EXHIBIT 1.2
U.S. BANCORP
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(CAPITAL SECURITIES)
(OCTOBER 25, 2001)
From time to time, U.S. Bancorp, a Delaware corporation (the
"Guarantor"), and each of USB Capital IV ("USB IV"), USB Capital V ("USB V"),
USB Capital VI ("USB VI") or USB Capital VII ("USB VII"), each a statutory
business trust formed under the laws of the State of Delaware, may enter into
one or more underwriting agreements (each such agreement, an "Underwriting
Agreement") that provide for the sale of designated capital securities to the
several underwriters (the "Underwriters") named therein.
The standard provisions hereof may be incorporated by reference in any
Underwriting Agreement. As used herein, the term "Trust" means the statutory
business trust named in the first sentence of the Underwriting Agreement. The
term "Agreement" means the Underwriting Agreement, including the provisions
hereof incorporated therein by reference. Unless otherwise defined herein, all
other defined terms have the meanings ascribed thereto in the Underwriting
Agreement.
I
The Guarantor and each of USB IV, USB V, USB VI and USB VII propose
that USB IV, USB V, USB VI and USB VII, severally and not jointly, issue from
time to time, in one or more series, capital securities (the "Securities")
pursuant to the provisions of the registration statement on Form S-3 filed on
July 18, 2001, Registration No. 333-65358. Such Securities may be issued in
amounts, at prices and other terms to be determined in light of market
conditions at the time of sale. The specific number of the Securities, title and
liquidation preference of each Security, issuance price, distribution rate or
rates (or method of calculation), distribution periods, distribution payment
dates, redemption provisions, and any other specific terms of the Securities
shall be set forth in a prospectus supplement.
The Securities specified in Schedule I to the Underwriting Agreement
are the "Firm Securities." If specified in such Underwriting Agreement, the
Guarantor and the Trust may grant to the Underwriters the right to purchase at
their election an additional number of the Securities specified in such
Underwriting Agreement as provided in Article III hereof (the "Optional
Securities"). The Firm Securities and the Optional Securities, if any, which the
Underwriters elect to purchase pursuant to Article III hereof are herein
collectively called the "Offered Securities."
The Guarantor and USB IV, USB V, USB VI and USB VII have filed with the
Securities and Exchange Commission (the "Commission") a registration statement
in respect of the Securities, the Guarantee and the Junior Subordinated
Debentures (collectively, the "Registered Securities"), including a prospectus
relating to the Registered Securities, and will file with, the Commission a
prospectus supplement specifically relating to the Offered Securities pursuant
to Rule 424 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 and includes any registration statement
filed pursuant to Rule 462(b) under the Securities Act. The term "Basic
Prospectus" means a prospectus included in the Registration Statement. The term
"Prospectus" means the Basic Prospectus together with the prospectus supplement
specifically relating to the Offered Securities (the "Prospectus Supplement"),
as filed with, the Commission pursuant to Rule 424. The term "preliminary
prospectus" means a preliminary prospectus supplement specifically relating to
the Offered 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 as of its effective time, in the case of the
Registration Statement, and as of the date of such prospectus, in the case of
any Basic Prospectus, Prospectus or preliminary prospectus. Any reference to any
amendment or supplement to any Basic Prospectus, Prospectus or preliminary
prospectus shall be deemed to refer to and include any document incorporated by
reference after the date of such Basic Prospectus, Prospectus or preliminary
prospectus, as the case may be. Any reference to any amendment to the
Registration Statement shall be deemed to include any document incorporated by
reference after the effective time of such Registration Statement.
II
The terms of the public offering of the Firm Securities are set forth
in the Prospectus.
III
The Guarantor and the Trust may specify in the Underwriting Agreement
applicable to any Securities that the Guarantor and the Trust thereby grant to
the Underwriters the right (an "Overallotment Option") to purchase at their
election up to the number of Optional Shares set forth in such Underwriting
Agreement, on the terms set forth in the paragraph above, for the sole purpose
of covering over-allotments in the sale of the Firm Securities. Any such
election to purchase Optional Securities may be exercised by written notice from
each of the Representatives (as defined in the Underwriting Agreement) to the
Guarantor and the Trust, given within a period specified in the Underwriting
Agreement, setting forth the aggregate number of Optional Securities to be
purchased and the date on which such Optional Securities are to be delivered, as
determined by the Representatives but in no event earlier than the first Closing
Date or, unless the Representatives, the Guarantor and the Trust otherwise agree
in writing, earlier than or later than the respective number of business days
after the date of such notice set forth in such Underwriting Agreement.
The number of Optional Securities to be added to the number of Firm
Securities to be purchased by each Underwriter as set forth in Schedule I to the
Underwriting Agreement applicable to such Securities shall be, in each case, the
number of Optional Securities which the Guarantor has been advised by the
Representatives have been attributed to such Underwriter; provided, that, if the
Guarantor and the Trust have not been so advised, the number of Optional
Securities to be so added shall be, in each case, that proportion of Optional
Securities which the number of Firm Securities to be purchased by such
Underwriter under such Underwriting Agreement bears to the aggregate number of
Firm Securities (rounded as the Representatives may determine to the nearest 10
shares). The total number of Offered Securities to be purchased by all
Underwriters pursuant to such Underwriting Agreement shall be the aggregate
number of Firm Securities set forth in Schedule I to such Underwriting Agreement
plus the aggregate number of Optional Securities which the Underwriters elect to
purchase.
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IV
Payment for the Securities shall be made in federal (same day) funds at
the time, date and place set forth in the Underwriting Agreement, upon delivery
to the Representatives, through the facilities of The Depository Trust Company
("DTC"), for the respective accounts of the several Underwriters of the
Securities. Each time and date of such payment and delivery of the Securities,
including any payment and delivery pursuant to the exercise of the Overallotment
Option by the Underwriters, is herein referred to as a "Closing Date." The Trust
will cause the certificates representing the Securities to be made available for
checking and packaging at least one day prior to the Closing Date at the office
of DTC or its designated custodian.
V
The several obligations of the Underwriters hereunder are subject to
the condition that all representations and warranties and other statements of
the Guarantor and the Trust in or incorporated by reference in the Underwriting
Agreement are, at and as of each Closing Date, true and correct, the condition
that the Guarantor and the Trust shall have performed all of their respective
obligations hereunder theretofore to be performed, and to the following
additional conditions:
(a) The Representatives shall have received on the Closing
Date a certificate of the Administrative Trustees with respect to the
Trust and a certificate of the Chairman, Vice Chairman, President or a
Vice President of the Guarantor, each 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 Trust's securities or the Guarantor's securities by
any nationally recognized statistical rating organization, (ii) that
the representations and warranties of the Guarantor 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 Trust and the Guarantor have 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 Squire, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., counsel to the
Guarantor and the Trust, dated the Closing Date, and addressed to the
Underwriters, to the effect set forth in Exhibit A. 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, counsel to the Underwriters, being delivered pursuant to
subparagraph (d).
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(c) The Representatives shall have received on the Closing
Date an opinion of the General Counsel of the Guarantor, and addressed
to the Underwriters, 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, and addressed to the
Representatives, relating to the incorporation of the Guarantor, the
validity of the Offered Securities and the Underwriting Agreement, the
Registration Statement, the Prospectus and other related matters as the
Underwriters may reasonably request. In rendering such opinion, such
counsel may rely as to matters of Minnesota law upon the opinion of the
General Counsel of the Guarantor being delivered pursuant to subsection
(c).
(e) The Representatives shall have received on the Closing
Date an opinion of Squire, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special tax counsel
for the Trust and the Guarantor, dated the Closing Date and addressed
to the Underwriters, to the effect set forth in Exhibit C.
(f) The Representatives shall have received on the Closing
Date an opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special Delaware
counsel for the Trust and the Guarantor, dated the Closing Date and
addressed to the Underwriters, to the effect set forth in Exhibit D.
(g) At the time of execution of the applicable Underwriting
Agreement, the Representatives shall have received a letter dated such
date in form and substance satisfactory to the Representatives, from
PricewaterhouseCoopers LLP, to the effect set forth in Exhibit E.
(h) On the Closing Date, the Representatives shall have
received from Pricewaterhouse Coopers LLP a letter, dated as of the
Closing Date, to the effect that they reaffirm the statements made in
the letter furnished pursuant to subsection (g) of this Article.
(i) On or prior to the Closing Date, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, counsel to 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
Guarantor and the Trust 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇.
(j) Since the date of the latest audited financial statements
incorporated by reference in the Prospectus, there shall not have been
any material adverse change in the condition, financial or otherwise,
of the Trust or of the Guarantor and its subsidiaries considered as one
enterprise, or in the earnings, affairs or business prospects of the
Trust or of the
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Guarantor 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 since the
date of the applicable Underwriting Agreement 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 Guarantor as of the
date of the Underwriting Agreement 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 Guarantor
as of the date of the Underwriting Agreement 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.
(k) The Representatives shall have received on the Closing
Date a certificate of First Union Trust Company, National Association,
as Guarantee, Property and Delaware Trustee and a certificate of
Wilmington Trust Company, as Debenture Trustee.
(l) The Trust Agreement, the Guarantee and the Indenture shall
have been duly authorized, executed and delivered, in each case in a
form reasonably satisfactory to the Representatives.
(m) The Securities to be sold by the Trust at such time of
delivery shall have been duly listed, subject to notice of issuance, on
the New York Stock Exchange.
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VI
In further consideration of the agreements of the Underwriters
contained in the Underwriting Agreement, the Guarantor and the Trust, jointly
and severally, covenant as follows:
(a) The Guarantor and the Trust will give the Representatives
notice of their 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 Guarantor and the Trust 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 Guarantor and the Trust will promptly 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 or any amendment or supplement
thereto, (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 Guarantor and the Trust 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 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 Guarantor and the
Trust, 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 given, and confirmed in writing, to the
Representatives, and the Guarantor and the Trust 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 Guarantor and the Trust 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
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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 Guarantor and the Trust will deliver to the
Representatives, without charge, 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
Guarantor and the Trust 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;
(f) The Guarantor and the Trust will endeavor, in cooperation
with the Representatives, to qualify the Offered Securities 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;
provided, however, that neither the Guarantor nor the Trust shall 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 Guarantor and the Trust 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 Guarantor, 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 of 30 days from the date of the
Underwriting Agreement, the Guarantor and Trust will not offer, sell,
contract to sell or otherwise dispose of any Securities, any other
beneficial interest in the assets of the Trust, or any other securities
of the Trust or any other similar trust which are substantially similar
to the Offered Securities, including any guarantee of such securities,
or any junior subordinated debentures of the Guarantor issued to the
Trust or other similar trust, or any securities convertible into or
exchangeable for or representing the right to receive Securities, or
any such substantially similar securities of the Trust or any other
similar trust, or any junior subordinated debentures of the Guarantor
issued to the Trust or other similar trust, without the prior written
consent of the Representatives;
(i) The Guarantor will issue the Guarantee and the Junior
Subordinated Debentures concurrently with the issue and sale of the
Offered Securities as contemplated herein;
(j) The Guarantor will use the net proceeds received by it
from the sale of the Junior Subordinated Debentures, and to cause the
Trust to use the net proceeds received by the Trust from the sale of
Offered Securities pursuant to the Underwriting
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Agreement, in the manner specified in the Prospectus under the caption
"Use of Proceeds," and to further cause the Trust to comply with the
provisions of this Article VI that are applicable to it, including
paragraph (h);
(k) The Guarantor and the Trust will use their best efforts to
list, subject to notice of issuance, the Offered Securities on the New
York Stock Exchange;
(l) To prepare the Prospectus as amended and supplemented in
relation to the applicable Offered Securities in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b)
under the Securities Act in the manner and within the time period
required by Rule 424(b), and to make no further amendment or any
supplement to the Registration Statement or Prospectus after the date
of the Underwriting Agreement relating to such Offered Securities and
prior to any Closing Date for such Offered Securities which shall be
disapproved by the Representatives for such Offered Securities promptly
after reasonable notice thereof.
VII
Each of the Guarantor and the Trust jointly and severally represents
and warrants to each Underwriter 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
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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 it was filed with the Commission 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 Guarantor or the
Trust by such Underwriter of Offered Securities through the
Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Offered Securities 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 Guarantor has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, is duly registered as a bank holding company under the
Bank Holding Company Act of 1956, as amended, with corporate power and
authority to own, lease and operate its properties and conduct its
business as described in the Registration Statement; and the Guarantor
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) U.S. Bank National Association, the Guarantor's principal
subsidiary bank, has been duly incorporated and is validly existing as
a national banking association in good standing under the laws of the
United States and has corporate power and authority to own, lease and
operate its properties and conduct its business as described in the
Registration Statement; all of the issued and outstanding capital stock
of such bank has been duly authorized and validly issued and is fully
paid and, except as provided in 12 U.S.C. Section 55, non-assessable;
and 100% of its capital stock, other than any director's qualifying
shares, is owned by the Guarantor, directly or through subsidiaries,
free and clear of any mortgage, pledge, lien, encumbrance, claim or
equity;
(f) The authorized capitalization of the Guarantor is as set
forth in the Prospectus, and the shares of issued and outstanding
capital stock set forth thereunder have been duly authorized and
validly issued and are fully paid and non-assessable;
(g) The Trust has been duly created and is validly existing as
a statutory business trust in good standing under the Trust Agreement
and the Business Trust Act of the State of Delaware and has the trust
power and authority to own its properties and conduct its business as
described in the Prospectus, and the Trust has conducted no business to
date, and it will conduct no business in the future that would be
inconsistent with the description of the Trust set forth in the
Prospectus; the Trust is not a party to or bound by any agreement or
instrument other than the Underwriting Agreement, the Trust Agreement
and the agreements and instruments contemplated by the Trust Agreement;
the Trust has no liabilities or obligations other than those arising
out of the transactions contemplated by the Underwriting Agreement and
the Trust Agreement and described in the Prospectus; based on expected
operations and current law, the Trust is not and will not be classified
as an association taxable as a corporation for United States federal
income tax purposes; and the Trust is not a party to or subject to any
action, suit or proceeding of any nature.
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(h) The Offered Securities have been duly authorized by the
Trust Agreement and, when issued and delivered in accordance with the
terms of the Underwriting Agreement, the Trust Agreement and the
Prospectus, will be validly issued and, subject to the qualifications
set forth herein, fully paid and nonassessable undivided beneficial
interests in the assets of the Trust under the Trust Agreement and the
Delaware Business Trust Act and will conform to the description of the
Offered Securities contained in the Prospectus; the issuance of the
Offered Securities is not subject to any preemptive or other similar
rights; the Offered Securities will have the rights set forth in the
Trust Agreement; and the holders of Offered Securities, as beneficial
owners of the Trust, will be entitled to the same limitation of
personal liability extended to stockholders of private corporations for
profit organized under the General Corporation Law of the State of
Delaware, provided that the holders of Offered Securities may be
obligated, pursuant to the Trust Agreement, (a) to provide indemnity
and/or security in connection with any taxes or governmental charges
arising from transfers or exchanges of Capital Securities Certificates
(as defined in the Trust Agreement) and the issuance of replacement
Capital Securities Certificates and (b) to provide security and
indemnity in connection with requests of or directions to the Property
Trustee (as defined in the Trust Agreement) to exercise its rights and
remedies under the Trust Agreement.
(i) The Common Securities of the Trust to be sold to the
Guarantor have been duly authorized by the Trust Agreement, and, when
issued in accordance with the terms of the Trust Agreement and
delivered to the Guarantor against payment therefor as described in the
Prospectus, will represent validly issued undivided beneficial
interests in the assets of the Trust and will conform to the
description thereof contained in the Prospectus; the issuance of the
Common Securities is not subject to preemptive or other similar rights;
and at the Closing Date all of the issued and outstanding Common
Securities of the Trust will be directly owned by the Guarantor free
and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity.
(j) The Guarantee, the Junior Subordinated Debentures and the
Indenture (the Guarantee, the Junior Subordinated Debentures, the Trust
Agreement and the Indenture being collectively referred to as the
"Guarantor Agreements") have each been duly authorized and when validly
executed and delivered by the Guarantor will constitute valid and
legally binding obligations of the Guarantor, enforceable in accordance
with their respective terms, except as the enforceability thereof may
be limited by (i) bankruptcy, insolvency, moratorium, reorganization,
arrangement, liquidation, conservatorship, readjustment of debt,
fraudulent transfer and other similar laws affecting the rights of
creditors generally; and (ii) the discretion of any court of competent
jurisdiction in awarding equitable remedies, including, without
limitation, acceleration, specific performance or injunctive relief,
and the effect of general principles of equity embodied in Minnesota,
Delaware and New York statutes and common law. The Junior Subordinated
Debentures are entitled to the benefits of the Indenture; and the
Guarantor Agreements will conform to the descriptions thereof in the
Prospectus.
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(k) The Trust Agreement has been duly authorized and when
validly executed and delivered by the Guarantor and the Administrative
Trustees as of the Closing Date will constitute a valid and binding
obligation of the Guarantor and the Administrative Trustees,
enforceable in accordance with its terms, subject to the effect upon
the Trust Agreement of (i) bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation, fraudulent conveyance or
transfer and other similar laws relating to or affecting the rights and
remedies of creditors generally, (ii) principles of equity, including
applicable law relating to fiduciary duties (regardless of whether
considered and applied in a proceeding in equity or at law), and (iii)
the effect of applicable public policy on the enforceability of
provisions relating to indemnification or contribution.
(l) The execution and delivery by the Trust of, and the
performance by the Trust of its obligations under, the Underwriting
Agreement and the Trust Agreement do not violate (A) the Trust
Agreement or the Certificate of Trust of the Trust, (B) any applicable
Delaware law, rule or regulation or (C) any provision of applicable law
of the United States; will not contravene any provision of applicable
law, the Trust Agreement, the certificate of incorporation or bylaws of
the Guarantor or articles of association of bylaws of U.S. Bank
National Association or any agreement or other instrument binding upon
the Trust, the Guarantor or U.S. Bank National Association that is
material to the Trust or to the Guarantor and its subsidiaries, taken
as a whole, or any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Trust; and no consent,
approval, authorization, order, license, certificate, permit,
registration or qualification of, or with, any governmental or
regulatory body is required for the performance by the Trust of its
obligations under the Underwriting Agreement or the Trust Agreement,
except such as may be required by the securities or Blue Sky laws of
the various states in connection with the offer and sale of the Offered
Securities and Common Securities.
(m) The execution and delivery by the Guarantor of, and the
performance by the Guarantor of its obligations under the Underwriting
Agreement and the Guarantor Agreements, will not contravene any
provision of applicable law, the Trust Agreement, the certificate of
incorporation or bylaws of the Guarantor or articles of association or
bylaws of U.S. Bank National Association or any agreement or other
instrument binding upon the Guarantor or U.S. Bank National Association
that is material to the Guarantor and its subsidiaries, taken as a
whole, or any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Guarantor or any
subsidiary; and no consent, approval, authorization or order of, or
qualification with, any governmental or regulatory body is required for
the performance by the Guarantor of its obligations under the
Underwriting Agreement or the Guarantor Agreements, except such as may
be required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Junior Subordinated
Debentures.
(n) Neither the Trust, the Guarantor nor U.S. Bank National
Association is in violation of its organizational documents or in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which
it is a party or by which it or any of its properties may be bound,
which violation or default would be material to the Trust or to the
Guarantor and its subsidiaries taken as a whole.
11
(o) The statements set forth in the Basic Prospectus under the
captions "About U.S. Bancorp," "About the Trusts," "Description of
Junior Subordinated Debt Securities," "Description of Capital
Securities," "Description of the Guarantee," "Plan of Distribution" and
the statements set forth in the Prospectus Supplement under the
captions "U.S. Bancorp," "USB Capital IV," "Certain Terms of the
Capital Securities," "Certain Terms of the Junior Subordinated
Debentures," "Relationship Among the Capital Securities, the Junior
Subordinated Debentures and the Guarantee," "United States Federal
Income Tax Consequences," "Underwriting" and such other sections as may
be identified in the Underwriting Agreement, are accurate, complete and
fair.
(p) The Trust is not, and after giving effect to the offering
and sale of the Offered Securities and the application of the proceeds
thereof as described in the Prospectus will not be, an "investment
company" that is required to be registered under the Investment Company
Act of 1940, as amended, and the Guarantor is not, and after giving
effect to the issuance of the Junior Subordinated Debentures and the
application of the proceeds thereof as described in the Prospectus will
not be an "investment company" that is required to be registered under
the Investment Company Act of 1940, as amended.
(q) Each of the Trust, the Guarantor and the subsidiaries of
the Guarantor 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;
(r) Each of the Trust, the Guarantor and the subsidiaries of
the Guarantor own or possess adequate trademarks, service marks and
trade names necessary to conduct the business now operated by them, and
neither the Trust, the Guarantor nor any of the subsidiaries of the
Guarantor 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 Trust or of the Guarantor and its subsidiaries considered
as one enterprise;
(s) 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 Trust or the Guarantor, threatened against
or affecting, the Trust or the Guarantor or any of the subsidiaries of
the Guarantor, which might result in any material adverse change in the
condition, financial or otherwise, of the Trust or the Guarantor and
the subsidiaries of the Guarantor considered as one enterprise, or in
the business prospects of the Guarantor and the subsidiaries of the
Guarantor 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
12
contracts or documents of the Trust or the Guarantor or any of the
subsidiaries of the Guarantor 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;
(t) No labor dispute with the employees of the Guarantor or
any of its subsidiaries exists or, to the knowledge of the Guarantor,
is imminent;
(u) 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;
(v) The financial statements of the Guarantor and its
consolidated subsidiaries included or incorporated by reference in the
Prospectus present fairly the financial position of the Guarantor 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;
(w) 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 Trust or the Guarantor and the subsidiaries of the Guarantor
considered as one enterprise or in the earnings, affairs or business
prospects of the Trust or the Guarantor and the subsidiaries of the
Guarantor 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 Trust or the Guarantor, or any of the
subsidiaries of the Guarantor other than those in the ordinary course
of business; and
(x) This Agreement has been duly authorized, executed and
delivered by the Guarantor and the Trust.
(y) Immediately prior to the closing of the transactions
contemplated hereby on each Closing Date, the Guarantor will have good
and valid title to the Offered Securities to be sold by it hereunder,
free and clear of all liens, encumbrances, equities or claims; and upon
delivery of the Offered Securities and payment therefor pursuant
hereto, good and valid title to the Offered Securities, free and clear
of all liens, encumbrances, equities or claims, will pass to the
several Underwriters.
13
VIII
(a) The Guarantor and the Trust agree, jointly and severally, 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 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 Guarantor or the Trust 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 Guarantor or the
Trust (which consent shall not be unreasonably withheld or delayed);
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, severally and not jointly, will indemnify and
hold harmless the Guarantor and the Trust, each of their respective directors or
trustees, each of their officers who signed the Registration Statement, and each
person, if any, who controls the Guarantor or the Trust 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 Guarantor or
the Trust 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).
14
(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.
(d) 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 Guarantor, the Trust 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 Guarantor and the Trust
on the one hand and the Underwriters on the other with respect to Securities
sold to the Underwriters in such proportions as is appropriate to reflect the
relative benefits received by the Guarantor and the Trust on the one hand and
the Underwriters on the other. The relative benefits received by the Guarantor
and the Trust 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 Trust from the sale of the Offered Securities made to the
Underwriters to the date of such liability, and the Guarantor and the Trust are
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 Guarantor
and the Trust on the one hand and the Underwriters on the other 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 Guarantor and the Trust on the one hand and the
Underwriters on the other 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 Guarantor and the Trust or the
Representatives and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Guarantor, the Trust and the Underwriters agree that it
15
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 Guarantor, each trustee of the Trust,
each officer of the Guarantor and the Trust who signed the Registration
Statement, and each person, if any, who controls the Guarantor or the Trust
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 Guarantor and the
Trust.
IX
The indemnity and contribution agreements contained in Section VIII
hereof and the representations and warranties of the Guarantor and the Trust 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
Guarantor and the Trust or each of their respective directors or trustees or
each of their officers or any person controlling the Guarantor and the Trust and
(iii) acceptance of any payment for any of the Offered Securities, if any.
X
If any Underwriter shall default in its obligation to purchase the
Offered Securities, 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 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 then
the Guarantor and the Trust 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 on such terms. In the event
that, within the respective prescribed period, the Representatives notify the
Guarantor and the Trust that they have so arranged for the purchase of such
Offered Securities or the Guarantor or the Trust notify the Representatives that
it has so arranged for the purchase of such Offered Securities, the
Representatives, the Guarantor or the Trust 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
16
the Prospectus, or in any other documents or arrangements, and the Guarantor and
the Trust agree 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.
If, after giving effect to any arrangements for the purchase of the
Offered Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Guarantor and the Trust as provided in the immediately
preceding paragraph hereof, the aggregate principal amount of such Offered
Securities which remains unpurchased does not exceed one-eleventh of the
aggregate principal amount of all the Offered Securities then the Guarantor and
the Trust shall have the right to require each non-defaulting Underwriter to
purchase the Offered Securities 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
which such Underwriter agreed to purchase hereunder) of the Offered Securities
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 of a defaulting Underwriter or Underwriters by the
Representatives and the Guarantor and the Trust as provided in the first
paragraph of this Section X, the aggregate principal amount of Offered
Securities which remains unpurchased exceeds one-eleventh of the aggregate
principal amount of all the Offered Securities or if the Guarantor and the Trust
shall not exercise the right described in the immediately preceding paragraph to
require non-defaulting Underwriters to purchase Offered Securities of a
defaulting Underwriter or Underwriters, then this Agreement shall thereupon
terminate, without liability on the part of any non-defaulting Underwriters, the
Guarantor or the Trust, except for the expenses to be borne by the Guarantor,
the Trust 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.
XI
The Guarantor covenants and agrees with the several Underwriters that
the Guarantor will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Guarantor's and the Trust'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 and any Blue Sky and legal investment memoranda; (iii) all expenses in
connection with the qualification of the Offered Securities for offering and
sale under state securities laws as provided in Section VI 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
17
disbursements of counsel for the Trustee in connection with the Indenture, the
Trust Agreement and the Securities; (vii) the fees and expenses incident to any
Overallotment Options which are not otherwise specifically provided for in this
section; 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 XI. 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 by them and any advertising
expenses connected with any offers they may make.
XII
If the Underwriting Agreement shall be terminated by the Underwriters
or any of them, because of any failure or refusal on the part of the Guarantor
or the Trust to comply with the terms or to fulfill any of the conditions of the
Underwriting Agreement, or if for any reason the Guarantor or the Trust shall be
unable to perform its obligations under the Underwriting Agreement except
pursuant to Article X hereof, the Guarantor will reimburse the Underwriters or
such Underwriters as have so terminated the Underwriting 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 Offered Securities.
XIII
In all dealings hereunder, the Representatives of the Underwriters of
Offered Securities 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 Guarantor or the Trust shall be sufficient in all respects if
delivered or sent by registered mail to the address of the Guarantor set forth
in the Registration Statement, Attention: Treasurer; provided, however, that any
notice to an Underwriter pursuant to Section VIII 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 Underwriters'
Questionnaire, which address will be supplied to the Guarantor by the
Representatives upon request.
XIV
This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Guarantor, the Trust and, to the extent provided in
Section VIII hereof, the officers and directors of the Guarantor, the Trust and
each person who controls the Guarantor or the Trust 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 from any Underwriter
shall be deemed a successor or assign by reason merely of such purchase.
18
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.
19
Exhibit A
Opinion of Counsel for the Trust and the Guarantor
The opinion or opinions of Squire, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., counsel
for the Trust and the Guarantor, 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 Guarantor has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware.
(ii) The Guarantor has corporate power and authority to own,
lease and operate its properties and conduct its business as described
in the Prospectus.
(iii) U.S. 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 Prospectus.
(iv) The Underwriting Agreement has been duly authorized,
executed and delivered by the Guarantor and the Trust.
(v) Each of the Trust Agreement, the Indenture, and the
Guarantee has been duly and validly authorized, executed and delivered
by the Guarantor and constitutes a valid and binding agreement of the
Guarantor, enforceable in accordance with its terms, subject to (A)
applicable bankruptcy, insolvency reorganization, moratorium,
fraudulent transfer and other similar laws affecting creditors' rights
generally from time to time in effect, and (B) general principles of
equity, regardless of whether considered in a proceeding in equity or
at law and an implied covenant of good faith and fair dealing. Each of
the Trust Agreement, the Guarantee and the Indenture has been duly
qualified under the Trust Indenture Act.
(vi) The Junior Subordinated Debentures have been duly and
validly authorized by all necessary corporate action and, when
authenticated by the Debenture Trustee, executed, issued and delivered
in the manner provided in the Indenture, will constitute valid and
binding obligations of the Guarantor, entitled to the benefits of the
Indenture and enforceable against the Guarantor in accordance with
their terms, subject to (A) applicable bankruptcy, insolvency
reorganization, moratorium, fraudulent transfer and other similar laws
affecting creditors' rights generally from time to time in effect, and
(B) general principles of equity, regardless of whether considered in a
proceeding in equity or at law and an implied covenant of good faith
and fair dealing.
(vii) The statements in the Basic Prospectus under the
captions "Description of Junior Subordinated Debt Securities,"
"Description of Capital Securities," "Description of the Guarantee" and
"Relationship among the Capital Securities, the Corresponding Junior
Subordinated Debt Securities and the Guarantees" and the statements in
the Prospectus Supplement under the captions "Certain Terms of the
- A-1 -
Capital Securities," "Certain Terms of the Junior Subordinated
Debentures" and "Relationship Among the Capital Securities, the Junior
Subordinated Debentures and the Guarantee," insofar as these statements
are descriptions of contracts, agreements or other legal documents or
describe federal statutes, rules and regulations, are in all material
respects accurate summaries of the matters referred to therein.
(viii) The Exchange Act reports incorporated by reference into
the Registration Statement (other than the financial statements and
related schedules therein, as to which such counsel need express no
opinion), when they were filed with the Commission, complied as to form
in all material respects with the requirements of the Exchange Act, and
the rules and regulations of the Commission thereunder; and such
counsel has no reason to believe that any of such documents, when they
were so filed, as of its date contained an untrue statement of a
material fact or omitted to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made when such documents were so filed, not misleading.
(ix) The Registration Statement, as of its effective date, and
the Prospectus, as of its issue date (other than financial statements
and related schedules therein, as to which such counsel need express no
opinion), complied as to form in all material respects with the
requirements of the Securities Act and the rules and regulations of the
Commission thereunder.
(x) Neither the Trust nor the Guarantor is, and after giving
effect to the application of proceeds from the offering of the
Securities as contemplated in the Prospectus, will be, an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended.
(xi) No consent, approval, license, authorization, or order of
any court or governmental authority or agency is required in connection
with the issuance or sale of the Securities, the Junior Subordinated
Debentures or the Guarantee, except such as may be required under state
securities or Blue Sky laws.
(xii) No consent, approval, license, authorization, or order
of any federal or Delaware court or federal or Delaware government
authority or agency is required for the performance by the Trust and
the Guarantor of their obligations under this Agreement or the
consummation of the transactions contemplated hereby.
(xiii) To the best of such counsel's knowledge, there are no
contracts, indentures, mortgages, loan agreements, notes, leases or
other instruments required to be described or referred to in the
Prospectus or filed as exhibits to the Registration Statement other
than those described or referred to therein or incorporated by
reference and the description thereof or references thereto are
correct.
(xiv) The execution and delivery of the Underwriting
Agreement, the Trust Agreement, the Guarantee, the Indenture, the
issuance of the Guarantee and the Junior Subordinated Debentures, and
the consummation of the transactions contemplated herein and therein,
and the performance of the obligations hereunder and thereunder will
not result in a violation of any federal or state law nor will such
action result in any violation of the provisions of the charter or
bylaws of the Guarantor.
- A-2 -
(xv) The execution and delivery of the Underwriting Agreement
by the Trust and the performance by the Trust of its obligations
hereunder, the issuance and sale of the Securities and the Common
Securities by the Trust and the consummation of the other transactions
contemplated hereby will not violate any provision of federal law or,
to the best knowledge of such counsel, any agreement or instrument
binding upon the Trust or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Trust,
except such contravention as would not, individually or in the
aggregate, have a material adverse effect on the condition (financial
or other), business, properties, net worth or results of operations of
the Trust.
(xvi) Upon payment for, and delivery of, the Securities to be
sold by the Guarantor under the Underwriting Agreement in accordance
with the terms hereof, the Underwriters will acquire all of the rights
of the Guarantor in the Securities and will also acquire the interest
of the Guarantor in the Securities free of any adverse claim (within
the meaning of the Uniform Commercial Code), assuming that the
Underwriters have no notice of any such adverse claim.
Such counsel shall also have furnished to the Representatives a written
statement, addressed to the Underwriters and dated the Closing Date, in form and
substance satisfactory to the Representatives, to the effect that (x) such
counsel has acted as counsel to the Guarantor in connection with the preparation
of the Registration Statement, the Prospectus and the documents incorporated by
reference therein, and in the course of preparation of those documents such
counsel has participated in conferences with representatives of the Guarantor
and with representatives of PricewaterhouseCoopers LLP and (y) based upon such
counsel's examination of the Registration Statement, the Prospectus and the
documents incorporated by reference therein, such counsel's investigations made
in connection with the preparation of the Registration Statement, the Prospectus
and the documents incorporated by reference therein and such counsel's
participation in the conferences referred to above, such counsel has no 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, as of its effective date and as of the date of the
Annual Report on Form 10-K of the Guarantor for the fiscal year ended December
31, 2000 (including such documents incorporated by reference), contained any
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading, or that the Prospectus (including such documents incorporated by
reference) , as of its date and as of the Closing Date, contains any untrue
statement of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
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Exhibit B
Opinion of General Counsel of the Guarantor
The opinion of the General Counsel of the Guarantor, 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 Guarantor is duly qualified to do business as a
foreign corporation and is in good standing in each U.S. jurisdiction
in which its ownership or lease of substantial properties or the
conduct of its business requires such qualification, except where the
failure so to qualify would not have a material adverse effect on the
Guarantor and its subsidiaries, taken as a whole.
(ii) U.S. Bank National Association is lawfully able to
transact business in each jurisdiction in which it owns or leases
substantial properties or conducts business, except for the
jurisdictions in which the failure to be lawfully able to conduct
business would not have a material adverse effect on U.S. Bank National
Association and its subsidiaries, taken as a whole.
(iii) There are no pending or, to the best of the knowledge of
such counsel, overtly threatened lawsuits or claims against the
Guarantor or its subsidiaries which are required to be disclosed in the
Prospectus that are not disclosed as required.
(iv) To the best of the knowledge of such counsel, there are
no legal or governmental proceedings pending or threatened against the
Trust or to which the Trust or any of its property is subject, that are
required to be described in the Prospectus that are not described as
required and there are no agreements, contracts, indentures, leases or
other instruments of the Trust that are required to be described in the
Prospectus that are not described as required.
(v) The execution and delivery of the Underwriting Agreement,
the Trust Agreement, the Guarantee, the Indenture, the issuance of the
Guarantee and the Junior Subordinated Debentures, and the consummation
of the transactions contemplated herein and therein, and the
performance of the obligations thereunder will not conflict with or
result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Guarantor or any subsidiary pursuant
to any contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which the Guarantor 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 Guarantor or any of its subsidiaries is
subject and that is material to the Guarantor and its subsidiaries,
taken as a whole.
- B-1 -
Exhibit C
Opinion of Special Tax Counsel of the Trust and the Guarantor
The statements set forth in the Prospectus under the caption "United
States Federal Income Tax Consequences," insofar as they purport to constitute
summaries of matters of United States federal tax law and regulations or legal
conclusions with respect thereto, constitute accurate summaries of the matters
described therein in all material respects. In addition, the opinion or opinions
of Squire, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, to be delivered pursuant to Section V(e) of
the Agreement, shall confirm the opinions set forth in the Prospectus under the
caption "United States Federal Income Tax Consequences."
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Exhibit D
Opinion of Special Delaware Counsel for the Trust and the Guarantor
The opinion or opinions of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special
Delaware counsel for the Trust and the Guarantor, to be delivered pursuant to
Section V(f) 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 Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Business Trust
Act, and all filings required under the laws of the State of Delaware
with respect to the creation and valid existence of the Trust as a
business trust have been made.
(ii) Under the Delaware Business Trust Act and the Trust
Agreement, the Trust has the trust power and authority (A) to execute
and deliver, and to perform its obligations under, the Underwriting
Agreement, (B) to issue and perform its obligations under the
Securities and the Common Securities and (C) to own its property and
conduct its business, all as described in the Prospectus.
(iii) Under the Delaware Business Trust Act and the Trust
Agreement, (A) the execution and delivery by the Trust of the
Underwriting Agreement and the performance by the Trust of its
obligations thereunder, have been duly authorized by all necessary
trust action on the part of the Trust and (B) the Guarantor is
authorized to execute and deliver the Underwriting Agreement on behalf
of the Trust.
(iv) The Trust Agreement constitutes a valid and binding
obligation of the Guarantor and each trustee of the Trust, and is
enforceable against the Guarantor and each trustee of the Trust, in
accordance with its terms.
(v) The Common Securities have been duly authorized by the
Trust Agreement and, when issued and delivered by the Trust to the
Guarantor in exchange for the Junior Subordinated Debentures as
described in the Prospectus, will be duly and validly issued and,
subject to the qualifications set forth in this paragraph (v), will be
fully paid undivided beneficial interests in the assets of the Trust.
We note that the holder of the Common Securities may be obligated,
pursuant to the Trust Agreement, (A) to provide indemnity and/or
security in connection with and pay taxes or governmental charges
arising from transfers or exchanges of the certificates representing
the Common Securities and the issuance of replacement certificates
representing the Common Securities, (B) to provide security or
indemnity in connection with requests of or directions to the Property
Trustee to exercise its rights and powers under the Trust Agreement and
(C) will be liable for the debts and obligations of the Trust to the
extent provided in Section 9.1 of the Trust Agreement.
(vi) The Securities have been duly authorized by the Trust
Agreement and, when issued and delivered by the Trust to the Guarantor
in exchange for the Junior Subordinated Debentures as described in the
Prospectus, will be duly and validly issued and, subject to the
qualifications set forth in this paragraph (vi), will be fully paid and
nonassessable undivided beneficial interests in the assets of the Trust
and will be entitled to the benefits of the Trust Agreement. The
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holders of the Securities, as beneficial owners of the Trust, will be
entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware. We note that such
holders may be obligated, pursuant to the Trust Agreement, (A) to
provide indemnity and/or security in connection with and pay taxes or
governmental charges arising from transfers or exchanges of the
certificates representing the Securities and the issuance of
replacement certificates representing the Securities, and (B) to
provide security or indemnity in connection with requests of or
directions to the Property Trustee to exercise its rights and powers
under the Trust Agreement.
(vii) Under the Delaware Business Trust Act and the Trust
Agreement, (A) the issuance of the Securities and the Common Securities
is not subject to preemptive or other similar rights and (B) the Trust
is not authorized to issue any securities other than the Securities and
the Common Securities.
(viii) The issuance and sale by the Trust of the Securities
and the Common Securities, the execution, delivery and performance by
the Trust of the Underwriting Agreement, the consummation by the Trust
of the transactions contemplated thereby and compliance by the Trust
with its obligations thereunder, (A) do not violate (I) any of the
provisions of the Certificate of Trust of the Trust or the Trust
Agreement or (II) any applicable Delaware law or administrative
regulation thereunder which is applicable to the Trust, and (B) do not
require any consent, approval, license, authorization or validation of,
or filing or registration with, any Delaware legislative,
administrative or regulatory body under the laws or administrative
regulations of the State of Delaware.
(ix) Assuming that the Trust is treated as a grantor trust
under the Internal Revenue Code of 1986, as amended, the holders of the
Securities (other than those holders of Securities who reside or are
domiciled in the State of Delaware) will have no liability for income
taxes imposed by the State of Delaware solely as a result of their
participation in the Trust, and the Trust will not be liable for any
income tax imposed by the State of Delaware.
- D-2 -
Exhibit E
Letter from PricewaterhouseCoopers
The Letter of PricewaterhouseCoopers to be delivered pursuant to
Section V(g) 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 Guarantor 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
Guarantor and its consolidated subsidiaries, inspection of the minute
books of the Guarantor and U.S. Bank National Association since the
date of the balance sheet included in the Guarantor's most recent
audited financial statements, inquiries of officials of the Guarantor
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 Guarantor and its consolidated subsidiaries, a
reading of the minute books of the Guarantor and U.S. Bank National
Association since the date of the balance sheet included in the
Guarantor's most recent audited financial statements, inquiries of
officials of the Guarantor 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 Guarantor and its consolidated subsidiaries, any
increase in long-term debt of the Guarantor and its
consolidated subsidiaries or any decreases in allowance for
credit loss or consolidated common shareholders' equity of the
- E-1 -
Guarantor 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 Guarantor and its
subsidiaries subject to the internal controls of the Guarantor'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 E.
- E-2 -
