EXHIBIT 4(a)
[Series I Notes]
NORWEST CORPORATION
RETAIL MEDIUM-TERM NOTE-SM-SECURITIES DUE
9 MONTHS OR MORE FROM DATE OF ISSUE
DISTRIBUTION AGREEMENT
October 4, 1995
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Norwest Corporation, a Delaware corporation (the "Company"),
confirms its agreement with ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. (the "Agent") with respect to the
issue and sale by the Company of its Retail Medium-Term Note securities
described herein (the "Notes"). The Notes are to be issued pursuant to an
indenture (the "Indenture") dated as of September 15, 1995, as amended from time
to time, between the Company and Citibank, N.A., as trustee (the "Trustee"). As
of the date hereof, the Company has authorized the issuance and sale of up to
U.S. $300,000,000 aggregate initial public offering price (or its equivalent,
based upon the applicable exchange rate at the time of issuance, in such foreign
currencies or foreign currency units as the Company shall designate at the time
of issuance) of Notes through the Agent pursuant to the terms of this Agreement.
It is understood, however, that the Company may from time to time authorize the
issuance of additional Notes and that such additional Notes may be sold through
or to the Agent pursuant to the terms of this Agreement, all as though the
issuance of such Notes were authorized as of the date hereof.
This Agreement provides both for the sale of Notes by the Company
directly to purchasers, in which case the Agent will act as agent of the Company
in soliciting Note purchases, and (as may from time to time be agreed to by the
Company and the Agent) to the Agent as principal for resale to purchasers.
The Company has filed with the Securities and Exchange Commission
(the "SEC") a registration statement on Form S-3 (No. 033-61045) for the
registration of debt securities, including the Notes, under the Securities Act
of 1933, as amended, (the "1933 Act"), and the offering thereof from time to
time in accordance with Rule 415 of the rules and regulations of the SEC under
the 1933 Act (the "1933 Act Regulations"). Such registration statement has been
declared effective by the SEC and the Indenture has been qualified under the
Trust Indenture Act of 1939 (the "1939 Act"). Such registration statement (and
any further registration statements which may be filed by the Company for the
purpose of registering additional Notes and in connection with which this
Agreement is included or incorporated by reference as an exhibit) and the
prospectus constituting a part thereof, and any prospectus supplements relating
to the Notes, 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"), or the 1933 Act or otherwise, are referred
to herein as the "Registration Statement" and the "Prospectus", respectively,
except that if any revised prospectus shall be provided to the Agent by the
Company for use in connection with the offering of the Notes which is not
required to be filed by the Company pursuant to Rule 424(b) of the 1933 Act
Regulations, the term "Prospectus" shall refer to such revised prospectus from
and after the time it is first provided to the Agent for such use.
SECTION 1. APPOINTMENT AS AGENT.
(a) APPOINTMENT OF AGENT. Subject to the terms and conditions
stated herein and subject to the reservation by the Company of the right to sell
Notes directly on its own behalf or through any of its affiliated entities, the
Company hereby appoints the Agent as the agent for the purpose of soliciting
purchases of the Notes from the Company by others and agrees that, except as
otherwise contemplated herein, whenever the Company determines to sell Notes
directly to the Agent as principal for resale to others, it will enter into a
Terms Agreement (hereafter defined) relating to such sale in accordance with the
provisions of Section 3(b) hereof. In addition, the Agent may offer the Notes
it has purchased as principal to other dealers and may sell Notes to any dealer
at a discount, and, unless otherwise specified in an applicable Pricing
Supplement, such discount allowed to any dealer will not be in excess of the
discount to be received by the Agent. No Notes that the Company has agreed to
sell pursuant to this Agreement shall be deemed to have been purchased and paid
for or sold by the Company until such Notes shall have been delivered to the
purchaser thereof against payment by such purchaser. The Company may accept
offers to purchase Notes through an agent other than the Agent; PROVIDED,
HOWEVER, that (i) the Company shall give the Agent notice of its decision to
accept such an offer to purchase Notes promptly following such acceptance, and
(ii) any such other agent shall agree to be bound by and subject to the terms
and conditions of this Agreement binding on the Agent (including, but not
limited to, the commission schedule set forth on Schedule A).
(b) REASONABLE EFFORTS SOLICITATIONS; RIGHT TO REJECT OFFERS.
Upon receipt of instructions from the Company, the Agent will use its reasonable
efforts to solicit purchases of such principal amount of the Notes as the
Company and the Agent shall agree upon from time to time during the term of this
Agreement, it being understood that the Company shall not approve the
solicitation of purchases of Notes in excess of the amount which shall be
authorized by the Company from time to time or in excess of the principal amount
of Notes registered pursuant to the Registration Statement. The Agent will have
no responsibility for maintaining records with respect to the aggregate
principal amount of Notes sold, or of otherwise monitoring the availability of
Notes for sale under the Registration Statement. The Agent will communicate to
the Company, orally or in writing, each offer to purchase Notes, other than
those offers rejected by the Agent. The Agent shall have the right, in its
discretion reasonably exercised, to reject any proposed purchase of Notes, as a
whole or in part, and any such rejection shall not be deemed a breach of the
Agent's agreement contained herein. The Company may accept or reject any
proposed purchase of the Notes, in whole or in part.
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(c) SOLICITATIONS AS AGENT; PURCHASES AS PRINCIPAL. In
soliciting purchases of the Notes on behalf of the Company and in performing its
other obligations hereunder (other than with respect to any purchase by the
Agent as principal pursuant to a Terms Agreement), the Agent shall act solely as
agent for the Company and not as principal. The Agent shall make reasonable
efforts to assist the Company in obtaining performance by each purchaser whose
offer to purchase Notes has been solicited by the Agent and accepted by the
Company, PROVIDED, HOWEVER, that the Agent shall not have any liability to the
Company in the event any such purchase is not consummated for any reason. If
the Company shall default on its obligation to deliver Notes to a purchaser
whose offer it has accepted, the Company shall (i) hold the Agent harmless
against any loss, claim or damage arising from or as a result of such default by
the Company and (ii) notwithstanding such default, pay to the Agent any
commission to which it would be entitled in connection with such sale. The
Agent shall not have any obligation to purchase Notes from the Company as
principal, but the Agent may agree from time to time to purchase Notes as
principal. Any such purchase of Notes by the Agent as principal shall be made
in accordance with Section 3(b) hereof.
(d) RELIANCE. The Company and the Agent agree that any Notes,
the placement of which the Agent arranges, shall be placed by the Agent, and any
Notes purchased by the Agent shall be purchased, in reliance on the
representations, warranties, covenants and agreements of the Company contained
herein and on the terms and conditions and in the manner provided herein.
SECTION 2. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents and warrants to the Agent as of the
date hereof, as of the date of each acceptance by the Company of an offer for
the purchase of Notes (whether through the Agent as agent or to the Agent as
principal), as of the date of each delivery of Notes (whether through the Agent
as agent or to the Agent as principal) (the date of each such delivery to the
Agent as principal being hereafter referred to as a "Settlement Date"), and as
of any time that the Registration Statement or the Prospectus shall be amended
or supplemented or there is filed with the SEC any document incorporated by
reference into the Prospectus (each of the times referenced above being referred
to herein as a "Representation Date") as follows:
(i) REGISTRATION STATEMENT AND PROSPECTUS. At the time
the Registration Statement became effective, the Registration
Statement complied, and as of the applicable Representation Date will
comply, in all material respects with the requirements of the 1933 Act
and the 1933 Act Regulations and the 1939 Act and the rules and
regulations of the SEC promulgated thereunder. The Registration
Statement, at the time it became effective, did not, and at each time
thereafter at which any amendment to the Registration Statement
becomes effective or any Annual Report on Form 10-K is filed by the
Company with the SEC and as of each Representation Date, 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 not misleading. The Prospectus, as of the date
hereof, does not, and as of each 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,
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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 the
Agent expressly for use in the Registration Statement or Prospectus.
(ii) INCORPORATED DOCUMENTS. The documents incorporated by
reference in the Prospectus, at the time they were or hereafter are
filed with the SEC, complied, or when so filed will comply, as the
case may be, in all material respects with the requirements of the
1934 Act and the rules and regulations promulgated thereunder (the
"1934 Act Regulations"), and, when read together and with the other
information in the Prospectus, 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 in order to make the statements
therein, in the light of the circumstances under which they were or
are made, not misleading.
(iii) AUTHORIZATION AND VALIDITY OF THIS AGREEMENT, THE
INDENTURE AND THE NOTES. This Agreement and any Terms Agreement have
been duly authorized and, upon execution and delivery by the Agent,
will be a valid and binding agreement of the Company; the Indenture
has been duly authorized and, upon execution and delivery by the
Trustee, will be a valid and binding obligation of the Company
enforceable in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting enforcement of
creditors' rights generally, or by general equity principles, and
except further as enforcement thereof may be limited by
(A) requirements that a claim with respect to any Notes denominated
other than in U.S. dollars (or a foreign currency or foreign currency
unit judgment in respect of such claim) be converted into United
States dollars at a rate of exchange prevailing on a date determined
pursuant to applicable law or (B) governmental authority to limit,
delay or prohibit the making of payments in foreign currency or
currency units or payments outside the United States; the Notes have
been duly and validly authorized for issuance, offer and sale pursuant
to this Agreement and, when issued, authenticated and delivered
pursuant to the provisions of this Agreement and the Indenture against
payment of the consideration therefor specified in the Prospectus or
pursuant to any Terms Agreement, the Notes 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, reorganization, moratorium or other laws
relating to or affecting enforcement of creditors' rights generally or
by general equity principles, and except further as enforcement
thereof may be limited by the Notes and the Indenture will be
substantially in the form heretofore delivered to the Agent and
conform in all material respects to all statements relating thereto
contained in the Prospectus; and the Notes will be entitled to the
benefits provided by the Indenture.
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(iv) FLORIDA BLUE SKY DISCLOSURE. The Company has complied with
all provisions of Section 517.075, Florida Statutes (Chapter 92-198, Laws
of Florida).
(v) INVESTMENT COMPANY ACT OF 1940. Neither the Company nor
any subsidiary of the Company is subject to registration or regulation
under the Investment Company Act of 1940, as amended.
(vi) LEGAL PROCEEDINGS; CONTRACTS. Except as may be set forth
in the Registration Statement or Prospectus, 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,
in the opinion of the Company, result in any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, or might materially affect the properties or assets thereof;
and there are no 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 1933 Act Regulations which have not
been so filed.
(b) ADDITIONAL CERTIFICATIONS. Any certificate signed by any
director or officer of the Company and delivered to the Agent or to counsel for
the Agent in connection with an offering of Notes or the sale of Notes to the
Agent as principal shall be deemed a representation and warranty by the Company
to the Agent as to the matters covered thereby on the date of such certificate
and at each Representation Date subsequent thereto.
SECTION 3. 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, the Agent agrees, as an agent of the Company, to
use its reasonable efforts to solicit offers to purchase the Notes upon the
terms and conditions set forth herein and in the Prospectus.
The Company reserves the right, in its sole discretion, to
suspend solicitation of purchases of the Notes through the Agent, as agent,
commencing at any time for any period of time or permanently. Upon receipt of
instructions from the Company, the Agent will forthwith suspend solicitation of
purchases from the Company until such time as the Company has advised the Agent
that such solicitation may be resumed.
The Company agrees to pay the Agent on the settlement date
applicable to such Note a commission, in the form of a discount, equal to the
applicable percentage of the principal amount of each Note sold by the Company
as a result of a solicitation made by the Agent as set forth in Schedule A
hereto.
The purchase price, interest rate, maturity date and other terms
of the Notes shall be agreed upon by the Company and the Agent and set forth in
a pricing supplement to the Prospectus
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(a "Pricing Supplement") to be prepared following each acceptance by the Company
of an offer for the purchase of Notes. Except as may be otherwise provided in
such a Pricing Supplement, the Notes will be issued in denominations of U.S.
$1,000 or any larger amount that is an integral multiple of U.S. $1,000. All
Notes sold through the Agent as agent will be sold at 100% of their principal
amount unless otherwise agreed to by the Company and the Agent.
(b) PURCHASES AS PRINCIPAL. Each sale of Notes to the Agent as
principal shall be made in accordance with the terms contained herein and
pursuant to a separate agreement which will provide for the sale of such Notes
to, and the purchase and reoffering thereof by, the Agent. Each such separate
agreement (which may be an oral agreement, if confirmed in writing by facsimile
transmission or otherwise) between the Agent and the Company is herein referred
to as a "Terms Agreement". Unless the context otherwise requires, each
reference contained herein to "this Agreement" shall be deemed to include any
applicable Terms Agreement between the Company and the Agent. Each such Terms
Agreement, whether oral or in writing, shall be with respect to such information
(as applicable) as is specified in Exhibit A hereto. The Agent's commitment to
purchase Notes as principal pursuant to any Terms Agreement 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. Each Terms Agreement shall specify the principal amount of Notes to be
purchased by the Agent pursuant thereto, the price to be paid to the Company for
such Notes (which, if not so specified in a Terms Agreement, shall be at a
discount equivalent to the applicable commission set forth in Schedule A
hereto), the time and place of delivery of and payment for such Notes, any
provisions relating to rights of, and default by, purchasers acting together
with the Agent in the reoffering of the Notes, and such other provisions
(including further terms of the Notes) as may be mutually agreed upon. The
Agent may utilize a selling or dealer group in connection with the resale of the
Notes purchased. Such Terms Agreement shall also specify the requirements for
the officer's certificate, opinions of counsel and comfort letter pursuant to
Sections 7(b), 7(c) and 7(d) hereof.
(c) ADMINISTRATIVE PROCEDURES. The Company and the Agent
hereby agree to the Administrative procedures with respect to the sale of Notes
set forth in Annex A hereto (the "Procedures"). The Agent and the Company agree
to perform the respective duties and obligations specifically provided to be
performed by them in the Procedures.
SECTION 4. COVENANTS OF THE COMPANY.
The Company covenants with the Agent as follows:
(a) NOTICE OF CERTAIN EVENTS. The Company will notify the
Agent immediately (i) of the effectiveness of any amendment to the Registration
Statement, (ii) of the transmittal to the SEC for 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 SEC with respect to the Registration Statement or the
Prospectus, (iv) of any request by the SEC for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for additional
information, and (v) of the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any
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proceedings for that purpose. The Company will make every reasonable effort to
prevent the issuance of any stop order and, if any stop order is issued, to
obtain the lifting thereof at the earliest possible moment.
(b) NOTICE OF CERTAIN PROPOSED FILINGS. The Company will give
the Agent notice of its intention to file or prepare any additional registration
statement with respect to the registration of additional Notes, any amendment to
the Registration Statement or any amendment or supplement to the Prospectus
(other than an amendment or supplement providing solely for a change in the
interest rates of Notes), whether by the filing of documents pursuant to the
1934 Act, the 1933 Act or otherwise, and will furnish the Agent with copies of
any such amendment or supplement or other documents proposed to be filed or
prepared a reasonable time in advance of such proposed filing or preparation, as
the case may be, and will not file any such amendment or supplement or other
documents in a form to which you or your counsel shall reasonably object.
(c) COPIES OF THE REGISTRATION STATEMENT AND THE PROSPECTUS.
The Company will deliver to the Agent 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 Agent may
reasonably request. The Company will furnish to the Agent as many copies of the
Prospectus (as amended or supplemented) as the Agent shall reasonably request so
long as the Agent is required to deliver a Prospectus in connection with sales
or solicitations of offers to purchase the Notes.
(d) PREPARATION OF PRICING SUPPLEMENTS. The Company will
prepare, with respect to any Notes to be sold through or to the Agent pursuant
to this Agreement, a Pricing Supplement with respect to such Notes in a form
previously approved by the Agent and will file such Pricing Supplement pursuant
to Rule 424(b)(3) under the 1933 Act not later than the close of business of the
SEC on the fifth business day after the date on which such Pricing Supplement is
first used.
(e) REVISIONS OF PROSPECTUS -- MATERIAL CHANGES. Except as
otherwise provided in subsection (k) of this Section, if at any time during the
term of this Agreement any event shall occur or condition exist as a result of
which it is necessary, in the reasonable opinion of counsel, for the Agent 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
the Prospectus is delivered to a purchaser, or if it shall be necessary, in the
reasonable opinion of either such counsel, to amend or supplement the
Registration Statement or the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, immediate notice shall
be given, and confirmed in writing, to the Agent to cease the solicitation of
offers to purchase the Notes in the Agent's capacity as agent and to cease sales
of any Notes the Agent may then own as principal pursuant to a Terms Agreement,
and the Company will promptly prepare and file with the SEC 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 Prospectus comply with such
requirements.
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(f) PROSPECTUS REVISIONS -- PERIODIC FINANCIAL INFORMATION.
Except as otherwise provided in subsection (k) of this Section, on or prior to
the date on which there shall be released to the general public interim
financial statement information related to the Company with respect to each of
the first three quarters of any fiscal year or preliminary financial statement
information with respect to any fiscal year, the Company shall furnish such
information to the Agent, confirmed in writing.
(g) EARNINGS STATEMENTS. The Company will make generally
available to its security holders as soon as practicable, but not later than 90
days after the close of the period covered thereby, an earnings statement (in
form complying with the provisions of Rule 158 under the 1933 Act) covering each
twelve month period beginning, in each case, not later than the first day of the
Company's fiscal quarter next following the "effective date" (as defined in such
Rule 158) of the Registration Statement with respect to each sale of Notes.
(h) BLUE SKY QUALIFICATIONS. The Company will endeavor, in
cooperation with the Agent, to qualify the Notes for offering and sale under the
applicable securities laws of such states and other jurisdictions of the United
States as the Agent may designate, and will maintain such qualifications in
effect for as long as may be required for the distribution of the Notes;
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 Notes have been qualified as above provided. The Company will
promptly advise the Agent of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Notes for sale in any such
state or jurisdiction or the initiating or threatening of any proceeding for
such purpose and will promptly notify the Agent if at any time the Company must
make or amend a disclosure required by Section 517.075, Florida Statutes
(Chapter 92-198, Laws of Florida).
(i) 1934 ACT FILINGS. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act, will file promptly
all documents required to be filed with the SEC pursuant to Sections 13(a),
13(c), 14 or 15(d) of the 1934 Act.
(j) STAND-OFF AGREEMENT. If required pursuant to the terms of
a Terms Agreement with the Agent, between the date of any Terms Agreement and
the Settlement Date with respect to such Terms Agreement, the Company will not,
without the Agent's prior consent, offer or sell, or enter into any agreement to
sell, any debt securities of the Company with terms substantially similar to
those of the Notes which are the subject of such Terms Agreement (other than the
Notes that are to be sold pursuant to such Terms Agreement and commercial paper
in the ordinary course of business).
(k) SUSPENSION OF CERTAIN OBLIGATIONS. The Company shall not
be required to comply with the provisions of subsections (e) or (f) of this
Section with respect to the Agent during any period from the time (i) the Agent
shall have suspended solicitation of purchases of the Notes in its capacity as
agent pursuant to a request from the Company and (ii) the Agent shall not then
hold
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any Notes as principal purchased pursuant to a Terms Agreement, to the time the
Company shall determine that solicitation of purchases of the Notes should be
resumed or shall subsequently enter into a new Terms Agreement with the Agent.
SECTION 5. CONDITIONS OF OBLIGATIONS.
The obligations of the Agent to solicit offers to purchase the
Notes as agent of the Company, the obligations of any purchasers of the Notes
sold through the Agent as agent, and any obligation of the Agent to purchase
Notes pursuant to a Terms Agreement will be subject to the accuracy of the
representations and warranties on the part of the Company herein and to the
accuracy of the statements of the Company's officers made in any certificate
furnished pursuant to the provisions hereof, to the performance and observance
by the Company of all its covenants and agreements herein contained and to the
following additional conditions precedent:
(a) LEGAL OPINIONS. On the date hereof, the Agent shall have
received the following legal opinions, dated as of the date hereof and in form
and substance satisfactory to the Agent:
1. OPINION OF COMPANY COUNSEL. The opinion of ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, Executive Vice President and General Counsel of the Company,
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
to conduct its business as described in the
Registration Statement, and is duly registered as a
bank holding company under the Bank Holding Company Act
of 1956, as amended; and each of Norwest Bank
Minnesota, National Association ("Norwest Bank
Minnesota"), and Norwest Bank Iowa, National
Association ("Norwest Bank Iowa"), is a national
banking association duly chartered and is in good
standing under the National Bank Act; and each of
Norwest Colorado, Inc. ("Norwest Colorado") and Norwest
Financial Services, Inc. ("Norwest Financial" and
together with Norwest Bank Minnesota, Norwest Bank Iowa
and Norwest Colorado, the "Significant Subsidiaries")
is duly organized and validly existing in good standing
under the laws of the jurisdiction of its
incorporation.
(iii) Each of the Company and each Significant
Subsidiary is duly qualified as a foreign corporation
to transact business and is in good standing in each
jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of
property or the conduct of business, except where the
failure to so qualify and
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be in good standing would not have a material adverse effect on
the business, condition or properties of the Company and its
subsidiaries, taken as a whole.
(iv) All of the issued and outstanding capital
stock of each Significant Subsidiary has been duly
authorized and validly issued, is fully paid and
(except as provided in 12 U.S.C. Section 55)
non-assessable, and is owned by the Company, free and
clear of any perfected security interest and, to the
best of such counsel's knowledge of any other security
interests, claims, liens or encumbrances.
(v) This Agreement has been duly and validly
authorized, executed and delivered by the Company.
(vi) 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
legal, valid and binding agreement of the Company,
enforceable in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws
relating to or affecting enforcement of creditors'
rights generally or by general equitable principles,
and except further as enforcement thereof may be
limited by (A) requirements that a claim with respect
to any Notes denominated other than in U.S. dollars (or
a foreign currency or foreign currency unit judgment in
respect of such claim) be converted into United States
dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or
(B) governmental authority to limit, delay or prohibit
the making of payments in foreign currency or currency
units or the making of payments outside the United
States.
(vii) The Notes are in due and proper form and
have been duly established in conformity with
Section 301 of the Indenture. When the specific terms
of an issue of Notes have been fixed by an authorized
officer of the Company by executing and delivering to
the Trustee an authentication certificate supplemental
to an officers' certificate, such Notes will be duly
authorized for issuance, offer and sale pursuant to
this Agreement and, when issued, authenticated and
delivered pursuant to the provisions of this Agreement
and the Indenture against payment of the consideration
therefor, 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, reorganization,
moratorium or other laws relating to or affecting
enforcement of creditors' rights generally or by
general equity principles, and except
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further as enforcement thereof may be limited by (A) requirements
that a claim with respect to any Notes denominated other than in
U.S. dollars (or a foreign currency or foreign currency unit
judgment in respect of such claim) be converted into United
States dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (B) governmental
authority to limit, delay or prohibit the making of payments in
foreign currency or currency units or payments outside the United
States, and each holder of Notes will be entitled to the benefits
of the Indenture.
(viii) The statements in the Prospectus under the
captions "Description of Debt Securities", "Plan of
Distribution" and "Description of Notes", insofar as
they purport to summarize certain provisions of
documents specifically referred to therein, are
accurate summaries of such provisions.
(ix) The Indenture is qualified under the 1939
Act.
(x) The Registration Statement is effective
under the 1933 Act and, to the best of such counsel's
knowledge, no stop order suspending the effectiveness
of the Registration Statement has been issued under
the 1933 Act or proceedings therefor initiated or, to
the best of such counsel's knowledge, threatened by the
SEC; and any required filing of the Prospectus pursuant
to Rule 424(b) has been made in the manner and within
the time period required by Rule 424(b) under the 1933
Act.
(xi) At the time the Registration Statement
became effective, the Registration Statement (other
than financial statements, schedules and other
financial data included in the documents incorporated
by reference therein, as to which no opinion need be
rendered) complied as to form in all material respects
with the requirements of the 1933 Act, the 1939 Act and
the regulations under each of those Acts.
(xii) To the best of such counsel's knowledge,
there are no legal or governmental proceedings pending
or threatened which are required to be disclosed in the
Prospectus, other than those disclosed therein.
(xiii) The execution and delivery of this
Agreement or of the Indenture, or the consummation by
the Company of the transactions contemplated by this
Agreement and the Notes and the incurrence of the
obligations therein contemplated, will not conflict
with or constitute a breach of, or default under, or
result in the creation or
-11-
imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any Significant Subsidiary pursuant
to any contract, indenture, mortgage, loan agreement, note, lease
or other instrument known to such counsel and to which the
Company or any Significant Subsidiary is a party or to which any
of the property or assets of the Company or any Significant
Subsidiary is subject, or any law, administrative regulation or
administrative or court decree known to such counsel to be
applicable to the Company of any court or governmental agency,
authority or body or any arbitrator having jurisdiction over the
Company; nor will such action result in any violation of the
provisions of the charter or by-laws of the Company.
(xiv) To the best of such counsel's knowledge,
there are no contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments or
documents 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, the descriptions thereof or
references thereto are correct.
(xv) No consent, approval, authorization, order
or decree of any court or governmental agency or body
including the SEC 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, the 1933 Act Regulations or
state securities laws.
(xvi) Each document filed pursuant to the 1934
Act and incorporated by reference in the Prospectus
complied when filed as to form in all material respects
with the 1934 Act and the 1934 Act Regulations
thereunder (other than financial statements, schedules
and other financial data included therein, as to which
no opinion need be rendered).
2. OPINION OF COUNSEL TO THE AGENT. The opinion of
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to the Agent, covering the matters
referred to in subparagraph (1) under the subheadings (i), (v), (vi),
(vii), (ix), (x) and (xi) above.
3. In giving their opinions required by subsection (a)(1)
and (a)(2) of this Section, ▇▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ shall
each additionally state that nothing has come to his or their
attention that would lead him or them to believe that the Registration
Statement (other than financial statements, schedules or other
financial data included or incorporated by reference therein, as to
which no statement need be made), at the time it became effective, and
if an amendment to the Registration Statement or an Annual Report on
Form 10-K has been filed by the
-12-
Company with the SEC subsequent to the effectiveness of the Registration
Statement, then at the time such amendment became effective or at the time
of the most recent such filing, as the case may be, contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the statements therein
not misleading or that the Prospectus, as amended or supplemented at the
date hereof, or (if such opinion is being delivered in connection with a
Terms Agreement pursuant to Section 7(c) hereof) at the date of any Terms
Agreement and at the Settlement Date with respect thereto, as the case may
be, contains an untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(b) OFFICER'S CERTIFICATES. At the date hereof the Agent shall
have received a certificate of the Chairman of the Board, the President or any
Executive Vice President and the principal financial or accounting officer of
the Company, PROVIDED, HOWEVER, that no person shall sign such certificate in
more than one official capacity, dated as of the date hereof, to the effect that
(i) since the respective dates as of which information is given in the
Registration Statement and the Prospectus or since the date of any applicable
Terms Agreement, there has not been any material adverse change in the
condition, financial or otherwise, or in the earnings, general business affairs
or business prospects of the Company and its subsidiaries, taken as a whole,
whether or not arising in the ordinary course of business, (ii) the
representations and warranties of the Company contained in Section 2 hereof are
true and correct with the same force and effect as though expressly made at and
as of the date of such certificate, (iii) the Company has performed or 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) 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 SEC.
(c) COMFORT LETTER. On the date hereof, the Agent shall have
received a letter from KPMG Peat Marwick LLP, dated as of the date hereof and in
form and substance satisfactory to the Agent, containing statements and
information of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in or incorporated by reference into the Registration
Statement and the Prospectus.
(d) OTHER DOCUMENTS. On the date hereof and on each Settlement
Date with respect to any applicable Terms Agreement, counsel to the Agent shall
have been furnished with such documents and opinions as such counsel may
reasonably require for the purpose of enabling such counsel to pass upon the
issuance and sale of Notes 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 Notes as herein contemplated shall be satisfactory in form and substance
to the Agent and to counsel to the Agent.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement (or, at the
option of the Agent, any applicable Terms
-13-
Agreement) may be terminated by the Agent insofar as this Agreement relates to
the Agent by notice to the Company at any time and any such termination shall be
without liability of any party to any other party, except that the covenant
regarding provision of an earnings statement set forth in Section 4(g) hereof,
the provisions concerning payment of expenses under Section 10 hereof, the
indemnity and contribution agreement set forth in Sections 8 and 9 hereof, the
provisions concerning the representations, warranties and agreements to survive
delivery of Section 11 hereof and the provisions set forth under "Parties" of
Section 15 hereof shall remain in effect.
SECTION 6. DELIVERY OF AND PAYMENT FOR NOTES SOLD THROUGH THE AGENT.
Delivery of Notes sold through the Agent as agent shall be made by the
Company to the Agent for the account of any purchaser only against payment
therefor in immediately available funds. In the event that a purchaser shall
fail either to accept delivery of or to make payment for a Note on the date
fixed for settlement, the Agent shall promptly notify the Company and deliver
the Note to the Company, and, if the Agent has theretofore paid the Company for
such Note, the Company will promptly return such funds to the Agent. If such
failure occurred for any reason other than default by the Agent in the
performance of its obligations hereunder, the Company will reimburse the Agent
on an equitable basis for its loss of the use of the funds for the period such
funds were credited to the Company's account.
SECTION 7. ADDITIONAL COVENANTS OF THE COMPANY.
The Company covenants and agrees with the Agent that:
(a) REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. Each acceptance
by the Company of an offer for the purchase of Notes, and each delivery of Notes
to the Agent pursuant to a Terms Agreement, shall be deemed to be an affirmation
that the representations and warranties of the Company contained in this
Agreement and in any certificate theretofore delivered to the Agent pursuant
hereto are true and correct at the time of such acceptance or sale, as the case
may be, and an undertaking that such representations and warranties will be true
and correct at the time of delivery to the purchaser or his agent, or to the
Agent, of the Note or Notes relating to such acceptance or sale, as the case may
be, as though made at and as of each such time (and it is understood that such
representations and warranties shall relate to the Registration Statement and
Prospectus as amended and supplemented to each such time).
(b) SUBSEQUENT DELIVERY OF CERTIFICATES. Each time that the
Registration Statement or the Prospectus shall be amended or supplemented (other
than by a Pricing Supplement, and other than by an amendment or supplement which
relates exclusively to an offering of debt securities other than the Notes) or
there is filed with the SEC any document incorporated by reference into the
Prospectus (other than any Current Report on Form 8-K relating exclusively to
the issuance of debt securities other than the Notes unless requested by the
Agent) or (if required pursuant to the terms of a Terms Agreement) the Company
sells Notes to the Agent pursuant to a Terms Agreement, the Company shall
furnish or cause to be furnished to the Agent forthwith a certificate dated the
date of filing with the SEC of such supplement or document, the date of
effectiveness of such amendment, or the date of such sale, as the case may be,
in form
-14-
satisfactory to the Agent to the effect that the statements contained in the
certificate referred to in Section 5(b) hereof which were last furnished to the
Agent are true and correct at the time of such amendment, supplement, filing or
sale, as the case may be, as though made at and as of such time (except that
such statements shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such time) or, in lieu of such
certificate, a certificate of the same tenor as the certificate referred to in
said Section 5(b), modified as necessary to relate to the Registration Statement
and the Prospectus as amended and supplemented to the time of delivery of such
certificate.
(c) SUBSEQUENT DELIVERY OF LEGAL OPINIONS. Each time that the
Registration Statement or the Prospectus shall be amended or supplemented (other
than by a Pricing Supplement or solely for the inclusion of additional financial
information, and other than by an amendment or supplement which relates
exclusively to an offering of debt securities other than the Notes) or there is
filed with the SEC any document incorporated by reference into the Prospectus
(other than any Current Report on Form 8-K relating exclusively to the issuance
of debt securities other than the Notes unless requested by the Agent), or (if
required pursuant to the terms of a Terms Agreement) the Company sells Notes to
the Agent pursuant to a Terms Agreement, the Company shall furnish or cause to
be furnished forthwith to the Agent and to counsel to the Agent a written
opinion of the General Counsel of the Company, or other counsel satisfactory to
the Agent dated the date of filing with the SEC of such supplement or document,
the date of effectiveness of such amendment, or the date of such sale, as the
case may be, in form and substance satisfactory to the Agent, of the same tenor
as the opinion referred to in Section 5(a)(1) hereof, but modified, as
necessary, to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such opinion; or, in lieu of such
opinion, counsel last furnishing such opinion to the Agent shall furnish the
Agent with a letter to the effect that the Agent may rely on such last opinion
to the same extent as though it was dated the date of such letter authorizing
reliance (except that statements in such last opinion shall be deemed to relate
to the Registration Statement and the Prospectus as amended and supplemented to
the time of delivery of such letter authorizing reliance). Each time that the
Company files with the SEC an Annual Report on Form 10-K that is incorporated by
reference into the Prospectus, counsel to the Agent shall furnish to the Agent a
written opinion dated the date of such filing of the same tenor as the opinion
referred to in Section 5(a)(3) hereof, but modified, as necessary, to relate to
the Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such opinion; or in lieu of such opinion, counsel last
furnishing such opinion to the Agent shall furnish the Agent with a letter to
the effect that the Agent may rely on such last opinion to the same extent as
though it were dated the date of such letter authorizing reliance (except that
statements in such last opinion shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of delivery
of such letter authorizing reliance).
(d) SUBSEQUENT DELIVERY OF COMFORT LETTERS. Each time that the
Registration Statement or the Prospectus shall be amended or supplemented to
include additional financial information, or there is filed with the SEC any
document incorporated by reference into the Prospectus which contains additional
financial information, or (if required pursuant to the terms of a Terms
Agreement) the Company sells Notes to the Agent pursuant to a Terms Agreement,
the Company shall cause KPMG Peat Marwick LLP forthwith to furnish the Agent a
letter, dated the
-15-
date of effectiveness of such amendment, supplement or document with the SEC, or
the date of such sale, as the case may be, in form satisfactory to the Agent, of
the same general tenor as the letter referred to in Section 5(c) hereof but
modified to relate to the Registration Statement and Prospectus, as amended and
supplemented to the date of such letter, and with such changes as may be
necessary to reflect changes in the financial statements and other information
derived from the accounting records of the Company; PROVIDED, HOWEVER, that if
the Registration Statement or the Prospectus is amended or supplemented solely
to include financial information as of and for a fiscal quarter, KPMG Peat
Marwick LLP may limit the scope of such letter to the unaudited financial
statements included in such amendment or supplement unless any other information
included therein of an accounting, financial or statistical nature is of such a
nature that, in the reasonable judgment of the Agent, such letter should cover
such other information.
SECTION 8. INDEMNIFICATION.
INDEMNIFICATION OF THE AGENT. The Company agrees to indemnify and
hold harmless the Agent and each person, if any, who controls the Agent within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as
follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, 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 necessary to make the
statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Prospectus (or any amendment or supplement thereto) or the
omission or alleged omission therefrom of a material fact necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, unless such untrue statement or
omission or such alleged untrue statement or omission was made in
reliance upon and in conformity with written information furnished to
the Company by the Agent expressly for use in the Registration
Statement or the Prospectus;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, 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, if such settlement is
effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred,
(including the fees and disbursements of counsel chosen by the Agent)
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, to the extent that any such expense is not paid
under (i) or (ii) above.
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(b) INDEMNIFICATION OF COMPANY. The Agent agrees to indemnify and
hold harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, 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) in reliance upon and in
conformity with written information furnished to the Company by the Agent
expressly for use in the Registration Statement (or any amendment thereto) or
the Prospectus (or any amendment or supplement thereto).
(c) GENERAL. In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or (b) of this
Section 8, such person (the "indemnified party") shall promptly notify the
person against whom such indemnity may be sought (the "indemnifying party") in
writing, and the indemnifying party, upon request of the indemnified party,
shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and disbursements of such
counsel related to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them.
It is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by the Agent that
are indemnified parties in the case of parties to be indemnified pursuant to
paragraph (a) of this Section 8 and by the Company in the case of parties to be
indemnified pursuant to paragraph (b) of this Section 8. An indemnifying party
shall not be liable for any settlement of any proceeding effected without its
prior written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. 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.
-17-
SECTION 9. CONTRIBUTION.
In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 8 hereof
is for any reason held to be unavailable to or insufficient to hold harmless the
indemnified parties although applicable in accordance with its terms, the
Company and the Agent 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 Agent, as incurred, in such
proportions that the Agent is responsible for that portion represented by the
percentage that the total commissions and underwriting discounts received by the
Agent to the date of such liability bears to the total sales price from the sale
of Notes sold to or through the Agent to the date of such liability, and the
Company is responsible for the balance; PROVIDED, HOWEVER, that no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section, each person,
if any, who controls the Agent within the meaning of Section 15 of the 1933 Act
shall have the same rights to contribution as the Agent, and each director of
the Company, each officer of the Company who signed the Registration Statement,
and each person, if any, who controls the Company within the meaning of
Section 15 of the 1933 Act shall have the same rights to contribution as the
Company.
SECTION 10. PAYMENT OF EXPENSES.
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(a) the preparation and filing of the Registration Statement and
all amendments thereto and the Prospectus and any amendments or
supplements thereto;
(b) the preparation, filing and reproduction of this Agreement;
(c) the preparation, printing, issuance and delivery of the
Notes, including any fees and expenses relating to the use of
book-entry notes;
(d) the fees and disbursements of the Company's accountants and
counsel, of the Trustee and its counsel, and of any Calculation Agent
or Exchange Rate Agent;
(e) the reasonable fees and disbursements of counsel to the Agent
incurred from time to time in connection with the transactions
contemplated hereby;
(f) the qualification of the Notes under Blue Sky laws in
accordance with the provisions of Section 4(i) hereof, including
filing fees and the reasonable fees and disbursements of counsel for
the Agent in connection therewith and in connection with the
preparation of any Blue Sky Survey and any Legal Investment Survey;
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(g) the printing and delivery to the Agent in quantities as
hereinabove stated of copies of the Registration Statement and any
amendments thereto, and of the Prospectus and any amendments or
supplements thereto, and the delivery by each Agent of the Prospectus
and any amendments or supplements thereto in connection with
solicitations or confirmations of sales of the Notes;
(h) the preparation, printing, reproducing and delivery to the
Agent of copies of the Indenture and all supplements and amendments
thereto;
(i) any fees charged by rating agencies for the rating of the
Notes;
(j) the fees and expenses, if any, incurred with respect to any
filing with the National Association of Securities Dealers, Inc.;
(k) any advertising and other out-of-pocket expenses of the Agent
incurred with the approval of the Company;
(l) the cost of providing any CUSIP or other identification
numbers for the Notes; and
(m) the fees and expenses of any Depositary (as defined in the
Indenture) and any nominees thereof in connection with the Notes.
SECTION 11. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company submitted pursuant
hereto or thereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Agent or any
controlling person of the Agent, or by or on behalf of the Company, and shall
survive each delivery of and payment for any of the Notes.
SECTION 12. TERMINATION.
(a) TERMINATION OF THIS AGREEMENT. This Agreement (excluding any
Terms Agreement) may be terminated for any reason, at any time, by either the
Company or the Agent (insofar as this Agreement relates to the Agent) upon the
giving of 30 days' written notice of such termination to the other party hereto.
(b) TERMINATION OF A TERMS AGREEMENT. The Agent may terminate any
Terms Agreement, immediately upon notice to the Company, at any time prior to
the Settlement Date relating thereto (i) if there shall have occurred any
material adverse change in the financial markets in the United States or any
outbreak or escalation of hostilities involving the United States the effect of
which is such as to make it, in the judgment of the Agent, impracticable to
market the Notes or enforce contracts for the sale of the Notes, or (ii) if
trading in any securities of the Company has been suspended by the SEC or a
national securities exchange, or if trading generally on either the
-19-
American Stock Exchange or the New York Stock Exchange shall have been
suspended, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices for securities have been required, by either of said exchanges
or by order of the SEC or any other governmental authority, or if a banking
moratorium shall have been declared by either Federal or New York authorities or
if a banking moratorium shall have been declared by the relevant authorities in
the country or countries of origin of any foreign currency or currencies in
which the Notes are denominated or payable, or (iii) if the rating assigned by
any nationally recognized securities rating agency to any debt securities of the
Company as of the date of any applicable Terms Agreement shall have been lowered
since that date or if any such rating agency shall have publicly announced that
it has under surveillance or review, with possible negative implications, its
rating of any debt securities of the Company, or (iv) if there has occurred any
material adverse change in the condition, financial or otherwise, in the
business affairs or business prospects of the Company and its subsidiaries,
taken as a whole, whether or not in the ordinary course of business.
(c) GENERAL. In the event of any such termination, none of the
parties will have any liability to the other parties hereto, except that (i) the
Agent shall be entitled to any commission earned in accordance with the third
paragraph of Section 3(a) hereof, (ii) if at the time of termination (a) the
Agent shall own any Notes purchased pursuant to a Terms Agreement with the
intention of reselling them or (b) an offer to purchase any of the Notes has
been accepted by the Company but the time of delivery to the purchaser or his
agent of the Note or Notes relating thereto has not occurred, the covenants set
forth in Sections 4 and 7 hereof shall remain in effect until such Notes are so
resold or delivered, as the case may be, and (iii) the covenant set forth in
Section 4(g) hereof, the provisions of Section 10 hereof, the indemnity and
contribution agreements set forth in Sections 8 and 9 hereof, and the provisions
of Sections 11 and 15 hereof shall remain in effect.
SECTION 13. NOTICES.
Unless otherwise provided herein, all notices required under the terms
and provisions hereof shall be in writing, either delivered by hand, by mail or
by telex, telecopier or telegram, and any such notice shall be effective when
received at the address specified below.
If to the Company:
Norwest Corporation
Norwest Center
Sixth and Marquette
Minneapolis, Minnesota 55479
Attention: Treasurer
If to the Agent:
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
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Attention: ▇▇▇ ▇▇▇▇▇▇▇▇
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 13.
SECTION 14. GOVERNING LAW.
This Agreement and all the rights and obligations of the parties shall
be governed by and construed in accordance with the laws of the State of New
York applicable to agreements made and to be performed in such State. Any suit,
action or proceeding brought by the Company against the Agent in connection with
or arising under this Agreement shall be brought solely in the state or federal
court of appropriate jurisdiction located in the Borough of Manhattan, The City
of New York.
SECTION 15. PARTIES.
This Agreement shall inure to the benefit of and be binding upon the
Agent and the Company and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their respective
successors and the controlling persons and officers and directors referred to in
Sections 8 and 9 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the parties
hereto and respective successors and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Notes shall be deemed to be
a successor by reason merely of such purchase.
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If the foregoing is in accordance with the Agent's understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument along with all counterparts will become a binding
agreement between the Agent and the Company in accordance with its terms.
Very truly yours,
NORWEST CORPORATION
By:
-------------------------------
Name:
Title:
Accepted:
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
By:
-----------------------------------------
Name:
Title:
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SCHEDULE A
As compensation for the services of the Agent hereunder, the Company
shall pay it, on a discount basis, a commission for the sale of each Note equal
to the principal amount of such Note multiplied by the appropriate percentage
set forth below:
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
--------------- ----------------
From 9 months to less than 1 year. . . . . . . . . . . . . . . 0.20%
From 1 year to less than 2 years . . . . . . . . . . . . . . . 0.40
From 2 years to less than 3 years. . . . . . . . . . . . . . . 0.60
From 3 years to less than 4 years. . . . . . . . . . . . . . . 0.75
From 4 years to less than 5 years. . . . . . . . . . . . . . . 1.00
From 5 years to less than 6 years. . . . . . . . . . . . . . . 1.50
From 6 years to less than 7 years. . . . . . . . . . . . . . . 2.00
From 7 years to less than 10 years . . . . . . . . . . . . . . 2.25
From 10 years to less than 15 years. . . . . . . . . . . . . . 2.50
From 15 years to less than 20 years. . . . . . . . . . . . . . 2.75
From 20 years to 30 years. . . . . . . . . . . . . . . . . . . 3.00
More than 30 years . . . . . . . . . . . . . . . . . . . . . . As agreed at the
time of sale
EXHIBIT A
The following terms, if applicable, shall be agreed to by the Agent
and the Company pursuant to each Terms Agreement:
Principal Amount: $
-----------------
(or principal amount of foreign currency)
Interest Rate:
If Fixed Rate Note, interest rate:
If Floating Rate Notes:
Interest rate or interest rate basis applicable to each
interest period
Initial interest rate
Spread and/or spread multiplier, if any
Interest rate reset dates
Interest rate reset period
Interest payment dates
Interest payment period
Index maturity
Calculation agent
Maximum interest rate, if any
Minimum interest rate, if any
Calculation date
Interest determination dates
Regular record dates
If Original Issue Discount Zero Coupon Notes and Original Issue
Discount Fixed Rate Notes, any terms required to be established
by the Internal Revenue Code of 1986, as amended
If Redeemable:
Redemption Date
Redemption Prices
If Repayable, repayment terms:
Date of Maturity
Purchase Price: ____%
Settlement Date and Time
Currency of Denomination
Currency of Payment
Additional Terms:
Also, in connection with the purchase of Notes by the Agent as principal,
agreement as to whether the following will be required:
Officer's Certificate pursuant to Section 7(b) of the
Distribution Agreement
Legal Opinion pursuant to Section 7(c) of the Distribution
Agreement
Comfort Letter pursuant to Section 7(d) of the Distribution
Agreement
Stand-off Agreement pursuant to Section 4(j) of the Distribution
Agreement
A-2
▇▇▇▇▇ A INTENTIONALLY OMITTED
