$1,800,000,000
U.S. Bancorp
(a Delaware corporation)
Medium Term Notes, Series L (Senior)
Medium Term Notes, Series M (Subordinated)
DISTRIBUTION AGREEMENT
December 17, 1999
Ladies and Gentlemen:
U.S. Bancorp, a Delaware corporation (the "Company"), confirms its
agreement with you (you and each other person executing a Distribution Agreement
substantially similar to this Agreement (including the Commission Schedule
attached hereto as Schedule A) being hereinafter referred to as an "Agent") with
respect to the issue and sale by the Company of up to $1,800,000,000 aggregate
principal amount or its equivalent in foreign currencies or currency units of
Medium-Term Notes, Series L (Senior) (the "Senior Notes") and Medium Term Notes,
Series M (Subordinated) (the "Subordinated Notes") due nine (9) months or more
from date of issue (the "Securities"). The Senior Notes are to be issued
pursuant to an Indenture dated as of October 1, 1991 (the "Senior Note
Indenture") between the Company and Citibank, N.A., as trustee (the "Senior Note
Trustee"), and the Subordinated Notes are to be issued pursuant to an Indenture
dated as of October 1, 1991, as amended by a First Supplemental Indenture dated
as of April 1, 1993 (as so amended, the "Subordinated Note Indenture") between
the Company and Citibank, N.A., as trustee (the "Subordinated Trustee"). The
Senior Note Indenture and the Subordinated Note Indenture, together with any
Officers' Certificates establishing the terms of the Securities and any
applicable Authentication Certificate Supplemental to the Officers'
Certificates, facsimile transmission or supplemental indentures, are
collectively referred to herein as the "Indentures." It is understood that the
Company may from time to time authorize the issuance of additional Securities
and that such additional Securities may be sold through or to the Agents
pursuant to the terms of this Agreement, as though the issuance of such
Securities were authorized as of the date hereof.
Subject to the terms and conditions stated herein, the Company hereby
(i) appoints you as an agent of the Company for the purpose of soliciting
purchases of the Securities from the Company by others and (ii) agrees that
whenever the Company determines to sell Securities directly to you as principal
for resale to others, it may enter into a Terms Agreement relating to such sale
in accordance with the provisions of Section 2(c) hereof.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-83643) relating to
the Securities and the offering thereof from time to time in accordance with
Rule 415 under the Securities Act of 1933, as amended (the "1933 Act"). Such
registration statement has been declared effective by the Commission, and the
Indentures have been qualified under the Trust Indenture Act of 1939, as amended
(the "1939 Act"). Such registration statement and the prospectus and any
amendments or supplements thereto relating to the Securities filed pursuant to
Rule 424 under the 1933 Act, including all documents incorporated therein by
reference, as from time to time amended or supplemented by the filing of
documents pursuant to the Securities Exchange Act of 1934, as amended (the "1934
Act"), the 1933 Act or otherwise, are referred to herein as the "Registration
Statement" and the "Prospectus," respectively.
SECTION 1. Representations and Warranties.
(a) The Company represents and warrants to you as of the date hereof,
as of the Closing Time and each Settlement Date hereinafter referred to, and as
of the times referred to in Sections 6(a) and 6(b) hereof (in each case the
"Representation Date"), as follows:
(i) The Registration Statement and the Prospectus, at the time
the Registration Statement and each part thereof became effective,
complied, and as of the applicable Representation Date will comply, in
all material respects with the requirements of the 1933 Act, the rules
and regulations thereunder (the "Regulations") and the 1939 Act. The
Registration Statement at the time the Registration Statement and each
part thereof became effective did not, and as of the applicable
Representation Date will not, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading. The
Prospectus, at the time the Registration Statement became effective did
not, and as of the applicable Representation Date will not, contain an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration
Statement or Prospectus made in reliance upon and in conformity with
information relating to you furnished to the Company in writing by you
expressly for use in the Registration Statement or Prospectus or to
that part of the Registration Statement which shall constitute the
Statement of Eligibility and Qualification under the 1939 Act (Form
T-1) of the Trustee.
(ii) The documents incorporated by reference in the
Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and the rules and regulations thereunder
(the "1934 Act Regulations"), and, when read together and with the
other information in the Prospectus, at the time the Registration
Statement became, and any amendments thereto become, effective, and as
of the applicable Representation Date, did not and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were or are
made, not misleading.
- 2 -
(iii) The accountants who audited the December 31, 1998 and
reviewed the March 31, June 30, and September 30, 1999 financial
statements included or incorporated by reference in the Prospectus are
independent public accountants as required by the 1933 Act and the
Regulations.
(iv) The financial statements of the Company and its
consolidated subsidiaries included or incorporated by reference in the
Prospectus present fairly the financial position of the Company and its
consolidated subsidiaries as at the dates indicated and the results of
their operations for the periods specified; except as stated therein,
said financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis.
(v) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
otherwise stated therein or contemplated thereby, (A) there has been no
material adverse change in the condition, financial or otherwise, of
the Company and its subsidiaries considered as one enterprise or in the
earnings, affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business, and (B) there have been no material
transactions entered into by the Company, or any of its subsidiaries
other than those in the ordinary course of business.
(vi) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware with corporate power and authority to own, lease and
operate its properties and conduct its business as described in the
Registration Statement; and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which its ownership or lease of substantial properties
or the conduct of its business requires such qualification.
(vii) U.S. Bank National Association, the Company's principal
subsidiary bank, has been duly incorporated and is validly existing as
a national banking association in good standing under the laws of the
United States and has corporate power and authority to own, lease and
operate its properties and conduct its business as described in the
Registration Statement; all of the issued and outstanding capital stock
of such bank has been duly authorized and validly issued and is fully
paid and, except as provided in 12 U.S.C. Section 55, non-assessable;
and 100% of the capital stock of U.S. Bank National Association, other
than any director's qualifying shares, is owned by the Company,
directly or through subsidiaries, free and clear of any mortgage,
pledge, lien, encumbrance, claim or equity.
(viii) The authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectus and the shares of issued
and outstanding Common Stock set forth thereunder have been duly
authorized and validly issued and are fully paid and non-assessable.
- 3 -
(ix) Neither the Company nor any of its subsidiaries is in
violation of its charter or in default in the performance or observance
of any material obligation, agreement, covenant or condition contained
in any contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which it is a party or by which it or any of them
or their properties may be bound; and the execution and delivery of
this Agreement, the Securities, the Indentures, each applicable Delayed
Delivery Contract (as defined in Section 2(b)) and each applicable
Terms Agreement, if any, and the consummation of the transactions
contemplated herein and therein have been duly authorized by all
necessary corporate action and will not conflict with or constitute a
breach of, or default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the
Company or any of its subsidiaries pursuant to any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which the
Company or any of its subsidiaries is a party or by which it or any of
them may be bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will such action
result in any violation of the provisions of the charter or by-laws of
the Company or any law, administrative regulation or administrative or
court order or decree; and no consent, approval, authorization, order
or decree of any court or governmental agency or body is required for
the consummation by the Company of the transactions contemplated by
this Agreement, except such as may be required under the 1933 Act, the
1939 Act or the Regulations, all of which have been obtained, or such
as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Securities by the
Agents.
(x) The Company and its subsidiaries own or possess or have
obtained all material governmental licenses, permits, consents, orders,
approvals and other authorizations necessary to lease or own, as the
case may be, and to operate their respective properties and to carry on
their respective businesses as presently conducted.
(xi) The Company and its subsidiaries own or possess adequate
trademarks, service marks and trade names necessary to conduct the
business now operated by them, and neither the Company nor any of its
subsidiaries has received any notice of infringement of or conflict
with asserted rights of others with respect to any trademarks, service
marks or trade names which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would materially
adversely affect the conduct of the business, operations, financial
condition or income of the Company and its subsidiaries considered as
one enterprise.
(xii) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now pending,
or, to the knowledge of the Company, threatened against or affecting,
the Company or any of its subsidiaries, which might result in any
material adverse change in the condition, financial or otherwise, of
the Company and its subsidiaries considered as one enterprise, or in
the business prospects of the Company and its subsidiaries considered
as one enterprise, or might materially and adversely affect the
properties or assets thereof or might materially and adversely affect
the consummation of this Agreement and the consummation of the
transactions contemplated hereby; and there are no material contracts
or documents of the
- 4 -
Company or any of its subsidiaries which are required to be filed as
exhibits to the Registration Statement by the 1933 Act or by the
Regulations which have not been so filed.
(xiii) The Securities have been duly authorized for issuance
and sale pursuant to this Agreement and, when issued, authenticated and
delivered pursuant to the provisions of this Agreement and of the
Indentures against payment of the consideration therefor specified
herein, the Securities will constitute valid and legally binding
obligations of the Company enforceable in accordance with their terms,
except as (i) enforceability thereof may be limited by bankruptcy,
insolvency, or other laws relating to or affecting creditors' rights
generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability, and will be entitled to the benefits provided by the
Indentures, which are substantially in the form heretofore delivered to
you; and the Securities and the Indentures conform in all material
respects to all statements relating thereto contained in the
Registration Statement.
(xiv) No labor dispute with the employees of the Company or
any of its subsidiaries exists or, to the knowledge of the Company, is
imminent.
(xv) Each of this Agreement and any applicable Terms Agreement
has been duly authorized, executed and delivered by the Company.
(xvi) The Indentures have been duly qualified under the 1939
Act and have been duly authorized, executed and delivered by the
Company and are the valid and binding agreements of the Company,
enforceable in accordance with their terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (ii) rights of
acceleration and the availability of equitable remedies may be limited
by equitable principles of general applicability.
(b) Any certificate signed by any officer of the Company and delivered
to you or to your counsel in connection with an offering of Securities shall be
deemed a representation and warranty by the Company to you as to the matters
covered thereby.
SECTION 2. Solicitations as Agent; Purchases as Principal.
(a) Solicitations as Agent. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein set
forth, you agree to use your reasonable efforts, as agent for the Company, to
solicit offers to purchase the Securities upon the terms and conditions set
forth in the Prospectus.
The Company reserves the right, in its sole discretion, to suspend
solicitation of purchases of the Securities commencing at any time for any
period of time or permanently. Upon receipt of instructions from the Company,
you will forthwith suspend solicitation of purchases from the Company until
advised by the Company that such solicitation may be resumed.
- 5 -
The Company agrees to pay you a commission, in the form of a discount,
equal to the percentage of the principal amount (in the case of Original Issue
Discount Securities, the principal amount payable at the stated maturity
thereof) of each Security sold by the Company as a result of a solicitation made
or offer to purchase received by you, as agent for the Company, as set forth in
Schedule A hereto.
You, in your capacity as agent for the Company, are authorized to
solicit orders for the Securities with terms specified to you from time to time
by the Company. You shall communicate to the Company, orally or in writing, each
offer to purchase Securities received by you as agent that in your judgment
should be considered by the Company. The Company shall have the sole right to
accept offers to purchase the Securities and may reject any such offer in whole
or in part. You shall have the right to reject any offer to purchase the
Securities received by you in whole or in part, and any such rejection shall not
be deemed a breach of its agreement contained herein.
(b) Delayed Delivery Contracts. The Company authorizes you to solicit
offers to purchase Securities pursuant to delayed delivery contracts (the
"Contract Securities") substantially in the form of Exhibit A attached hereto
("Delayed Delivery Contracts") with such changes therein as the Company may
approve. Delayed Delivery Contracts are to be entered into only with
institutional investors, including commercial and savings banks, insurance
companies, pension funds, investment companies and educational and charitable
institutions. Upon execution of a Delayed Delivery Contract by the Company, the
Company will pay you as compensation the fee set forth in Schedule A hereto in
respect of the principal amount of Contract Securities purchased as a result of
solicitations made by you. The Company will make Delayed Delivery Contracts in
all cases where sales of Contract Securities arranged by you have been approved
by the Company. You will not have any responsibility in respect of the validity
or the performance of Delayed Delivery Contracts.
(c) Purchases as Principal. Each sale of Securities to you as principal
shall be made in accordance with the terms of this Agreement and (unless the
Company and you shall otherwise agree) a separate agreement which will provide
for the sale of such Securities to, and the purchase and reoffering thereof by,
you. Each such separate agreement (which shall be substantially in the form of
Exhibit B hereto and which may take the form of an exchange of any oral
agreement confirmed in writing or any standard form of written telecommunication
between you and the Company) is herein referred to as a "Terms Agreement". Your
commitment to purchase Securities pursuant to any Terms Agreement or otherwise
shall be deemed to have been made on the basis of the representations and
warranties of the Company herein contained and shall be subject to the terms and
conditions herein set forth; provided, however, that for purposes of any Terms
Agreement all references in this Agreement to "you" or "the Agents" shall be
deemed to refer only to the Agent or Agents that are a party to such Terms
Agreement. Each Terms Agreement shall specify the principal amount of Securities
to be purchased by you pursuant thereto, the price to be paid to the Company for
such Securities, the initial public offering price, if any, at which the
Securities are proposed to be reoffered, and the time of delivery of and payment
for such Securities and such other provisions as may be mutually agreed upon.
Such Terms Agreement shall also specify any requirements for officer's
certificates, opinions of counsel and letters from Ernst & Young LLP pursuant to
Sections 5 and 6 hereof.
- 6 -
For each sale of Securities to an Agent as principal that is not made
pursuant to a Terms Agreement, the procedural details relating to the issue and
delivery of such Securities and payment therefor shall be as set forth in the
Procedures (as defined below). For each such sale of Securities to an Agent as
principal that is not made pursuant to a Terms Agreement, the Company agrees to
pay such Agent a commission (or grant an equivalent discount) as provided in
Section 2(a) hereof and as set forth in Schedule A hereto (unless another
discount is agreed upon).
Securities purchased by an Agent as principal may be resold by such
Agent to one or more investors or other purchasers at varying prices related to
prevailing market prices at the time of such resale, as determined by such
Agent. In addition, such Agent may offer the Securities it has purchased as
principal to other dealers.
(d) Procedures; Settlement. Administrative procedures respecting the
sale of Securities shall be agreed upon from time to time by the Agents and the
Company (the "Proce dures"). You and the Company agree to perform on and after
the Closing Time the respective duties and obligations specifically provided to
be performed by each of them herein and in the Procedures. The time of delivery
of and payment for Securities, whether pursuant to a Terms Agreement or other
agreement to purchase Securities as principal or pursuant to another purchaser's
offer to purchase Securities solicited by you in your capacity as agent for the
Company, is hereinafter referred to as the "Settlement Date" for such
Securities.
(e) You agree, with respect to any Security denominated in a currency
other than U.S. dollars, as agent, directly or indirectly, not to solicit offers
to purchase, and as principal under any Terms Agreement or otherwise, directly
or indirectly, not to offer, sell or deliver, such Security in, or to residents
of, the country issuing such currency (or, if such Security is denominated in a
composite currency, in any country issuing a currency comprising a portion of
such composite currency), except as permitted by applicable law.
(f) Delivery. The documents initially required to be delivered by
Section 5 hereof shall be delivered at the offices of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ on the date hereof, or at such other time
as you and the Company may agree upon in writing (the "Closing Time").
SECTION 3. Covenants of the Company. The Company covenants with you as
follows:
(a) If at any time when the Prospectus is required by the 1933 Act to
be delivered in connection with sales of the Securities any event shall occur or
condition exist as a result of which it is necessary, in the reasonable opinion
of the counsel for the Agents or counsel for the Company, to further amend or
supplement the Prospectus in order that the Prospectus will not include an
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the reasonable opinion of either such counsel, at any
such time to amend or supplement the Registration Statement or the Prospectus in
order to comply with the requirements of the 1933 Act or the Regulations,
immediate notice shall be given, and confirmed in writing, to you to cease the
solicitation of
- 7 -
offers to purchase the Securities in your capacity as agent for the Company and
to cease sales of any Securities you may then own as principal pursuant to a
Terms Agreement or otherwise, and the Company will promptly prepare and file
with the Commission such amendment or supplement, whether by filing documents
pursuant to the 1934 Act, the 1933 Act or otherwise, as may be necessary to
correct such untrue statement or omission or to make the Registration Statement
comply with such requirements.
(b) On the date on which there shall be released to the general public
interim financial statement information related to the Company with respect to
each of the first three quarters of any fiscal year or preliminary financial
statement information with respect to any fiscal year, the Company shall furnish
such information to you, confirmed in writing, and shall cause the Prospectus to
be amended or supplemented to include or incorporate by reference summary
financial information with respect to the results of operations of the Company
for the period between the end of the preceding fiscal year and the end of such
quarter or for such fiscal year, as the case may be, and corresponding
information for the comparable period of the preceding fiscal year, as well as
such other information and explanations as shall be necessary for an
understanding of such amounts or as shall be required by the 1933 Act or the
Regulations; provided, however, that if on the date of such release you shall
have suspended solicitation of purchases of the Securities in your capacity as
agent for the Company pursuant to a request from the Company, and shall not then
hold any Securities as principal, the Company shall not be obligated so to amend
or supplement the Prospectus until such time as the Company shall determine that
solicitation of purchases of the Securities should be resumed or shall
subsequently enter into a new Terms Agreement with you.
(c) On the date on which there shall be released to the general public
financial information included in or derived from the audited financial
statements of the Company for the preceding fiscal year, the Company shall cause
the Registration Statement and the Prospectus to be amended, pursuant to the
1934 Act, the 1933 Act or otherwise, to include or incorporate by reference such
audited financial statements and the report or reports, and consent or consents
to such inclusion or incorporation by reference, of the independent accountants
with respect thereto, as well as such other information and explanations as
shall be necessary for an understanding of such financial statements or as shall
be required by the 1933 Act or the Regulations; provided, however, that if on
the date of such release you shall have suspended solicitation of purchases of
the Securities in your capacity as agent for the Company pursuant to a request
from the Company, and shall not then hold any Securities as principal, the
Company shall not be obligated so to amend or supplement the Prospectus until
such time as the Company shall determine that solicitation of purchases of the
Securities should be resumed or shall subsequently enter into a new Terms
Agreement with you.
(d) The Company will make generally available to its security holders
(as defined in Rule 158) as soon as practicable, but not later than 45 days
after the close of each of the first three fiscal quarters of each fiscal year
and 90 days after the close of each fiscal year, earnings statements (in form
complying with the provisions of Rule 158 under the ▇▇▇▇ ▇▇▇) covering a twelve
month period beginning not later than the first day of the fiscal quarter next
following the effective date of the Registration Statement (as defined in Rule
158) with respect to each sale of Securities.
- 8 -
(e) The Company will give you notice of its intention to file any
amendment to the Registration Statement or any amendment or supplement to the
Prospectus, whether by the filing of documents pursuant to the 1934 Act, the
1933 Act or otherwise. The Company will furnish you with copies of any such
amendment or supplement or other documents, other than documents filed pursuant
to the 1934 Act, proposed to be filed a reasonable time in advance of filing,
and will furnish you with copies of documents filed pursuant to the 1934 Act
promptly upon the filing thereof.
(f) The Company will notify you immediately (i) of the filing and
effectiveness of any amendment to the Registration Statement, (ii) of the filing
of any supplement to the Prospectus or any document to be filed pursuant to the
1934 Act which will be incorporated by reference in the Prospectus, (iii) of the
receipt of any comments from the Commission with respect to the Registration
Statement or the Prospectus, (iv) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to the
Prospectus or for additional information, (v) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration Statement or
the initiation or threat of initiation of any proceedings for that purpose, or
(vi) of the suspension of qualification of the Securities for offering or sale
in any jurisdiction or the initiation or threat of initiation of any proceedings
for that purpose. The Company will make every reasonable effort to prevent the
issuance of any stop order or suspension of qualification and, if any stop order
or suspension of qualification is issued, to obtain the lifting thereof at the
earliest possible moment.
(g) The Company will deliver to you as many signed and conformed copies
of the registration statement (as originally filed) and of each amendment
thereto (including exhibits filed therewith or incorporated by reference therein
and documents incorporated by reference in the Prospectus) as you may reasonably
request. The Company will furnish to you as many copies of the Prospectus (as
amended or supplemented) as you shall reasonably request so long as you are
required to deliver a Prospectus in connection with sales or solicitations of
offers to purchase the Securities.
(h) The Company will endeavor, in cooperation with you, to qualify the
Securities for offering and sale under the applicable securities laws of such
states and other jurisdictions of the United States as the Agents may designate,
and will maintain such qualifications in effect for as long as may be required
for the distribution of the Securities; provided, however, that the Company
shall not be obligated to file any general consent to service of process or to
qualify as a foreign corporation in any jurisdiction in which it is not so
qualified. The Company will file such statements and reports as may be required
by the laws of each jurisdiction in which the Securities have been qualified as
above provided.
(i) The Company, during the period when the Prospectus is required to
be delivered under the 1933 Act, will file promptly all documents required to be
filed with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
1934 Act.
(j) Between the date of any Terms Agreement which you are a party and
the Settlement Date with respect to such Terms Agreement, the Company will not,
without the prior consent of each Agent that is a party to such Terms Agreement,
offer or sell in the United States,
- 9 -
or enter into any agreement to sell in the United States, any debt securities of
the Company with terms substantially similar to those of the Securities which
are the subject of such Terms Agreement (other than the Securities), except as
may otherwise be provided in any such Terms Agreement. Between (i) the date the
Company accepts an offer by any Agent to purchase Securities as principal not
pursuant to a Terms Agreement and confirms in writing its agreement to comply
with this paragraph 3(j) with respect to such Securities, and (ii) the
Settlement Date with respect to such Securities, the Company will not, without
the prior consent of such Agent, offer or sell in the United States, or enter
into any agreement to sell in the United States, any debt securities of the
Company with terms substantially similar to those of the Securities purchased by
such Agent as principal (other than the Securities), except as may otherwise be
provided in the Company's written confirmation to such Agent.
(k) The Company will suspend solicitation of purchases of the
Securities, and will advise the Agents of such suspension, upon receiving notice
from a nationally recognized statistical rating organization of the downgrading
of any rating assigned to any debt securities of the Company or of any intended
or potential downgrading or any review for possible change that does not
indicate the direction of the possible change in such rating.
SECTION 4. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement (whether or
not any sale of Securities is consummated), including: (i) the preparation and
filing of the Registration Statement and Prospectus and all amendments and
supplements thereto, (ii) the preparation, issuance and delivery of the
Securities, (iii) the fees and disbursements of the Company's counsel and
accountants and of the Trustee and its counsel, (iv) the qualification of the
Securities under securities or Blue Sky laws in accordance with the provisions
of Section 3(h), including filing fees and the reasonable fees and disbursements
of counsel in connection therewith and in connection with the preparation of any
Blue Sky Memorandum, any Blue Sky Survey and any Legal Investment Survey, (v)
the printing and delivery to you in quantities as hereinabove stated of copies
of the Registration Statement and all amendments thereto, and of the Prospectus
and any amendments or supplements thereto, (vi) the printing and delivery to you
of copies of the Indentures and any Blue Sky Memorandum, Blue Sky Survey and any
Legal Investment Survey, and (vii) any fees charged by rating agencies for the
rating of the Securities.
The Company shall reimburse you for the reasonable fees and
disbursements of your counsel. The Company shall also reimburse you for any
advertising and other out-of-pocket expenses incurred with the prior approval of
the Company.
SECTION 5. Conditions of Obligation. Your obligation to solicit offers
to purchase the Securities in your capacity as agent of the Company and your
obligation to purchase Securities as principal pursuant to any Terms Agreement
or otherwise and the obligations of purchasers to purchase Securities pursuant
to purchase offers solicited by you and accepted by the Company will be subject
to the accuracy of the representations and warranties on the part of the Company
herein, to the accuracy of the statements of the Company's officers made in any
certificate furnished pursuant to the provisions hereof, to the performance and
observance by the Company of all covenants and agreements herein contained on
its part to be performed and observed (in the case of an Agent's obligation to
solicit offers to purchase Securities, at the time of such
- 10 -
solicitation, and, in the case of an Agent's or any other purchaser's obligation
to purchase Securities, at the time the Company accepts the offer to purchase
such Securities and at the applicable Settlement Date) and (in each case) to the
following additional conditions precedent:
(a) At Closing Time and at each Settlement Date with respect to any
applicable Terms Agreement to which you are a party, if called for by such Terms
Agreement, you shall have received:
(1) The opinion or opinions, dated as of such time, of ▇▇▇▇▇▇
& Whitney LLP, counsel to the Company, in form and substance
satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware.
(ii) The Company has corporate power and authority to
own, lease and operate its properties and conduct its business
as described in the Registration Statement.
(iii) U.S. Bank National Association has been duly
organized and is validly existing as a national banking
association in good standing under the laws of the United
States, and has corporate power and authority to own, lease
and operate its properties and conduct its business as
described in the Registration Statement.
(iv) U.S. Bank National Association is duly qualified
to transact business in each jurisdiction in which its
ownership or lease of substantial properties or the conduct of
the business requires such qualification and where the failure
to so qualify would have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(v) This Agreement (and, if the opinion is being
given pursuant to Section 6(c) hereof on account of the
Company having entered into a Terms Agreement, the applicable
Terms Agreement) and any applicable Delayed Delivery Contract
has been duly authorized, executed and delivered by the
Company.
(vi) The execution and delivery of this Agreement
(and, if the opinion is being given pursuant to Section 6(c)
hereof on account of the Company having entered into a Terms
Agreement, the applicable Terms Agreement), any applicable
Delayed Delivery Contract, the Securities and the Indentures
and the consummation of the transactions contemplated herein
and therein will not (a) conflict with or result in the
creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any subsidiary
pursuant to any contract, indenture, mortgage, loan
- 11 -
agreement, note, lease or other instrument to which the
Company or any of its subsidiaries is a party or by which it
or any of them may be bound or to which any of the property
or assets of the Company or any of its subsidiaries is
subject and that is material to the Company and its
subsidiaries, taken as a whole, or (b) result in a violation
of any law or administrative regulation or administrative or
court decree of any court or governmental agency, authority
or body or any arbitrator having jurisdiction over the
Company known to such counsel and applicable to the Company
nor will such action result in any violation of the
provisions of the charter or by-laws of the Company.
(vii) Each of the Senior Note Indenture and the
Subordinated Note Indenture has been duly and validly
authorized, executed and delivered by the Company and
(assuming each such Indenture has been duly authorized,
executed and delivered by the Senior Note Trustee or the
Subordinated Note Trustee, as applicable) constitutes a valid
and binding agreement of the Company, enforceable in
accordance with its terms, except as (i) enforceability
thereof may be limited by bankruptcy, insolvency, or other
laws relating to or affecting creditors' rights generally and
(ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general
applicability.
(viii) The Securities have been duly and validly
authorized by all necessary corporate action and, when
executed and authenticated as specified in the applicable
Indenture and delivered against payment of the consideration
therefor in accordance with this Agreement, will constitute
valid and binding obligations of the Company, enforceable in
accordance with their terms, except as (i) enforceability
thereof may be limited by bankruptcy, insolvency, or other
laws relating to or affecting creditors' rights generally and
(ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general
applicability.
(ix) The statements in the Prospectus under the
captions "Description of Debt Securities" and "Plan of
Distribution" and similar captions in the applicable
prospectus supplement, insofar as they purport to summarize
certain provisions of documents specifically referred to
therein, are accurate summaries of such provisions.
(x) The statements in the Prospectus under the
caption "United States Taxation - United States Holders" and
"United States Taxation - Foreign Holders," to the extent that
they constitute matters of law or legal conclusions, have been
reviewed by such counsel and are correct.
(xi) To the best of such counsel's knowledge and
information, there are no contracts, indentures, mortgages,
loan agreements, notes, leases or other instruments required
to be described or referred to in the Registration Statement
or to be filed as exhibits
- 12 -
thereto other than those described or referred to
therein or filed or incorporated by reference as exhibits
thereto and the descriptions thereof or references thereto
are correct.
(xii) The Indentures are qualified under the 1939 Act.
(xiii) The Registration Statement is effective under
the 1933 Act and, to the best of such counsel's knowledge,
no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act or
proceedings therefor initiated or threatened by the
Commission.
(xiv) At the time the Registration Statement became
effective, and at the date hereof, the Registration
Statement and the Prospectus and each document incorporated
by reference therein (other than the financial statements,
schedules and other financial and statistical data included
therein and the Statements of Eligibility and Qualification
of the Trustee on Form T-l filed as an exhibit thereto, as
to which no opinion need be rendered) complied as to form in
all material respects with the requirements of the 1933 Act,
the 1934 Act, the 1939 Act and the regulations under each of
those Acts; and such counsel has no reason to believe that
(other than the financial statements, schedules and other
financial and statistical data included therein, as to which
no opinion need be rendered) the Registration Statement and
the Prospectus, at the time the Registration Statement
became effective, or if an amendment to the Registration
Statement or to any document incorporated by reference
therein has been filed by the Company with the Commission
subsequent to the effectiveness of the Registration
Statement, then at the time of the most recent such filing,
and at the date hereof, contained or contains an untrue
statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading or that the
Prospectus, as amended or supplemented at Closing Time or
the Settlement Date, as the case may be, contains an untrue
statement of a material fact or omits to state a material
fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made,
not misleading.
(xv) No consent, approval, authorization, or order of
any court or governmental authority or agency is required in
connection with the sale of the Securities, except such as may
be required under the 1933 Act or the rules and regulations
thereunder, all of which have been obtained, or such as may be
required under state securities laws.
In rendering such opinion, such counsel may rely as to matters of New York law
upon the opinion of counsel to the Agents being delivered pursuant to
subparagraph (3).
(2) The opinion or opinions, dated as of such time, of the
General Counsel of the Company, in form and substance satisfactory to
you, to the effect that:
- 13 -
[ (i) The Company is duly qualified to do business as
a foreign corporation and is in good standing in each U.S.
jurisdiction in which its ownership or lease of substantial
properties or the conduct of its business requires such
qualification, except where the failure so to qualify would
not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.]
(ii) There are no pending or, to the best of such
counsel's knowledge, overtly threatened lawsuits or claims
against the Company or any subsidiary of the Company which are
required to be disclosed in the documents incorporated by
reference in the Registration Statement that are not disclosed
as required.
(3) The opinion or opinions of your counsel, relating to the
validity of the Securities, the Indentures, this Agreement, such other
matters as the Agent or Agents receiving such opinion may request and
the Registration Statement and the Prospectus. In rendering such
opinion, such counsel may rely as to matters of Minnesota law upon the
opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP and the General Counsel of the Company
being delivered pursuant to subparagraphs (1) and (2) respectively.
(b) At Closing Time and at each Settlement Date with respect to any
Terms Agreement to which you are a party, if called for by such Terms Agreement,
you shall have received a certificate of the Chairman, Vice Chairman, President
or a Vice President of the Company, dated as of Closing Time and, if called for
by such Terms Agreement, dated as of the Settlement Date for such transaction,
in each case to the effect (i) that there has been no downgrading, nor any
notice given of any potential or intended downgrading, or of a possible change
that does not indicate the direction of the possible change, in the rating
accorded any of the Company's securities by any nationally recognized
statistical rating organization, (ii) that the representations and warranties of
the Company contained in Section 1 are true and correct with the same force and
effect as though expressly made at and as of the date of such certificate, (iii)
that the Company has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied at or prior to the date of such
certificate, and (iv) that no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been initiated or threatened by the Commission.
(c) At Closing Time and at each Settlement Date with respect to any
Terms Agreement to which you are a party, if called for by such Terms Agreement,
you shall have received from Ernst & Young LLP (or another nationally recognized
firm of independent public accountants), a letter, dated as of the Closing Time
or such Settlement Date, in form and substance satisfactory to you, to the
effect that:
(i) They are independent public accountants with respect to
the Company and its subsidiaries within the meaning of the 1933 Act and
the Regulations.
(ii) In their opinion the consolidated financial statements
and schedules audited by them and included in the Prospectus comply as
to form in all material respects
- 14 -
with the applicable accounting requirements of the 1933 Act, the 1934
Act and the Regulations.
(iii) They have made a review of any unaudited consolidated
financial statements included in the Prospectus in accordance with
standards established by the American Institute of Certified Public
Accountants.
(iv) On the basis of the review referred to in (iii) and a
reading of the latest available interim financial information of the
Company and its consolidated subsidiaries, inspection of the minute
books of the Company and such subsidiaries since the date of the
balance sheet included in the Company's most recent audited financial
statements, inquiries of officials of the Company responsible for
financial and accounting matters and other specified procedures,
nothing came to their attention that caused them to believe that the
unaudited financial statements included in the Prospectus do not comply
as to form in all material respects with applicable accounting
requirements of the 1933 Act, the 1934 Act and the Regulations or that
the unaudited financial statements included in the Prospectus are not
presented in conformity with generally accepted accounting principles
applied on a basis consistent in all material respects with that of the
audited financial statements included in the Prospectus.
(v) They have performed specified procedures, not constituting
an audit, including a reading of the latest available interim financial
statements of the Company and its consolidated subsidiaries, a reading
of the minute books of the Company and such subsidiaries since the date
of the balance sheet included in the Company's most recent audited
financial statements, inquiries of officials of the Company responsible
for financial and accounting matters and such other inquiries and
procedures as may be specified in such letter, and on the basis of such
inquiries and procedures nothing came to their attention that caused
them to believe that:
(A) at the date of the latest available consolidated
balance sheet read by such accountants, or at a subsequent
specified date not more than five days prior to the date of
delivery of such letter, there was any change in the capital
stock of the Company and its consolidated subsidiaries, any
increase in long-term debt of the Company and its consolidated
subsidiaries or any decreases in consolidated common
shareholders' equity of the Company and its consolidated
subsidiaries, in each case as compared with amounts shown in
the most recent consolidated balance sheet included in the
Prospectus, except in each case for changes, increases or
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; or
(B) for the period from the date of the latest income
statement included in the Prospectus to the closing date of
the latest available income statement read by such
accountants, there were any decreases, as compared with the
corresponding period in the preceding year, in consolidated
net income, except for decreases which the Prospectus
discloses have occurred or may occur or which are described in
such letter.
- 15 -
(vi) They have compared certain agreed dollar amounts (or
percentages derived from such dollar amounts) and other financial
information included in the Prospectus (in each case to the extent that
such dollar amounts, percentages and other financial information are
derived from the general accounting records of the Company and its
subsidiaries subject to the internal controls of the Company's
accounting system or are derived directly from such records by analysis
or computation) with the results obtained from inquiries, a reading of
such general accounting records and other proce dures specified in such
letter, and have found such dollar amounts, percentages and other
financial information to be in agreement with such results, except as
otherwise specified in such letter.
All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed included in the
Prospectus for purposes of this subsection.
(d) At Closing Time and at each Settlement Date with respect to any
Terms Agreement to which you are a party, if called for by such Terms Agreement,
the counsel for the Agents shall have been furnished with such documents and
opinions as they may reasonably require for the purpose of enabling them to pass
upon the issuance and sale of the Securities as herein contemplated and related
proceedings, or in order to evidence the accuracy and completeness of any of the
representations and warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company in connection with
the issuance and sale of the Securities as herein contemplated shall be
satisfactory in form and substance to the Agents and their counsel.
Your obligation to solicit offers to purchase the Securities in your
capacity as Agent for the Company, your obligation to purchase Securities as
principal pursuant to any Terms Agreement or otherwise and the obligations of
purchasers to purchase Securities pursuant to purchase offers solicited by you
and accepted by the Company will be subject to the following further conditions:
(i) there shall not have been, since the date of such Terms Agreement or since
the respective dates as of which information is given in the Registration
Statement and the Prospectus, any material adverse change in the condition,
financial or otherwise, of the Company and its subsidiaries considered as one
enterprise, or in the earnings, affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, other than as set forth in the Prospectus, as
amended or supplemented at the time of such solicitation or at the time such
offer to purchase was made, and (ii) there shall not have occurred any outbreak
or escalation of hostilities or any material change in financial markets or
other calamity or crisis the effect of which is such as to make it, in your
judgment, impracticable or inadvisable to market the Securities or enforce
contracts for the sale of the Securities, and (iii) trading in securities of the
Company shall not have been suspended by the Commission or a national securities
exchange, nor shall trading generally on either the American Stock Exchange or
the New York Stock Exchange have been suspended, or minimum or maximum prices
for trading of securities generally have been fixed, or maximum ranges for
prices for securities (other than trading limits currently in effect and other
similar trading limits) have been required, or trading otherwise materially
limited, by either of said exchanges or by order of the Commission or any other
governmental authority, nor shall a banking moratorium have been declared by
either Federal or New York authorities nor shall a banking moratorium
- 16 -
have been declared by the relevant authorities in the country or countries of
origin of any foreign currency or currencies in which the Securities are
denominated or payable and (iv) the rating assigned by any nationally recognized
statistical rating organization to any debt securities of the Company as of the
date of the applicable Terms Agreement or the date that the applicable purchase
offer was presented to the Company, as the case may be, shall not have been
downgraded from that date to the applicable Settlement Date nor shall any notice
have been given by any such nationally recognized statistical rating
organization of any intended or potential downgrading or any review for possible
change that does not indicate the direction of the possible change in such
rating, and (v) the Prospectus, at the time it was required to be delivered to a
purchaser of the Securities, shall not have contained an untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statements therein, in light of the circumstances existing at such time, not
misleading.
If any condition specified in this Section shall not have been
fulfilled, any Terms Agreement to which you are a party and any agreement to
purchase Securities from the Company pursuant to a purchase offer solicited by
you as Agent may be terminated insofar as it applies to you or to a prospective
purchaser, in the case of a solicited purchase offer, by notice to the Company
at any time at or prior to the Closing Time or applicable Settlement Date, and
such termination shall be without liability of any party to any other party,
except that the covenants set forth in Section 3(d) hereof, the provisions of
Section 4 hereof, the indemnity and contribution agreement set forth in Sections
7 and 8 hereof, and the provisions of Sections 10 and 13 hereof shall remain in
effect.
SECTION 6. Additional Covenants of the Company. The Company covenants
and agrees that:
(a) Each acceptance by it of an offer for the purchase of Securities,
and each sale of Securities to you pursuant to a Terms Agreement to which you
are a party, shall be deemed to be an affirmation that the representations and
warranties of the Company contained in this Agreement and in any certificate
theretofore delivered to you pursuant hereto are true and correct at the time of
such acceptance or sale, as the case may be, and an undertaking that such
representations and warranties will be true and correct at the time of delivery
to the purchaser or his agent, or you, as the case may be, of the relevant
Securities as though made at and as of each such time (and it is understood that
such representations and warranties shall relate to the Registration Statement
and the Prospectus as amended and supplemented to each such time);
(b) Each time that the Registration Statement or the Prospectus shall
be amended or supplemented (other than by an amendment or supplement relating
solely to the terms of the Securities or a change in the principal amount of
Securities remaining to be sold or similar changes) or there is filed with the
Commission any document incorporated by reference into the Prospectus, or if the
Company sells Securities to you pursuant to a Terms Agreement and such Terms
Agreement so provides, the Company shall, if so requested by you or if so
required by such Terms Agreement, furnish or cause to be furnished to you (or,
if such certificate is being furnished pursuant to a Terms Agreement, to the
Agent or Agents party thereto) forthwith a certificate in form satisfactory to
you (or, if such certificate is being furnished pursuant to a Terms Agreement,
to the Agent or Agents party thereto) to the effect that the statements
- 17 -
contained in the certificates referred to in Section 5(b) hereof which were last
furnished to you are true and correct at the time of such amendment or
supplement or filing or sale, as the case may be, as though made at and as of
such time (except that such statements shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to such
time) or, in lieu of such certificate, certificates of the same tenor as the
certificates referred to in said Section 5(b), modified as necessary to relate
to the Registration Statement and the Prospectus as amended and supplemented to
the time of delivery of such certificates;
(c) Each time that the Registration Statement or the Prospectus shall
be amended or supplemented or there is filed with the Commission any document
incorporated by reference into the Prospectus (other than by an amendment or
supplement relating solely to the terms of the Securities or a change in the
principal amount of Securities remaining to be sold or similar changes), or if
the Company sells Securities to you pursuant to a Terms Agreement and such Terms
Agreement so provides, the Company shall, if so requested by you or if so
required by such Terms Agreement, furnish or cause to be furnished forthwith to
you (or, if such certificate is being furnished pursuant to a Terms Agreement,
to the Agent or Agents party thereto) and the counsel for the Agents written
opinions of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Company, or other counsel
satisfactory to the Agents receiving such opinion, and the General Counsel of
the Company, each dated the date of delivery of such opinion, in form
satisfactory to the Agents receiving such opinion, of the same tenor as the
opinions referred to in Sections 5(a)(1) and 5(a)(2), respectively, hereof but
modified, as necessary, to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such opinions
or, in lieu of such opinions, counsel last furnishing each such opinion to the
Agents shall furnish to the Agent or Agents entitled to receive such opinion a
letter to the effect that such Agent or Agents may rely on such last opinion to
the same extent as though it was dated the date of such letter authorizing
reliance (except that statements in such last opinion shall be deemed to relate
to the Registration Statement and the Prospectus as amended and supplemented to
the time of delivery of such letter authorizing reliance); and
(d) Each time that the Registration Statement or the Prospectus shall
be amended or supplemented to include additional financial information or there
is filed with the Commission any document incorporated by reference into the
Prospectus which contains additional financial information, or if the Company
sells Securities to you pursuant to a Terms Agreement and such Terms Agreement
so provides, the Company shall, if so requested by you or if so required by such
Terms Agreement, cause Ernst & Young LLP (or another nationally recognized firm
of independent public accountants) forthwith to furnish you (or, if such letter
is being furnished pursuant to a Terms Agreement, to the Agent or Agents party
thereto) a letter, dated the date of filing of such amendment, supplement or
document with the Commission, or the date of such sale, as the case may be, in
form satisfactory to the Agent or Agents entitled to receive such letter, of the
same tenor as the portions of the letter referred to in clauses (i) and (ii) of
Section 5(c) hereof but modified to relate to the Registration Statement and
Prospectus, as amended and supplemented to the date of such letter, and of the
same general tenor as the portions of the letter referred to in clauses (iii),
(iv), (v) and (vi) of said Section 5(c) with such changes as may be necessary to
reflect changes in the financial statements and other information derived from
the accounting records of the Company; provided, however, that if the
Registration Statement or the Prospectus is amended or supplemented solely to
include financial information
- 18 -
as of and for a fiscal quarter, Ernst & Young LLP may limit the scope of such
letter to the unaudited financial statements included in such amendment or
supplement unless any other information included therein of an accounting,
financial or statistical nature is of such a nature that, in the reasonable
judgment of the Agent or Agents entitled to receive such letter, such letter
should cover such other information.
SECTION 7. Indemnification.
(a) The Company agrees to indemnify and hold harmless you and each
person, if any, who controls you within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out
of any untrue statement or alleged untrue statement of a material fact
contained in the Prospectus (or any amendment or supplement thereto or
any related preliminary prospectus or preliminary prospectus
supplement) or the omission or alleged omission therefrom of a material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, unless such
untrue statement or omission was made in reliance upon and in
conformity with written information relating to you furnished to the
Company by you expressly for use in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement
thereto or any related preliminary prospectus or preliminary prospectus
supplement);
(ii) against any and all loss, liability, claim, damage and
expense whatsoever to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission (except as made in reliance
upon and in conformity with information relating to you furnished by
you as aforesaid) if such settlement is effected with the written
consent of the Company; and
(iii) against any and all expense whatsoever (including the
fees and disbursements of counsel chosen by you), as incurred,
reasonably incurred in investigating, preparing or defending against
any litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission (except as made in reliance upon and in
conformity with information relating to you furnished by you as
aforesaid), to the extent that any such expense is not paid under (i)
or (ii) above.
(b) You agree to indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statement, and each
person, if any, who controls
- 19 -
the Company within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto) or the
Prospectus (or any amendment or supplement thereto or any related preliminary
prospectus or preliminary prospectus supplement) in reliance upon and in
conformity with written information relating to you furnished to the Company by
you expressly for use in the Registration Statement (or any amendment thereto)
or the Prospectus (or any amendment or supplement thereto or any related
preliminary prospectus or preliminary prospectus supplement).
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder but failure to so notify an indemnifying party
shall not relieve it from any liability which it may have otherwise than on
account of this indemnity agreement. An indemnifying party may participate at
its own expense in the defense of such action. In no event shall the
indemnifying parties be liable for the fees and expenses of more than one
counsel (in addition to any local counsel) for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances;
provided, however, that when more than one of the Agents is an indemnified party
each such Agent shall be entitled to separate counsel (in addition to any local
counsel) in each such jurisdiction to the extent such Agent may have interests
conflicting with those of the other Agent or Agents because of the participation
of one Agent in a transaction hereunder in which the other Agent or Agents did
not participate. No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
SECTION 8. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 7 is for any reason held to be unavailable to you in accordance with its
terms, the Company and you shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by said
indemnity agreement incurred by the Company and you with respect to Securities
sold to or through you in such proportions as is appropriate to reflect the
relative benefits received by the Company on the one hand and you on the other.
The relative benefits received by the Company on the one hand and you on the
other shall be deemed to be in such proportion represented by the percentage
that the total commissions and underwriting discounts received by you to the
date of such liability bears to the total sales price (before deducting
expenses) received by the Company from the sale of Securities made to or through
you to the date of such liability, and the Company is responsible for the
balance. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law or if you failed to give the notice
required under Section 7(c), then the Company and you shall contribute to such
aggregate losses, liabilities, claims, damages and expenses in such proportion
as is appropriate to reflect not only such relative benefits but also the
relative fault of the Company and you in connection with the statements or
omissions which resulted in such liabilities, claims, damages and expenses, as
well
- 20 -
as any other relevant equitable considerations. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or you and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and you agree that it
would not be just and equitable if contributions pursuant to this Section 8 were
determined pro rata (even if the Agents were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in this Section 8. Notwithstanding the
provisions of this Section 8, you shall not be required to contribute any amount
in excess of the amount by which the total price at which the Securities
referred to in the second sentence of this Section that were offered and sold to
the public through you exceeds the amount of any damages that you have otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled under
this Section 8 to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section, each person, if any,
who controls you within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act shall have the same rights to contribution as you, and each
director of the Company, each officer of the Company who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as the Company.
SECTION 9. Status of the Agents. In acting under this Agreement and in
connection with the sale of any Securities by the Company (other than Securities
sold to you as principal), you are acting solely as agent of the Company and do
not assume any obligation towards or relationship of agency or trust with any
purchaser of Securities. You will make reasonable efforts to assist the Company
in obtaining performance by each purchaser whose offer to purchase Securities
from the Company has been solicited by you and accepted by the Company but you
shall not have any liability to the Company in the event any such purchase is
not consummated for any reason. If the Company shall default in its obligations
to deliver Securities to a purchaser whose offer it has accepted, the Company
shall hold you harmless against any loss, claim, damage or liability arising
from or as a result of such default and shall, in particular, pay to you the
commission you would have received had such sale been consummated.
SECTION 10. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and indemnification and contribution
agreements contained in this Agreement or any Terms Agreement or other agreement
to purchase Securities as principal to which you are a party, or contained in
certificates of officers of the Company submitted pursuant hereto or thereto,
shall remain operative and in full force and effect, regardless of any
termination of this Agreement or any such Terms Agreement or any such other
agreement, or any investigation made by or on behalf of the Agents or any
controlling person referred to in Section 7, or by or on behalf of the Company
or any controlling person referred to in Section 7, and shall survive each
delivery of and payment for any of the Securities.
SECTION 11. Termination. This Agreement may be terminated with respect
to the participation of any party hereto for any reason at any time by such
party upon the giving of
- 21 -
written notice of such termination to the other parties hereto. Any Terms
Agreement or other agreement to purchase securities as principal to which you
are a party shall be subject to termination in your absolute discretion on the
terms set forth or incorporated by reference therein, but the termination of
this Agreement shall not require termination of any such Terms Agreement or such
other agreement.
In the event of any such termination of this Agreement by any other
party hereto, no other party will have any liability to such party and such
party will not have any liability to any other party hereto, except that (i) you
shall be entitled to any commissions earned in accordance with the third
paragraph of Section 2(a) hereof, (ii) if at the time of termination (A) you
shall own any of the Securities with the intention of reselling them or (B) an
offer to purchase any of the Securities has been accepted by the Company but the
time of delivery to the purchaser or his agent of the Securities or Securities
relating thereto has not occurred, the covenants set forth in Sections 3, 5 and
6 hereof shall remain in effect until such Securities are so resold or
delivered, as the case may be, and (iii) the covenant set forth in Section 3(d)
hereof, the provisions of Section 4 hereof, the indemnity and contribution
agreements set forth in Sections 7 and 8 hereof, and the provisions of Sections
9, 10, 13 and 14 hereof shall remain in effect.
SECTION 12. Notices. All notices and other communications hereunder
shall be in writing and effective upon receipt and shall be deemed to have been
duly given if mailed or transmitted by any standard form of telecommunication.
Notices to____________________ shall be directed to them at _________________
Attention: ___________ (telefax number: ________). Notices to the Company shall
be directed to it at U.S. Bancorp, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of the Treasurer.
SECTION 13. Parties. This Agreement and any Terms Agreement to which
you are a party shall inure to the benefit of and be binding upon you (or, in
the case of a Terms Agreement, the Agent or Agents which are a party thereto)
and the Company and their respective successors and, to the extent provided in
Section 5 hereof, shall inure to the benefit of any person who has agreed to
purchase Securities from the Company pursuant to a purchase offer solicited by
you. Nothing expressed or mentioned in this Agreement or any Terms Agreement to
which you are a party is intended or shall be construed to give any person, firm
or corporation, other than the parties hereto and their respective successors
and, to the extent provided in Section 5 hereof, any person who has agreed to
purchase Securities from the Company pursuant to a purchase offer solicited by
you, and the controlling persons and officers and directors referred to in
Sections 7 and 8 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
such Terms Agreement or any provision herein or therein contained. This
Agreement and any such Terms Agreement and all conditions and provisions hereof
and thereof are intended to be for the sole and exclusive benefit of the parties
hereto and their respective successors and, to the extent provided in Section 5
hereof, any person who has agreed to purchase Securities from the Company
pursuant to a purchase offer solicited by you, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities
shall be deemed to be a successor by reason merely of such purchase.
- 22 -
SECTION 14. Governing Law. This Agreement and the rights and
obligations of the parties created hereby shall be governed by the laws of the
State of New York.
- 23 -
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument along with all counterparts will become a binding agreement
between you and the Company in accordance with its terms.
Very truly yours,
U.S. BANCORP
By______________________________
Name:
Title:
- 24 -
CONFIRMED AND ACCEPTED in New York, New York as of the date
first above written:
[AGENT]
By_______________________________
Name:
Title:
- 25 -
SCHEDULE A
Term Commission Rates
---- ----------------
Nine months to but less than one year .125%
One year to but less than eighteen months .150%
Eighteen months to but less than two years .200%
Two years to but less than three years .250%
Three years to but less than four years .350%
Four years to but less than five years .450%
Five years to but less than six years .500%
Six years to but less than seven years .550%
Seven years to but less than eight years .600%
Eight years to but less than nine years .600%
Nine years to but less than ten years .600%
Ten years to but less than fifteen years .625%
Fifteen years to but less than twenty years .700%
Twenty years to but less than thirty years .750%
Thirty years or more to be negotiated
EXHIBIT A
(Three copies of this Delayed Delivery Contract should be signed and
returned to the address shown below so as to arrive not later than ___:00 A.M.,
New York time, on __________, ____.)
DELAYED DELIVERY CONTRACT
[Insert date of offering of Securities to be sold]
U.S. BANCORP
c/o [Insert name and address of Agents]
Attention:
Gentlemen:
The undersigned hereby agrees to purchase from U.S. Bancorp, a Delaware
corporation (the "Company), and the Company agrees to sell to the undersigned,
as of the date hereof, for delivery on ______________________ (the "Delivery
Date"), $________ principal amount of the Company's ______________________
(hereinafter called "Securities"), offered by the Company's Prospectus, dated
___________, ______, as supplemented by a Prospectus Supplement, dated _______,
and a Pricing Supplement, dated ___________, ______, relating thereto, receipt
of a copy of which is hereby acknowledged, at _____% of the principal amount
thereof plus accrued interest, if any, and on the further terms and conditions
set forth in this Delayed Delivery Contract ("Contract").
Payment for the Securities which the undersigned has agreed to purchase
for delivery on the Delivery Date shall be made to the Company or its order in
immediately available funds in [St. ▇▇▇▇, Minnesota, at 10:00 A.M., Minnesota
time, at the offices of the Company, RiverBank Business Center, MNRB01892751,
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇], on the Delivery Date upon delivery to the
undersigned of the Securities to be purchased by the undersigned in definitive
form and in such denominations and registered in such names as the undersigned
may designate by written or telegraphic communication addressed to the Company
not less than five full business days prior to the Delivery Date.
It is expressly agreed that the provisions for delayed delivery and
payment are for the sole convenience of the undersigned; that the purchase
hereunder of Securities is to be regarded in all respects as a purchase as of
the date of this Contract; that the obligation of the Company to make delivery
of and accept payment for, and the obligation of the undersigned to take
delivery of and make payment for, Securities on the Delivery Date shall be
subject only to the condition that investment in the Securities shall not at the
Delivery Date be prohibited under the laws of any jurisdiction in the United
States to which the undersigned is subject.
The undersigned represents that its investment in such Securities is
not, as of the date hereof, prohibited under the laws of any jurisdiction to
which the undersigned is subject and which govern such investment.
A-1
This Contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
This Contract may be executed by either of the parties hereto in any
number of counterparts, each of which shall be deemed to be an original, but all
such counterparts shall together constitute one and the same instrument.
This Contract shall be governed by and construed in accordance with the
laws of the State of New York.
A-2
It is understood that the acceptance of any such Contract (including
this Contract) is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first-come, first-served basis. If this Contract is
acceptable to the Company, it is requested that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding contract
between the Company and the undersigned when such counterpart is so mailed or
delivered.
Yours very truly,
________________________________
(Name of Buyer)
By___________________________
_____________________________
(Name and Title of Signatory)
_____________________________
_____________________________
(Address of Buyer)
Accepted as of the date
first above written
U.S. BANCORP
By______________________________
________________________________
(Title)
A-3
EXHIBIT B
U.S. Bancorp
(A Delaware corporation)
[Medium-Term Notes, Series L (Senior)]
[Medium-Term Notes, Series M (Subordinated)]
TERMS AGREEMENT
_______________, 1999
__________________________________________________________
Attention: _______________________________________________
Re: Distribution Agreement dated _________, 1999
The undersigned agrees to purchase the following principal
amount of Securities:
$_____________
Initial Public Offering Price:
[Initial]* Interest Rate:
[Index Maturity:]*
[Interest Rate Basis:]*
[Maximum Interest Rate:]*
[Minimum Interest Rate:]*
[Interest Determination Dates:]*
[Interest Reset Dates:]*
[Interest Payment Dates:]*
[Maturity Date:]
[Spread:]*
[Spread Multiplier:]*
[Alternate Rate Event Spread:]*
[Alternate Rate Event Spread Multiplier:]*
A-4
[Interest Period:]*
[Regular Record Date (if other
than the fifteenth calendar day
preceding each Interest Payment Date):]*
Purchase Price: %
Settlement Date and Time:
Redemption Provisions, if any:
[Currency of denomination:]**
[Denominations:]**
[Currency of payment:]**
[Original Issue Discount Note:]
[Other provisions:]
The provisions of Sections 1, 2(c) and 2(d), 3, 4, 7, 8 and 10 through
14 of the Distribution Agreement and the related definitions are incorporated by
reference herein and shall be deemed to have the same force and effect as if set
forth in full herein.
Exceptions, if any, to Section 3(j) of the Distribution Agreement:
[Documents to be delivered:
The following documents referred to in the
Distribution Agreement shall be delivered:
[(1) The certificate referred to in Sections 5(b) and 6(b);]
[(2) The opinions referred to in Sections 5(a)(1), 5(a)(2),
[5(a)(3)] and 6(c);]
[(3) The accountants' letter referred to in Sections 5(c)
and 6(d).]]
--------------
* Applicable to Floating Rate Notes only.
** Applicable to Foreign Currency Notes Only.
[AGENT]
By_____________________________
Its____________________________
Accepted:
U.S. BANCORP
By_______________________________
[Title]