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EXHIBIT 1.1
$5,000,000,000
U.S. Bancorp
(a Delaware corporation)
Medium Term Notes, Series N (Senior)
Medium Term Notes, Series O (Subordinated)
DISTRIBUTION AGREEMENT
August 3, 2001
Credit Suisse First Boston Corporation
U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc.
ABN AMRO Incorporated
Banc of America Securities LLC
Barclays Capital Inc.
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇▇▇▇ Brothers Inc.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
Salomon Brothers ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
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 $5,000,000,000 aggregate
principal amount or its equivalent in foreign currencies or currency units of
Medium-Term Notes, Series N (Senior) (the "Senior Notes") and Medium Term Notes,
Series O (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 Note 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.
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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. 333-65358) 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, or any Registration Statement
subsequently filed pursuant to Rule 462(b), 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 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
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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.
(iii) The accountants who audited and reviewed the
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 Effect (as defined below) 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.
"Material Adverse Effect" shall mean a material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Company and its subsidiaries, considered
as one.
(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 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; 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.
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(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.
(ix) Neither the Company nor any of its subsidiaries is
in violation of its charter or bylaws or in default in the performance
or observance of any 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, except for such defaults that
would not result in a Material Adverse Effect; 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) 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 a Material Adverse Effect, 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 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.
(xii) 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
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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, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally or by
general equitable principles (regardless of whether enforcement is
considered in a proceeding in equity of at law), and except further as
enforcement thereof may be limited by requirements that a claim with
respect to any Securities payable in a foreign or composite currency
(or a foreign or composite currency judgment in respect of such claim)
be converted in to U.S. dollars at a rate or exchange prevailing on a
date determined pursuant to applicable law or by governmental authority
to limit, delay or prohibit the making of payments outside the United
States. The Securities will be substantially in a form previously
certified to the Agents and contemplated by the Indenture; and each
holder of Securities will be entitled to the benefits of the Indenture.
The Securities and the Indentures conform in all material respects to
all statements relating thereto contained in the Registration
Statement.
(xiii) Each of this Agreement and any applicable Terms
Agreement has been duly authorized, executed and delivered by the
Company.
(xiv) 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 the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of
creditors' rights generally or by general equitable principles
(regardless of whether enforcement is considered in a proceeding in
equity or at law).
(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. You are not authorized to appoint
sub-agents with respect to Securities sold through you as agent. All securities
sold through you as agent will be sold at 100% of their principal amount, unless
otherwise agreed upon by you and the Company.
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.
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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 your 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
PricewaterhouseCoopers LLP pursuant to Sections 5 and 6 hereof.
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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 fixed offering prices or
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.
If the Company and two or more Agents enter into an agreement pursuant
to which such Agents agree to purchase Securities from the Company as principal
and one or more of such Agents shall fail at the Settlement Date to purchase the
Securities which it or they are obligated to purchase (the "Default
Securities"), then the nondefaulting Agents shall have the right, within 24
hours thereafter, to make arrangements for one of them or one or more other
Agents or underwriters to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth; provided, however, that if such arrangements shall not have been
completed within such 24-hour period; then:
(a) if the aggregate principal amount of Defaulted Securities
does not exceed 10% of the aggregate principal amount of Securities to
be so purchased by all of such Agents on the Settlement Date, the
nondefaulting Agents shall be obligated, severally and not jointly, to
purchase the full amount thereof in the proportions that their
respective initial underwriting obligations bear to the underwriting
obligations of all nondefaulting Agents; or
(b) if the aggregate principal amount of Defaulted Securities
exceeds 10% of the aggregate principal amount of Securities to be so
purchased by all of such Agents on the Settlement Date, such agreement
shall terminate without liability on the part of any nondefaulting
Agent.
No action taken pursuant to this paragraph shall relieve any defaulting
Agent from liability in respect of its default. In the event of any such default
which does not result in a termination of such agreement, either the
nondefaulting Agents or the Company shall have the rights to postpone the
Settlement Date for a period not exceeding seven days in order to effect any
required changes in the Registration Statement or the Prospectus or in any other
documents or arrangements.
(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 "Procedures"). 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
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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 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
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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.
(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 (other than an amendment or supplement thereto providing
solely for the determination of the variable terms of the Securities or relating
solely to the offering of securities other than the Securities). 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 (other than an
amendment or supplement thereto providing solely for the determination of the
variable terms of the Securities or relating solely to the offering of
securities other than the Securities), (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
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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 to which you are a
party and the Settlement Date with respect to such Terms Agreement, the Company
will not, without the prior consent (which will not be unreasonably withheld) of
each Agent that is a party to such Terms Agreement, 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 which are the subject of such Terms Agreement (other than such
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 (which will not be unreasonably
withheld) 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 such 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
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the Company or of any intended or potential downgrading or any review with
possible negative implications.
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 in connection with the establishment or
maintenance of the program contemplated by this Agreement. 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 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
Squire, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P., 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.
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(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) 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.
(v) 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 enforceability thereof
may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of
creditors' rights generally or by general equitable principles
(regardless of whether enforcement is considered in a
proceeding in equity or at law).
(vi) 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
therefore in accordance with this Agreement, will constitute
valid and binding obligations of the Company, enforceable in
accordance with their terms, except as enforceability thereof
may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of
creditors' rights generally or by general equitable principles
(regardless of whether enforcement is considered in a
proceeding in equity or at law).
(vii) The statements in the Prospectus under the
caption "Description of Debt Securities" 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.
(viii) The statements in the Prospectus under the
caption "United States Taxation - United States Holders",
"United States Taxation - Foreign Holders" and "Backup
Withholding and Information Reporting" to the extent that they
constitute matters of law or legal conclusions, have been
reviewed by such counsel and are correct.
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(ix) 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 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.
(x) The Indentures are qualified under the 1939
Act.
(xi) 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.
(xii) At the time the Registration Statement became
effective, and at the date hereof, the Registration Statement
and the Prospectus and at the time they were filed, 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.
(xiii) 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).
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(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:
(i) 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.
(ii) 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 to the best of such counsel's knowledge
and information, (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 agreement, note,
lease or other instrument known to such counsel 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.
(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.
(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.
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(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 PricewaterhouseCoopers 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 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
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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.
(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 procedures 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
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Prospectus, any Material Adverse Effect, 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 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
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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, (other than by an amendment or supplement relating solely to the
terms of the Securities or a change in the principal amount of the 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 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 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 Squire, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P.,
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 (other than by an amendment or supplement relating solely to the
issuance and/or offering of securities other than
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the Securities) 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
PricewaterhouseCoopers 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 as of and for a fiscal quarter,
PricewaterhouseCoopers 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 each
Agent and each person, if any, who controls such Agent 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 furnished to the Company by such
Agent 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
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omission, or any such alleged untrue statement or omission (except as
made in reliance upon and in conformity with information furnished by
such agent as aforesaid) if such settlement is effected with the prior
written consent of the Company; and
(iii) against any and all expense whatsoever
(including the fees and disbursements of counsel chosen by such agent),
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 furnished by such agent as
aforesaid), to the extent that any such expense is not paid under (i)
or (ii) above.
(b) Each Agent severally agrees 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 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 furnished to the Company by such Agent 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. In the case of parties indemnified pursuant
to Section 7(a) hereof, counsel to the indemnified parties shall be selected by
the applicable Agent(s) and, in the case of parties indemnified pursuant to
Section 7(b) hereof, counsel to the indemnified parties shall be selected by the
Company. An indemnifying party may participate at its own expense in the defense
of such action; provided however, that counsel to the indemnifying party shall
not (except with the consent of the indemnified party) also be counsel to the
indemnified party. 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
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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 in accordance with its terms,
the Company and the applicable Agents shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by said
indemnity agreement incurred by the Company and the applicable Agents with
respect to the Securities that were the subject of the claim for indemnification
in such proportions as is appropriate to reflect the relative benefits received
by the Company on the one hand and the applicable Agents on the other. The
relative benefits received by the Company on the one hand and the applicable
Agents on the other shall be deemed to be in such proportion represented by the
percentage that the total commissions and underwriting discounts received by the
applicable Agents from such Securities bears to the total net proceeds (before
deducting expenses) received by the Company from such Securities, 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 the
applicable Agents failed to give the notice required under Section 7(c), then
the Company and the applicable Agents 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 the applicable Agents in connection with the statements or omissions
which resulted in such liabilities, claims, damages and expenses, as well 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 the applicable
Agents and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the applicable Agents 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, the
applicable Agents 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
the applicable Agents exceeds the amount of any damages that the applicable
Agents 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 the applicable Agents 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 applicable Agents, 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. In addition, in connection with an offering of Securities purchased
from the Company by two or more Agents as principal, the respective obligations
of such Agents to contribute pursuant to this Section 8 are several, and not
joint, in proportion to the aggregate principal amount of Securities that each
such Agent has agreed to purchase from the Company.
21
22
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 30 days advance 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
pursuant to the terms set forth or incorporated by reference therein, but the
termination of this Agreement shall not automatically cause the 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 any or all of the Agents shall be directed to the applicable address
set forth on Schedule B attached hereto. Notices to the
22
23
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.
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
24
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
25
CONFIRMED AND ACCEPTED as of the date first above written:
ABN AMRO INCORPORATED
By:
-------------------------------
Name:
Title:
26
CONFIRMED AND ACCEPTED as of the date first above written:
BANC OF AMERICA SECURITIES LLC
By:
-------------------------------
Name:
Title:
27
CONFIRMED AND ACCEPTED as of the date first above written:
BARCLAYS CAPITAL INC.
By:
-------------------------------
Name:
Title:
28
CONFIRMED AND ACCEPTED as of the date first above written:
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
By:
-------------------------------
Name:
Title:
29
CONFIRMED AND ACCEPTED as of the date first above written:
CREDIT SUISSE FIRST BOSTON CORPORATION
By:
-----------------------------------
Name:
Title:
30
CONFIRMED AND ACCEPTED as of the date first above written:
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
By:
-------------------------------
Name:
Title:
31
CONFIRMED AND ACCEPTED as of the date first above written:
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By:
-------------------------------
Name:
Title:
32
CONFIRMED AND ACCEPTED as of the date first above written:
▇▇▇▇▇▇ BROTHERS INC.
By:
-------------------------------
Name:
Title:
33
CONFIRMED AND ACCEPTED as of the date first above written:
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ &
▇▇▇▇▇ INCORPORATED
By:
-------------------------------
Name:
Title:
34
CONFIRMED AND ACCEPTED as of the date first above written:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By:
-------------------------------
Name:
Title:
35
CONFIRMED AND ACCEPTED as of the date first above written:
SALOMON BROTHERS ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By:
-------------------------------
Name:
Title:
36
CONFIRMED AND ACCEPTED as of the date first above written:
U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇ INC.
By:
-------------------------------
Name:
Title:
37
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
38
SCHEDULE B
Agent Address for notices:
----- -------------------
ABN AMRO Incorporated ABN AMRO Incorporated
▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
Attention: Legal Dept.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Banc of America Securities LLC Banc of America Securities LLC
Bank of America Corporate Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: MTN Desk
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Barclays Capital Inc. Barclays Capital Inc.
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Syndicate Desk
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Bear, ▇▇▇▇▇▇▇ & Co. Inc. Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Medium Term Note Desk
With a copy to:
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Legal Officer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Credit Suisse First Boston Corporation Credit Suisse First Boston Corporation
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Short & Medium Term Finance
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
39
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇.▇. ▇▇▇▇▇▇ Securities Inc. ▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Transaction Execution Group
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ Brothers Inc. ▇▇▇▇▇▇ Brothers Inc.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Medium Term Note Desk
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
Incorporated 4 World Financial ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Product Management - MTN
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
40
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Manager - Continuously Offered Products
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Investment Banking
Information Center
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Solomon ▇▇▇▇▇ ▇▇▇▇▇▇, Inc. Solomon ▇▇▇▇▇ ▇▇▇▇▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc. U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc.
▇▇▇ ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Fixed Income
Capital Markets - Corporate Finance
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
41
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.
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.
A-1
42
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
43
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
44
EXHIBIT B
U.S. Bancorp
(A Delaware corporation)
[Medium-Term Notes, Series L (Senior)]
[Medium-Term Notes, Series M (Subordinated)]
TERMS AGREEMENT
_____, 2001
Attention:
Re: Distribution Agreement dated _____, 2001
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:]*
[Interest Period:]*
[Regular Record Date (if other
than the fifteenth calendar day
preceding each Interest Payment Date):]*
Purchase Price: _____%
Settlement Date and Time:
B-1
45
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, 5, 6, 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]
B-2