EXHIBIT 1.1
$5,000,000,000
U.S. Bancorp
(a Delaware corporation)
Medium-Term Notes, Series P (Senior)
Medium-Term Notes, Series Q (Subordinated)
DISTRIBUTION AGREEMENT
May 12, 2005
Lehman Brothers Inc.
745 Seventh Avenue
New York, New York 10019
AND EACH OF THE OTHER AGENTS
LISTED
ON SCHEDULE B HERETO
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 P (Senior) (the “Senior Notes”) and
Medium-Term Notes, Series Q (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.
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
will enter into a Terms Agreement (or a
Syndicated Terms Agreement in the
form of Exhibit C hereto or other separate agreement to which
you and the Company shall otherwise agree) 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. 333-124535) 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 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 with
the other information in the Prospectus, at the time the
Registration Statement became, and any
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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)
Compliance with the Sarbanes-Oxley Act of 2002. There is and
has been no failure on the part of the Company or any of the
Company’s directors or officers, in their capacities as such,
to comply in all material respects with any provision of the
Sarbanes-Oxley Act of 2002 and the rules and regulations
promulgated in connection therewith (the “ Sarbanes-Oxley
Act ”) including Section 404 related to internal
controls and the attestation requirements thereof and
Sections 302 and 906 related to certifications.
(iv)
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.
(v)
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 of 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 in the
United States applied on a consistent basis.
(vi)
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, whether or not arising in the ordinary
course of business, in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Company
and its subsidiaries, considered as one.
(vii)
The Company (A) has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware and (B) has corporate power and authority to
own, lease and operate its properties and conduct its business as
described in the Registration Statement. 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 properties or the conduct of its business requires such
qualification, except where the failure to be so qualified or in
good standing would not, individually or in the aggregate, result
in a Material Adverse Effect.
(viii)
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
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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.
(ix)
The authorized, issued and outstanding capital stock of the Company
is as set forth in the Prospectus as of the date or dates specified
therein and the shares of issued and outstanding Common Stock set
forth therein have been duly authorized and validly issued and are
fully paid and non-assessable.
(x)
Neither the Company nor any of its subsidiaries is in violation of
its charter or by-laws 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 or assets 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 (as defined in Section 2(c)), 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.
(xi)
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.
(xii)
There is no action, suit, proceeding, inquiry or investigation
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 may reasonably be expected to result in a
Material Adverse Effect, or which may reasonably be expected to
materially and adversely affect the properties or
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assets
thereof or which may reasonably be expected to 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.
(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, fraudulent transfer, 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), 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 into U.S. dollars at a rate of 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.
(xiv)
Each of this Agreement and any applicable Terms Agreement has been
duly authorized, executed and delivered by the Company.
(xv)
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, fraudulent transfer,
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, or the sale of Securities to you pursuant to any
applicable Terms Agreement, contemplated by this Agreement shall be
deemed a representation and warranty by the Company to you as to
the matters covered thereby on the date of such certificate and at
each Representation Date referred to in Section 1(a) hereof
subsequent thereto relating to such offering or sale.
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
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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.
The
Company agrees to pay you a commission 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 to be
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
oral agreement confirmed in writing or any exchange of any standard
form of written telecommunication between you and the Company) is
herein referred to as a “Terms Agreement.”
Your
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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.
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) unless
the Company and the relevant Agent(s) shall otherwise agree. 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).
Subject to the
provisions of any applicable Terms Agreement, 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 “Defaulted 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:
(i)
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 purchase obligations bear to the purchase
obligations of all nondefaulting Agents; or
(ii)
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.
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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 with
respect to 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 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)
Solicitations as Agent . 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
Shearman & Sterling LLP, 599 Lexington Avenue, New York, New
York 10022-6069 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 and the Prospectus
comply with such requirements.
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(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 post to its website or furnish such
information to you, confirmed in writing upon request, 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 1933 Act) 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
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reasonable time in advance of
filing, will not file any such amendment or supplement or other
documents (other than documents filed pursuant to the 1934 Act) in
a form to which you or your counsel shall reasonably object and, if
requested, will furnish you with copies of documents filed pursuant
to the 1934 Act promptly upon request.
(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 or any document filed
pursuant to the 1934 Act that is incorporated by reference in 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, in printed, electronic or such other
format as may be agreed, 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), in printed, electronic or such other format as may
be agreed, 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 in which 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
Section 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
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Terms Agreement (or, in the case
of a syndicated issue, the book-running lead manager(s)), offer or
sell, or enter into any agreement to sell, any U.S.
dollar-denominated debt securities of the Company with terms
otherwise 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, or enter into
any agreement to sell, any U.S. dollar-denominated debt securities
of the Company with terms otherwise 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
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
and 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
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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, Sanders
& Dempsey, 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.
(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 have 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
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