Exhibit 4(m)
ISSUING AND PAYING AGENCY AGREEMENT
Senior and Subordinated Bank Notes
Due 7 Days to 30 Years from Date of Issue
THIS AGREEMENT is made as of September 17, 1999, between M&I
Xxxxxxxx & Xxxxxx Bank, M&I Bank of Southern Wisconsin, M&I Bank Northeast, M&I
Bank Fox Valley, M&I Thunderbird Bank, M&I Bank South, M&I Mid-State Bank and
M&I Community State Bank (each, an "Issuing Bank" and collectively, the "Issuing
Banks") and The Chase Manhattan Bank, as issuing and paying agent (the "Issuing
and Paying Agent," which term shall also refer to any duly appointed successor
thereto).
WITNESSETH:
Section 1. Appointment of Issuing and Paying Agent. The Issuing Banks propose to
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issue from time to time, their Senior and Subordinated Bank Notes (each, a "Bank
Note" and collectively, the "Bank Notes") in such amounts as may be duly
authorized by the Issuing Banks pursuant to the Distribution Agreement, dated
September 17, 1999 (the "Distribution Agreement"), among the Issuing Banks and
the agents named therein (the "Agents").
Each Bank Note will be issued in book-entry form and will be represented by a
global certificate (each, a "Global Bank Note" and collectively, the "Global
Bank Notes") registered in the name of The Depository Trust Company, as
depositary ("DTC", which term includes any successor thereof), or a nominee
thereof (which successor shall be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, if so required by applicable law),
or a nominee thereof (each beneficial interest in a Global Bank Note, a
"Book-Entry Bank Note" and collectively, the "Book-Entry Bank Notes").
The Issuing Banks hereby appoint the Issuing and Paying Agent to act, on the
terms and conditions specified herein, as issuing and paying agent for the
Global Bank Notes and as registrar, transfer agent and authenticating agent for
the Global Bank Notes and to perform such other responsibilities as are
described herein and in the Administrative Procedures attached as Exhibit B to
the Distribution Agreement as such Administrative Procedures may be amended from
time to time by agreement of the Issuing Banks and the Agents with notice of
such amendments to the Issuing and Paying Agent, and the Issuing and Paying
Agent hereby accepts such appointments. The aggregate principal amount of the
Global Bank Notes which may be issued pursuant to this Agreement is unlimited.
The Issuing and Paying Agent shall exercise due care in the performance of its
obligations hereunder and shall perform such obligations in a manner consistent
with industry standards.
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Section 2. Global Bank Note Forms; Terms; Execution.
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(a) The Global Bank Notes shall be substantially (i) in the form set forth in
Exhibit A-1 hereto if such Global Bank Note is a Senior Bank Note (each, a
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"Senior Bank Note" and collectively, the "Senior Bank Notes") and bears interest
at a fixed rate of interest (each such Global Bank Note, a "Fixed Rate Global
Senior Bank Note" and collectively, the "Fixed Rate Global Senior Bank Notes"),
(ii) in the form of Exhibit A-2 hereto if such Global Bank Note is a Senior Bank
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Note and bears interest at a floating rate of interest determined by reference
to an interest rate basis specified therein (each such Global Bank Note, a
"Floating Rate Global Senior Bank Note" and collectively, the "Floating Rate
Global Senior Bank Notes"), (iii) in the form of Exhibit A-3 hereto if such
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Global Bank Note is a Subordinated Bank Note (each, a "Subordinated Bank Note"
and collectively, the "Subordinated Bank Notes") and bears interest at a fixed
rate of interest (each such Global Bank Note, a "Fixed Rate Global Subordinated
Bank Note" and collectively, the "Fixed Rate Global Subordinated Bank Notes"),
(iv) in the form of Exhibit A-4 hereto if such Global Bank Note is a
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Subordinated Bank Note and bears interest at a floating rate of interest
determined by reference to an interest rate basis specified therein (each such
Global Bank Note, a "Floating Rate Global Subordinated Bank Note" and
collectively, the "Floating Rate Global Subordinated Bank Notes"), or (v) in
such other form as the Issuing Bank may from time to time designate.
(b) Each Senior Bank Note issued by an Issuing Bank shall have a maturity of 7
days to 30 years from its original date of issuance, and each Subordinated Bank
Note shall have a maturity of five years or more from its original date of
issue. The Bank Notes shall be issued in minimum denominations of $250,000 and
in integral multiples of $1,000 in excess thereof.
The interest rate borne by any particular Global Bank Note may
vary from the interest rates borne by any other Global Bank Notes. Any such
variation shall not affect the interest rate borne by any other Global Bank
Notes previously issued hereunder.
(c) Each Issuing Bank will from time to time deliver or cause to be delivered to
the Issuing and Paying Agent a supply of blank Global Bank Notes in such
quantities as such Issuing Bank shall determine, bearing consecutive control
numbers. Each Global Bank Note will have been executed by the manual or
facsimile signature of an Authorized Representative (as defined in Section 3
hereof) of such Issuing Bank. The Issuing and Paying Agent will acknowledge
receipt of the Global Bank Notes delivered to it and will hold such blank Global
Bank Notes in safekeeping in accordance with its customary practice and shall
complete, authenticate and deliver such Global Bank Notes in accordance with the
provisions hereof.
Section 3. Authorized Representatives. From time to time, each Issuing Bank will
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furnish the Issuing and Paying Agent with a certificate executed by an officer
of the Issuing Bank certifying the incumbency and specimen signatures of those
officers of such Issuing Bank authorized to execute Global Bank Notes on behalf
of such Issuing Bank by manual or facsimile signature and to give instructions
and notices on behalf of such Issuing Bank hereunder (the "Authorized
Representatives"). Until the Issuing and Paying Agent receives a subsequent
certificate, the Issuing and Paying Agent shall be entitled to rely on the last
such certificate delivered to it for the purposes of determining the identities
of Authorized Representatives of such Issuing Bank.
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Any Global Bank Note bearing the manual or facsimile signatures of persons who
are Authorized Representatives of such Issuing Bank on the date such signatures
are affixed shall bind such Issuing Bank after the completion, authentication
and delivery thereof by the Issuing and Paying Agent, notwithstanding that such
persons shall have ceased to hold office on the date such Global Bank Note is so
completed, authenticated and delivered by the Issuing and Paying Agent.
Section 4. Issuance Instructions; Completion, Authentication and Delivery of
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Global Bank Notes.
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(a) All instructions regarding the completion, authentication and delivery of
Global Bank Notes shall be given by an Authorized Representative of an Issuing
Bank by telephone (confirmed in writing), by facsimile transmission or by other
acceptable written means by such Authorized Representative.
(b) Upon receipt of the instructions described above, the Issuing and Paying
Agent shall cause to be withdrawn the necessary and applicable Global Bank Notes
from safekeeping and, in accordance with such instructions, shall:
(i) complete each Global Bank Note;
(ii) record each Global Bank Note in the applicable Bank Note Register (as
defined in Section 10 hereof);
(iii) cause each Global Bank Note to be manually authenticated by any one of the
signatories of the Issuing and Paying Agent duly authorized and designated by it
for such purpose; and
(iv) hold each Global Bank Note in safekeeping on behalf of the registered
holder thereof;
provided that instructions regarding the completion and authentication of a
Global Bank Note, whether delivered by facsimile transmission or by other
written means, are received by the Issuing and Paying Agent by 11:00 A.M., New
York City time, on the Business Day immediately preceding the date of settlement
relating to such Global Bank Note (or 9:00 A.M., New York City time, on the date
of settlement relating to such Bank Note if the trade date and the date of
settlement relating to such Bank Note are the same day). As used in this
Agreement, the term "Business Day" shall mean any day that is not a Saturday or
Sunday and that is not a day on which banking institutions in The City of New
York or the city in which the Issuing Bank is headquartered are authorized or
required by law, regulation or executive order to close, and with respect to
LIBOR Notes (as defined in the applicable Floating Rate Global Bank Note) only,
any day that is also a London Business Day. As used in this Agreement, "London
Business Day" means any day on which commercial banks are open for business
(including dealings in the Designated LIBOR Currency (as defined in the
applicable Floating Rate Global Bank Note)) in London.
Section 5. Reliance on Instructions; Request for Instructions. The Issuing and
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Paying Agent shall incur no liability to any Issuing Bank in acting hereunder
upon instructions contemplated hereby that the Issuing and Paying Agent
reasonably believed in good faith to have been given by an Authorized
Representative of any Issuing Bank. In the event a discrepancy exists between
the instructions as
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originally received by the Issuing and Paying Agent and any subsequent written
confirmation thereof, such original instructions will be deemed controlling;
provided that the Issuing and Paying Agent gives notice to any Issuing Bank of
such discrepancy promptly upon the receipt of such written confirmation.
Any application by the Issuing and Paying Agent for written instructions from an
Issuing Bank may, at the option of the Issuing and Paying Agent, set forth in
writing any action proposed to be taken or omitted by the Issuing and Paying
Agent under this Agreement and the date on and/or after which such action shall
be taken or such omission shall be effective. The Issuing and Paying Agent shall
not be liable for any action taken by, or omission of, the Issuing and Paying
Agent in accordance with a proposal included in such application on or after the
date specified in such application (which date shall not be less than three
Business Days after the date any officer of such Issuing Bank actually receives
such application, unless any such officer shall have consented in writing to any
earlier date) unless prior to taking any such action (or the effective date in
the case of an omission), the Issuing and Paying Agent shall have received
written instructions in response to such application specifying the action to be
taken or omitted.
Section 6. The Issuing Bank's Representations and Warranties. Each instruction
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given to the Issuing and Paying Agent in accordance with Section 4 hereof shall
constitute a representation and warranty to the Issuing and Paying Agent by the
Issuing Bank that the issuance and delivery of the Global Bank Notes have been
duly and validly authorized by the Issuing Bank and that the Global Bank Notes,
when completed and authenticated pursuant hereto, will constitute the valid and
legally binding obligations of the Issuing Bank subject to applicable
bankruptcy, liquidation, insolvency, reorganization, moratorium and similar laws
of general applicability relating to, or affecting, creditors' rights and to
general equity principles. The Issuing Bank further warrants that it is free to
enter into this Agreement and to perform the terms hereof.
Section 7. Payments of Interest; Interest Payment Dates; Record Dates. Interest
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payments on Global Bank Notes with maturities of greater than one year will be
made: (a) in the case of the Fixed Rate Global Senior Bank Notes and Fixed Rate
Global Subordinated Bank Notes (collectively, the "Fixed Rate Global Bank
Notes"), semi-annually on March 31 and September 30 of each year (unless
otherwise specified in any applicable Fixed Rate Global Bank Notes) and (b) in
the case of Floating Rate Global Senior Bank Notes and Floating Rate Global
Subordinated Bank Notes (collectively, the "Floating Rate Global Bank Notes"),
on such dates as are specified therein (collectively, the "Interest Payment
Dates") and, in each case, at maturity or upon earlier redemption or repayment
if so indicated in the applicable Global Bank Note. All such interest payments
(other than interest due at maturity or upon earlier redemption or repayment)
will be made to the Holders (as defined in Section 10 hereof) in whose names
Fixed Rate Global Bank Notes are registered at the close of business on the
March 15 or September 15 (unless otherwise specified in any applicable Fixed
Rate Global Bank Notes) (whether or not a Business Day) next preceding such
Interest Payment Dates and in whose names Floating Rate Global Bank Notes are
registered at the close of business on the fifteenth calendar day (whether or
not a Business Day) prior to each such Interest Payment Date (each such March
15, September 15 and fifteenth calendar day, a "Record Date"). Notwithstanding
the foregoing, if the Original Issue Date of any Global Bank Note with a
maturity of greater than one year occurs between a Record Date and the next
succeeding Interest Payment Date, the first payment of interest on any such
Global Bank
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Note will be made on the second Interest Payment Date succeeding the Original
Issue Date (as defined in the Global Bank Notes). Interest payments will be
calculated and made in the manner provided in the applicable Global Bank Note.
If an Issuing Bank does not deposit adequate funds pursuant to Section 9 hereof
with respect to the interest due on a Global Bank Note with a maturity of
greater than one year on an Interest Payment Date, such interest will cease to
be due to the Holder of such Global Bank Note as of the close of business on the
Record Date relating to such Interest Payment Date and will be paid to the
Holder of such Global Bank Note as of the close of business on a special record
date to be fixed by the Issuing and Paying Agent when funds for the payment of
such interest have been deposited pursuant to Section 9 hereof. Notice of such
special record date shall be given by the Issuing and Paying Agent, at such
Issuing Bank's expense, to the registered Holder of such Global Bank Note not
less than 10 calendar days prior to such special record date.
Interest payments on Fixed Rate Global Bank Notes with maturities of one year or
less will be made only upon maturity upon presentation and surrender of the
applicable Fixed Rate Global Bank Note (unless otherwise specified in the
applicable Fixed Rate Global Bank Note). Interest payments on Fixed Rate Global
Bank Notes with maturities of one year or less will be calculated in the manner
provided in the applicable Fixed Rate Global Bank Note. Interest payments on
Floating Rate Global Bank Notes with maturities of one year or less will be made
on the Interest Payment Dates specified in such Floating Rate Global Bank Note
and, in each case, at maturity or upon earlier redemption or repayment. Interest
payments on Floating Rate Global Bank Notes with maturities of one year or less
will be calculated in the manner provided in the applicable Floating Rate Global
Bank Note.
Section 8. Payment of Principal. The Issuing and Paying Agent will pay the
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Holder of each Global Bank Note the principal amount of each such Global Bank
Note, together with accrued interest and premium, if any, at maturity or upon
earlier redemption or repayment.
Section 9. Deposit of Funds. The total amount of any principal of, premium, if
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any, and interest due on Global Bank Notes on any Interest Payment Date or any
maturity date or date of redemption or repayment shall be paid by the applicable
Issuing Bank to the Issuing and Paying Agent as of 11:00 A.M., New York City
time, in funds available for use by the Issuing and Paying Agent on such date.
Such Issuing Bank will make such payment on such Global Bank Notes via Fedwire
to an account specified by the Issuing and Paying Agent. Upon receipt of funds
from an Issuing Bank with respect to any Global Bank Note, on such date or as
soon as possible thereafter, the Issuing and Paying Agent will pay by separate
wire transfer (using message entry instructions in a form previously specified
by DTC) to an account previously specified by DTC, in funds available for
immediate use by DTC, each payment of principal of, premium, if any, and
interest due on a Global Bank Note on such date.
The Issuing and Paying Agent shall hold such amounts paid to it by the Issuing
Banks in trust for the Holders but shall, pending payment by it to the account
specified above, not be under any liability for interest on monies at any time
received by it pursuant to any of the terms of this Agreement or of the Global
Bank Notes, nor shall the Issuing and Paying Agent be required to invest such
monies.
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Section 10. Bank Note Registers; Registration, Transfer and Exchange; Persons
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Deemed Owners.
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(a) The Issuing and Paying Agent shall maintain at its offices the Senior Note
Register and Subordinated Note Register (together, the "Bank Note Registers").
The Issuing and Paying Agent is hereby appointed as Registrar for the purpose of
registering each Global Bank Note and transfers of such Global Bank Note as
herein provided. The terms "Senior Note Register" and "Subordinated Note
Register" shall mean the definitive records in which shall be recorded the
names, addresses and taxpayer identifying numbers of the holders of the Global
Senior Bank Notes and Global Subordinated Bank Notes, respectively
(collectively, the "Holders"), the serial and CUSIP numbers of each such Global
Bank Note and the Original Issue Date thereof and details with respect to the
transfer and exchange of each Global Bank Note.
(b) Upon surrender for registration of transfer of any Global Bank Note at the
offices of the Issuing and Paying Agent, the applicable Issuing Bank shall
execute, and the Issuing and Paying Agent shall complete, authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Global Bank Notes of any authorized denominations and having identical terms
and provisions and for an equal aggregate principal amount.
(c) At the option of the Holder of a Global Bank Note, such Global Bank Note
maybe be exchanged for other Global Bank Notes of any authorized denominations
of an equal aggregate principal amount and having identical terms and
provisions, upon surrender of the Global Bank Notes to be exchanged at the
designated offices of the Issuing and Paying Agent. Whenever any Global Bank
Notes are so surrendered for exchange, the applicable Issuing Bank shall
execute, and the Issuing and Paying Agent shall complete, authenticate and
deliver, the Global Bank Notes that the Holder of the Global Bank Note making
the exchange is entitled to receive. Except as provided below, owners of
beneficial interests in a Global Bank Note representing Book-Entry Bank Notes
will not be entitled to have such Book-Entry Bank Notes registered in their
names, will not receive or be entitled to receive physical delivery of Bank
Notes in certificated form and will not be considered the owners or holders
thereof under this Agreement. However, if DTC notifies the Issuing Bank that it
is unwilling or unable to continue as depositary or if at any time DTC ceases to
be a clearing agency registered under the Securities Exchange Act of 1934, as
amended, and a successor depositary is not appointed by the Issuing Bank within
60 days, or an Issuing Bank in its sole discretion determines not to have Book-
Entry Bank Notes represented by one or more Global Bank Notes, then Global Bank
Notes representing Book-Entry Bank Notes may be exchanged in whole for
definitive Bank Notes in registered form, of like tenor and of an equal
aggregate principal amount, in minimum denominations of $250,000 and integral
multiples of $1,000 in excess thereof, upon surrender of the Global Bank Notes
to be exchanged at the offices of the Issuing and Paying Agent.
(d) Notwithstanding the foregoing, the Issuing and Paying Agent shall not
register the transfer of or exchange (i) any Global Bank Note that has been
called for redemption in whole or in part, except the unredeemed portion of
Global Bank Notes being redeemed in part, (ii) any Global Bank Note during the
period beginning at the opening of business 15 days before the mailing of a
notice of such redemption and ending at the close of business on the day of such
mailing, or (iii) any Global Bank Note in violation of the legend contained on
the face of such Global Bank Note.
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(e) All Global Bank Notes issued upon any registration of transfer or exchange
of Global Bank Notes shall be the valid obligations of the Issuing Banks,
evidencing the same debt, and entitled to the same benefits as the Global Bank
Notes surrendered upon such registration of transfer or exchange.
(f) Every Global Bank Note presented or surrendered for registration of
transfer or for exchange shall be duly endorsed, or be accompanied by a written
instrument of transfer with such evidence of due authorization and guaranty of
signature as may reasonably be required by the Issuing and Paying Agent, in form
satisfactory to the Issuing and Paying Agent, duly executed by the Holder
thereof or his attorney duly authorized in writing.
(g) No service charge shall be made to a Holder of Global Bank Notes for any
transfer or exchange of Global Bank Notes, but the Issuing Bank may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith.
(h) The Issuing Banks and the Issuing and Paying Agent, and any agent of the
Issuing Banks or the Issuing and Paying Agent may treat the Holder in whose name
a Global Bank Note is registered as the owner of such Global Bank Note for all
purposes, whether or not such Global Bank Note be overdue, and neither the
Issuing Banks , the Issuing and Paying Agent nor any such agent shall be
affected by notice to the contrary except as required by applicable law.
Section 11. Mutilated, Destroyed, Lost, or Stolen Global Bank Notes. In case
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any Global Bank Note shall at any time become mutilated, destroyed, lost or
stolen, and such Global Bank Note or evidence of the loss, theft or destruction
thereof satisfactory to the Issuing Bank and the Issuing and Paying Agent
(together with indemnity hereinafter referred to and such other documents or
proof as may be required by the Issuing Bank and the Issuing and Paying Agent)
shall be delivered to the Issuing and Paying Agent, the Issuing Bank shall
execute a new Global Bank Note, of like tenor and principal amount, having a
serial number not contemporaneously outstanding, in exchange and substitution
for the mutilated Global Bank Note or in lieu of the Global Bank Note destroyed,
lost or stolen but, in the case of any destroyed, lost or stolen Global Bank
Note, only upon receipt of evidence satisfactory to the Issuing and Paying Agent
and the Issuing Bank that such Global Bank Note was destroyed, stolen or lost,
and, if required, upon receipt of indemnity satisfactory to each of them. The
Issuing and Paying Agent shall authenticate any such substituted Global Bank
Note and deliver the same upon the written request or authorization of any
Authorized Representative of the Issuing Bank. Upon the issuance of any
substituted Global Bank Note, the Issuing Bank and the Issuing and Paying Agent
may require the payment of a sum sufficient to cover all expenses and reasonable
charges connected with the preparation, authentication and delivery of a new
Global Bank Note. If any Global Bank Note that has matured or has been redeemed
or repaid or is about to mature or to be redeemed or repaid, as the case may be,
shall become mutilated, destroyed, lost or stolen, the Issuing Bank may, instead
of issuing a substitute Global Bank Note, pay or authorize the payment of the
same (without surrender thereof except in the case of a mutilated Global Bank
Note) upon compliance by the Holder with the provisions of this Section.
Section 12. Cancellation. All Global Bank Notes surrendered for payment,
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registration of transfer or exchange shall, if surrendered to any person other
than the Issuing and Paying Agent, be
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delivered to the Issuing and Paying Agent and shall be promptly cancelled by it.
The Issuing Banks may at any time deliver to the Issuing and Paying Agent for
cancellation any Global Bank Notes previously authenticated and delivered
hereunder which the Issuing Banks may have acquired in any manner whatsoever,
and all Global Bank Notes so delivered shall be promptly cancelled by the
Issuing and Paying Agent. No Global Bank Note shall be authenticated in lieu of
or in exchange for any Global Bank Note cancelled as provided in this Section,
except as expressly permitted by this Agreement. All cancelled Global Bank Notes
held by the Issuing and Paying Agent shall be returned to the Issuing Banks upon
request.
Section 13. Redemption of Global Bank Notes.
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(a) If any Global Bank Notes redeemable at the option of the Issuing Bank are
to be redeemed prior to maturity, the Issuing Bank shall notify the Issuing and
Paying Agent not more than 60 nor less than 45 calendar days prior to the date
fixed by the Issuing Bank for such redemption (the "Redemption Date") of the
Issuing Bank's election to redeem such Global Bank Notes in whole or in part in
increments of $1,000 (provided that any remaining principal amount of such
Global Bank Notes shall be at least $250,000).
(b) Whenever less than all the Global Bank Notes at any time outstanding are to
be redeemed in accordance with their terms, the Global Bank Notes to be so
redeemed shall be selected by the Issuing Bank. If less than all the Global Bank
Notes with identical terms, as evidenced by a like CUSIP number, at any time
outstanding are to be redeemed, the Global Bank Notes to be so redeemed shall be
selected by the Issuing and Paying Agent by lot or in any usual manner approved
by it. The Issuing and Paying Agent shall promptly notify the Issuing Bank in
writing of the Global Bank Notes selected for redemption and, in the case of
Global Bank Notes selected for partial redemption, the principal amount thereof
to be redeemed.
(c) Unless otherwise specified in the applicable Global Bank Note, notice of
redemption shall be given by the Issuing and Paying Agent, at the Issuing Bank's
expense, by first-class mail, postage prepaid, mailed not more than 60 nor less
than 30 calendar days prior to the Redemption Date, to each Holder of such
Global Bank Note to be redeemed, at its address appearing in the Bank Note
Register. All notices of redemption shall identify the Global Bank Notes to be
redeemed (including CUSIP number) and shall state: (i) the Redemption Date; (ii)
the redemption price, which shall be determined in accordance with the terms of
the Global Bank Note (the "Redemption Price"), (iii) if less than all of the
Global Bank Notes at any time outstanding are to be redeemed, the identification
(and, in the case of partial redemption, the principal amounts) of the
particular Global Bank Notes to be redeemed; (iv) that on the Redemption Date
the Redemption Price plus accrued interest, if any, to the Redemption Date will
become due and payable with respect to each Global Bank Note to be redeemed and
that interest thereon will cease to accrue on and after said date; and (v) the
place or places where such Global Bank Notes are to be surrendered for payment.
(d) Notice of redemption having been given as described above, the Global Bank
Notes so to be redeemed shall, on the Redemption Date, become due and payable at
the Redemption Price, and from and after such date such Global Bank Notes shall
cease to bear interest. The Issuing Bank shall deposit funds with the Issuing
and Paying Agent prior to the Redemption Date that are
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sufficient to redeem such Global Bank Notes which are scheduled to be so
redeemed. Upon surrender of any such Global Bank Notes for redemption in
accordance with such notice, the Issuing and Paying Agent shall pay such Global
Bank Notes at the Redemption Price, together with unpaid interest accrued on
such Global Bank Notes at the applicable rate borne by such Global Bank Notes to
the Redemption Date.
(e) Any Global Bank Note that is to be redeemed only in part shall be
surrendered to the Issuing and Paying Agent, and the Issuing and Paying Agent
shall complete, authenticate and deliver to the Holder of such Global Bank Note,
without service charge, a new Global Bank Note or Global Bank Notes, of any
authorized denomination as requested by such Holder (which shall be $250,000 or
an integral multiple of $1,000 in excess thereof), in an aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Global Bank Note so surrendered.
(f) The Issuing Banks, in issuing the Global Bank Notes, may use "CUSIP"
numbers (if then generally in use) and, if so, the Issuing and Paying Agent
shall use "CUSIP" numbers in notices of redemption as a convenience to Holders;
provided, however, that any such notice may state that no representation is made
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as to the correctness of such numbers either as printed on the Global Bank Notes
or as contained in any notice of a redemption and that reliance may be placed
only on the other identification numbers printed on the Global Bank Notes, and
any such redemption shall not be affected by any defect in or omission of such
numbers.
Section 14. Repayment of Global Bank Notes.
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(a) In order for any Global Bank Note to be repaid in whole or in part at the
option of the Holder thereof, such Global Bank Note must be delivered by the
Holder thereof, with the form entitled "Option to Elect Repayment" (set forth in
such Global Bank Note) duly completed, to the Issuing and Paying Agent at its
offices located at the address set forth in Section 21 hereof, or such other
place or places of which the Issuing Bank shall from time to time notify the
Holders of the Global Bank Notes, not more than 60 nor less than 30 calendar
days prior to any date fixed for such repayment of such Global Bank Notes (the
"Optional Repayment Date"). Unless otherwise specified in the applicable Global
Bank Note, no Subordinated Bank Note will specify a Holder's Optional Repayment
Date that is less than five years from the date of issue of such Subordinated
Bank Note.
(b) Upon surrender of any Global Bank Note for repayment in accordance with the
provisions set forth above, the Global Bank Note to be repaid shall, on the
Optional Repayment Date, become due and payable, and the Issuing and Paying
Agent shall pay such Global Bank Note on the Optional Repayment Date at a price
equal to 100% of the principal amount thereof, together with accrued interest to
the Optional Repayment Date.
(c) If less than the entire principal amount of any Global Bank Note is to be
repaid, the Holder thereof shall specify the portion thereof (which shall be in
increments of $1,000) which such Holder elects to have repaid and shall
surrender such Global Bank Note to the Issuing and Paying Agent, and the Issuing
and Paying Agent shall complete, authenticate and deliver to the Holder of such
Global Bank Note, without service charge, a new Global Bank Note or Global
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Bank Notes in an aggregate principal amount equal to and in exchange for the
unrepaid portion of the principal of the Global Bank Note so surrendered and in
such denominations as shall be specified by such Holder (which shall be $250,000
or an integral multiple of $1,000 in excess thereof).
Section 15. Acceleration of Maturity. If an Event of Default (as defined in the
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applicable Global Bank Note) with respect to a Senior Bank Note or a
Subordinated Bank Note, as the case may be, issued by an Issuing Bank shall
occur, then the Holder of the applicable Senior Bank Note or Subordinated Bank
Note may declare the principal amount of, and accrued interest and premium, if
any, on such Senior Bank Note or Subordinated Bank Note due and payable by
written notice to the Issuing Bank. Upon such declaration and notice, such
principal amount, accrued interest and premium, if any, shall become immediately
due and payable. The Issuing Bank shall promptly notify, and provide copies of
any such notice to, the Issuing and Paying Agent, and the Issuing and Paying
Agent shall promptly mail by first-class mail, postage prepaid, copies of such
notice to the Holders of the Senior Bank Notes or the Subordinated Bank Notes,
as the case may be, upon the occurrence of an Event of Default or of the curing
or waiver of an Event of Default. Any Event of Default with respect to a Bank
Note may be waived by the Holder thereof.
In the event of a failure by the Issuing Bank to make payment of the principal
of, premium, if any, or interest on, the Subordinated Notes (and, in the case of
payment of interest, such failure to pay continues for two Business Days), the
Issuing Bank will, upon written demand of the Holder thereof, pay to such Holder
the whole amount then due and payable on the Subordinated Note, with interest on
the overdue amount at the rate borne by the Subordinated Note to the extent such
interest is legally enforceable. If the Issuing Bank fails to pay such amount
upon such demand, the Holder may, among other things, institute a judicial
proceeding for the collection thereof.
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Section 16. Application of Funds; Return of Unclaimed Funds. Any monies paid by
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an Issuing Bank and held by the Issuing and Paying Agent in trust for payment of
principal of, premium, if any, or interest on, any Global Bank Notes that remain
unclaimed for two years following the date on which such principal, premium or
interest shall have become due and payable shall be returned upon request to the
Issuing Bank by the Issuing and Paying Agent and the Issuing and Paying Agent
shall inform the Issuing Bank as to the specific Global Bank Notes to which such
monies related, and any Holder shall thereafter look, as an unsecured general
creditor, only to the Issuing Bank for the payment thereof and all liability of
the Issuing and Paying Agent with respect to such trust monies shall thereupon
cease. Any funds deposited by an Issuing Bank with the Issuing and Paying Agent
for the payment of principal of, premium, if any, or interest on, any Bank Note
shall be held in trust on behalf of the Issuing Bank by the Issuing and Paying
Agent for the payment of principal of, premium, if any, or interest on, any Bank
Note until paid or returned to such Issuing Bank.
Section 17. Cancellation of Unissued Notes. Upon the written request of the
-------------------------------------------
Issuing Banks, the Issuing and Paying Agent promptly shall cancel and return to
the Issuing Banks all unissued Bank Notes in its possession.
Section 18. Liability. Neither the Issuing and Paying Agent nor its directors,
----------------------
officers, employees or agents shall be liable to the Issuing Banks for any act
or omission hereunder except in the case of gross negligence or willful
misconduct or breach of the Issuing and Paying Agent's obligations under this
Agreement. The duties and obligations of the Issuing and Paying Agent, its
directors, officers and employees shall be determined by the express provisions
of this Agreement and no implied covenants shall be read into this Agreement
against any of them. Notwithstanding any other provision elsewhere contained in
this Agreement, the Issuing and Paying Agent is acting solely as agent of the
Issuing Banks and does not assume any obligation or relationship of trust or
agency for or with any Holders. Neither the Issuing and Paying Agent nor any of
its directors, officers or employees shall be required to ascertain whether any
issuance or sale of Bank Notes (or any amendment or termination of this
Agreement) has been duly authorized (provided that the Issuing and Paying Agent
in good faith has determined that the facsimile or manual signature of the
Authorized Representative or any person who has been designated by the
Authorized Representative in writing to the Issuing and Paying Agent reasonably
resembles the specimen signatures filed with the Issuing and Paying Agent) or is
in compliance with any other agreement to which the Issuing Bank is a party
(whether or not the Issuing and Paying Agent is also a party to such other
agreement), and the Issuing and Paying Agent and each of its officers and
employees shall be entitled to rely upon any instructions reasonably believed
(in accordance with Section 3 hereof) by the Issuing and Paying Agent and its
officers and employees to be given on behalf of the Issuing Bank by an
Authorized Representative or by any person who has been designated by an
Authorized Representative in writing to the Issuing and Paying Agent as a person
authorized to give such instructions hereunder, whether or not in fact given by
the Authorized Representative or such designated person.
The Issuing and Paying Agent may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys, and the Issuing and Paying Agent shall not be responsible for any
misconduct or gross negligence on the part of any agent or attorney appointed
with due care by it hereunder; provided the Issuing and Paying Agent shall
11
remain responsible for compliance with the terms of this Agreement. The Issuing
and Paying Agent may consult with counsel of its selection and the advice of
such counsel or any opinion of counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon. The Issuing and Paying Agent
shall not be liable for any action taken, suffered, or omitted to be taken by it
in good faith and reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Agreement.
Section 19. Indemnification, Risk of Funds. Each Issuing Bank shall indemnify
-------------------------------------------
and hold harmless the Issuing and Paying Agent, its directors, officers,
employees and agents from and against all actions, claims, losses, damages,
liabilities, losses and expenses (including reasonable legal fees and expenses)
relating to or arising out of their actions or inactions taken or omitted to be
taken by the Issuing and Paying Agent in good faith in connection with its
performance under this Agreement including, but not limited to, any actions
taken or omitted upon instructions by such Issuing Bank (in accordance with
Section 3) or the issuance, delivery, payment or non-payment of any Bank Note or
interest thereon, or other receipt or other funds for the payment of the Bank
Notes or interest or premium thereon; provided, however, that the Issuing and
Paying Agent shall be liable for any liabilities, losses, claims, damages, costs
and expenses (including reasonable legal fees and expenses) caused by the gross
negligence, bad faith or willful misconduct of its directors, officers,
employees or agents or breach of the Issuing and Paying Agent's obligations
under this Agreement. The Issuing and Paying Agent shall promptly notify the
Issuing Banks of any action or claim by any third party for which it is entitled
to indemnification hereunder and shall allow the Issuing Banks to assume the
defense of any such action or claim with counsel reasonably acceptable to the
Issuing and Paying Agent. The Issuing and Paying Agent will not settle any
action or claim without the consent of the Issuing Banks, which consent shall
not be unreasonably withheld. In no event shall the Issuing and Paying Agent be
liable for special, indirect or consequential loss or damage of any kind
whatsoever (including but not limited to lost profits), even if the Issuing and
Paying Agent has been advised of the likelihood of such loss or damage and
regardless of the form of action. This indemnity shall survive the termination
of this Agreement.
No provision of this Agreement shall require the Issuing and Paying Agent to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
Section 20. Compensation of the Issuing and Paying Agent. Each Issuing Bank
---------------------------------------------------------
agrees to pay the compensation of the Issuing and Paying Agent, at such rates as
shall be mutually agreed upon in writing between such Issuing Bank and the
Issuing and Paying Agent from time to time. Each Issuing Bank shall reimburse
upon demand the Issuing and Paying Agent for all reasonable out-of-pocket
expenses (including reasonable legal fees and expenses), disbursements and
advances incurred or made by the Issuing and Paying Agent with respect to such
Issuing Bank in accordance with any provisions of this Agreement, except any
such expense, disbursement or advance proven to be attributable to the breach of
this Agreement or the gross negligence, bad faith or willful misconduct of the
Issuing and Paying Agent, upon receipt of such invoices as the
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Issuing Bank may reasonably require. The provisions of this Section 20 shall
survive the termination of this Agreement.
Section 21. Notices.
--------------------
(a) All communications by or on behalf of the Issuing Banks relating to the
issuance, transfer, exchange or payment of Bank Notes or interest thereon shall
be directed to the offices of the Issuing and Paying Agent located at 000 Xxxx
00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Telecopy: (000) 000-0000/8155, Attention:
Agency Administration, or to such other offices as the Issuing and Paying Agent
shall specify in writing to the Issuing Banks. The Issuing Banks will send all
Global Bank Notes to be completed and delivered by the Issuing and Paying Agent
to such offices or such other offices as the Issuing and Paying Agent shall
specify in writing to the Issuing Banks.
(b) All other notices and communications hereunder shall be in writing and
shall be addressed as follows:
if to the Issuing Banks:
[Issuing Bank]
c/x Xxxxxxxx & Xxxxxx Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxx Xxxxx
Assistant Vice President
Telecopy: (000) 000-0000
With a copy to:
Xxxxxxx X. Xxxxxxxx
Senior Vice President and Secretary
Facsimile Number: (000) 000-0000
if to the Issuing and Paying Agent:
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Agency Administration
Telecopy: (000) 000-0000/8155
Section 22. Resignation or Removal of Issuing and Paying Agent and Appointment
-------------------------------------------------------------------------------
of Successor Issuing and Paying Agent; Merger, Conversion and Consolidation.
---------------------------------------------------------------------------
The Issuing Banks agree, for the benefit of the Holders from time to time of
the Bank Notes, that there shall at all times be an Issuing and Paying Agent
hereunder which shall be a bank or trust company organized and doing business
under the laws of the United States or any state thereof authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $10,000,000 and subject
13
to supervision and examination by federal or state authority, until all the
Global Bank Notes authenticated and delivered hereunder (a) shall have been
delivered to the Issuing and Paying Agent for cancellation or (b) shall have
become due and payable and funds sufficient to pay the principal of, premium, if
any, and interest on, the Global Bank Notes shall have been made available for
payment and either paid or returned to the Issuing Banks, whichever event occurs
earlier. The foregoing capital and surplus requirements shall not be applicable
if any of the Issuing Banks or an affiliate of the Issuing Banks is appointed as
successor Issuing and Paying Agent.
The Issuing and Paying Agent may resign at any time as such
agent upon written notice to the Issuing Bank of such intention on its part,
specifying the date on which its desired resignation shall become effective;
provided, however, that such date shall be not less than 90 days after the
-------- -------
giving of such notice by the Issuing and Paying Agent to the Issuing Banks. The
Issuing and Paying Agent may be removed at any time as such agent by the filing
with it of an instrument in writing signed by duly authorized officers of each
Issuing Bank and specifying such removal and the date, which shall be at least
30 calendar days following receipt of such written notice, upon which it is
intended to become effective. Any such resignation or removal shall take effect
on the date of the appointment by the Issuing Banks of a successor issuing and
paying agent and the acceptance of such appointment by such successor issuing
and paying agent that qualifies as such under the first paragraph of this
Section. In the event of the resignation or removal of the Issuing and Paying
Agent, if a successor issuing and paying agent has not been appointed by the
Issuing Banks within 90 calendar days after the giving of notice of resignation
or within 30 calendar days after receipt of notice of removal, the Issuing and
Paying Agent may, at the expense of the Issuing Banks, petition any court of
competent jurisdiction for appointment of a successor Issuing and Paying Agent.
Upon any such resignation or removal, the Issuing and Paying Agent shall
transfer to the successor Issuing and Paying Agent (or, if none shall have been
appointed, to the respective Issuing Banks) all monies held by the Issuing and
Paying Agent on behalf of the Issuing Banks in respect of any Global Bank Notes,
any unissued Global Bank Notes and all books and records or copies thereof
related to Global Bank Notes maintained by the Issuing and Paying Agent,
including a copy of the Bank Note Registers. Any resignation or removal
hereunder shall not affect the Issuing and Paying Agent's rights to the payment
of fees earned or charges incurred through the effective date of such
resignation or removal.
Any corporation or bank into which the Issuing and Paying
Agent hereunder may be merged or converted, or any corporation or bank with
which the Issuing and Paying Agent may be consolidated, or any corporation or
bank resulting from any merger, conversion or consolidation to which the Issuing
and Paying Agent shall be a party, or any corporation or bank to which the
Issuing and Paying Agent shall sell or otherwise transfer all or substantially
all of the assets and business of the Issuing and Paying Agent, provided that it
shall be qualified under the first paragraph of this Section, shall be the
successor Issuing and Paying Agent under this Agreement without the execution or
filing of any paper or any further act on the part of any of the parties hereto.
Section 23. Benefit of Agreement. This Agreement is solely for the benefit of
---------------------------------
the parties hereto, Holders of Bank Notes, and their successors and assigns, and
nothing herein, express or implied, shall give to any other persons any benefits
or any legal or equitable right, remedy or claim under or by
14
virtue of this Agreement. No party hereto may assign any of its rights or
obligations hereunder except with the prior written consent of all the parties
hereto.
Section 24. Bank Notes Held by the Issuing and Paying Agent. The Issuing and
------------------------------------------------------------
Paying Agent, in its individual or other capacity, may become the owner or
pledgee of the Bank Notes with the same rights it would have if it were not
acting as an issuing and paying agent hereunder.
Section 25. Amendment. This Agreement shall not be amended by any party hereto
----------------------
except in writing executed by the duly authorized officers of all parties.
Section 26. Governing Law. This Agreement shall be governed by, construed and
--------------------------
enforced in accordance with, the laws of the State of New York applicable to
agreements made and to be performed in such State, without regard to conflicts
of laws principles.
Section 27. Counterparts. This Agreement may be executed by the parties hereto
-------------------------
in any number of counterparts, and by each of the parties hereto in separate
counterparts, and each such counterpart, when so executed and delivered, shall
be deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
15
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed on their behalf by their officers thereunto duly
authorized, all as of the day and year first above written.
M&I XXXXXXXX & XXXXXX BANK
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Xxxxxxx X. Xxxxxxxx
Vice President
M&I BANK OF SOUTHERN WISCONSIN
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Xxxxxxx X. Xxxxxxxx
Vice President
M&I BANK NORTHEAST
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Xxxxxxx X. Xxxxxxxx
Vice President
M&I BANK FOX VALLEY
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Xxxxxxx X. Xxxxxxxx
Vice President
M&I THUNDERBIRD BANK
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Xxxxxxx X. Xxxxxxxx
Vice President
16
M&I BANK SOUTH
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Xxxxxxx X. Xxxxxxxx
Vice President
M&I MID-STATE BANK
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Xxxxxxx X. Xxxxxxxx
Vice President
M&I COMMUNITY STATE BANK
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Xxxxxxx X. Xxxxxxxx
Vice President
THE CHASE MANHATTAN BANK,
as Issuing and Paying Agent
By: /s/ Xxx Xxxxxxxx
----------------------------------
Xxx Xxxxxxxx
Assistant Vice President
17
