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Exhibit 4.9
FLOATING RATE JUNIOR SUBORDINATED DEBENTURES
DUE 2027
CALCULATION AGENCY AGREEMENT
BETWEEN
STAR BANC CORPORATION
AND
THE FIRST NATIONAL BANK OF CHICAGO
DATED AS OF JUNE 8, 1997
STAR BANC CORPORATION, an Ohio corporation (the "Corporation"), will
issue and sell, in one or more issuances and sales, certain of its securities
designated as Floating Rate Junior Subordinated Debentures due 2027
("Debentures"). The Debentures will be issued under an Indenture, dated as of
June 8, 1997 (the "Indenture"), between the Corporation and The First National
Bank of Chicago, as Trustee (the "Trustee"). The Debentures, when issued and
sold, will be purchased by Star Capital I, a newly formed Delaware business
trust. Terms used but not defined herein shall have the meanings assigned to
them in the Declaration (as defined in the Indenture) and the Indenture.
For the purpose of appointing an agent to calculate the interest
rate, based on LIBOR, on the Debentures, the Corporation and The First National
Bank of Chicago agree as follows:
1. Upon the terms and subject to the conditions contained herein,
the Corporation hereby appoints The First National Bank of Chicago as its agent
(in such capacity, the "Calculation Agent") for the purpose of calculating the
interest rates on the Debentures in the manner and at the times provided in the
Indenture and the provisions of this Agreement.
2. The Calculation Agent shall exercise due care to determine the
interest rate on the Debentures with respect to each interest period and shall
communicate the same, together with the amount of interest to be paid in respect
of such interest period and the relevant interest payment date, to the
Corporation, the Trustee, The Depository Trust Company and any paying agent
identified to it in writing as soon as practicable after each determination. The
Calculation Agent will, upon the request of the holder of any Debenture, provide
the interest rate then in effect with respect to such Debenture and, if
determined, the interest rate with respect to such Debenture which will become
effective on the next interest reset date. No amendment to the provisions of the
administrative procedures relating to the duties or obligations of the
Calculation Agent hereunder may become effective without the prior written
consent of the Calculation Agent, which consent shall not be unreasonably
withheld.
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3. The Calculation Agent accepts its obligations set forth herein,
upon the terms and subject to the conditions hereof, including the following, to
all of which the Corporation agrees:
(a) The Calculation Agent shall be entitled to such compensation as
may be agreed upon with the Corporation for all services rendered by the
Calculation Agent, and the Corporation promises to pay such compensation and to
reimburse the Calculation Agent for the reasonable out-of-pocket expenses
(including attorney's and other professional's fees and expenses) incurred by it
in connection with the services rendered by it hereunder upon receipt of such
invoices as the Corporation shall reasonably require. The Corporation also
agrees to indemnify the Calculation Agent for, and to hold it harmless against,
any and all loss, liability, damage, claim or expense (including the costs and
expenses of defending against any claim of liability) incurred by the
Calculation Agent that arises out of or in connection with its accepting
appointment as, or acting as, Calculation Agent hereunder, except such as may
result from the negligence, willful misconduct or bad faith of the Calculation
Agent or any of its agents or employees. The Calculation Agent shall incur no
liability and shall be indemnified and held harmless by the Corporation for, or
in respect of, any actions taken, omitted to be taken or suffered to be taken in
good faith by the Calculation Agent in reliance upon (i) the opinion or advice
of legal or other professional advisors satisfactory to it or (ii) written
instructions from the Corporation. The Calculation Agent shall not be liable for
any error resulting from the use of or reliance on a source of information used
in good faith and with due care to calculate any interest rate hereunder. The
provisions of this Section shall survive the termination of this Agreement and
the resignation or removal of the Calculation Agent.
(b) In acting under this Agreement and in connection with the
Debentures, the Calculation Agent is acting solely as agent of the Corporation
and does not assume any obligations or relationship of agency or trust for or
with any of the owners or holders of the Debentures.
(c) The Calculation Agent shall be protected and shall incur no
liability for or in respect of any action taken or omitted to be taken or
anything suffered by it in reliance upon the terms of the Debentures, any
notice, direction, certificate, affidavit, statement or other paper, document or
communication reasonably believed by it to be genuine and to have been approved
or signed by the proper party or parties.
(d) The Calculation Agent, its officers, directors, employees and
shareholders may become the owners of, or acquire any interest in, any
Debentures, with the same rights that it or they would have if it were not the
Calculation Agent, and may engage or be interested in any financial or other
transaction with the Corporation as freely as if it were not the Calculation
Agent.
(e) Neither the Calculation Agent nor its officers, directors,
employees, agents or attorneys shall be liable to the Corporation for any act or
omission hereunder, or for any error of judgment made in good faith by it or
them, except in the case of its or their negligence or willful misconduct.
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(f) The Calculation Agent may consult with counsel (and such counsel
may be counsel to the Corporation or any of its affiliates and may include any
of its employees) and the written 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.
(g) The Calculation Agent shall be obligated to perform such duties
and only such duties as are herein specifically set forth, and no implied duties
or obligations shall be read into this Agreement against the Calculation Agent.
(h) Unless herein otherwise specifically provided, any order,
certificate, notice, request, direction or other communication from the
Corporation made or given by it under any provision of this Agreement shall be
sufficient if signed by any officer of the Corporation.
(i) The Calculation Agent may, upon obtaining the prior written
consent of the Corporation, perform any duties hereunder either directly or by
or through agents or attorneys, and the Calculation Agent shall not be
responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder.
(j) The Corporation will not, without first obtaining the prior
written consent of the Calculation Agent, make any change to the Debentures, a
form of which is attached as an exhibit to the Indenture, if such change would
materially and adversely affect the Calculation Agent's duties and obligations
under this Agreement.
4. (a) The Calculation Agent may at any time resign as Calculation
Agent by giving written notice to the Corporation of such intention on its part,
specifying the date on which its desired resignation shall become effective;
provided, however, that such date shall never be earlier than 30 days after the
receipt of such notice by the Corporation, unless the Corporation agrees to
accept less notice. The Calculation Agent may be removed at any time by the
filing with it of any instrument in writing signed on behalf of the Corporation
and specifying such removal and the date when it is intended to become
effective. Such resignation or removal shall take effect upon the date of the
appointment by the Corporation, as hereinafter provided, of a successor
Calculation Agent. If within 30 days after notice of resignation or removal has
been given, a successor Calculation Agent has not been appointed, the
Calculation Agent may petition a court of competent jurisdiction to appoint a
successor Calculation Agent. A successor Calculation Agent shall be appointed by
the Corporation by an instrument in writing signed on behalf of the Corporation
and the successor Calculation Agent. Upon the appointment of a successor
Calculation Agent and acceptance by it of such appointment, the Calculation
Agent so superseded shall cease to be such Calculation Agent hereunder. Upon its
resignation or removal, the Calculation Agent shall be entitled to the payment
by the Corporation of its compensation, if any is owed to it, for services
rendered hereunder and to the reimbursement of all reasonable out-of-pocket
expenses incurred in connection with the services rendered by it hereunder.
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(b) Any successor Calculation Agent appointed hereunder shall
execute and deliver to its predecessor and to the Corporation an instrument
accepting such appointment hereunder, and thereupon such successor Calculation
Agent, without any further act, deed or conveyance, shall become vested with all
the authority, rights, powers, trusts, immunities, duties and obligations of
such predecessor with like effect as if originally named as such Calculation
Agent hereunder, and such predecessor, upon payment of its charges and
disbursements then unpaid, shall thereupon become obliged to transfer and
deliver, and such successor Calculation Agent shall be entitled to receive,
copies of any relevant records maintained by such predecessor Calculation Agent.
(c) Any corporation into which the Calculation Agent may be merged,
or any corporation with which the Calculation Agent may be merged, or any
corporation with which the Calculation Agent may be consolidated, or any
corporation resulting from any merger or consolidation to which the Calculation
Agent shall sell or otherwise transfer all or substantially all of its assets
and business shall, to the extent permitted by applicable law, be the successor
Calculation 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. Notice of any
such merger, consolidation or sale shall forthwith be given to the Corporation
and the Trustee.
5. Any notice required to be given hereunder shall be delivered in
person, sent by letter or telecopy or communicated by telephone (subject, in the
case of communication by telephone, to confirmation dispatched within
twenty-four hours by letter or by telecopy), in the case of the Corporation, to
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, telephone: (▇▇▇) ▇▇▇-▇▇▇▇, telecopy:
(▇▇▇) ▇▇▇-▇▇▇▇, Attention: General Counsel, in the case of The First National
Bank of Chicago, to Corporate Trust Services Division, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ and, in the
case of The Depository Trust Company, to Manager Announcements, Dividend
Department, The Depository Trust Company, ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ or (▇▇▇) ▇▇▇-▇▇▇▇, or to any
other address of which any party shall have notified the others in writing as
herein provided. Any notice hereunder given by telephone, telecopy or letter
shall be deemed to be received when in the ordinary course of transmission or
post, as the case may be, it would be received.
6. This Agreement may be amended only by a writing duly executed and
delivered by each or the parties signing below.
7. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York.
8. This Agreement may be executed by each of the parties hereto in
any number of counterparts, each of which counterparts, when so executed and
delivered, shall be deemed to be an original and all such counterparts shall
together constitute one and the same agreement.
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9. In the event of any conflict relating to the rights or
obligations of the Calculation Agent in connection with the calculation of the
interest rate on the Debentures, the relevant terms of this Agreement shall
govern such rights and obligations.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first above written.
STAR BANC CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: SVP and Treasurer
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President