1
Exhibit 1.4
Firstar
Corporation
$ Medium-Term Notes
Due From Nine Months From Date of Issue
Selling Agency Agreement
, 199
[Co-agents]
Dear Sirs:
Firstar Corporation, a Wisconsin corporation (the "Company"),
confirms its agreement with each of you with respect to the issue and sale by
the Company of up to $ aggregate principal amount of its Medium-Term
Notes Due From Nine Months From Date of Issue (the "Notes"). The Notes will be
issued under an indenture (the "Indenture") dated as of , 199
between the Company and , as trustee (the "Trustee"). Unless
otherwise specifically provided for and set forth in a Pricing Supplement (as
defined below), the Notes will be issued in minimum denominations of $1,000 and
in denominations exceeding such amount by integral multiples of $1,000, will be
issued only in fully registered form and will have the interest rates,
maturities and, if applicable, other terms set forth in such Pricing Supplement.
The Notes will be issued, and the terms thereof established, in accordance with
the Indenture and the Medium-Term Notes Administrative Procedures attached
hereto as Exhibit A (the "Procedures") (unless a Terms Agreement (as defined in
Section 2(b)) modifies or otherwise supersedes such Procedures with respect to
the Notes issued pursuant to such Terms Agreement). The Procedures may be
amended only by written agreement of the Company and you after notice to, and
with the approval of, the Trustee. For the purposes of this Agreement, the term
"Agent" shall refer to any of you acting solely in the capacity as agent for the
Company pursuant to Section 2(a) and not as principal (collectively, the
"Agents"), the term "Purchaser" shall refer to one of you acting solely as
principal pursuant to Section 2(b) and not as agent, and the term "you" shall
refer to you collectively whether at any time any of you is acting in both such
capacities or in either such capacity. In acting under this Agreement, in
whatever capacity, each of you is acting individually and not jointly.
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1. Representations and Warranties. The Company rep-
resents and warrants to, and agrees with, you as set forth below in
this Section 1. Certain terms used in this Section 1 are defined
in paragraph (d) hereof.
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933 (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") a registration
statement on such Form (File Number: 33- ), including a basic
prospectus, which has become effective, for the registration under the
Act of $1,000,000,000 aggregate principal amount of securities (the
"Securities"), including the Notes. Such registration statement, as
amended at the date of this Agreement, meets the requirements set forth
in Rule 415(a)(1)(ix) or (x) under the Act and complies in all other
material respects with said Rule. The Company has included in such
registration statement, or has filed or will file with the Commission
pursuant to the applicable paragraph of Rule 424(b) under the Act, a
supplement to the form of prospectus included in such registration
statement relating to the Notes and the plan of distribution thereof
(the "Prospectus Supplement"). In connection with the sale of Notes the
Company proposes to file with the Commission pursuant to the applicable
paragraph of Rule 424(b) under the Act further supplements to the
Prospectus Supplement (each a "Pricing Supplement") specifying the
interest rates, maturity dates and, if appropriate, other similar terms
of the Notes sold pursuant hereto or the offering thereof.
(b) As of the Execution Time, on the Effective Date, when any
supplement to the Prospectus is filed with the Commission, as of the
date of a Terms Agreement as of the date of any acceptance by the
Company of an offer to purchase notes hereunder and at the date of
delivery by the Company of any Notes sold hereunder
(a "Closing Date"), (i) the Registration Statement, as amended as of
any such time, and the Prospectus, as supplemented as of any such
time, and the Indenture will comply in all material respects with the
applicable requirements of the Act, the Trust Indenture Act of 1939
(the "Trust Indenture Act") and the Securities Exchange Act of 1934
(the "Exchange Act") and the respective rules thereunder; (ii) the
Registration Statement, as amended as of any such time, did not or
will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and (iii) the
Prospectus, as supplemented as of any such time, will not contain any
untrue statement of a material fact or omit to state a material fact
necessary in order to make
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the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the
Company makes no representations or warranties as to (i) that part of
the Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture Act
of the Trustee or (ii) the information contained in or omitted from the
Registration Statement or the Prospectus (or any supplement thereto) in
reliance upon and in conformity with information furnished in writing
to the Company by any of you specifically for inclusion in the
Registration Statement or the Prospectus (or any supplement thereto).
(c) As of the time any Notes are issued and sold hereunder,
(i) the Indenture will constitute a valid and binding instrument
enforceable against the Company in accordance with its terms except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting
enforcement of creditors' rights generally or by general equity
principles, and except further as enforcement thereof may be limited by
(A) requirements that a claim with respect to any Notes denominated
other than in U.S. dollars (or a foreign currency or currency unit
judgment in respect of such claim) be converted into U.S. dollars at a
rate or exchange prevailing on a date determined pursuant to applicable
law or (B) governmental authority to limit, delay or prohibit the
making of payments outside the United States; (ii) such Notes will have
been duly authorized, executed, authenticated and, when paid for by the
purchasers thereof, will constitute legal, valid and binding
obligations of the Company entitled to the benefits of the Indenture;
and (iii) the Notes and the Indenture will be substantially in the form
heretofore delivered to each Agent and conform in all material respects
to all statements relating thereto contained in the Prospectus.
(d) The terms which follow, when used in this Agreement, shall
have the meanings indicated. The term "the Effective Date" shall mean
each date that the Registration Statement and any post-effective
amendment or amendments thereto became or become effective and each
date after the date hereof on which a document incorporated by
reference in the Registration Statement is filed. "Execution Time"
shall mean the date and time that this Agreement is executed and
delivered by the parties hereto. "Basic Prospectus" shall mean the form
of basic prospectus relating to the Securities contained in the
Registration Statement at the Effective Date. "Prospectus" shall mean
the Basic Prospectus as supplemented by the Prospectus Supplement.
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"Registration Statement" shall mean the registration statement referred
to in paragraph (a) above, including incorporated documents, exhibits
and financial statements, as amended at the Execution Time. "Rule 415"
and "Rule 424" refer to such rules under the Act. Any reference herein
to the Registration Statement, the Basic Prospectus, the Prospectus
Supplement or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 which were filed under the Exchange Act on or before the
Effective Date of the Registration Statement or the issue date of the
Basic Prospectus, the Prospectus Supplement or the Prospectus, as the
case may be; and any reference herein to the terms "amend", "amend-
ment" or "supplement" with respect to the Registration Statement, the
Basic Prospectus, the Prospectus Supplement or the Prospectus shall be
deemed to refer to and include the filing of any document under the
Exchange Act after the Effective Date of the Registration Statement or
the issue date of the Basic Prospectus, the Prospectus Supplement or
the Prospectus, as the case may be, deemed to be incorporated therein
by reference.
2. Appointment of Agents; Solicitation by the Agents of
Offers to Purchase; Sales of Notes to a Purchaser. (a) Subject to
the terms and conditions set forth herein, the Company hereby
authorizes each of the Agents to act as its agent to solicit offers
for the purchase of all or part of the Notes from the Company.
On the basis of the representations and warranties, but
subject to the terms and conditions set forth herein, each of the Agents agrees,
as agent of the Company, to use its reasonable efforts to solicit offers to
purchase the Notes from the Company upon the terms and conditions set forth in
the Prospectus (and any supplement thereto) and in the Procedures. Each Agent
shall make reasonable efforts to assist the Company in obtaining performance by
each purchaser whose offer to purchase Notes has been solicited by such Agent
and accepted by the Company, but such Agent shall not, except as otherwise
provided in this Agreement, be obligated to disclose the identity of any
purchaser or have any liability to the Company in the event any such purchase is
not consummated for any reason. Except as provided in Section 2(b), under no
circumstances will any Agent be obligated to purchase any Notes for its own
account. It is understood and agreed, however, that any Agent may purchase Notes
as principal pursuant to Section 2(b).
The Company reserves the right, in its sole discretion, to
instruct the Agents to suspend at any time, for any
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period of time or permanently, the solicitation of offers to purchase Notes.
Upon receipt of instructions from the Company, the Agents will forthwith suspend
solicitation of offers to purchase Notes from the Company until such time as the
Company has advised them that such solicitation may be resumed.
The Company agrees to pay each Agent a commission, on the
Closing Date with respect to each sale of Notes by the Company as a result of a
solicitation made by such Agent, in an amount equal to that percentage specified
in Schedule I hereto of the aggregate principal amount of the Notes sold by the
Company. Such commission shall be payable as specified in the Procedures.
Subject to the provisions of this Section and to the
Procedures, offers for the purchase of Notes may be solicited by an Agent as
agent for the Company at such time and in such amounts as such Agent deems
advisable. So long as this Agreement shall remain in effect with respect to any
Agent, the Company shall not, without the consent of any such Agent, solicit or
accept offers to purchase Notes otherwise than through one of the Agents;
provided, however, that the Company reserves the right from time to time (i) to
sell Notes directly to an investor, and (ii) to accept a specific offer to
purchase Notes solicited by, and made to the Company by or through, a dealer
other than the Agents (each an "Other Dealer"), without obtaining the prior
consent of any of the Agents, provided that (x) the Company shall give each of
the Agents notice of its decision to accept such an offer to purchase Notes in
advance of such acceptance, (y) any Other Dealer shall agree to be bound by and
subject to the terms and conditions of this Agreement binding on the
Agents (including the commission schedule attached hereto as Schedule I),
and (z) so long as this Agreement remains in effect, the Company shall not
appoint any other agent or dealer for the purpose of soliciting or receiving
offers to purchase Notes on a continuous basis.
If the Company shall default in its obligations to deliver
Notes to a purchaser whose offer it has accepted, the Company shall indemnify
and hold each of you harmless against any loss, claim or damage arising from or
as a result of such default by the Company.
(b) Subject to the terms and conditions stated herein,
whenever the Company and any of you determines that the Company shall sell Notes
directly to any of you as principal, each such sale of Notes shall be made in
accordance with the terms of this Agreement and a supplemental agreement
relating to such sale. Each such supplemental agreement (which may be
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an oral or written agreement, if confirmed in writing by facsimile transmission
or otherwise) is herein referred to as a "Terms Agreement". Each Terms Agreement
shall describe the Notes to be purchased by the Purchaser pursuant thereto and
shall specify the aggregate principal amount of such Notes, the price to be paid
to the Company for such Notes, the maturity date of such Notes, the rate at
which interest will be paid on such Notes, the dates on which interest will be
paid on such Notes and the record date with respect to each such payment of
interest, the Closing Date for the purchase of such Notes, the place of delivery
of the Notes and payment therefor, the method of payment and any requirements
for the delivery of opinions of counsel, certificates from the Company or its
officers or a letter from the Company's independent public accountants as
described in Section 6(b). Any such Terms Agreement may also specify the period
of time referred to in Section 4(m). Any written Terms Agreement may be in the
form attached hereto as Exhibit B. The Purchaser's commitment to purchase Notes
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.
Delivery of the certificates for Notes sold to the Purchaser
pursuant to a Terms Agreement shall be made not later than the Closing Date
agreed to in such Terms Agreement, against payment of funds to the Company in
the net amount due to the Company for such Notes by the method and in the form
set forth in the Procedures unless otherwise agreed to between the Company and
the Purchaser in such Terms Agreement.
Unless otherwise agreed to between the Company and the
Purchaser in a Terms Agreement, any Note sold to a Purchaser (i) shall be
purchased by such Purchaser at a price equal to 100% of the principal amount
thereof less a percentage equal to the commission applicable to an agency sale
of a Note of identical maturity and (ii) may be resold by such Purchaser at
varying prices from time to time or, if set forth in the applicable Terms
Agreement and Pricing Supplement, at a fixed public offering price. In
connection with any resale of Notes purchased, a Purchaser may use a selling or
dealer group and may reallow to any broker or dealer any portion of the discount
or commission payable pursuant hereto.
3. Offering and Sale of Notes. Each Agent and the Company
agree to perform the respective duties and obligations specifically provided to
be performed by them in the Procedures.
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4. Agreements. The Company agrees with you that:
(a) Prior to the termination of the offering of the Notes
(including by way of resale by a Purchaser of Notes), the Company will
not file any amendment of the Registration Statement or supplement to
the Prospectus (except for (i) periodic or current reports filed under
the Exchange Act, (ii) a supplement relating to any offering of Notes
providing solely for the specification of or a change in the maturity
dates, interest rates, issuance prices or other similar terms of any
Notes or (iii) a supplement relating to an offering of Securities other
than the Notes) unless the Company has furnished each of you a copy for
your review prior to filing and given each of you a reasonable
opportunity to comment on any such proposed amendment or supplement.
Subject to the foregoing sentence, the Company will cause each
supplement to the Prospectus to be filed with the Commission pursuant
to the applicable paragraph of Rule 424(b) within the time period
prescribed and will provide evidence of such filing. The Company will
promptly advise each of you (i) when the Prospectus, and any
supplement thereto, shall have been filed with the Commission pursuant
to Rule 424(b), (ii) when, prior to termination of any offering of
Notes, any amendment of the Registration Statement shall have been
filed or become effective, (iii) of any request by the Commission for
any amendment of the Registration Statement or supplement to the
Prospectus or for any additional information, (iv) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any
proceeding for that purpose and (v) of the receipt by the Company of
any notification with respect to the suspension of the qualification of
the Notes for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose. The Company will make every
reasonable effort to prevent the issuance of any such stop order and,
if issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it
shall be necessary to amend the Registration Statement or to
supplement the Prospectus to comply with the Act or the Exchange Act or
the respective rules thereunder, the
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Company promptly will (i) notify each of you to suspend solicitation of
offers to purchase Notes (and, if so notified by the Company, each of
you shall forthwith suspend such solicitation and cease using the
Prospectus as then supplemented), (ii) prepare and file with the
Commission, subject to the first sentence of paragraph (a) of this
Section 4, an amendment or supplement which will correct such statement
or omission or effect such compliance and (iii) supply any supplemented
Prospectus to each of you in such quantities as you may reasonably
request. If such amendment or supplement, and any documents,
certificates and opinions furnished to each of you pursuant to
paragraph (g) of this Section 4 in connection with the preparation or
filing of such amendment or supplement are satisfactory in all respects
to you, you will, upon the filing of such amendment or supplement with
the Commission and upon the effectiveness of an amendment to the
Registration Statement, if such an amendment is required, resume your
obligation to solicit offers to purchase Notes hereunder.
(c) The Company, during the period when a prospectus relating
to the Notes is required to be delivered under the Act, will file
promptly all documents required to be filed with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act and
will furnish to each of you copies of such documents. In addition, on
or prior to the date on which the Company makes any announcement to the
general public concerning earnings or concerning any other event which
is required to be described, or which the Company proposes to describe,
in a document filed pursuant to the Exchange Act, the Company will
furnish to each of you the information contained or to be contained in
such announcement. The Company will notify each of you of (i) any
decrease in the rating of the Notes or any other debt securities of the
Company by any "nationally recognized statistical rating organization"
(as defined for purposes of Rule 436(g) under the Act) and (ii) any
notice given of any intended or potential decrease in any such rating
or of a possible change in any such rating that does not indicate the
direction of the possible change, as soon as the Company learns of any
such decrease or notice.
(d) As soon as practicable, the Company will make generally
available to its security holders and to each of you an earnings
statement or statements of the Company and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 under
the Act.
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(e) The Company will furnish to each of you and your counsel,
without charge, copies of the Registration Statement (including
exhibits thereto) and, so long as delivery of a prospectus may be
required by the Act, as many copies of the Prospectus and any
supplement thereto as you may reasonably request.
(f) The Company will arrange for the qualification of the
Notes for sale under the laws of such jurisdictions as any of you may
designate, will maintain such qualifications in effect so long as
required for the distribution of the Notes, and will arrange for the
determination of the legality of the Notes for purchase by
institutional investors.
(g) The Company shall furnish to each of you such information,
documents, certificates of officers of the Company and opinions of
counsel for the Company relating to the business, operations and
affairs of the Company, the Registration Statement, the Prospectus, and
any amendments thereof or supplements thereto, the Indenture, the
Notes, this Agreement, the Procedures and the performance by the
Company and you of its and your respective obligations hereunder and
thereunder as any of you may from time to time reasonably request.
(h) The Company shall, whether or not any sale of the Notes is
consummated, (i) pay all expenses incident to the performance of its
obligations under this Agreement and any Terms Agreement, including the
fees and disbursements of its accountants and counsel, the cost of
printing or other production and delivery of the Registration
Statement, the Prospectus, all amendments thereof and supplements
thereto, the Indenture, this Agreement, any Terms Agreement and all
other documents relating to the offering, the cost of preparing,
printing, packaging and delivering the Notes, the fees and
disbursements, including fees of counsel, incurred in compliance with
Section 4(f), the fees and disbursements of the Trustee and the fees of
any agency that rates the Notes, (ii) reimburse each of you as
requested for all out-of-pocket expenses (including without limitation
advertising expenses), if any, incurred by you in connection with this
Agreement which are approved by the Company and (iii) pay the
reasonable fees and expenses of your counsel incurred in connection
with this Agreement.
(i) Each acceptance by the Company of an offer to purchase
Notes will be deemed to be an affirmation that its representations and
warranties contained in this
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Agreement are true and correct at the time of such acceptance, as
though made at and as of such time, and a covenant that such
representations and warranties will be true and correct at the time of
delivery to the purchaser of the Notes relating to such acceptance, as
though made at and as of such time (it being understood that for
purposes of the foregoing affirmation and covenant such
representations and warranties shall relate to the Registration
Statement and Prospectus as amended or supplemented at each such time).
Each such acceptance by the Company of an offer for the purchase of
Notes shall be deemed to constitute an additional representation,
warranty and agreement by the Company that, as of the settlement date
for the sale of such Notes, after giving effect to the issuance of such
Notes, of any other Notes to be issued on or prior to such settlement
date and of any other Securities to be issued and sold by the Company
on or prior to such settlement date, the aggregate amount of Securities
(including any Notes) which have been issued and sold by the Company
will not exceed the amount of Securities registered pursuant to the
Registration Statement.
(j) Each time that the Registration Statement or the
Prospectus is amended or supplemented (other than by an amendment or
supplement relating to any offering of Securities other than the Notes
or providing solely for the specification of or a change in the
maturity dates, the interest rates, the issuance prices or other
similar terms of any Notes sold pursuant hereto), the Company will
deliver or cause to be delivered promptly to each of you, or at the
request of any Agent on the date of delivery of any Note sold
pursuant to a Terms Agreement with such Agent, a certificate
of the Company, signed by the Chairman of the Board or the President
and the principal financial or accounting officer of the Company, dated
the date of the effectiveness of such amendment or the date of the
filing of such supplement, in form reasonably satisfactory to you, of
the same tenor as the certificate referred to in Section 5(d) but
modified to relate to the last day of the fiscal quarter for which
financial statements of the Company were last filed with the Commission
and to the Registration Statement and the Prospectus as amended and
supplemented to the time of the effectiveness of such amendment or the
filing of such supplement.
(k) Each time that the Registration Statement or the
Prospectus is amended or supplemented (other than by an amendment or
supplement (i) relating to any offering of Securities other than the
Notes, (ii) providing solely for the specification of or a change in
the maturity dates, the interest rates, the issuance prices or other
similar terms of any Notes sold pursuant hereto or (iii) setting
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forth or incorporating by reference financial statements or other
information as of and for a fiscal quarter, unless, in the case of
clause (iii) above, in the reasonable judgment of any of you, such
financial statements or other information are of such a nature that an
opinion of counsel should be furnished), or at the request of any
Agent on the date of delivery of any Note sold pursuant to a
Terms Agreement with such Agent, the Company shall furnish or
cause to be furnished promptly to each of you a written opinion of
counsel of the Company satisfactory to each of you, dated the date of
the effectiveness of such amendment or the date of the filing of such
supplement, in form satisfactory to each of you, of the same tenor as
the opinion referred to in Section 5(b) but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented
to the time of the effectiveness of such amendment or the filing of
such supplement or, in lieu of such opinion, counsel last furnishing
such an opinion to you may furnish each of you with a letter to the
effect that you may rely on such last opinion to the same extent as
though it were dated the date of such letter authorizing reliance
(except that statements in such last opinion will be deemed to relate
to the Registration Statement and the Prospectus as amended and
supplemented to the time of the effectiveness of such amendment or the
filing of such supplement).
(l) Each time that the Registration Statement or the
Prospectus is amended or supplemented to include or incorporate
amended or supplemental financial information, or at the request of
any Agent on the date of delivery of any Note sold pursuant to a
Terms Agreement with such Agent, the Company shall cause
its independent public accountants promptly to furnish each of you a
letter, dated the date of the effectiveness of such amendment or the
date of the filing of such supplement, in form satisfactory to each of
you, of the same tenor as the letter referred to in Section 5(e) with
such changes as may be necessary to reflect the amended and
supplemental financial information included or incorporated by
reference in the Registration Statement and the Prospectus, as amended
or supplemented to the date of such letter; provided, however, that, if
the Registration Statement or the Prospectus is amended or supplemented
solely to include or incorporate by reference financial information as
of and for a fiscal quarter, the Company's independent public
accountants may limit the scope of such letter to the unaudited
financial statements, the related "Management's Discussion and Analysis
of Financial Condition and Results of Operations" and any other
information of an accounting, financial or statistical nature included
in such amendment or supplement, unless, in the reasonable judgment of
any of you, such letter should cover other information or changes in
specified financial statement line items.
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(m) During the period, if any, specified (whether orally or in
writing) in any Terms Agreement, the Company shall not, without the
prior consent of the Purchaser thereunder, offer, sell or contract to
sell, or otherwise dispose of, directly or indirectly, or announce the
offering of, any debt securities issued or guaranteed by the Company
(other than the Notes being sold pursuant to such Terms Agreement).
(n) The Company confirms as of the date hereof, and each
acceptance by the Company of an offer to purchase Notes will be deemed
to be an affirmation, that the Company is in compliance with all
provisions of Section 1 of Laws of Florida, Chapter 92-198, An Act
Relating to Disclosure of Doing Business with Cuba, and the Company
further agrees that if it commences engaging in business with the
government of Cuba or with any person or affiliate located in Cuba
after the date the Registration Statement becomes or has become
effective with the Securities and Exchange Commission or with the
Florida Department of Banking and Finance (the "Department"),
whichever date is later, or if the information reported in the
Prospectus, if any, concerning the Company's business with Cuba or with
any person or affiliate located in Cuba changes in any material way,
the Company will provide the Department notice of such business or
change, as appropriate, in a form acceptable to the Department.
5. Conditions to the Obligations of the Agents. The
obligations of each Agent to solicit offers to purchase the Notes shall
be subject to the accuracy of the representations and warranties on the
part of the Company contained herein as of the Execution Time, on the
Effective Date, when any supplement to the Prospectus is filed with the
Commission and as of each Closing Date, to the accuracy of the
statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Prospectus, and any such
supplement, shall have been filed in the manner and within the time
period required by Rule 424(b); and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or
threatened.
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(b) The Company shall have furnished to each Agent the opinion
of , counsel for the Company, dated the
Execution Time, to the effect that:
(i) each of the Company and Firstar Bank, National
Association (the "Bank") has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the jurisdiction in which it is chartered or
organized, with full corporate power and authority to own its
properties and conduct its business as described in the
Prospectus, and is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each
jurisdiction which requires such qualification wherein it owns
or leases material properties or conducts material business;
and the Company is duly registered as a bank holding company
under the Bank Holding Company Act of 1956, as amended;
(ii) all the outstanding shares of capital stock of
the Bank have been duly and validly authorized and issued and
are fully paid and nonassessable, and, except as otherwise set
forth in the Prospectus, all outstanding shares of capital
stock of the Bank are owned by the Company either directly or
through wholly owned subsidiaries free and clear of any
perfected security interest and, to the knowledge of such
counsel, after due inquiry, any other security interests,
claims, liens or encumbrances;
(iii) the Company's authorized equity capitalization
is as set forth in the Prospectus; and the Notes conform to
the description thereof contained in the Prospectus (subject
to the insertion in the Notes of the maturity dates, the
interest rates and other similar terms thereof which will be
described in supplements to the Prospectus as contemplated by
the fourth sentence of Section 1(a) of this Agreement);
(iv) the Indenture has been duly authorized, executed
and delivered, has been duly qualified under the Trust
Indenture Act, and constitutes a legal, valid and binding
instrument enforceable against the Company in accordance with
its terms except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other
laws relating to or affecting enforcement of creditors' rights
generally or by general equity principles, and except further
as enforcement thereof may be limited by (i) requirements that
a claim with respect to any
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Notes denominated other than in U.S. dollars (or a foreign
currency or currency unit judgment in respect of such claim)
be converted into U.S. dollars at a rate or exchange
prevailing on a date determined pursuant to applicable law or
(ii) governmental authority to limit, delay or prohibit the
making of payments outside the United States; and the Notes
have been duly authorized and, when executed and authenticated
in accordance with the provisions of the Indenture and
delivered to and paid for by the purchasers thereof, will
constitute legal, valid and binding obligations of the
Company entitled to the benefits of the Indenture;
(v) to the best knowledge of such counsel, there is
no pending or threatened action, suit or proceeding before any
court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries,
of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Prospectus,
and there is no franchise, contract or other document of a
character required to be described in the Registration
Statement or Prospectus, or to be filed as an exhibit, which
is not described or filed as required; and the statements
included or incorporated by reference in the Prospectus
describing any legal proceedings or material contracts or
agreements relating to the Company fairly summarize such
matters;
(vi) the Registration Statement has become effective
under the Act; any required filing of the Prospectus, and any
supplements thereto, pursuant to Rule 424(b) has been or will
be made in the manner and within the time period required by
Rule 424(b); to the best knowledge of such counsel, no stop
order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose
have been instituted or threatened; and the Registration
Statement and the Prospectus (other than the financial
statements and other financial and statistical information
contained therein as to which such counsel need express no
opinion) comply as to form in all material respects with the
applicable requirements of the Act, the Exchange Act and the
Trust Indenture Act and the respective rules thereunder; and
such counsel has no reason to believe that the Registration
Statement at the Effective Date or at the Execution Time
contained any untrue statement
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of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus
includes any untrue statement of a material fact or omits to
state a material fact necessary to make the statements
therein, in the light of the circumstances under which they
were made, not misleading;
(vii) this Agreement has been duly authorized,
executed and delivered by the Company;
(viii) no consent, approval, authorization or order
of any court or governmental agency or body is required for
the consummation of the transactions contemplated herein
except such as have been obtained under the Act and such as
may be required under the blue sky laws of any jurisdiction in
connection with the sale of the Notes as contemplated by this
Agreement and such other approvals (specified in such opinion)
as have been obtained;
(ix) neither the execution and delivery of the
Indenture, the issue and sale of the Notes, nor the
consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof will
conflict with, result in a breach or violation of, or
constitute a default under any law or the charter or by-laws
of the Company or the terms of any indenture or other
agreement or instrument known to such counsel and to which the
Company or any of its subsidiaries is a party or bound or any
judgment, order, regulation or decree known to such counsel to
be applicable to the Company or any of its subsidiaries of any
court, regulatory body, administrative agency, governmental
body or arbitrator having jurisdiction over the Company or any
of its subsidiaries;
(x) no holders of securities of the Company have
rights to the registration of such securities under the
Registration Statement; and
(xi) the information contained in the Prospectus
under the caption "United States Tax Considerations" in MTN
Supplement ____ is a fair and accurate summary of the
principal Federal income tax consequences associated with the
ownership of the Notes.
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In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
State of Ohio or the United States, to the extent deemed proper and
specified in such opinion, upon the opinion of other counsel of good
standing believed to be reliable and who are satisfactory to counsel
for the Agent and (B) as to matters of fact, to the extent deemed
proper, on certificates of responsible officers of the Company and
public officials. References to the Prospectus in this paragraph (b)
include any supplements thereto at the date such opinion is rendered.
(c) Each Agent shall have received from Simpson Thacher &
Bartlett, counsel for the Agents, such opinion or opinions, dated the
date hereof, with respect to the issuance and sale of the Notes, the
Indenture, the Registration Statement, the Prospectus (together with
any supplement thereto) and other related matters as the Agents may
reasonably require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling them
to pass upon such matters.
(d) The Company shall have furnished to each Agent a
certificate of the Company, signed by the Chief Financial Officer and
the Treasurer or Controller of the Company, dated the Execution Time,
to the effect that the signers of such certificate have carefully
examined the Registration Statement, the Prospectus, any supplement to
the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company
in this Agreement are true and correct in all material
respects on and as of the date hereof with the same effect as
if made on the date hereof and the Company has complied with
all the agreements and satisfied all the conditions on its
part to be performed or satisfied as a condition to the
obligation of the Agents to solicit offers to purchase the
Notes;
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to the Company's
knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Prospectus (exclusive of any
supplement thereto), there has been no material adverse change
in the condition (financial or
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other), earnings, business or properties of the Company and
its subsidiaries, whether or not arising from transactions in
the ordinary course of business, except as set forth in or
contemplated in the Prospectus (exclusive of any supplement
thereto).
(e) At the Execution Time, PriceWaterhouseCoopers LLP shall
have furnished to each Agent a letter or letters (which may refer to
letters previously delivered to the Agents), dated as of the Execution
Time, in form and substance satisfactory to the Agents, confirming that
they are independent accountants within the meaning of the Act and the
Exchange Act and the respective applicable published rules and
regulations thereunder and stating in effect that:
(i) in their opinion the audited financial
statements, financial statement schedules and pro forma
financial statements, if any, included or incorporated in the
Registration Statement and the Prospectus and reported on by
them comply in form in all material respects with the
applicable accounting requirements of the Act and the
Exchange Act and the related published rules and regulations;
and
(ii) on the basis of a reading of the latest
unaudited financial statements made available by the Company
and its subsidiaries; carrying out certain specified
procedures (but not an audit in accordance with generally
accepted auditing standards) which would not necessarily
reveal matters of significance with respect to the comments
set forth in such letter; a reading of the minutes of the
meetings of the directors of the Company and the Bank and the
committee thereof; and inquiries of certain officials of the
Company who have responsibility for financial and accounting
matters of the Company and its subsidiaries as to transactions
and events subsequent to the date of the most recent audited
financial statements included or incorporated in the
Prospectus, nothing came to their attention which caused them
to believe that:
(1) any material modifications should be
made to the unaudited financial statements included
or incorporated in the Registration Statement and the
Prospectus further to be in conformity with generally
accepted accounting principles;
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(2) any unaudited financial statements in-
cluded or incorporated in the Registration Statement
and the Prospectus do not comply in form in all
material respects with applicable accounting
requirements and with the published rules and
regulations of the Commission with respect to
financial statements included or in corporated in
quarterly reports on Form 10-Q under the Exchange
Act;
(3) with respect to the period subsequent to
the date of the most recent financial statements
(other than any capsule information), audited or
unaudited, included or incorporated in the
Registration Statement and the Prospectus, there were
any changes, at a specified date not more than five
business days prior to the date of the letter, in the
long-term debt of the Company and its subsidiaries or
capital stock of the Company [or decreases in the
stockholders' equity of the Company or decreases in
capital of the Company and its subsidiaries] as
compared with the amounts shown on the most recent
consolidated balance sheet included or incorporated
in the Registration Statement and the Prospectus, or
for the period from the date of the most recent
financial statements included or incorporated in the
Registration Statement and the Prospectus to such
specified date there were any decreases, as compared
with the corresponding period in the preceding year
in total or per share amounts of net income or net
interest income (net interest income after provision
for loan losses) of the Company and its subsidi-
aries, except in all instances for changes or
decreases set forth in such letter, in which case the
letter shall be accompanied by an explanation by the
Company as to the significance thereof unless said
explanation is not deemed necessary by the Agents; or
(4) the amounts included in any unaudited
"capsule" information included or incorporated in the
Registration Statement and the Prospectus do not
agree with the amounts set forth in the unaudited
financial statements for the same periods or were
not determined on a basis substantially consistent
with that of the corresponding
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19
amounts in the audited financial statements included
or incorporated in the Registration Statement and the
Prospectus;
(5) they have performed certain other
specified procedures as a result of which they
determined that certain information of an ac-
counting, financial or statistical nature (which is
limited to accounting, financial or statistical
information derived from the general accounting
records of the Company and its subsidiaries) set
forth in the Registration Statement and the
Prospectus and in Exhibit 12 to the Registration
Statement, including the information included or
incorporated in Items [1, 2, 6, 7 and 11] of the
Company's Annual Report on Form 10-K, incorporated in
the Registration Statement and the Prospectus, and
the information included in the "Management's
Discussion and Analysis of Financial Condition and
Results of Operations" included or incorporated in
the Company's Quarterly Reports on Form 10-Q,
incorporated in the Registration Statement and the
Prospectus, agrees with the accounting records of the
Company and its subsidiaries, excluding any
questions of legal interpretation; and
(6) if unaudited pro forma financial
statements are included or incorporated in the
Registration Statement and the Prospectus, on the
basis of a reading of the unaudited pro forma
financial statements, carrying out certain specified
procedures, inquiries of certain officials of the
Company and the acquired company who have
responsibility for financial and accounting matters,
and proving the arithmetic accuracy of the
application of the pro forma adjustments to the
historical amounts in the pro forma financial
statements, nothing came to their attention which
caused them to believe that the pro forma financial
statements do not comply in form in all material
respects with the applicable accounting requirements
of Rule 11-02 of Regulation S-X or that the pro forma
adjustments have not been properly applied to the
historical amounts in the compilation of such
statements.
References to the Prospectus in this paragraph (e) include any
supplement thereto at the date of the letter.
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(f) Prior to the Execution Time, the Company shall have
furnished to each Agent such further information, documents,
certificates and opinions of counsel as the Agents may reasonably
request.
If any of the conditions specified in this Section 5 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to such Agents and counsel for the Agents,
this Agreement and all obligations of any Agent hereunder may be canceled at any
time by the Agents. Notice of such cancelation shall be given to the Company in
writing or by telephone or telegraph confirmed in writing.
The documents required to be delivered by this Section 5 shall
be delivered at the office of Simpson Thacher & Bartlett, 425 Lexington Avenue,
New York, NY 10017, on the date hereof.
6. Conditions to the Obligations of a Purchaser. The
obligations of a Purchaser to purchase any Notes will be subject to the accuracy
of the representations and warranties on the part of the Company herein as of
the date of the related Terms Agreement and as of the Closing Date for such
Notes, to the performance and observance by the Company of all covenants and
agreements herein contained on its part to be performed and observed and to the
following additional conditions precedent:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or threatened.
(b) To the extent agreed to between the Company and the
Purchaser in a Terms Agreement, the Purchaser shall have received,
appropriately updated, (i) a certificate of the Company, dated as of
the Closing Date, to the effect set forth in Section 5(d) (except that
references to the Prospectus shall be to the Prospectus as supplemented
as of the date of such Terms Agreement), (ii) the opinion of counsel
for the Company, dated as of the Closing Date, to the effect set forth
in Section 5(b), (iii) the opinion of Simpson Thacher & Bartlett,
counsel for the Purchaser, dated as of the Closing Date, to the effect
set forth in Section 5(c), and (iv) the letter of
PriceWaterhouseCoopers LLP, independent accountants for the Company,
dated as of the Closing Date, to the effect set forth in Section 5(e).
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(c) Prior to the Closing Date, the Company shall have
furnished to the Purchaser such further information, certificates and
documents as the Purchaser may reasonably request.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement and the applicable Terms Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement or such Terms
Agreement and required to be delivered to the Purchaser pursuant to the terms
hereof and thereof shall not be in all material respects reasonably
satisfactory in form and substance to the Purchaser and its counsel, such Terms
Agreement and all obligations of the Purchaser thereunder and with respect to
the Notes subject thereto may be canceled at, or at any time prior to, the
respective Closing Date by the Purchaser. Notice of such cancelation shall be
given to the Company in writing or by telephone or telegraph confirmed in
writing.
7. Right of Person Who Agreed to Purchase to Refuse to
Purchase. (a) The Company agrees that any person who has agreed to purchase and
pay for any Note pursuant to a solicitation by any of the Agents shall have the
right to refuse to purchase such Note if, at the Closing Date therefor, any
condition set forth in Section 5 or 6, as applicable, shall not be satisfied.
(b) The Company agrees that any person who has agreed to
purchase and pay for any Note pursuant to a solicitation by any of the Agents
shall have the right to refuse to purchase such Note if, subsequent to the
agreement to purchase such Note, any change, condition or development specified
in any of Sections 9(b)(i) through (v) shall have occurred (with the judgment of
the Agent which presented the offer to purchase such Note being substituted for
any judgment of a Purchaser required therein) the effect of which is, in the
judgment of the Agent which presented the offer to purchase such Note, so
material and adverse as to make it impractical or inadvisable to proceed with
the sale and delivery of such Note (it being understood that under no
circumstance shall any such Agent have any duty or obligation to the Company or
to any such person to exercise the judgment permitted to be exercised under this
Section 7(b) and Section 9(b)).
8. Indemnification and Contribution. (a) The Company agrees
to indemnify and hold harmless each of you, the directors, officers, employees
and agents of each of you and each person who controls each of you within the
meaning of either the Act or the Exchange Act against any and all losses,
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claims, damages or liabilities, joint or several, to which you, they or any of
you or them may become subject under the Act, the Exchange Act or other Federal
or state statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in the registration statement for the registration
of the Securities as originally filed or in any amendment thereof, or in the
Prospectus or any preliminary Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and agrees to reimburse
each such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information relating to
any of you furnished to the Company by any of you specifically for inclusion
therein. This indemnity agreement will be in addition to any liability which
the Company may otherwise have.
(b) Each of you agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who signs the Registration
Statement and each person who controls the Company within the meaning of either
the Act or the Exchange Act, to the same extent as the foregoing indemnity from
the Company to you, but only with reference to written information relating to
such of you furnished to the Company by such of you specifically for inclusion
in the documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability which you may otherwise have. The
Company acknowledges that the statements set forth in the last paragraph of the
cover page, and under the heading "Plan of Distribution", of the Prospectus
Supplement constitute the only information furnished in writing by any of you
for inclusion in the documents referred to in the foregoing indemnity, and you
confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this
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Section 8, notify the indemnifying party in writing of the commencement
thereof; but the failure so to notify the indemnifying party (i) will not
relieve it from liability under paragraph (a) or (b) above unless and to the
extent it did not otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses and (ii)
will not, in any event, relieve the indemnifying party from any obligations to
any indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint
counsel of the indemnifying party's choice at the indemnifying party's expense
to represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate counsel retained by the
indemnified party or parties except as set forth below); provided, however, that
such counsel shall be satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, (iii) the indemnifying party shall not
have employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of
such action or (iv) the indemnifying party shall authorize the indemnified party
to employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 8 is unavailable to or
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24
insufficient to hold harmless an indemnified party for any reason, the Company
and each of you agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively "Losses") to which the
Company and one or more of you may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company and by each
of you from the offering of the Notes from which such Losses arise; provided,
however, that in no case shall any of you be responsible for any amount in
excess of the commissions received by such of you in connection with the sale of
Notes from which such Losses arise (or, in the case of Notes sold pursuant to a
Terms Agreement, the aggregate commissions that would have been received by such
of you if such commissions had been payable). If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company and
each of you shall contribute in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Company and of
each of you in connection with the statements or omissions which resulted in
such Losses as well as any other relevant equitable considerations. Benefits
received by the Company shall be deemed to be equal to the total net proceeds
from the offering (before deducting expenses) of the Notes from which such
Losses arise, and benefits received by each of you shall be deemed to be equal
to the total commissions received by such of you in connection with the sale of
Notes from which such Losses arise (or, in the case of Notes sold pursuant to a
Terms Agreement, the aggregate commissions that would have been received by such
of you if such commissions had been payable). Relative fault shall be determined
by reference to whether any alleged untrue statement or omission relates to
information provided by the Company or any of you. The Company and each of you
agree that it would not be just and equitable if contribution were determined
by pro rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person who controls any
of you within the meaning of the Act or the Exchange Act and each director,
officer, employee and agent of any of you shall have the same rights to
contribution as you and each person who controls the Company within the meaning
of either the Act or the Exchange Act, each officer of the Company who shall
have signed the Registration Statement and each director of the Company shall
have the same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
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25
9. Termination. (a) This Agreement will continue in effect
until terminated as provided in this Section 9. This Agreement may be terminated
either by the Company as to any Agent or by any of you insofar as this Agreement
relates to any Agent, by giving written notice of such termination to such Agent
or the Company, as the case may be. This Agreement shall so terminate at the
close of business on the first business day following the receipt of such notice
by the party to whom such notice is given. In the event of such termination, no
party shall have any liability to the other party hereto, except as provided in
the fourth paragraph of Section 2(a), Section 4(h), Section 8 and Section 10.
(b) Each Terms Agreement shall be subject to termination in
the absolute discretion of the Purchaser, by notice given to the Company prior
to delivery of any payment for any Note to be purchased thereunder, if prior to
such time (i) there shall have occurred, subsequent to the agreement to purchase
such Note, any change, or any development involving a prospective change, in or
affecting the business or properties of the Company and its subsidiaries the
effect of which is, in the judgment of the Purchaser, so material and adverse as
to make it impractical or inadvisable to proceed with the offering or delivery
of such Note, (ii) there shall have been, subsequent to the agreement to
purchase such Note, any decrease in the rating of any of the Company's debt
securities by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act) or any notice given of any
intended or potential decrease in any such rating or of a possible change in any
such rating that does not indicate the direction of the possible change, (iii)
trading in the Company's Common Stock shall have been suspended by the
Commission or the New York Stock Exchange or trading in securities generally on
the New York Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on such Exchange, (iv) a banking moratorium
shall have been declared by either Federal or New York State or Wisconsin State
authorities, or (v) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war or
other calamity or crisis the effect of which on financial markets is such as to
make it, in the judgment of the Purchaser, impracticable or inadvisable to
proceed with the offering or delivery of such Notes as contemplated by the
Prospectus (exclusive of any supplement thereto).
10. Survival of Certain Provisions. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of you set forth in or made pursuant to this
Agreement will remain in full force
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and effect, regardless of any investigation made by or on behalf of you or the
Company or any of the directors, officers, employees, agents or controlling
persons referred to in Section 8 hereof, and will survive delivery of and
payment for the Notes. The provisions of Sections 4(h) and 8 hereof shall sur-
vive the termination or cancelation of this Agreement. The provisions of this
Agreement (including without limitation Section 7 hereof) applicable to any
purchase of a Note for which an agreement to purchase exists prior to the
termination hereof shall survive any termination of this Agreement. If at the
time of termination of this Agreement any Purchaser shall own any Notes with the
intention of selling them, the provisions of Section 4 shall remain in effect
until such Notes are sold by the Purchaser.
11. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to any of you, will be mailed,
delivered or telegraphed and confirmed to such of you, at the address specified
in Schedule I hereto; or, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at 777 East Wisconsin Avenue, Milwaukee,
Wisconsin 53202, (414) 765-4321, to the attention of Jennie P. Carlson, Senior
Vice President, General Counsel and Secretary.
12. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto, their respective successors, the
directors, officers, employees, agents and controlling persons referred to in
Section 8 hereof and, to the extent provided in Section 7, any person who has
agreed to purchase Notes, and no other person will have any right or obligation
hereunder. No purchaser of Notes shall be deemed to be a successor by reason
merely of such purchase.
13. Applicable Law. This Agreement will be governed
by and construed in accordance with the laws of the State of New
York.
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If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and you.
Very truly yours,
Firstar Corporation
By: ______________________________
[Title]
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof.
[AGENTS]
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