therein not
misleading, and will reimburse such Agent for any legal
or other expenses reasonably incurred by it in
connection with investigating or defending any such
action or claim as such expenses are incurred;
provided, however, that the Company shall not be liable
in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement, the Prospectus,
the Prospectus as amended or supplemented or any other
prospectus relating to the Securities, or any such
amendment or supplement, in reliance upon and in
conformity with written information furnished to the
Company by such Agent expressly for use therein.
(b) Each Agent will indemnify and hold harmless the
Company against any losses, claims, damages or
liabilities to which the Company may become subject,
under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, the
Registration Statement, the Prospectus, the Prospectus
as amended or supplemented or any other prospectus
relating to the Securities, or any amendment or
supplement thereto, or arise out of or are based upon
the omission or alleged omission to state therein a
material fact required to be stated therein or
necessary to make the statements therein not
misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in
any Preliminary Prospectus, the Registration Statement,
the Prospectus, the Prospectus as amended or
supplemented or any other prospectus relating to the
Securities, or any such amendment or supplement, in
reliance upon and in conformity with written
information furnished to the Company by such Agent
expressly for use therein; and will reimburse the
Company for any legal or other expenses reasonably
incurred by the Company in connection with
investigating or defending any such action or claim as
such expenses are incurred.
(c) Promptly after receipt by an indemnified party
under subsection (a) or (b) above of notice of the
commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection,
notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the
indemnifying party shall not relieve the indemnifying
party from any liability which it may have to any
indemnified party otherwise than under such subsection.
In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying
party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, to
the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the
<PAGE>
indemnifying party to such indemnified party of its
election so to assume the defense thereof, the
indemnifying party shall not be liable to such
indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified
party, in connection with the defense thereof other
than reasonable costs of investigation.
(d) If the indemnification provided for in this
Section 7 is unavailable to or insufficient to hold
harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and
each Agent on the other from the offering of the
Securities to which such loss, claim, damage or
liability (or action in respect thereof) relates. If,
however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law
or if the indemnified party failed to give the notice
required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid
or payable by such indemnified party in such proportion
as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on
the one hand and each Agent on the other in connection
with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant
equitable considerations. The relative benefits
received by the Company on the one hand and each Agent
on the other shall be deemed to be in the same
proportion as the total net proceeds from the sale of
Securities (before deducting expenses) received by the
Company bear to the total commissions or discounts
received by such Agent in respect thereof. The relative
fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission
to state a material fact required to be stated therein
or necessary in order to make the statements therein
not misleading relates to information supplied by the
Company on the one hand or by any Agent on the other
and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such
statement or omission. The Company and each Agent
agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were
determined by per capita allocation (even if all Agents
were treated as one entity for such purpose) or by any
other method of allocation which does not take account
of the equitable considerations referred to above in
this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be
deemed to include any legal or other expenses
reasonably incurred by such indemnified party in
connection with investigating or defending any such
action or claim. Notwithstanding the provisions of
this subsection (d), an Agent shall not be required to
contribute any amount in excess of the amount by which
the total public offering price at which the Securities
purchased by or through it were sold exceeds the amount
of any damages which such Agent has otherwise been
required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not
guilty of such fraudulent
<PAGE>
misrepresentation. The obligations of each of the Agents
under this subsection (d) to contribute are several in
proportion to the respective purchases made by or through it
to which such loss, claim, damage or liability (or action in
respect thereof) relates and are not joint.
(e) The obligations of the Company under this Section
7 shall be in addition to any liability which the
Company may otherwise have and such obligations shall
extend, upon the same terms and conditions, to (i) each
officer and director of each Agent, (ii) each person,
if any, who controls any Agent within the meaning of
the Act, and (iii) each Agent's personal
representatives, successors and assigns; and the
obligations of each Agent under this Section 7 shall be
in addition to any liability which such Agent may
otherwise have and such obligations shall extend, upon
the same terms and conditions, to (i) each officer and
director of the Company, (ii) each person, if any, who
controls the Company within the meaning of the Act, and
(iii) the Company's personal representatives,
successors and assigns.
8. Each Agent, in soliciting offers to purchase
Securities from the Company and in performing the other
obligations of such Agent hereunder (other than in
respect of any purchase by an Agent as principal,
pursuant to a Terms Agreement or otherwise), is acting
solely as agent for the Company and not as principal.
Each Agent will make reasonable efforts to assist the
Company in obtaining performance by each purchaser
whose offer to purchase Securities from the Company was
solicited by such Agent and has been accepted by the
Company, but such Agent shall not have any liability to
the Company in the event such purchase is not
consummated for any reason. If the Company shall
default on its obligation to deliver Securities to a
purchaser whose offer it has accepted, the Company
shall (i) hold each Agent harmless against any loss,
claim or damage arising from or as a result of such
default by the Company and (ii) notwithstanding such
default, pay to the Agent that solicited such offer any
commission to which it would be entitled in connection
with such sale.
9. The respective indemnities, agreements,
representations, warranties and other statements by any
Agent and the Company set forth in or made pursuant to
this Agreement shall remain in full force and effect
regardless of any investigation (or any statement as to
the results thereof) made by or on behalf of any Agent
or any controlling person of any Agent, or the Company,
or any officer or director of any controlling person of
the Company, and shall survive each delivery of and
payment for any of the Securities.
10. The provisions of this Agreement relating to
the solicitation of offers to purchase Securities from the
Company may be suspended or terminated at any time by
the Company as to any Agent or by any Agent as to such
Agent upon the giving of written notice of such
suspension or termination to such Agent or the Company,
as the case may be. In the event of such suspension or
termination with respect to any Agent, (x) this
Agreement shall remain in full force and effect with
respect to any Agent as to which such suspension or
termination has not occurred, (y) this Agreement shall
remain in full force and effect with respect to the
rights and obligations of any party which have
previously accrued or which relate to Securities which
are already issued, agreed to be issued or the subject
of a pending offer at the time of such suspension or
termination and (z) in any event, this Agreement shall
remain in full force and
<PAGE>
effect insofar as the fourth paragraph of Section 2(a) and
Sections 4(d), 4(e), 5, 7, 8 and 9 hereof are concerned.
11. Except as otherwise specifically provided
herein or in the Administrative Procedures, all statements,
requests, notices and advices hereunder shall be in
writing, or by telephone if promptly confirmed in
writing, shall be sufficient in all respects when
delivered or sent by facsimile transmission or
registered mail to a party at the address shown on
Exhibit A hereto.
12. This Agreement and any Terms Agreement shall
be binding upon, and inure solely to the benefit of, each
Agent and the Company, and to the extent provided in
Sections 7, 8 and 9 hereof, the officers and directors
of the Company and any person who controls any Agent or
the Company, and their respective personal
representatives, successors and assigns, and no other
person shall acquire or have any right under or by
virtue of this Agreement or any Terms Agreement. No
purchaser of any of the Securities through or from any
Agent hereunder shall be deemed a successor or assign
by reason of such purchase.
13. Time shall be of the essence in this Agreement
and any Terms Agreement. As used herein, the term
"business day" shall mean any day when the Commission's
office in Washington, D.C. is open for business.
14. Neither any failure nor delay on the part of
any party to exercise any right, remedy, power or privilege
under this Agreement (singly and collectively referred
to as a "Right") shall operate as a waiver of such
Right, nor shall any single or partial exercise of any
Right prelude any other or future exercise any Right,
nor shall any waiver of any Right with respect to any
occurrence be construed as a waiver of any Right with
respect to any other occurrence.
15. This Agreement and any Terms Agreement shall
be governed by, and construed in accordance with, the laws
of the State of New York.
16. This Agreement and any Terms Agreement may
be executed by any one or more of the parties hereto and
thereto in any number of counterparts, each of which
shall be an original, but all of such respective
counterparts shall together constitute one and the same
instrument.
<PAGE>
If the foregoing is in accordance with your
understanding, please sign and return to us four
counterparts hereof, whereupon this letter and the
acceptance by each of you thereof shall constitute a
binding agreement between the Company and each of you
in accordance with its terms.
Very truly yours,
MARSHALL & ILSLEY CORPORATION
By: /s/ Donald H. Wilson
______________________________
Name: Donald H. Wilson
Title: Senior Vice President and
Corporate Treasurer
Accepted as of the date
hereof:
SALOMON SMITH BARNEY INC.
By: /s/ Martha Bailey
-------------------------------------
Name: Martha Bailey
Title: First Vice President
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By: /s/ Roger Thomson
------------------------------------
Name: Roger Thomson
Title: Managing Director
GOLDMAN, SACHS & CO.
By: /s/ Goldman, Sachs & Co.
------------------------------------
Name:
Title:
LEHMAN BROTHERS INC.
By: /s/ James W. Merli
-----------------------------------
Name: James W. Merli
Title: Managing Director
<PAGE>
J.P. MORGAN SECURITIES INC.
By: /s/ Geoffrey Fitzgerald
------------------------------------
Name: Geoffrey Fitzgerald
Title: Vice President
MORGAN STANLEY & CO. INCORPORATED
By: /s/ Mike Rollings
------------------------------------
Name: Mike Rollings
Title: Principal
ROBERT W. BAIRD & CO. INCORPORATED
By: /s/ Lance R. Lange
------------------------------------
Name: Lance R. Lange
Title: Vice President
<PAGE>
EXHIBIT A
Marshall & Ilsley Corporation
770 North Water Street
Milwaukee, Wisconsin 53202
Fax: 414/765-8097
Attention: Donald H. Wilson
Salomon Smith Barney Inc.
388 Greenwich Street, 35th Floor
New York, New York 10013
Fax: 212/816-0949
Attention: Martha Bailey
Donaldson, Lufkin & Jenrette
Securities Corporation
277 Park Avenue
New York, New York 10172
Fax: 212/892-8244
Attention: Roger Thomson
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Fax: 212/422-9458
Attention: William Cassano
Lehman Brothers Inc.
3 World Financial Center, 9th Floor
New York, New York 10285
Fax: 212/526-1532
Attention: Medium Term Note Desk
J.P. Morgan Securities Inc.
60 Wall Street, 5th Floor
New York, New York 10260
Fax: 212/648-5151
Attention: Transaction Execution Group
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Fax: 212/761-0784
Attention: Erich Bluhm
<PAGE>
Robert W. Baird & Co. Incorporated
777 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Fax: 414/298-7490
Attention: Lance Lange
<PAGE>
ANNEX I
MARSHALL & ILSLEY CORPORATION
MEDIUM-TERM NOTES
TERMS AGREEMENT
____________ __, 2000
[Agent]
Dear Sirs:
Marshall & Ilsley Corporation (the "Company")
proposes, subject to the terms and conditions stated
herein and in the Distribution Agreement, dated
___________ __, 2000 (the "Distribution Agreement"),
between the Company on the one hand and Salomon Smith
Barney Inc., Donaldson, Lufkin & Jenrette Securities
Corporation, Goldman, Sachs & Co., Lehman Brothers
Inc., J.P. Morgan Securities Inc., Morgan Stanley & Co.
Incorporated, Robert W. Baird & Co. Incorporated (the
"Agents") on the other, to issue and sell to [Agent]
the securities specified in the Schedule hereto (the
"Purchased Securities"). Each of the provisions of the
Distribution Agreement not specifically related to the
solicitation by the Agents, as agents of the Company,
of offers to purchase Securities is incorporated herein
by reference in its entirety, and shall be deemed to be
part of this Terms Agreement to the same extent as if
such provisions had been set forth in full herein.
Nothing contained herein or in the Distribution
Agreement shall make any party hereto an agent of the
Company or make such party subject to the provisions
therein relating to the solicitation of offers to
purchase securities from the Company, solely by virtue
of its execution of this Terms Agreement. Each of the
representations and warranties set forth therein shall
be deemed to have been made at and as of the date of
this Terms Agreement, except that each representation
and warranty in Section 1 of the Distribution Agreement
which makes reference to the Prospectus shall be deemed
to be a representation and warranty as of the date of
the Distribution Agreement in relation to the
Prospectus (as therein defined), and also a
representation and warranty as of the date of this
Terms Agreement in relation to the Prospectus as
amended and supplemented to relate to the Purchased
Securities.
An amendment to the Registration Statement,
or a supplement to the Prospectus, as the case may be,
relating to the Purchased Securities, in the form
heretofore delivered to you is now proposed to be filed
with the Commission.
Subject to the terms and conditions set forth
herein and in the Distribution Agreement incorporated
herein by reference, the Company agrees to issue and
sell to [Agent(s)] and the latter agree[s] to purchase
from the Company the Purchased Securities, at the time
and place, in the principal amount and at the purchase
price set forth in the Schedule hereto.
If the foregoing is in accordance with your
understanding, please sign and return to us five
counterparts hereof, and upon acceptance hereof by you
this letter and such acceptance
<PAGE>
hereof, including those provisions of the Distribution
Agreement incorporated herein by reference, shall
constitute a binding agreement between you and the Company.
MARSHALL & ILSLEY CORPORATION
By:______________________________
Name:
Title:
Accepted as of the date
hereof:
[Agent]
<PAGE>
Schedule to Annex I
Title of Purchased Securities:
[ %] Medium-Term Notes
Aggregate Principal Amount:
$_________________
[Price to Public:]
Purchase Price by [Agent(s)]:
% of the principal amount of the Purchased
Securities, plus accrued interest from __________ to
__________ [and accrued amortization, if any, from
__________ to __________]
Method of and Specified Funds for Payment of Purchase Price:
[By certified or official bank check or
checks, payable to the other of the Company, in [[New
York] Clearing House][immediately available] funds]
[By wire transfer to a bank account specified
by the Company in [next day] [immediately available]
funds]
Indenture:
Indenture, dated as of November 15, 1985, as
amended, between the Company and Chemical Bank
(successor to Manufacturers Hanover Trust Company), as
Trustee
Time of Delivery:
Closing Location for Delivery of Securities:
Maturity:
Interest Rate:
[ %]
Interest Payment Dates:
[months and dates]
Documents to be Delivered:
<PAGE>
The following documents referred to in the
Distribution Agreement shall be delivered as a
condition to the Closing:
(1) [The opinion or opinions of counsel to the
Agents referred to in Section 4(h).]
(2) [The opinion of counsel to the Company referred
to in Section 4(i).]
(3) [The accountants' letter referred to in Section 4(j).]
(4) [The officers' certificate referred to in Section 4(k).]
Other Provisions (including Syndicate Provisions, if applicable):
<PAGE>
ANNEX II
Marshall & Ilsley Corporation
Administrative Procedures
This Administrative Procedure relates to the
Securities defined in the Distribution Agreement, dated
___________ __, 2000 (the "Distribution Agreement"),
between Marshall & Ilsley Corporation (the "Company")
and Salomon Smith Barney Inc., Donaldson, Lufkin &
Jenrette Securities Corporation, Goldman, Sachs & Co.,
Lehman Brothers Inc., J.P. Morgan Securities Inc.,
Morgan Stanley & Co. Incorporated, Robert W. Baird &
Co. Incorporated (the "Agents"), to which this
Administrative Procedure is attached as Annex II.
Defined terms used herein and not defined herein shall
have the meanings given such terms in the Distribution
Agreement, the Prospectus as amended or supplemented or
the Indenture.
The procedures to be followed with respect to
the settlement of sales of Securities directly by the
Company to purchasers solicited by an Agent, as agent,
are set forth below. The terms and settlement details
related to a purchase of Securities by an Agent, as
principal, from the Company will be set forth in a
Terms Agreement pursuant to the Distribution Agreement,
unless the Company and such Agent otherwise agree as
provided in Section 2(b) of the Distribution Agreement,
in which case the procedures to be followed in respect
of the settlement of such sale will be as set forth
below. An Agent, in relation to a purchase of a
Security by a purchaser solicited by such Agent, is
referred to herein as the "Selling Agent" and, in
relation to a purchase of a Security by such Agent as
principal other than pursuant to a Terms Agreement, as
the "Purchasing Agent".
The Company will advise each Agent in writing
of those persons with whom such Agent is to communicate
regarding offers to purchase Securities and the related
settlement details.
Each Security will be issued only in fully
registered form and will be represented by either a
global security (a "Global Security") delivered to the
Trustee, as agent for The Depository Trust Company (the
"Depositary") and recorded in the book-entry system
maintained by the Depositary (a "Book-Entry Security")
or a certificate issued in definitive form (a
"Certificated Security") delivered to a person
designated by an Agent, as set forth in the applicable
Pricing Supplement. An owner of a Book-Entry Security
will not be entitled to receive a certificate
representing such a Security, except as provided in the
Indenture.
Certificated Securities will be issued in
accordance with the Administrative Procedure set forth
in Part I hereof, and Book-Entry Securities will be
issued in accordance with the Administrative Procedure
set forth in Part II hereof.
PART I: ADMINISTRATIVE PROCEDURE FOR CERTIFICATED SECURITIES
Posting Rates by Company:
The Company and the Agents will discuss from
time to time the rates of interest per annum to be
borne by and the maturity of Certificated Securities
that may be sold as a result
<PAGE>
of the solicitation of offers by an Agent. The Company
may establish a fixed set of interest rates and maturities
for an offering period ("posting"). If the Company decides
to change already posted rates, it will promptly advise the
Agents to suspend solicitation of offers until the new
posted rates have been established with the Agents.
Acceptance of Offers by Company:
Each Agent will promptly advise the Company
by telephone or other appropriate means of all
reasonable offers to purchase Certificated Securities,
other than those rejected by such Agent. Each Agent
may, in its discretion reasonably exercised, reject any
offer received by it in whole or in part. Each Agent
also may make offers to the Company to purchase
Certificated Securities as a Purchasing Agent. The
Company will have the sole right to accept offers to
purchase Certificated Securities and may reject any
such offer in whole or in part.
The Company will promptly notify the Selling
Agent or Purchasing Agent, as the case may be, of its
acceptance or rejection of an offer to purchase
Certificated Securities. If the Company accepts an
offer to purchase Certificated Securities, it will
confirm such acceptance in writing to the Selling Agent
or Purchasing Agent, as the case may be, and the
Trustee.
Communication of Sale Information to Company by Selling Agent:
After the acceptance of an offer by the
Company, the Selling Agent or Purchasing Agent, as the
case may be, will communicate the following details of
the terms of such offer (the "Sale Information") to the
Company by telephone (confirmed in writing) or by
facsimile transmission or other acceptable written
means:
(1) Principal amount of Certificated Securities to be
purchased;
(2) If a Fixed Rate Certificated Security, the
interest rate and the initial interest payment date;
(3) Maturity Date;
(4) Specified Currency and, if the Specified Currency
is other than U.S. dollars, the applicable Exchange
Rate for such Specified Currency;
(5) Indexed Currency, the Base Rate and the Exchange
Rate Determination Date, if applicable;
(6) Issue Price;
(7) Selling Agent's commission or Purchasing Agent's
discount, as the case may be;
(8) Net proceeds to the Company;
(9) Settlement Date;
<PAGE>
(10) If a redeemable Certificated Security, such of the
following as are applicable:
(i) Redemption Commencement Date,
(ii) Initial Redemption Price (% of par), and
(iii) Amount (% of par) that the Redemption Price
shall decline (but not below par) on each anniversary
of the Redemption Commencement Date;
(11) If a Floating Rate Certificated Security, such of
the following as are applicable:
(i) Interest Rate Basis,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Interest Rate,
(vii) Interest Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Interest Payment Dates,
(xi) Regular Record Dates, and
(xii) Calculation Agent;
(12) Name, address and taxpayer identification number
of the registered owner(s);
(13) Denomination of certificates to be delivered at
settlement; and
(14) Book-Entry Security or Certificated Security.
Preparation of Pricing Supplement by Company:
If the Company accepts an offer to purchase a
Certificated Security, it will prepare a Pricing
Supplement. The Company will supply at least ten
copies of such Pricing Supplement to the Selling Agent
or Purchasing Agent, as the case may be, not later than
5:00 p.m., New York City time, on the business day
following the date of acceptance of such offer, or if
the Company and the purchaser agree to settlement on
the date of such acceptance, not later than noon, New
York City time, on such date. The Company will arrange
to have ten Pricing Supplements filed with the
Commission not later than the close of business of the
Commission on the fifth business day following the date
on which such Pricing Supplement is first used.
Delivery of Confirmation and Prospectus to Purchaser by
Selling Agent:
The Selling Agent will deliver to the
purchaser of a Certificated Security a written
confirmation of the sale and delivery and payment
instructions. In addition, the Selling Agent will
deliver to such purchaser or its agent the Prospectus
as amended or supplemented (including
[PRICE-PER-SHARE]
the Pricing Supplement) in relation to such Certificated Security
prior to or together with the earlier of the delivery
to such purchaser or its agent of (a) the confirmation
of sale or (b) the Certificated Security.
Date of Settlement:
All offers solicited by a Selling Agent or
made by a Purchasing Agent and accepted by the Company
will be settled on a date (the "Settlement Date") which
is the third business day after the date of acceptance
of such offer, unless the Company and the purchaser
agree to settlement (a) on any other business day after
the acceptance of such offer or (b) with respect to an
offer accepted by the Company prior to 10:00 a.m., New
York City time, on the date of such acceptance.
Instruction from Company to Trustee for Preparation of
Certificated Securities:
After receiving the Sale Information from the
Selling Agent or Purchasing Agent, as the case may be,
the Company will communicate such Sale Information to
the Trustee by telephone (confirmed in writing) or by
facsimile transmission or other acceptable written
means.
The Company will instruct the Trustee by
facsimile transmission or other acceptable written
means to authenticate and deliver the Certificated
Securities no later than 2:15 p.m., New York City time,
on the Settlement Date. Such instruction will be given
by the Company prior to 3:00 p.m., New York City time,
on the business day prior to the Settlement Date unless
the Settlement Date is the date of acceptance by the
Company of the offer to purchase Certificated
Securities in which case such instruction will be given
by the Company by 11:00 a.m., New York City time.
Preparation and Delivery of Certificated Securities by
Trustee and Receipt of Payment Therefor:
The Trustee will prepare each Certificated
Security and appropriate receipts that will serve as
the documentary control of the transaction.
In the case of a sale of Certificated
Securities to a purchaser solicited by an Agent, the
Trustee will, by 2:15 p.m., New York City time, on the
Settlement Date, deliver the Certificated Securities to
the Selling Agent for the benefit of the purchaser of
such Certificated Securities against delivery by the
Selling Agent of a receipt therefor. On the Settlement
Date the Selling Agent will deliver payment for such
Certificated Securities in immediately available funds
to the Company in an amount equal to the issue price of
the Certificated Securities less the Selling Agent's
commission; provided that the Selling Agent reserves
the right to withhold payment for which it has not
received funds from the purchaser. The Company shall
not use any proceeds advanced by a Selling Agent to
acquire securities.
In the case of a sale of Certificated
Securities to a Purchasing Agent, the Trustee will, by
2:15 p.m., New York City time, on the Settlement Date,
deliver the Certificated Securities to the Purchasing
Agent against delivery of payment for such Certificated
Securities in immediately available funds to the
Company in an amount equal to the issue price of the
Certificated Securities less the Purchasing Agent's
discount.
<PAGE>
Failure of Purchaser to Pay Selling Agent:
If a purchaser (other than a Purchasing
Agent) fails to make payment to the Selling Agent for a
Certificated Security, the Selling Agent will promptly
notify the Trustee and the Company thereof by telephone
(confirmed in writing) or by facsimile transmission or
other acceptable written means. The Selling Agent will
immediately return the Certificated Security to the
Trustee. Immediately upon receipt of such Certificated
Security by the Trustee, the Company will return to the
Selling Agent an amount equal to the amount previously
paid to the Company in respect of such Certificated
Security. The Company will reimburse the Selling Agent
on an equitable basis for its loss of the use of funds
during the period when they were credited to the
account of the Company.
The Trustee will cancel the Certificated
Security in respect of which the failure occurred, make
appropriate entries in its records and, unless
otherwise instructed by the Company, destroy the
Certificated Security.
PART II: ADMINISTRATIVE PROCEDURE FOR BOOK-ENTRY SECURITIES
In connection with the qualification of the
Book-Entry Securities for eligibility in the book-entry
system maintained by the Depositary, the Trustee will
perform the custodial, document control and
administrative functions described below, in accordance
with its respective obligations under a Letter of
Representation from the Company and the Trustee to the
Depositary, dated the date hereof, and a Medium-Term
Note Certificate Agreement between the Trustee and the
Depositary, dated as of ___________ (the "Certificate
Agreement"), and its obligations as a participant in
the Depositary, including the Depositary's Same-Day
Funds Settlement System ("SDFS").
Posting Rates by the Company:
The Company and the Agents will discuss from
time to time the rates of interest per annum to be
borne by and the maturity of Book-Entry Securities that
may be sold as a result of the solicitation of offers
by an Agent. The Company may establish a fixed set of
interest rates and maturities for an offering period
("posting"). If the Company decides to change already
posted rates, it will promptly advise the Agents to
suspend solicitation of offers until the new posted
rates have been established with the Agents.
<PAGE>
Acceptance of Offers by the Company:
Each Agent will promptly advise the Company
by telephone or other appropriate means of all
reasonable offers to purchase Securities, other than
those rejected by such Agent. Each Agent may, in its
discretion reasonably exercised, reject any offer
received by it in whole or in part. Each Agent also
may make offers to the Company to purchase Book-Entry
Securities as a Purchasing Agent. The Company will
have the sole right to accept offers to purchase Book-
Entry Securities and may reject any such offer in whole
or in part.
The Company will promptly notify the Selling
Agent or Purchasing Agent, as the case may be, of its
acceptance or rejection of an offer to purchase Book-
Entry Securities. If the Company accepts an offer to
purchase Book-Entry Securities, it will confirm such
acceptance in writing to the Selling Agent or
Purchasing Agent, as the case may be, and the Trustee.
Communication of Sale Information to the Company by
Selling Agent and
Settlement Procedures:
A. After the acceptance of an offer by the Company,
the Selling Agent or Purchasing Agent, as the case may
be, will communicate promptly, but in no event later
than the time set forth under "Settlement Procedure
Timetable" below, the following details of the terms of
such offer (the "Sale Information") to the Company by
telephone (confirmed in writing) or by facsimile
transmission or other acceptable written means:
(1) Principal amount of Book-Entry Securities to be
purchased;
(2) If a Fixed Rate Book-Entry Security, the interest
rate and initial interest payment date;
(3) Maturity Date;
(4) Specified Currency and, if the Specified Currency
is other than U.S. dollars, the applicable Exchange
Rate for such Specified Currency (it being understood
that currently the Depositary accepts deposits of
Global Securities denominated in U.S. dollars only);
(5) Indexed Currency, the Base Rate and the Exchange
Rate Determination Date, if applicable;
(6) Issue Price;
(7) Selling Agent's commission or Purchasing Agent's
discount or commission, as the case may be;
(8) Net Proceeds to the Company;
(9) Settlement Date;
(10) If a redeemable Book-Entry Security, such of the
following as are applicable:
<PAGE>
(i) Redemption Commencement Date,
(ii) Initial Redemption Price (% of par), and
(iii) Amount (% of par) that the Redemption Price
shall decline (but not below par) on each anniversary
of the Redemption Commencement Date;
(11) If a Floating Rate Book-Entry Security, such of
the following as are applicable:
(i) Interest Rate Basis,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Interest Rate,
(vii) Interest Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Interest Payment Dates,
(xi) Regular Record Dates, and
(xii) Calculation Agent;
(12) Name, address and taxpayer identification number
of the registered owner(s);
(13) Denomination of certificates to be delivered at
settlement; and
(14) Book-Entry Security or Certificated Security.
B. After receiving the Sale Information from the
Selling Agent or Purchasing Agent, the Company will
communicate such Sale Information to the Trustee by
facsimile transmission or other acceptable written
means. The Trustee will assign a CUSIP number to the
Global Security from a list of CUSIP numbers previously
delivered to the Trustee by the Company representing
such Book-Entry Security and then advise the Company
and the Selling Agent or Purchasing Agent, as the case
may be, of such CUSIP number.
<PAGE>
C. The Trustee will enter a pending deposit message
through the Depositary's Participant Terminal System,
providing the following settlement information to the
Depositary, and the Depositary shall forward such
information to such Agent and Standard & Poor's
Corporation:
(1) The applicable Sale Information;
(2) CUSIP number of the Global Security representing
such Book-Entry Security;
(3) Whether such Global Security will represent any
other Book-Entry Security (to the extent known at such
time);
(4) Number of the Participant account maintained by
the Depositary on behalf of the Selling Agent or
Purchasing Agent, as the case may be;
(5) The interest payment period;
(6) Initial Interest Payment Date for such Book-Entry
Security, number of days by which such date succeeds
the record date for the Depositary's purposes (which,
in the case of Floating Rate Securities which reset
weekly shall be the date five calendar days
immediately preceding the applicable Interest Payment
Date and in the case of all other Book-Entry Securities
shall be the Regular Record Date, as defined in the
Security) and, if calculable at that time, the amount
of interest payable on such Interest Payment Date.
D. The Trustee will complete and authenticate the
Global Security previously delivered by the Company
representing such Book-Entry Security.
E. The Depositary will credit such Book-Entry
Security to the Trustee's participant account at the
Depositary.
F. The Trustee will enter an SDFS deliver order
through the Depositary's Participant Terminal System
instructing the Depositary to (i) debit such Book-Entry
Security to the Trustee's participant account and
credit such Book-Entry Security to such Agent's
participant account and (ii) debit such Agent's
settlement account and credit the Trustee's settlement
account for an amount equal to the price of such Book-
Entry Security less such Agent's commission. The entry
of such a deliver order shall constitute a
representation and warranty by the Trustee to the
Depositary that (a) the Global Security representing
such Book-Entry Security has been issued and
authenticated and (b) the Trustee is holding such
Global Security pursuant to the Certificate Agreement.
G. Such Agent will enter an SDFS deliver order
through the Depositary's Participant Terminal System
instructing the Depositary (i) to debit such Book-Entry
Security to such Agent's participant account and credit
such Book-Entry Security to the participant accounts of
the Participants with respect to such Book-Entry
Security and (ii) to debit the settlement
<PAGE>
accounts of such Participants and credit the settlement
account of such Agent for an amount equal to the price
of such Book-Entry Security.
H. Transfers of funds in accordance with SDFS deliver
orders described in Settlement Procedures "F" and "G"
will be settled in accordance with SDFS operating
procedures in effect on the settlement date.
I. Upon confirmation of receipt of funds, the Trustee
will transfer to the account of the Company maintained
at [ ], New York, New York, or such other account as
the Company may have previously specified to the
Trustee, in funds available for immediate use in the
amount transferred to the Trustee in accordance with
Settlement Procedure "F".
J. Upon request, the Trustee will send to the Company
a statement setting forth the principal amount of Book-
Entry Securities outstanding as of that date under the
Indenture.
K. Such Agent will confirm the purchase of such Book-
Entry Security to the purchaser either by transmitting
to the Participants with respect to such Book-Entry
Security a confirmation order or orders through the
Depositary's institutional delivery system or by
mailing a written confirmation to such purchaser.
L. The Depositary will, at any time upon request of
the Company or the Trustee, promptly furnish to the
Company or the Trustee a list of the names and
addresses of the participants for whom the Depositary
has credited Book-Entry Securities.
Preparation of Pricing Supplement:
If the Company accepts an offer to purchase a
Book-Entry Security, it will prepare a Pricing
Supplement reflecting the terms of such Book-Entry
Security and arrange to have delivered to the Selling
Agent or Purchasing Agent, as the case may be, at least
ten copies of such Pricing Supplement, not later than
5:00 p.m., New York City time, on the Business Day
following the receipt of the Sale Information, or if
the Company and the purchaser agree to settlement on
the Business Day following the date of acceptance, not
later than noon, New York City time, on such date. The
Company will arrange to have Pricing Supplements filed
with the Commission not later than the close of
business of the Commission on the fifth Business Day
following the date on which such Pricing Supplement is
first used, or such shorter period as prescribed by the
rules and regulations under the Act.
Delivery of Confirmation and Prospectus to Purchaser by
Selling Agent:
The Selling Agent will deliver to the
purchaser of a Book-Entry Security a written
confirmation of the sale and delivery and payment
instructions. In addition, the Selling Agent will
deliver to such purchaser or its agent the Prospectus
as amended or supplemented (including the Pricing
Supplement) in relation to such Book-Entry Security
prior to or together with the earlier of the delivery
to such purchaser or its agent of (a) the confirmation
of sale or (b) the Book-Entry Security.
Date of Settlement:
<PAGE>
The receipt by the Company of immediately
available funds in payment for a Book-Entry Security
and the authentication and issuance of the Global
Security representing such Book-Entry Security shall
constitute "settlement" with respect to such Book-Entry
Security. All orders accepted by the Company will be
settled on the third Business Day pursuant to the
timetable for settlement set forth below unless the
Company and the purchaser agree to settlement on
another day which shall be no earlier than the next
Business Day.
Settlement Procedure Timetable:
For orders of Book-Entry Securities solicited
by an Agent as agent, and accepted by the Company for
settlement on the first Business Day after the sale
date, Settlement Procedures "A" through "I" set forth
above shall be completed as soon as possible but not
later than the respective times (New York City time)
set forth below:
Settlement
Procedure Time
A 5:00 p.m. on the Business Day following
the acceptance of an offer by the
Company to 10:00 a.m. on the Business
Day prior to the settlement date,
whichever is earlier
B 12:00 noon on the sale date
C 2:00 p.m. on the sale date
D 9:00 a.m. on settlement date
E 10:00 a.m. on settlement date
F-G 2:00 p.m. on settlement date
H 4:45 p.m. on settlement date
I 5:00 p.m. on settlement date
If a sale is to be settled more than one
Business Day after the sale date, Settlement Procedures
"B" and "C" shall be completed as soon as practicable
but not later than 2:00 p.m. on the first Business Day
after the sale date. If the initial interest rate for
a Floating Rate Book-Entry Security has not been
determined at the time that Settlement Procedure "A" is
completed, Settlement Procedures "B" and "C" shall be
completed as soon as such rate has been determined but
no later than 2:00 p.m. on the second Business Day
before the settlement date. Settlement Procedure "H"
is subject to extension in accordance with any
extension of Fedwire closing deadlines and in the other
events specified in the SDFS operating procedures in
effect on the settlement date.
If settlement of a Book-Entry Security is
rescheduled or cancelled, the Trustee, upon obtaining
knowledge thereof, will deliver to the Depositary,
through the Depositary's Participation Terminal System,
a cancellation message to such effect by no later than
2:00 p.m. on the Business Day immediately preceding the
scheduled settlement date.
Failure to Settle:
If the Trustee fails to enter an SDFS
deliver order with respect to a Book-Entry Security
pursuant to Settlement Procedure "F", the Trustee may
deliver to the Depositary,
<PAGE>
through the Depositary's Participant Terminal System, as
soon as practicable a withdrawal message instructing the
Depositary to debit such Book-Entry Security to the Trustee's
participant account, provided that the Trustee's participant
account contains a principal amount of the Global
Security representing such Book-Entry Security that is
at least equal to the principal amount to be debited.
If a withdrawal message is processed with respect to
all the Book-Entry Securities represented by a Global
Security, the trustee will mark such Global Security
"cancelled", make appropriate entries in the Trustee's
records and send such cancelled Global Security to the
Company. The CUSIP number assigned to such Global
Security shall, in accordance with CUSIP Service Bureau
procedures, be cancelled and not immediately
reassigned. If a withdrawal message is processed with
respect to one or more, but not all, of the Book-Entry
Securities represented by a Global Security, the
Trustee will exchange such Global Security for two
Global Securities, one of which shall represent such
Book-Entry Security or Securities and shall be
cancelled immediately after issuance and the other of
which shall represent the remaining Book-Entry
Securities previously represented by the surrendered
Global Security and shall bear the CUSIP number of the
surrendered Global Security.
If the purchase price for any Book-Entry
Security is not timely paid to the participants with
respect to such Book-Entry Security by the beneficial
purchaser thereof (or a person, including an indirect
participant in the Depositary, acting on behalf of such
purchaser), such participants and, in turn, the Agent
for such Book-Entry Security may enter deliver orders
through the Depositary's Participant Terminal System
debiting such Book-Entry Security to such participant's
account and crediting such Book-Entry Security to such
Agent's account and then debiting such Book-Entry
Security to such Agent's participant account and
crediting such Book-Entry Security to the Trustee's
participant account and shall notify the Company and
the Trustee thereof. Thereafter, the Trustee will (i)
immediately notify the Company of such order and the
Company shall transfer to such Agent funds available
for immediate use in an amount equal to the price of
such Book-Entry Security which was credited to the
account of the Company maintained at the Trustee in
accordance with Settlement Procedure I, and (ii)
deliver the withdrawal message and take the related
actions described in the preceding paragraph. If such
failure shall have occurred for any reason other than
default by the applicable Agent to perform its
obligations hereunder or under the Distribution
Agreement, the Company will reimburse such Agent on an
equitable basis for the loss of its use of funds during
the period when the funds were credited to the account
of the Company.
Notwithstanding the foregoing, upon any
failure to settle with respect to a Book-Entry
Security, the Depositary may take any actions in
accordance with its SDFS operating procedures then in
effect. In the event of a failure to settle with
respect to one or more, but not all, of the Book-Entry
Securities to have been represented by a Global
Security, the Trustee will provide, in accordance with
Settlement Procedure "D" for the authentication and
issuance of a Global Security representing the other
Book-Entry Securities to have been represented by such
Global Security and will make appropriate entries in
its records. The Company will, from time to time,
furnish the Trustee with a sufficient quantity of
Securities.
<PAGE>
ANNEX III
ACCOUNTANTS' LETTER
Pursuant to Section 4(j) and Section 6(d), as
the case may be, of the Distribution Agreement, the
Company's independent certified public accountants
shall furnish letters to the effect that:
(i) They are independent certified public
accountants with respect to the Company and its
subsidiaries within the meaning of the Act and the
applicable published rules and regulations
thereunder;
(ii) In their opinion, the financial
statements and any supplementary financial
information and schedules (and, if applicable,
prospective financial statements and/or pro forma
financial information) examined by them and
included or incorporated by reference in the
Registration Statement or the Prospectus comply as
to form in all material respects with the
applicable accounting requirements of the Act or
the Exchange Act, as applicable, and the related
published rules and regulations thereunder; and,
if applicable, they have made a review in
accordance with standards established by the
American Institute of Certified Public Accountants
of the consolidated interim financial statements,
selected financial data, pro forma financial
information and/or condensed financial statements
derived from audited financial statements of the
Company for the periods specified in such letter,
as indicated in their reports thereon, copies of
which have been furnished to the Agents;
(iii) The unaudited selected financial
information with respect to the consolidated
results of operations and financial position of
the Company for the five most recent fiscal years
included in the Prospectus and included or
incorporated by reference in Item 6 of the
Company's Annual Report on Form 1O-K for the most
recent fiscal year agrees with the corresponding
amounts (after restatement where applicable) in
the audited consolidated financial statements for
the five such fiscal years which were included or
incorporated by reference in the Company's Annual
Reports on Form 10-K for such fiscal years;
(iv) On the basis of limited procedures, not
constituting an examination in accordance with
generally accepted auditing standards, consisting
of a reading of the unaudited financial statements
and other information referred to below, a reading
of the latest available interim financial
statements of the Company and its subsidiaries,
inspection of the minute books of the Company and
its subsidiaries since the date of the latest
audited financial statements included or
incorporated by reference in the Prospectus,
inquiries of officials of the Company and its
subsidiaries responsible for financial and
accounting matters and such other inquiries and
procedures as may be specified in such letter or
may be required by Statement of Accounting
Standards Nos. 71 and 72, nothing came to their
attention that caused them to believe that:
(A) the unaudited condensed
consolidated statements of income,
consolidated balance sheets and consolidated
statements of cash flows included or
<PAGE>
incorporated by reference in the Company's
Quarterly Reports on Form 10-Q incorporated
by reference in the Prospectus do not comply
as to form in all material respects with the
applicable accounting requirements of the
Exchange Act as it applies to Form 10-Q and
the related published rules and regulations
thereunder or are not in conformity with
generally accepted accounting principles
applied on a basis substantially consistent
with the basis for the audited consolidated
statements of income, consolidated balance
sheets and consolidated statements of cash
flows included or incorporated by reference
in the Company's Annual Report on Form 10-K
for the most recent fiscal year;
(B) any other unaudited income
statement data and balance sheet items
included in the Prospectus do not agree with
the corresponding items in the unaudited
consolidated financial statements from which
such data and items were derived, and any
such unaudited data and items were not
determined on a basis substantially
consistent with the basis for the
corresponding amounts in the audited
consolidated financial statements included or
incorporated by reference in the Company's
Annual Report on Form 10-K for the most
recent fiscal year;
(C) the unaudited financial statements
which were not included in the Prospectus but
from which were derived the unaudited
condensed financial statements referred to in
Clause (A) and any unaudited income statement
data and balance sheet items included in the
Prospectus and referred to in Clause (B) were
not determined on a basis substantially
consistent with the basis for the audited
financial statements included or incorporated
by reference in the Company's Annual Report
on Form 10-K for the most recent fiscal year;
(D) the financial information,
schedules and statistical data and other
information set forth or incorporated by
reference under the captions
"Capitalization," "Selected Consolidated
Financial Data" and "Ratio of Earnings to
Fixed Charges" in the Prospectus, under the
captions "Selected Statistical Information,"
"Common Dividends Declared," "Selected
Financial Information," "Management's
Discussion and Analysis of Financial Position
and Results of Operations," "Item 6-Selected
Financial Data," "Item 8-Supplementary Data"
or in Exhibit 12-Computation of Ratios of
Earnings to Fixed Charges in the Company's
Annual Report on Form 10-K for the most
recent fiscal year comply as to form in all
material respects with applicable disclosure
requirements of Regulation S-K of the Act;
(E) as of a specified date not more
than five days prior to the date of such
letter, there have been any changes in the
consolidated capital stock (other than
issuances of capital stock upon exercise of
options and stock appreciation rights, upon
earn-outs of performance shares and upon
conversions of convertible securities, in
each case which were outstanding on the date
of the latest balance sheet included or
incorporated by reference in the Prospectus)
or any increase in the consolidated long-term
debt of the Company and its subsidiaries, or
any decreases in consolidated net assets or
other items specified by the Agents, or any
increases in any items specified by the
Agents, in each case as compared with
<PAGE>
amounts shown in the latest balance sheet included
or incorporated by reference in the Prospectus,
except in each case for changes, increases or
decreases which the Prospectus discloses have
occurred or may occur or which are described
in such letter; and
(F) for the period from the date of the
latest financial statements included or
incorporated by reference in the Prospectus
to the specified date referred to in clause
(E) there were any decreases in consolidated
interest income, consolidated net interest
income or the total or per share amounts of
consolidated net income or other items
specified by the Agents, or any increases in
any items specified by the Agents, in each
case as compared with the comparable period
of the preceding year and with any other
period of corresponding length specified by
the Agents, except in each case for increases
or decreases which the Prospectus discloses
have occurred or may occur or which are
described in such letter; and
(v) In addition to the examination referred
to in their report(s) included or incorporated by
reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries
and other procedures referred to in paragraphs
(iii) and (iv) above, they have carried out
certain specified procedures, not constituting an
examination in accordance with generally accepted
auditing standards, with respect to certain
amounts, percentages and financial information
specified by the Agents which are derived from the
general accounting records of the Company and its
subsidiaries, which appear in the Prospectus
(excluding documents incorporated by reference),
or in Part II of, or in exhibits and schedules to,
the Registration Statement specified by the Agents
or in documents incorporated by reference in the
Prospectus specified by the Agents, and have
compared certain of such amounts, percentages and
financial information with the accounting records
of the Company and its subsidiaries and have found
them to be in agreement.
All references in this Annex III to the
Prospectus shall be deemed to refer to the Prospectus
(including the documents incorporated by reference
therein) as defined in the Distribution Agreement as of
the Commencement Date referred to in Section 6(d)
thereof and to the Prospectus as amended or
supplemented (including the documents incorporated by
reference therein) as of the date of the amendment,
supplement, incorporation or the Time of Delivery
relating to the Terms Agreement requiring the delivery
of such letter under Section 4(j) thereof.
