UNDERWRITING AGREEMENT
September 6, 1995
First Bank System, Inc.
First Bank Place
601 Second Avenue South
Minneapolis, Minnesota 55402-4302
Dear Sirs:
We (the "Representatives") understand that First Bank System, Inc., a
Delaware corporation registered as a bank holding company under the Bank Holding
Company Act (the "Company"), proposes to issue and sell $250,000,000 aggregate
principal amount of 6-7/8% Subordinated Notes due September 15, 2007 (the
"Offered Securities"), to be issued pursuant to the provisions of the Indenture
dated as of October 1, 1991, as amended by a First Supplemental Indenture dated
April 1, 1993, between the Company and Citibank, N.A., as Trustee (the
"Indenture"). Subject to the terms and conditions set forth herein or
incorporated by reference herein, the Company hereby agrees to issue and sell
and the underwriters named on Schedule A hereto (the "Underwriters") agree to
purchase, severally and not jointly, the principal amounts of such Offered
Securities set forth opposite their names on Schedule A at 98.676% of their
principal amount and accrued interest, if any, from September 11, 1995 to the
date of payment and delivery. The Company understands that the Underwriters
intend to make a public offering of their respective portions of the Offered
Securities and initially to offer the Offered Securities upon the terms set
forth in the Prospectus.
The Underwriters will pay for such Offered Securities upon delivery thereof
through the facilities of The Depository Trust Company at 10:00 A.M. (New York
time) on September 11, 1995 or at such other time, not later than September 18,
1995, as shall be designated by the Underwriters. Payment for the Offered
Securities will be made by the Underwriters by wire transfer of immediately
available funds.
The Offered Securities shall have the terms set forth in the Company's
Prospectus Supplement, dated September 6, 1995, and the Prospectus dated May 26,
1995 (the "Basic Prospectus"), particularly as follows:
Maturity: September 15, 2007
Interest Rate: 6-7/8%
Redemption Provisions: None
Interest Payment Dates: March 15 and September 15, commencing
March 15, 1996
Other terms: The Offered Securities will be issued in the form
of one or more Global Securities that will be
deposited with or on behalf of The Depository
Trust Company and registered in the name of its
nominee. All payments of principal and interest on
the Offered Securities will be made by the Company
in immediately available funds, and secondary
market trading activity in the Offered Securities
will be required to settle in immediately
available funds.
All the provisions contained in the document entitled First Bank System,
Inc. Underwriting Agreement Standard Provisions (Debt/Warrants) (April 1995),
attached hereto (the "Standard Provisions"), are herein incorporated by
reference in their entirety and shall be deemed to be a part of this Agreement
to the same extent as if such Standard Provisions had been set forth in full
herein, except to the extent such standard provisions are inconsistent with the
provisions set forth in this Agreement.
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below. This Agreement may be
signed in any number of counterparts with the same effect as if the signatures
thereto and hereto were upon the same instrument.
Very truly yours,
MORGAN STANLEY & CO. INCORPORATED
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
LEHMAN BROTHERS INC.
DAIN BOSWORTH INCORPORATED
PIPER JAFFRAY INC.
By MORGAN STANLEY & CO.
INCORPORATED
on its own behalf and on behalf of the other
Underwriters
By__________________________________________________
Accepted: September 6, 1995
FIRST BANK SYSTEM, INC.
By____________________________
Name:
Title:
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SCHEDULE A
Principal Amount of
Underwriter Notes
----------- -----
Morgan Stanley & Co. Incorporated $ 68,000,000
Donaldson, Lufkin & Jenrette 66,000,000
Securities Corporation
Lehman Brothers Inc. 66,000,000
Dain Bosworth Incorporated 25,000,000
Piper Jaffray Inc. 25,000,000
------------
TOTAL $250,000,000
============
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FIRST BANK SYSTEM, INC.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS (DEBT/WARRANTS)
(April 1995)
From time to time First Bank System, Inc. a Delaware corporation
registered as a bank holding company under the Bank Holding Company Act (the
"Company"), may enter into one or more underwriting agreements that provide for
the sale of designated securities to one or more underwriters named therein.
The standard provisions set forth herein may be incorporated by reference in any
such underwriting agreement (an "Underwriting Agreement"). The Underwriting
Agreement, including the provisions incorporated therein by reference, is herein
referred to as "this Agreement". Unless otherwise defined herein, terms defined
in the Underwriting Agreement are used herein as therein defined.
I.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus specifically
relating to the Securities, and has filed with, or mailed for filing to, the
Commission a prospectus supplement specifically relating to the Securities
pursuant to Rule 424 of the rules and regulations promulgated under the
Securities Act of 1933, as amended (the "Securities Act"). The term
Registration Statement means the registration statement as amended to the date
of the Underwriting Agreement. The term Basic Prospectus means the prospectus
included in the Registration Statement. The term Prospectus means the Basic
Prospectus together with the prospectus supplement in the form first used to
confirm sales of the Offered Securities. The term preliminary prospectus means
a preliminary prospectus supplement specifically relating to the Securities
together with the Basic Prospectus. As used herein, the terms "Registration
Statement", "Basic Prospectus", "Prospectus" and "preliminary prospectus" shall
include in each case the material, if any, incorporated by reference therein.
The term "Securities" means the Offered Securities and/or the Offered Warrants
and Warrant Debt Securities described in the Underwriting Agreement of which
this Agreement is a part.
The term "Underwriters' Securities" means the Offered Securities
and/or Offered Warrants to be purchased by the Underwriters herein. The term
"Contract Securities" means the Offered Securities and/or Offered Warrants, if
any, to be purchased pursuant to the delayed delivery contracts referred to
below.
II.
If the Prospectus provides for sales of Offered Securities and/or
Offered Warrants, if any, pursuant to delayed delivery contracts, the Company
hereby authorizes the Underwriters to solicit offers to purchase Contract
Securities on the terms and subject to the conditions set forth in the
Prospectus pursuant to delayed delivery contracts substantially in the form of
Schedule I attached hereto ("Delayed Delivery Contracts") but with such changes
therein as the Company may authorize
or approve. Delayed Delivery Contracts are to be with institutional investors
approved by the Company and of the types set forth in the Prospectus. On the
Closing Date (as hereinafter defined), the Company will pay the Representatives
as compensation, for the accounts of the Underwriters, the fee set forth in the
Underwriting Agreement in respect of the principal amount of Contract
Securities. The Underwriters will not have any responsibility in respect of the
validity or the performance of Delayed Delivery Contracts.
If the Company executes and delivers Delayed Delivery Contracts with
institutional investors, the Contract Securities shall be deducted from the
Offered Securities and/or Offered Warrants, if any, to be purchased by the
several Underwriters, and the aggregate principal amount of Offered Securities
(or number of Offered Warrants, if applicable) to be purchased by each
Underwriter shall be reduced pro rata in proportion to the principal amount of
Offered Securities (or number of Offered Warrants, if applicable) set forth
opposite each Underwriter's name in the Underwriting Agreement, except to the
extent that the Representatives determine that such reduction shall be otherwise
and so advises the Company.
III.
The Company is advised by the Representatives that the Underwriters
propose to make a public offering of their respective portions of the
Underwriters' Securities as soon after this Agreement is entered into as in the
Representatives' judgment is advisable. The Underwriters will offer the
Underwriters' Securities for sale upon the terms and conditions set forth in the
Prospectus.
IV.
Payment for Underwriters' Securities shall be made by wire transfer of
immediately available funds, or such other funds as specified in the
Underwriting Agreement, at the time and place set forth in the Underwriting
Agreement, upon delivery to the Representatives for the respective accounts of
the several Underwriters of the Underwriters' Securities registered in such
names and in such denominations as the Representatives shall request in writing
not less than three full business days prior to the date of delivery. The time
and date of such payment and delivery with respect to the Underwriters'
Securities are herein referred to as the Closing Date. The Underwriters'
Securities will be made available for checking and packaging at least twenty-
four hours prior to the time for delivery.
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V.
The several obligations of the Underwriters hereunder are subject to
the following conditions:
(a) The Representatives shall have received on the Closing Date a
certificate of the Chairman, Vice Chairman, President or a Vice President
of the Company, dated the Closing Date and 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 VII 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.
(b) The Representatives shall have received on the Closing Date an
opinion of Dorsey & Whitney P.L.L.P., counsel to the Company, dated the
Closing Date, to the effect set forth in Exhibit A, and, if applicable, an
opinion of tax counsel to the Company, dated the Closing Date, covering
such matters as may be mutually agreed upon and set forth in the
Underwriting Agreement. In rendering such opinion to the effect set forth
in Exhibit A, such counsel may rely as to matters of New York law upon the
opinion of Davis Polk & Wardwell being delivered pursuant to subparagraph
(d).
(c) The Representatives shall have received on the Closing Date an
opinion of the General Counsel of the Company, dated the Closing Date, to
the effect set forth in Exhibit B.
(d) The Representatives shall have received on the Closing Date an
opinion of counsel to the Underwriters, dated the Closing Date, relating to
the incorporation of the Company, the validity of the Indenture, the
Securities and the Warrant Agreement, if any, the Registration Statement,
the Prospectus and other related matters as the Representatives may
reasonably request. In rendering such opinion, such counsel may rely as to
matters of Minnesota law upon the opinions of Dorsey & Whitney P.L.L.P. and
the General Counsel of the Company being delivered pursuant to subsections
(b) and (c), respectively.
(e) The Representatives shall have received on or prior to the date
of this Agreement and the Closing Date letters, each dated the date of
delivery thereof and in form and substance satisfactory to the
Representatives, from Ernst & Young LLP, to the effect set forth in Exhibit
C.
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(f) At the Closing Date the counsel for the Underwriters 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 Offered 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 Offered Securities as herein
contemplated shall be satisfactory in form and substance to the
Underwriters and their counsel.
(g) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there shall not have been
any material adverse change in the condition, financial or otherwise, of
the Company and its subsidiaries considered as one enterprise, or in the
earnings, affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course
of business, other than as set forth in the Prospectus, 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 the judgment of the Representatives,
impracticable or inadvisable to proceed with the public offering or the
delivery of the Offered Securities on the terms and in the manner
contemplated by the Prospectus, 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 shall not have been downgraded 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 Offered 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.
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VI.
In further consideration of the agreements of the Underwriters
contained in this Agreement, the Company hereby covenants:
(a) The Company will give the Representatives 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 Securities Exchange Act of 1934, as amended (the "Exchange Act"),
the Securities Act or otherwise. The Company will furnish the
Representatives with copies of any such amendment or supplement or other
documents, other than documents filed pursuant to the Exchange Act,
proposed to be filed a reasonable time in advance of filing, and will
furnish the Representatives with copies of documents filed pursuant to the
Exchange Act promptly upon the filing thereof;
(b) The Company will notify the Representatives immediately (i) of
the filing and effectiveness of any amendment to the Registration
Statement, (ii) of the mailing or the delivery to the Commission for filing
of any supplement to the Prospectus or any document to be filed pursuant to
the Exchange Act which will be incorporated by reference in the Prospectus,
(iii) of the receipt of any comments from the Commission with respect to
the Registration Statement or the Prospectus, (iv) of any request by the
Commission for any amendment to the Registration Statement or any amendment
or supplement to the Prospectus or for additional information, (v) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the initiation or threat of initiation of
any proceedings for that purpose, or (vi) of the suspension of
qualification of the Offered 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;
(c) If, during the period after the date of the first public offering
of the Offered Securities and/or Offered Warrants, if any, when the
Prospectus is required by law to be delivered, any event shall occur or
condition exist as a result of which it is necessary, in the reasonable
opinion of the counsel for the Underwriters 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 Securities Act or the rules and regulations issued by
the Commission thereunder immediate notice shall be
-5-
given, and confirmed in writing, to the Representatives, and the Company
will promptly prepare and file with the Commission such amendment or
supplement, whether by filing documents pursuant to the Exchange Act, the
Securities Act or otherwise, as may be necessary to correct such untrue
statement or omission or to make the Registration Statement comply with
such requirements;
(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 Securities
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 deliver to the Representatives 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 the Representatives may reasonably request. The
Company will furnish to the Representatives as many copies of the
Prospectus (as amended or supplemented) as the Representatives shall
reasonably request so long as the Underwriters are required to deliver a
Prospectus in connection with the offering or sale of the Offered
Securities and/or Offered Warrants;
(f) The Company will endeavor, in cooperation with the
Representatives, to qualify the Offered Securities and/or Offered Warrants
for offering and sale under the applicable securities laws of such states
and other jurisdictions of the United States as the Representatives may
designate, and will maintain such qualifications in effect for as long as
may be required for the distribution of the Offered Securities and/or
Offered Warrants; 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;
(g) The Company, during the period when the Prospectus is required to
be delivered under the Securities 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 Exchange Act;
(h) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the business day following the
Closing Date, the Company will not, without the prior consent of the
Representatives, offer or sell in the United States, or enter into any
agreement
-6-
to sell in the United States, any debt securities of the Company with terms
substantially similar to the Securities.
VII.
The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) The Registration Statement has been filed with the Commission in
the form heretofore delivered or to be delivered to the Representatives
and, excluding exhibits to the Registration Statement, but including all
documents incorporated by reference in the Basic Prospectus, to the
Representatives for each of the other Underwriters and the Registration
Statement in such form has been declared effective by the Commission and no
stop order suspending the effectiveness of the Registration Statement has
been issued and no proceeding for that purpose has been initiated or
threatened by the Commission;
(b) The documents incorporated by reference in the Prospectus, at the
time they were or hereafter are filed with the Commission, complied or will
comply in all material respects with the requirements of the Exchange Act
and the rules and regulations of the Commission thereunder, 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 Closing 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;
(c) The Registration Statement and the Prospectus, at the time the
Registration Statement and each part thereof became or hereafter become
effective, complied and any amendments or supplements thereto will comply,
in all material respects with the requirements of the Securities Act and
the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") and
the rules and regulations of the Commission thereunder. The Registration
Statement at the time the Registration Statement and each part thereof
became effective did not and as of the Closing Date will not, contain an
untrue statement of any material fact or omit to state a 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 Closing 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 this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information relating to an Underwriter furnished in writing to the Company
by such Underwriter of Offered
-7-
Securities and/or Offered Warrants, if any, through the Representatives
expressly for use in the Prospectus as amended or supplemented relating to
such Offered Securities and/or Offered Warrants, if any or to that part of
the Registration Statement constituting the Statement of Eligibility and
Qualification under the Trust Indenture Act (Form T-1) of the Trustee;
(d) 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;
(e) First Bank National Association, the Company's Principal
Subsidiary Bank, has been duly incorporated and is validly existing as a
national banking association in good standing under the laws of the United
States and has corporate power and authority to own, lease and operate its
properties and conduct its business as described in the Registration
Statement; all of the issued and outstanding capital stock of such bank has
been duly authorized and validly issued and is fully paid and, except as
provided in 12 U.S.C. Section 55, nonassessable; and at least 99% of the
capital stock of First 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;
(f) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Registration Statement, 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;
(g) Neither the Company nor any of its subsidiaries is in violation
of its charter or in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which it is a party or by which it or any of them or their
properties may be bound; and the execution and delivery of this Agreement,
the Offered Securities, the Indenture, each applicable Delayed Delivery
Contract (as defined in Section II) 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
-8-
subject, nor will such action result in any violation of the provisions of
the charter or bylaws 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
Securities Act, the Trust Indenture Act or the rules and regulations of the
Commission thereunder, 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 Offered Securities and/or Offered
Warrants, if any, by the Underwriters;
(h) 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;
(i) The Company and its subsidiaries own or possess adequate
trademarks, service marks and trade names necessary to conduct the business
now operated by them, and neither the Company nor any of its subsidiaries
has received any notice of infringement of or conflict with asserted rights
of others with respect to any trademarks, service marks or trade names
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would materially adversely affect the conduct
of the business, operations, financial condition or income of the Company
and its subsidiaries considered as one enterprise;
(j) There is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending, or, to the
knowledge of the Company, threatened against or affecting, the Company or
any of its subsidiaries, which might result in any material adverse change
in the condition, financial or otherwise, of the Company and its
subsidiaries considered as one enterprise, or in the business prospects of
the Company and its subsidiaries considered as one enterprise, or might
materially and adversely affect the properties or assets thereof or might
materially and adversely affect the consummation of this Agreement and the
consummation of the transactions contemplated hereby; and there are no
material contracts or documents of the Company or any of its subsidiaries
which are required to be filed as exhibits to the Registration Statement by
the Securities Act or by the rules and regulations of the Commission
thereunder which have not been so filed;
(k) The Offered Securities have been duly authorized for issuance and
sale pursuant to this Agreement, and, when issued, authenticated and
delivered pursuant to this Agreement against payment of the consideration
therefor specified herein and, in the case of any Contract Securities,
pursuant to Delayed Delivery Contracts with respect to such Contract
Securities, such
-9-
Offered Securities will constitute valid and legally binding obligations of
the Company enforceable in accordance with their terms, except as (i)
enforceability thereof may be limited by bankruptcy, insolvency, or other
laws relating to or affecting creditors' rights generally and (ii) rights
of acceleration and the availability of equitable remedies may be limited
by equitable principles of general applicability, and will be entitled to
the benefits provided by the Indenture; and the Offered Securities and the
Indenture conform in all material respects to all statements relating
thereto in the Prospectus;
(l) No labor dispute with the employees of the Company or any of its
subsidiaries exists or, to the knowledge of the Company, is imminent;
(m) The Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized, executed and delivered by the Company and
is the valid and binding agreement of the Company, enforceable in
accordance with its terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability;
(n) If Offered Warrants are to be issued and delivered pursuant to
this Agreement, such Offered Warrants, the related Warrant Agreement and
the Warrant Debt Securities have been duly authorized and, when the Offered
Warrants are issued and delivered pursuant to this Agreement and, in the
case of any Contract Securities, pursuant to Delayed Delivery Contracts
with respect to such Contract Securities, such Offered Warrants will have
been duly executed, countersigned, issued and delivered and will constitute
valid and legally binding obligations of the Company entitled to the
benefits provided in the related Warrant Agreement and such Warrant
Agreement will have been duly executed and delivered by the Company and
will constitute a valid and legally binding agreement of the Company,
enforceable in accordance with its terms, except as (i) enforceability
thereof may be limited by bankruptcy, insolvency, or other laws relating to
or affecting creditors' rights generally and (ii) rights of acceleration
and the availability of equitable principles of general applicability; and
the Warrant Debt Securities, when issued and delivered pursuant to the
related Warrant Agreement, will have been duly executed, authenticated,
issued and delivered and will constitute valid and legally binding
obligations of the Company entitled to the benefits provided by the
Indenture;
(o) In the event any of the Offered Securities and/or Offered
Warrants, if any, are purchased pursuant to Delayed Delivery Contracts,
each of such Delayed Delivery Contracts has been duly authorized by the
Company and, when executed and delivered by the Company and the purchaser
named therein, will constitute a valid and legally binding agreement of the
Company enforceable in accordance with its terms, except as (i)
enforceability thereof may be limited by bankruptcy, insolvency, or other
laws relating to or
-10-
affecting creditors' rights generally and (ii) rights of acceleration and
the availability of equitable principles of general applicability; and any
Delayed Delivery Contracts will conform to the description thereof in the
Prospectus;
(p) The accountants who certified the financial statements included or
incorporated by reference in the Prospectus are independent public
accountants as required by the Securities Act and the rules and regulations
issued by the Commission thereunder;
(q) 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; and the pro forma
financial information, and the related notes thereto, included or
incorporated by reference to the Prospectus has been prepared in accordance
with the applicable requirements of the Securities Act and the Exchange Act
and the rules and regulations issued by the Commission thereunder;
(r) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as otherwise stated
therein or contemplated thereby, (A) there has been no material adverse
change in the condition, financial or otherwise, of the Company and its
subsidiaries considered as one enterprise or in the earnings, affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, and
(B) there have been no material transactions entered into by the Company,
or any of its subsidiaries other than those in the ordinary course of
business; and
(s) This Agreement has been duly authorized, executed and delivered by
the Company.
VIII.
(a) The Company agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls such Underwriter (each an "Indemnified
Person") within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange 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
-11-
statement of a material fact contained in the Prospectus (or any amendment
or supplement thereto or any related preliminary prospectus or preliminary
prospectus supplement) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading, unless
such untrue statement or omission was made in reliance upon and in
conformity with written information relating to such Indemnified Person
furnished to the Company by the Representatives expressly for use in the
Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto or any related preliminary prospectus or
preliminary prospectus supplement);
(ii) against any and all loss, liability, claim, damage and expense
whatsoever to the extent of the aggregate amount paid in settlement of any
litigation, or investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission (except as made in reliance upon and in conformity with
information relating to such Indemnified Person furnished by the
Representatives as aforesaid) if such settlement is effected with the
written consent of the Company; and
(iii) against any and all expense whatsoever (including the fees and
disbursements of counsel chosen by such Indemnified Person), as incurred,
reasonably incurred in investigating, preparing or defending against any
litigation, or investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission (except as made in reliance upon and in conformity with
information relating to such Indemnified Person furnished by the
Representatives as aforesaid), to the extent that any such expense is not
paid under (i) or (ii) above.
(b) Each Underwriter will 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 Securities Act or Section 20 of the Exchange Act against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Section, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto) or the Prospectus (or any amendment or
supplement thereto or any related preliminary prospectus or preliminary
prospectus supplement) in reliance upon and in conformity with written
information relating to such Underwriter furnished to the Company by the
Representatives 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).
-12-
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder but failure to so notify an indemnifying party
shall not relieve it from any liability which it may have otherwise than on
account of this indemnity agreement. An indemnifying party may participate at
its own expense in the defense of such action. In no event shall the
indemnifying parties be liable for the fees and expenses of more than one
counsel (in addition to any local counsel) for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances;
provided, however, that when more than one of the Underwriters is an indemnified
party each such Underwriter shall be entitled to separate counsel (in addition
to any local counsel) in each such jurisdiction to the extent such Underwriter
may have interests conflicting with those of the other Underwriter or
Underwriters because of the participation of one Underwriter in a transaction
hereunder in which the other Underwriter or Underwriters did not participate.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in this Section VIII
is for any reason held to be unavailable to the Underwriters in accordance with
its terms, the Company and the Underwriters 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 Underwriters with
respect to Securities sold to the Underwriters in such proportions as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other. The relative benefits received by the
Company on the one hand and the Underwriters 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 Underwriters to the date of such
liability bears to the total sales price (before deducting expenses) received by
the Company from the sale of Securities made to the Underwriters to the date of
such liability, and the Company is responsible for the balance. If, however,
the allocation provided by the immediately preceding sentence is not permitted
by applicable law or if the Underwriters failed to give the notice required
under (c), then the Company and the Underwriters 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 Underwriters 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 Representatives and the parties' relative intent, knowledge, access to
information and opportunity to correct or
-13-
prevent such statement or omission. The Company and the Underwriters agree that
it would not be just and equitable if contributions pursuant to this paragraph
were determined pro rata (even if the Underwriters 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 paragraph.
Notwithstanding the provisions of this paragraph, the Underwriters 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
paragraph that were offered and sold to the public through the Underwriters
exceeds the amount of any damages that the Underwriters 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 Securities Act) shall be entitled under this
paragraph to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section, each person, if any, who
controls any Underwriter within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act shall have the same rights to contribution as
such Underwriter, 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 Securities Act or Section 20 of
the Exchange Act shall have the same rights to contribution as the Company.
IX.
The indemnity and contribution agreements contained in Section VIII
hereof and the representations and warranties of the Company in this Agreement
or in any certificate submitted pursuant hereto shall remain operative and in
full force and effect regardless of (i) any termination of this Agreement, (ii)
any investigation made by any Underwriter or on behalf of any Underwriter or any
person controlling any Underwriter or by or on behalf of the Company or the
directors or officers or any person controlling the Company and (iii) acceptance
of any payment for any of the Offered Securities and/or Offered Warrants, if
any.
X.
If any Underwriter shall default in its obligation to purchase the
Offered Securities and/or Offered Warrants, if any, which it has agreed to
purchase hereunder, the Representatives may in their discretion arrange for
themselves or another party or other parties to purchase such Offered Securities
and/or Offered Warrants, if any, on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the Representatives do
not arrange for the purchase of such Offered Securities and/or Offered Warrants,
if any, then the Company shall be entitled to a further period of thirty-six
hours within which to procure another party or other parties satisfactory to the
Representatives to purchase such Offered Securities and/or Offered Warrants, if
any, on such terms. In the event that, within the respective prescribed period,
the Representatives notify the Company that they
-14-
have so arranged for the purchase of such Offered Securities and/or Offered
Warrants, if any, or the Company notifies the Representatives that it has so
arranged for the purchase of such Offered Securities and/or Offered Warrants, if
any, the Representatives or the Company shall have the right to postpone the
Closing Date for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration Statement or
the Prospectus, or in any other documents or arrangements, and the Company
agrees to file promptly any amendments or supplements to the Registration
Statement or the Prospectus which in the reasonable opinion of the
Representatives may thereby be made necessary. The term "Underwriters" as used
in this Agreement shall include any person substituted under this Section X with
like effect as if such person had originally been a party to this Agreement with
respect to such Offered Securities and/or Offered Warrants, if any.
If, after giving effect to any arrangements for the purchase of the
Offered Securities and/or Offered Warrants, if any, of a defaulting Underwriter
or Underwriters by the Representatives and the Company as provided in the
immediately preceding paragraph hereof, the aggregate principal amount of such
Offered Securities (or number of Offered Warrants, if Offered Warrants alone are
being offered) which remains unpurchased does not exceed one-eleventh of the
aggregate principal amount of all the Offered Securities (or number of Offered
Warrants, if Offered Warrants alone are being offered), then the Company shall
have the right to require each non-defaulting Underwriter to purchase the
Offered Securities and/or Offered Warrants, if any, which such Underwriter
agreed to purchase hereunder and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the principal amount of
Offered Securities (or number of Offered Warrants, if Offered Warrants alone are
being offered) which such Underwriter agreed to purchase hereunder) of the
Offered Securities and/or Offered Warrants, if any, of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
If, after giving effect to any arrangements for the purchase of the
Offered Securities and/or Offered Warrants, if any, of a defaulting Underwriter
or Underwriters by the Representatives and the Company as provided in the first
paragraph of this Section X, the aggregate principal amount of Offered
Securities (or number of Offered Warrants, if Offered Warrants alone are being
offered) which remains unpurchased exceeds one-eleventh of the aggregate
principal amount of all the Offered Securities (or number of Offered Warrants,
if Offered Warrants alone are being offered) or if the Company shall not
exercise the right described in the immediately preceding paragraph to require
non-defaulting Underwriters to purchase Offered Securities and/or Offered
Warrants, if any, of a defaulting Underwriter or Underwriters, then this
Agreement shall thereupon terminate, without liability on the part of any non-
defaulting Underwriters or the company, except for the expenses to be borne by
the Company and the Underwriters as provided in Section XI hereof and the
indemnity and contribution agreements in Section VIII hereof; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
-15-
XI.
The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Securities Act and
all other expenses in connection with the preparation, printing and filing of
the Registration Statement and the Prospectus and amendments and supplements
thereto and the mailing and delivering of copies thereof to the Underwriters and
to dealers; (ii) the cost of printing this Agreement, the Indenture, any Warrant
Agreement and any Blue Sky and legal investment memoranda; (iii) all expenses in
connection with the qualification of the Offered Securities and/or Offered
Warrants, if any, for offering and sale under state securities laws as provided
in Section VI(f) hereof, including the fees and disbursements of counsel in
connection with such qualification and in connection with the preparation of any
Blue Sky memorandum or any Blue Sky and legal investment surveys; (iv) any fees
charged by securities rating services for rating the Securities; (v) the cost of
preparing the Securities; (vi) the fees and expenses of the Trustee and any
agent of the Trustee and the fees and disbursements of counsel for the Trustee
in connection with the Indenture and the Securities; (vii) the fees and expenses
of the Warrant Agent, if any, and any agent of such Warrant Agent and the fees
and disbursements of counsel for such Warrant Agent in connection with the
Warrant Agreement and the Offered Warrants and Warrant Debt Securities, if any;
and (viii) all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided for in this
Section X. It is understood, however, that, except as provided in this Section
XI and Sections VIII and XII hereof, the Underwriters will pay all of their own
costs and expenses, including the fees of their counsel, transfer taxes on
resale of any of the Offered Securities and/or Offered Warrants, if any, by them
and any advertising expenses connected with any offers they may make.
XII.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters, or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with the Securities.
-16-
XIII.
In all dealings hereunder, the Representatives of the Underwriters of
Offered Securities and/or Offered Warrants, if any, shall act on behalf of each
of such Underwriters, and the parties hereto shall be entitled to act and rely
upon any statement, request, notice or agreement on behalf of any Underwriter
made or given by such Representatives jointly or by such of the representatives,
if any, as may be designated for such purpose hereunder.
All statements, requests, notices and agreements hereunder shall be in
writing or by telegram if promptly confirmed in writing, and if to the
Underwriters shall be sufficient in all respects if delivered or sent by
registered mail to the address of the principal offices of the Representatives
and if to the Company shall be sufficient in all respects if delivered or sent
by registered mail to the address of the Company set forth in the Registration
Statement, Attention: Secretary; provided, however, that any notice to an
Underwriter pursuant to Section VIII(c) hereof shall be delivered or sent by
registered mail to such Underwriter at its address set forth in its
Underwriters' Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Company by the representatives upon request.
XIV.
This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and, to the extent provided in Section VIII
hereof, the officers and directors of the Company and each person who controls
the Company or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Offered Securities and/or Offered Warrants, if any, from any Underwriter shall
be deemed a successor or assign by reason merely of such purchase.
XV.
Time shall be of the essence of this Agreement.
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
This Agreement and the rights and obligations of the parties created
hereby shall be governed by the laws of the State of New York.
-17-
Schedule I
DELAYED DELIVERY CONTRACT
_________________________, 19_______
Dear Sirs:
The undersigned hereby agrees to purchase from First Bank System,
Inc., a Delaware corporation (the "Company") and the Company agrees to sell to
the undersigned [$________________ principal amount of the Company's title of
issue] (the "Securities")] [________ Warrants, each evidencing the right to
purchase a [state title of Warrant Debt Securities], (the "Warrant Debt
Securities") in the principal amount of $_________], offered by the Prospectus
dated _________________________, 19_______ and Prospectus Supplement dated
_____________________, 19____, receipt of copies of which are hereby
acknowledged, [at a purchase price of ________% of the principal amount thereof
plus accrued interest from ____________, if any] for an [aggregate] Purchase
Price of $________] and on the further terms and conditions set forth in this
contract. The undersigned does not contemplate selling Securities [and Warrants]
prior to making payment therefor.
[The undersigned will purchase from the Company Securities in the
principal amounts and on the delivery dates set forth below:
Delivery Principal Plus Accrued Interest,
Date Amount If any, From:
------------ --------- -----------------------------
$........ ............................
$........ ............................
$........ ............................
[The undersigned will purchase from the Company Warrants represented
by Warrant Certificates bearing the terms and on the delivery dates set forth
below:]
Each such date on which Securities [and Warrants] are to be purchased hereunder
is hereinafter referred to as a "Delivery Date."
Payment for the Securities which the undersigned has agreed to
purchase on each Delivery Date shall be made to the Company or its order by
[certified or official bank check drawn on a bank approved by the Company and in
New York Clearing House (next day) funds] at the office of
_________________________________________, New York, N.Y., at 10:00 A.M. (New
York time) on the Delivery Date, upon delivery to the undersigned of the
Securities to be purchased by the undersigned on the Delivery Date, in
definitive fully registered 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.
The obligation of the undersigned to take delivery of and make payment
for the Securities on the Delivery Date shall be subject to the conditions that
(i) the investment in the Securities to be made by the undersigned shall not at
the time of delivery be prohibited under the laws of any jurisdiction in the
United States to which the undersigned is subject and (ii) the Company shall
have sold, and delivery shall have taken place to the underwriters (the
"Underwriters") named in the Prospectus Supplement referred to above, of such
part of the Securities as is to be sold to them. Promptly after completion of
sale and delivery to the Underwriters, the Company will mail or deliver to the
undersigned at its address set forth below notice to such effect, accompanied by
a copy of the opinions of counsel for the Company delivered to the Underwriters
in connection therewith.
Failure to take delivery of and make payment for Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this contract.
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.
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, as of the date first above written, between the
Company and the undersigned when such counterpart is so mailed or delivered.
-2-
This contract shall be governed by and construed in accordance with
the laws of the State of New York.
Very truly yours,
----------------------------------------
(Purchaser)
By______________________________________
----------------------------------------
(Title)
----------------------------------------
----------------------------------------
(Address)
Accepted:
FIRST BANK SYSTEM, INC.
By________________________
-3-
PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING
The name, telephone number and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed is
as follows: (Please print.)
Telephone No.
Name (Including Area Code) Department
---- --------------------- ----------
______________________ _______________________ _________________________
-4-
Exhibit A
Opinion of Counsel to the Company
---------------------------------
The opinion or opinions of Dorsey & Whitney P.L.L.P., counsel to the
Company, to be delivered pursuant to Section V(b) of the Agreement, shall be to
the following effect (all terms used herein which are defined in the Agreement
have the meanings set forth therein):
(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) First Bank National Association has been duly incorporated
and is validly existing as a national banking association in good standing
under the laws of the United States, and has corporate power and authority
to own, lease and operate its properties and conduct its business as
described in the Registration Statement.
(iv) The Underwriting Agreement and any applicable Delayed Delivery
Contract have been duly authorized, executed and delivered by the Company.
(v) The Indenture has been duly and validly authorized, executed and
delivered by the Company and (assuming the Indenture has been duly
authorized, executed and delivered by the Trustee) constitutes a valid and
binding agreement of the Company, enforceable in accordance with its terms,
except as (i) enforceability thereof may be limited by bankruptcy,
insolvency, or other laws relating to or affecting creditors' rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by principles of general applicability.
(vi) The Offered Securities have been duly and validly authorized by
all necessary corporate action and the Offered Securities other than any
Contract Securities constitute, and any Contract Securities, when executed
and authenticated, issued and delivered in the manner provided in the
Indenture and sold pursuant to Delayed Delivery Contracts, will constitute
valid and binding obligations of the Company, enforceable in accordance
with their terms, except as (i) enforcement thereof may be limited by
bankruptcy, insolvency, or other laws relating to or affecting creditors'
rights generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability, and each holder of Offered Securities is entitled to the
benefits of the Indenture and each holder of Contract Securities, when
executed, authenticated, issued and delivered in
the manner provided in the Indenture and sold pursuant to Delayed Delivery
Contracts, will be entitled to the benefits of the Indenture.
(vii) The statements in the Basic Prospectus under the captions
"Description of Debt Securities" ["Description of Warrants"] and "Plan of
Distribution" and similar captions in the applicable prospectus supplement
insofar as they purport to summarize certain provisions of documents
specifically referred to therein, are accurate summaries of such
provisions.
(viii) The Indenture is qualified under the Trust Indenture Act.
(ix) The Registration Statement is effective under the Securities 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
Securities Act or proceedings therefor initiated or threatened by the
Commission.
(x) At the time the Registration Statement became effective, and at
the date hereof, the Registration Statement and the Prospectus and each
document incorporated by reference therein (other than the financial
statements, schedules and other financial data included therein and the
Statement of Eligibility and Qualification of the Trustee on Form T-1 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 Securities
Act, the Exchange Act, the Trust Indenture Act and the rules and
regulations under each of those Acts.
(xi) No consent, approval, authorization, or order of any court or
governmental authority or agency is required in connection with the sale of
the Offered Securities [and Offered Warrants], except such as may be
required under the Securities Act or the rules and regulations thereunder,
all of which have been obtained, or such as may be required state
securities laws.
[If Offered Warrants are to be issued and delivered pursuant to this Agreement
insert --
(xii) The Offered Warrants have been duly authorized by all necessary
corporate action and the Offered Warrants other than any Contract
Securities constitute, and any Contract Securities, when executed,
authenticated, issued and delivered in the manner provided in the related
Warrant Agreement and sold pursuant to Delayed Delivery Contracts,
constitute, valid and legally binding obligations of the company entitled
to the benefits provided in the related Warrant Agreement.
(xiii) The Warrant Agreement has been duly authorized by all necessary
corporate action and constitutes a valid and legally binding agreement of
the Company, enforceable in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency, or other laws
-2-
relating to or affecting creditors' rights generally, or by general equity
principles, and each holder of Offered Warrants is entitled to the benefits
of the related Warrant Agreement and each holder of Contract Securities,
when executed, authenticated, issued and delivered in the manner provided
in the related Warrant Agreement and sold pursuant to Delayed Delivery
Contracts, will be entitled to the benefits of the related Warrant
Agreement
(xiv) The Warrant Debt Securities have been duly and validly
authorized by all necessary corporate action and when duly executed,
authenticated, issued and delivered pursuant to the related Warrant
Agreement, will constitute valid and legally binding obligations of the
Company, enforceable in accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency or other laws relating to
or affecting creditors' rights generally, or by general equity principles,
and each holder of Warrant Debt Securities will be entitled to the benefits
provided by the Indenture.]
In addition, Dorsey & Whitney P.L.L.P. will state that it has
participated in the preparation of the Registration Statement and the Prospectus
and that nothing has come to such counsel's attention that causes such counsel
reason to believe that (other than the financial statements, schedules and other
financial data included therein, as to which no statement 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 the Closing Date, 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.
-3-
Exhibit B
Opinion of General Counsel of the Company
-----------------------------------------
The opinion of the General Counsel of the Company, to be delivered
pursuant to Section V(c) of the Agreement, shall be to the following effect (all
terms used herein which are defined in the Agreement have the meanings set forth
therein):
(i) 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 and where the failure so to qualify would have
a material adverse effect on the Company and its subsidiaries, taken as a
whole.
(ii) First Bank National Association 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 the business requires such qualification and where the
failure so to qualify would have a material adverse effect on the Company
and its subsidiaries, taken as a whole.
(iii) There are no legal or governmental proceedings pending or, to
the best of such counsel's knowledge, threatened which are required to be
disclosed in the Registration Statement, other than those disclosed
therein, and all pending legal or governmental proceedings to which the
Company or any subsidiary is a party or of which any of their property is
the subject which are not described in the Registration Statement,
including ordinary routine litigation incidental to the business, are,
considered individually or in the aggregate, not material.
(iv) 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.
(v) The execution and delivery of this Agreement, any applicable
Delayed Delivery Contract, any applicable Warrant Agreement and the
Indenture and the consummation of the transactions contemplated herein and
therein will not (a) conflict with or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the
Company or any subsidiary pursuant to any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which the Company or any
of its subsidiaries is a party or by which it or any of them may be bound
or to which any of the property or assets of the Company or any of its
subsidiaries is subject and that is material to the Company and its
subsidiaries, taken as a
whole, or (b) result in a violation of any law or administrative regulation
or administrative or court decree of any court or governmental agency,
authority or body or any arbitrator having jurisdiction over the Company
known to such counsel to be applicable to the Company nor will such action
result in any violation of the provisions of the charter or bylaws of the
Company.
-2-
Exhibit C
Letter from Ernst & Young LLP
-----------------------------
The Letter of Ernst & Young LLP to be delivered pursuant to Section
V(e) of the Agreement shall be to the following effect (all terms used herein
which are defined in the Agreement have the meanings set forth therein):
(i) They are independent public accountants with respect to the
Company and its subsidiaries within the meaning of the Securities Act and
the applicable published rules and regulations thereunder.
(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
Securities Act, the Exchange Act, as applicable, and the published rules
and regulations thereunder.
(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, as indicated in their report or reports attached to such
letter.
(iv) On the basis of the review referred to in (iii) and a
reading of the latest available interim financial statements 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 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 the applicable
accounting requirements of the Securities Act, the Exchange Act, and the
published rules and regulations thereunder or that the unaudited financial
statements are not presented in conformity with generally accepted
accounting principles applied on a basis consistent in all material
respects with that of the audited financial statements included in the
Prospectus.
(v) They have performed specified procedures, not constituting an
audit, including a reading of the latest available interim financial
statements of the Company and its consolidated subsidiaries, a reading of
the minute books of the Company and such subsidiaries since the date of the
balance sheet included in the Company's most recent audited financial
statements, inquiries of officials of the Company responsible for financial
and accounting matters and such other inquiries and procedures as may be
specified in such letter, and on the basis of such inquiries and procedures
nothing came to their attention that caused them to believe that:
(A) at the date of the latest available consolidated balance
sheet read by such accountants, or at a subsequent specified date
not more than five days prior to the date of delivery of such
letter, there was any change in the capital stock of the Company
and its consolidated subsidiaries, any increase in long-term debt
of the Company and its consolidated subsidiaries or any decreases
in allowance for credit loss or 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, consolidated net
interest income before the provision for credit losses,
consolidated net interest income after the provision for loan
losses or in the ratio of earnings to fixed charges, except in
each case for increases or 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 Exhibit C.
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