DEALER MANAGER AGREEMENT
Exhibit 1
May 10, 2010
DEUTSCHE BANK SECURITIES INC.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
As Representative of the Dealer Managers
Ladies and Gentlemen:
U.S. Bancorp, a Delaware corporation (the “Company”), proposes to commence an exchange
offer for any and all of the 1,250,000 outstanding 6.189% Fixed-to-Floating Rate Normal Income
Trust Securities, liquidation amount $1,000 per security (the “Old Securities”) of USB
Capital IX, a statutory trust created under the laws of the State of Delaware (the
“Trust”), in exchange for up to 1,250,000 Depositary Shares (the “New Securities”),
each representing a 1/100th interest in a share of Series A Non-Cumulative Perpetual Preferred
Stock, $100,000 liquidation preference per share of the Company (the “Preferred Stock”)
(such exchange offer, as the same may from time to time be amended and/or supplemented, the
“Exchange Offer,”), upon the terms and subject to the conditions set forth in the Exchange
Materials, as defined below. The New Securities will be issued in exchange for the Old Securities
that are properly tendered and not withdrawn prior to the expiration of the Exchange Offer (the
date on which the New Securities are issued in the Exchange Offer and the Old Securities are
exchanged in the Exchange Offer, the “Exchange Date”) and are accepted pursuant to the
terms of the Exchange Offer.
The New Securities will be issued pursuant to a deposit agreement (the “Deposit
Agreement”) to be entered into on the Exchange Date between the Company and U.S. Bank National
Association as depositary (the “New Securities Depositary”).
In connection with the Exchange Offer, the Company is also soliciting (the
“Solicitation”) consents (the “Consents”) from the holders of the Old Securities to
the adoption of proposed amendments (the “Proposed Amendments”) to (i) the Amended and
Restated Trust Agreement, dated as of March 17, 2006 (the “Trust Agreement”), by and among
the Company, as Depositor, Wilmington Trust Company, as Property Trustee, Wilmington Trust Company,
as Delaware Trustee, the Administrative Trustees named therein, and the several Holders of the
Trust Securities (as defined therein); (ii) the Junior Subordinated Indenture, dated as of April
28, 2005, between the Company and Delaware Trust Company, National Association (the “Original
Trustee”) as amended and supplemented from time to time by supplemental indentures between the
Company and the Wilmington Trust Company, as indenture trustee and successor trustee (the
“Indenture Trustee”) (such amended and supplemented Junior Subordinated Indenture, the
“Base Indenture”); (iii) $1.251 billion aggregate principal amount of Remarketable Junior
Subordinated Notes, due 2042 (the “Junior Notes”), issued under the Base Indenture by the
Company to the Trust; (iv) the Stock
Purchase Contract Agreement (the “Stock Purchase Contract Agreement”), dated as of
March 17, 2006, between the Trust and the Company, pursuant to which the Trust agreed to purchase
12,510 Stock Purchase Contracts (each a “Stock Purchase Contract”), each having a stated
amount of $100,000 and obligating the Trust to purchase from the Company, and the Company to sell
to the Trust, subject to the terms hereof, one share of the Company’s Series A Non-Cumulative
Perpetual Preferred Stock, $100,000 liquidation preference per share (the “Preferred
Stock”), on the Stock Purchase Date provided for (and as defined in) the Stock Purchase
Contract Agreement; and (v) the Collateral Agreement (the “Collateral Agreement”), dated as
of March 17, 2006, between the Trust, the Company and U.S. Bank National Association, as collateral
agent (the “Collateral Agent”), under which the Trust initially pledged the Junior
Subordinated Notes to secure its obligation to purchase Preferred Stock under the Stock Purchase
Contracts.
In connection with the Solicitation, promptly upon receipt of the requisite Consents, (A) it
is expected that (i) the Company and the Indenture Trustee will execute an Eighth Supplemental
Indenture (the “Supplemental Indenture”) to the Base Indenture to give effect at the
Expiration Date to the Proposed Amendments to the Base Indenture and the Junior Notes, (ii) the
Company, as Depositor, Wilmington Trust Company, as Property Trustee, Wilmington Trust Company, as
Delaware Trustee, and the Administrative Trustees named therein, will execute Amendment No. 1 to
the Trust Agreement to give effect at the Expiration Date to the Proposed Amendments to the Trust
Agreement (the “Trust Agreement Amendment”), (iii) the Company and the Trust will execute
an amended and restated Stock Purchase Contract Agreement to give effect at the Expiration Date to
the Proposed Amendments to the Stock Purchase Contract Agreement (the “Stock Purchase Contract
Agreement Amendment”), and (iv) the Company, the Collateral Agent and the Trust will execute an
amended and restated Collateral Agreement to give effect at the Expiration Date to the Proposed
Amendments to the Collateral Agreement (the “Collateral Agreement Amendment”); and (B)
immediately prior to the Exchange Date, it is expected that the Company will file with the
Secretary of State of Delaware an amended Certificate of Designations for the Preferred Stock to
give effect to certain amendments to the terms of the Preferred Stock as described in the
Preliminary Prospectus, the Disclosure Package and the Prospectus and the issuance of the New
Securities on the Exchange Date (the “Preferred Stock Amendment”).
This agreement between the Company and the Dealer Managers shall be hereinafter referred to as
the “Agreement.”
The term “Transaction Documents” shall mean the documents set forth on Schedule
I hereto.
The Company hereby confirms its agreement with you as follows:
1. Exchange Offer Materials. The Company agrees to furnish to you at the Company’s
own expense as many copies as you may reasonably request of the Preliminary Prospectus and the
Letter of Transmittal. The Company has prepared and filed with the Securities and Exchange
Commission (the “Commission”) a registration statement on
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Form S-4, including a prospectus and consent solicitation statement, relating to the New
Securities. The registration statement as amended at the time it was declared effective under the
Securities Act of 1933, as amended (the “Securities Act”), together with the documents
incorporated by reference therein, is hereinafter referred to as the “Registration
Statement.” Any preliminary prospectus and consent solicitation included in the Registration
Statement on the Commencement Date or in any amendment thereto prior to the effectiveness of the
Registration Statement (excluding the Prospectus) or any preliminary prospectus and consent
solicitation filed with the Commission pursuant to Rule 424(a) under the Securities Act, together
with the documents incorporated by reference therein, is hereinafter referred to as a
“Preliminary Prospectus.” The prospectus and consent solicitation statement included in
the Registration Statement at the time it was declared effective or, if used prior to the
Expiration Date, the final prospectus filed pursuant to Rule 424(b) under the Securities Act,
together with the documents incorporated by reference therein, is hereinafter referred to as the
“Prospectus.” Any written communication made in connection with or relating to the
Exchange Offer in reliance on Rule 165 of the Securities Act, and required to be filed by the
Company with the Commission pursuant to Rule 425 under the Securities Act, is hereinafter referred
to as “Rule 165 Material.” The Registration Statement, together with the Preliminary
Prospectus and Prospectus, the related letter of transmittal and consent dated the Commencement
Date to be used by holders of Old Securities exchanging Old Securities for New Securities in the
Exchange Offer (the “Letter of Transmittal”), as the same may be supplemented or amended
from time to time, any press releases or advertisements, to the extent applicable, expressly
relating to the Exchange Offer, any Rule 165 Material, and any other written material filed with
the Commission or furnished by or with the written consent of the Company to the holders of the Old
Securities in connection with the Exchange Offer and the Solicitation, are herein collectively
referred to as the “Exchange Materials.” The Company authorizes you to use the Exchange
Materials in connection with the Exchange Offer and the Solicitation, without assuming
responsibility for the accuracy, completeness or fairness of the statements contained therein,
except with respect to any information furnished in writing by you, and you agree not to use any
written material in connection therewith other than the Exchange Materials and such other written
materials, if any, as the Company may provide or approve.
The Dealer Managers hereby agree that, without the prior written consent of the Company (which
consent the Company agrees will not be unreasonably withheld), each Dealer Manager will not
hereafter publicly disseminate any written materials to holders of Old Securities for or in
connection with the solicitation of tenders of Old Securities or Consents pursuant to the Exchange
Offer or the Solicitation, other than the Exchange Materials, or make any representations to
holders of Old Securities in connection with the solicitation of tenders of Old Securities or
Consents pursuant to the Exchange Offer or the Solicitation, other than the Exchange Materials.
The date on which the Preliminary Prospectus is filed with the Commission and the Exchange
Materials are first mailed or otherwise distributed to holders of Old Securities is hereinafter
referred to as the “Commencement Date.”
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2. Retention. The Company hereby appoints and authorizes Deutsche Bank Securities
Inc. and U.S. Bancorp Investments, Inc. as the dealer managers and solicitation agents (the
“Dealer Managers” or “you”) and Deutsche Bank Securities Inc. as the
“Representative” of the Dealer Managers in connection with the Exchange Offer and the
Solicitation, until the Exchange Date and on the basis of the representations, warranties and
agreements of the Company contained herein and subject to the terms and conditions hereof, you
hereby accept such appointment upon the terms and subject to the conditions set forth in this
Agreement. You agree, in accordance with customary practice, to perform those services in
connection with the Exchange Offer and the Solicitation as are customarily performed by investment
banks acting in such roles in connection with exchange offers and consent solicitations of a like
nature, including but not limited to communicating generally regarding the Exchange Offer and the
Solicitation with brokers, dealers, commercial banks, trust companies and other persons. The
Company hereby agrees and acknowledges that you may, to the extent you deem appropriate, retain the
services of any of your affiliates to assist you in providing your services hereunder.
(a) The Company shall use its reasonable best efforts to furnish you, or cause the
trustee or trustees under the Trust Agreement, to furnish you, as soon as practicable after
the Commencement Date, with the names of the holders of Old Securities as of the
Commencement Date and, to the extent available to the Company, together with their addresses
and the number of Old Securities held by them. Additionally, the Company shall use its
reasonable best efforts to update such information from time to time during the term of this
Agreement as requested by you and to the extent such information is reasonably available to
the Company within the time constraints specified.
(b) The Company agrees that any reference to a Dealer Manager or the Dealer Managers in
any Exchange Materials or in any press release or other document or communication relating
to the Exchange Offer and the Solicitation or your activities in connection therewith is
subject to your prior approval. If you resign or your engagement hereunder is terminated
prior to the dissemination of the Exchange Materials or any other release or communication,
no reference shall be made therein to you, unless applicable law requires a reference to the
Dealer Managers after such resignation or termination, in which case the Company agrees to
provide you with prompt notice of such requirement and to provide you a reasonable
opportunity to seek an appropriate protective order or other remedy.
(c) The Company authorizes you to communicate with any information agent and exchange
agent (the “Information Agent and Exchange Agent”) and any depositary designated or
retained by the Company with respect to the Exchange Offer and the Solicitation (the
“Depositary”) as to such matters regarding the Exchange Offer and the Solicitation
as you may reasonably request.
(d) In full payment for services rendered and to be rendered hereunder by you, the
Company agrees to pay you fees and to reimburse you for expenses as follows:
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| (i) | on the Exchange Date, the Company shall pay to the Dealer Managers the fees calculated and payable as set forth in a letter addressed to the Dealer Managers dated the date hereof; and | ||
| (ii) | whether or not any Old Securities are exchanged pursuant to the Exchange Offer, the Company shall pay all reasonable expenses incurred in connection with the preparation, printing, mailing and publishing of the Exchange Materials, and all amounts payable to securities dealers (including the Dealer Managers), brokers, banks, trust companies and nominees as reimbursements of their customary mailing and handling expenses incurred in forwarding the Exchange Materials to their customers, and of any forwarding agent, and all other expenses of the Company in connection with the Exchange Materials and shall reimburse the Dealer Managers for all reasonable out-of-pocket expenses as incurred by the Dealer Managers in connection with their services as Dealer Managers under this Agreement. If the Dealer Managers withdraw pursuant to Section 6 hereof or terminate this Agreement pursuant to Section 8 hereof, the Dealer Managers shall nevertheless be entitled to receive reimbursement of all expenses pursuant to this Section 2(d)(ii) which have accrued to the date of such withdrawal or termination, as the case may be. Any payments to be made by the Company to the Dealer Managers pursuant to this Section 2(d)(ii) shall be made promptly after the completion or termination of the Exchange Offer and the Solicitation. |
The Company shall perform its obligations to you set forth in this Section 2(d)(ii) and in
Section 7 hereof whether or not the Exchange Offer and the Solicitation are commenced or the
Company exchanges any Old Securities pursuant to the Exchange Offer.
The Company acknowledges and agrees that the Dealer Managers are acting solely in the capacity
of an arm’s length contractual counterparty to the Company with respect to the Exchange Offer and
the Solicitation and not as financial advisors or fiduciaries to, or agents of, the Company or any
other person. You shall act hereunder as an independent contractor and nothing contained herein
shall make the Company or any of their affiliates, agents of you or any of your affiliates.
Nothing contained in this Agreement shall constitute you a partner of or joint venturer with the
Company or any of their affiliates. Additionally, the Dealer Managers are not advising the Company
or any other person as to any legal, tax, investment, accounting or regulatory matters in any
jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be
responsible for making its own independent investigation and appraisal of the transactions
contemplated hereby, and the Dealer Managers shall have no responsibility or liability to the
Company with respect thereto.
3. Certain Covenants. The Company covenants with you as follows:
(a) The Company will prepare the Exchange Materials and will file all Exchange
Materials with the Commission to the extent required by the Securities Act and the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
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the Commission promulgated thereunder (the “Exchange Act”), as applicable,
including all Rule 165 Material, and a final prospectus relating to the Registration
Statement in accordance with Rule 424(b). The Company will furnish to the Dealer Managers
and to counsel for the Dealer Managers, without charge, during the period beginning on the
Commencement Date and continuing to and including the Exchange Date, (i) signed photostatic
copies of the Registration Statement (and any amendment thereto), in each case including all
exhibits and consents filed therewith, and (ii) copies of the Exchange Materials and any
amendments and supplements thereto in such quantities as each Dealer Manager may reasonably
request.
(b) The Company will give you prior written notice of its intention to amend or
supplement any Exchange Materials, will furnish you with copies of such amendment or
supplement, and will not use any such amendment or supplement to which you or your counsel
shall reasonably object in writing or which is not in compliance with the Securities Act or
Exchange Act.
(c) If, at any time prior to the Exchange Date, any event occurs as a result of which
it shall be, in the reasonable judgment of the Company or its counsel or you or your
counsel, necessary to amend or supplement any of the Exchange Materials in order to make the
statements made therein, in the light of the circumstances under which they were made, not
misleading, or, if for any other reason it is necessary, in the reasonable judgment of any
such person, at any time to amend or supplement any of the Exchange Materials to comply with
the Securities Act, the Exchange Act or any other applicable law, rule or regulation, such
person shall (i) promptly inform the Company and you (at which time the Dealer Managers
shall be entitled to cease soliciting tenders until such time as the Company has complied
with clause (ii) of this sentence), and (ii) (subject to Section 3(b) above) the Company
shall promptly prepare, file or transmit for filing with the Commission, and furnish copies
to you in such quantities as you may reasonably request, of such amendments or supplements
to such Exchange Materials, so that either (A) the statements in the Exchange Materials, as
so amended or supplemented, will not, in the light of the circumstances under which they
were made, be misleading or (B) such compliance is effected.
(d) The Company shall comply with the applicable provisions of the Securities Act and
the rules and regulations of the Commission promulgated thereunder, and the Exchange Act, in
connection with the Exchange Materials, the Exchange Offer and the Solicitation, the
issuance of the New Securities and the Preferred Stock and the transactions contemplated
hereby and thereby; the Company shall take on a timely basis all actions necessary or
legally required in relation to the Exchange Offer and the Solicitation and all other
actions contemplated by this Agreement and by the Exchange Materials, including the
appropriate authorization by the Company of any amendments or modifications of the Exchange
Offer.
(e) The Company shall notify you prior to the time when it proposes to commence the
Exchange Offer or, after commencement, to extend the Exchange Offer; and the Company shall
advise or cause the Depositary to advise you upon your
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reasonable request from time to time during the period of, and promptly after the
expiration of, the Exchange Offer, as to all names and addresses of the holders which
have validly tendered their Old Securities for exchange and delivered their consent to the
Proposed Amendments during the immediately preceding day, indicating the aggregate
liquidation amount of Old Securities, verified to be in proper form for exchange, rejected
for exchange, and being processed for exchange; and will notify you as promptly as
practicable following expiration of the Exchange Offer and the Solicitation on the
Expiration Date (as defined in the Preliminary Prospectus), of the aggregate liquidation
amount of Old Securities in respect of which a tender has been verified to be in proper
form, a tender has been rejected and which are being processed. The Company shall promptly
give you notice of changes in the Expiration Date with respect to the Exchange Offer and the
Solicitation. The Company shall not accept Old Securities for exchange unless the
conditions to the obligations of each Dealer Manager set forth in Section 6 hereof have been
satisfied.
(f) The Company shall advise you promptly of (i) the occurrence of any event, or the
discovery of any fact, which could reasonably be expected to cause the Company to amend,
withdraw or terminate the Exchange Offer or the Solicitation, or amend or supplement any of
the Exchange Materials, (ii) the occurrence of any event, or the discovery of any fact,
which could reasonably be expected to cause any representation or warranty contained in this
Agreement to be untrue or inaccurate in any material respect, (iii) the filing and
effectiveness of the Registration Statement or any amendment thereto, (iv) the mailing or
the delivery to the Commission for filing of any Preliminary Prospectus or amendment or
supplement to the Prospectus, any Rule 165 Material or any document to be filed pursuant to
the Exchange Act which will be incorporated by reference in the Preliminary Prospectus or
the Prospectus, (v) the receipt of any comments from the Commission with respect to the
Registration Statement or the Prospectus or any amendment or supplement thereto, (vi) any
request by the Commission for any amendment to the Registration Statement or any amendment
or supplement to the Prospectus or any Rule 165 Material or for additional information
relating to the Exchange Offer, (vii) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or preventing or suspending the
use of any Preliminary Prospectus or the Prospectus or the initiation or threat of
initiation of any proceedings for that purpose, (viii) of the suspension of qualification of
the New Securities for offering or sale in any jurisdiction or the initiation or threat of
initiation of any proceedings for that purpose, (ix) the issuance or the threatened issuance
of any order or the taking of any other action by any administrative or judicial tribunal or
governmental agency or instrumentality, or of any litigation or claim concerning the
Exchange Offer and the Solicitation (and, if in writing, will promptly furnish you a copy
thereof), and (x) any other information relating to the Exchange Offer which you may from
time to time reasonably request. If an event specified in clauses (vii) or (viii) in the
immediately preceding sentence occurs, the Company will make every reasonable effort to
prevent the issuance of any stop order or suspension of qualification and, if any stop order
or
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suspension of qualification is issued, to obtain the lifting thereof at the earliest possible moment
(g) The Company shall not commence the mailing of the Exchange Materials unless the
conditions set forth in Section 6 that are required to be satisfied or complied with as of
the Commencement Date shall have been satisfied and complied with prior to or concurrently
with the commencement of such mailing or shall have otherwise been waived in writing by you.
(h) The Company acknowledges and agrees that the Dealer Managers shall have no
liability (in tort, contract or otherwise) to the Company, its affiliates or any other
person for any losses, claims, damages, liabilities and expenses (each a “Loss” and,
collectively, the “Losses”) arising from any act or omission on the part of any
broker or dealer in securities (a “Dealer”), bank or trust company, or any other
person in connection with the Exchange Offer and the Solicitation, and neither the Dealer
Managers nor any of their affiliates shall be liable for any Losses arising from their own
acts or omissions in performing their respective obligations as a Dealer Manager or as a
Dealer in connection with the Exchange Offer and the Solicitation, except for any such
Losses that are finally judicially determined to have resulted primarily from their bad
faith, gross negligence or willful misconduct; provided, however, that nothing in this
Agreement shall limit each Dealer Manager’s liability for breach of any express agreement
made by such Dealer Manager in this Agreement. In soliciting or obtaining tenders of Old
Securities, no Dealer, bank or trust company is to be deemed to be acting as the Dealer
Managers’ agent or the agent of the Company or any of its affiliates, and the Dealer
Managers shall not be deemed the agent of any Dealer, bank or trust company or a fiduciary
of the Company or an agent or fiduciary of any of its affiliates, equity holders, creditors
or of any other person. In soliciting or obtaining tenders of Old Securities, the Dealer
Manager shall not be nor shall the Dealer Managers be deemed for any purpose to act as a
partner or joint venturer of, or a member of a syndicate or group with, the Company or any
of its affiliates in connection with the Exchange Offer and the Solicitation or each other,
or any purchase of New Securities, and none of the Company or any of its affiliates shall be
deemed to act as the Dealer Managers’ agents. The Company shall have sole authority for the
acceptance or rejection of any and all tenders of Old Securities.
(i) The Company will make generally available to its security holders (as defined in
Rule 158) as soon as practicable, but not later than 45 days after the close of each of the
first three fiscal quarters of each fiscal year and 90 days after the close of each fiscal
year, earnings statements (in form complying with the provisions of Rule 158 under the
Securities Act) covering a twelve month period beginning not later than the first day of the
fiscal quarter next following the execution date of this Agreement.
(j) Neither the Company nor any of its affiliates, as such term is defined in Rule
501(b) under the Securities Act (each, an “Affiliate”) will take, directly or
indirectly, any action which is designed to or which has constituted or which would be
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expected to cause or result in stabilization or manipulation of the price of any security of
the Trust or the Company in connection with the Exchange Offer.
(k) The Company will endeavor, in cooperation with the Dealer Managers, to qualify the
New Securities for offering and sale under the applicable securities laws of such states and
other jurisdictions as the Dealer Managers may designate, and will maintain such
qualifications in effect for as long as may be required for the distribution of the New
Securities; provided, however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation in any jurisdiction in
which it is not so qualified. The Company will file such statements and reports as may be
required by the laws of each jurisdiction in which the New Securities have been qualified as
above provided.
(l) The Company will cause all Old Securities accepted in the Exchange Offer to be
cancelled as described in the Preliminary Prospectus, the Disclosure Package and the
Prospectus.
(m) The Company will assist the Dealer Managers in arranging for the New Securities to
be eligible for clearance and settlement through The Depository Trust Company.
(n) The Company will use its commercially-reasonable best efforts to list, subject to
notice of issuance, the New Securities on the New York Stock Exchange.
(o) The Company agrees that it will not make any written communications (other than
non-public communications among participants (as such term is defined in Rule 165 of the
Securities Act)) in connection with or related to the Exchange Offer that could constitute a
“prospectus” for the purposes of Section 5(b)(1) of the Securities Act, except for any
Preliminary Prospectus, the Prospectus and any Rule 165 Material, and to provide you with a
copy of all Rule 165 Material promptly after filing of the same with the Commission. The
Company will not amend or supplement the Exchange Materials or file any Exchange Materials
with the Commission, without your prior written consent (which consent shall not be
unreasonably withheld), unless required by applicable law. Prior to the earlier of the
Exchange Date or the date of termination of the Exchange Offer and the Solicitation, the
Company will not file any document under the Exchange Act unless, within a reasonable time
prior to such proposed filing, the Company has furnished to you a copy of such document for
review and has provided you with a reasonable opportunity to review such materials and
provide comments to the Company.
4. Expenses of the Company. In addition to the obligation of the Company to pay the
fees of the Dealer Managers and to reimburse the Dealer Managers for their reasonable out-of-pocket
expenses as provided in subsection 2(d) hereof, the Company agrees to pay all costs and expenses
incident to the performance of the obligations of the Company under this Agreement, whether or not
the transactions contemplated herein are consummated or this Agreement is terminated pursuant to
Section 8 hereof, including, but not
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limited to, all costs and expenses incident to (a) the
preparation, filing, printing, word processing, publishing or other production of documents with
respect to such transactions, including any costs of printing the Exchange Materials and any
amendments or supplements
thereto and all other agreements relating to the Exchange Offer and the Solicitation or the
distribution of any blue sky memoranda, (b) the customary mailing and handling (including postage,
air freight charges and charges for counting and packaging) of such copies of the Exchange
Materials and any amendments or supplements thereto as may, in each case, be reasonably requested
for use in connection with the Exchange Offer, (c) all arrangements relating to the delivery to the
Dealer Managers of copies of the foregoing documents, (d) the preparation, issuance and delivery of
the New Securities, and the qualification of the New Securities under securities or “blue sky” laws
of the several states or any non-U.S. jurisdiction, including filing fees and the reasonable fees
and disbursements of counsel for the Dealer Managers, and including any stamp or transfer taxes in
connection with the original issuance and sale of the New Securities, (e) the registration of the
Exchange Offer and the New Securities under the Securities Act, (f) the listing of the New
Securities on the New York Stock Exchange, (g) the fees and disbursements of counsel, accountants
and any other experts or advisors retained by the Company and the Trust, (h) the fees and
disbursements of the Information Agent and Exchange Agent and the Depositary, (i) the fees and
disbursements of the Indenture Trustee, the trustees of the Trust, the Collateral Agent (including
the fees and expenses of counsel to such trustees and the Collateral Agent in connection with the
Transaction Documents) and (i) any costs and expenses of the Company incurred in connection with
any meetings with holders of Old Securities relating to the Exchange Offer and the Solicitation.
5. Representations and Warranties.
The Company (on behalf of itself and each of its subsidiaries) represents and warrants to you
that:
(a) On (x) the Commencement Date, the Registration Statement complied, and on the
Effective Date, the Registration Statement will comply, and (y) the date upon which the
Prospectus is first filed in accordance with Rule 424(a) or Rule 424(b), as applicable, on
the Expiration Date and on the Exchange Date, the Prospectus (and any supplements thereto)
will comply, in all material respects with the applicable requirements of the Securities
Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the
Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and the
respective rules and regulations promulgated thereunder; on the Commencement Date, the
Effective Date and the Exchange Date, the Registration Statement did not and will not
contain any untrue statement of any material fact required to be stated therein or necessary
in order to make the statements therein not misleading; and on the date of any filing
pursuant to Rule 424(a) or Rule 424(b), as applicable, as of its date (and on the date of
any supplement thereto), on the Expiration Date and on the Exchange Date, the Prospectus
(together with any supplement thereto) will not include any 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 no
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representation or warranty is made with respect to any such statement or
omission made in reliance upon and in conformity with information furnished in writing by
you to the Company expressly for use therein.
(b) No order preventing or suspending the use of any Preliminary Prospectus has been
issued by the Commission, and each Preliminary Prospectus included in the Exchange Material,
at the time of filing thereof, complied or will comply in all material respects with the
Securities Act, and no Preliminary Prospectus, at the time of filing thereof, included or
will include any untrue statement of a material fact or omitted or will 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 no
representation or warranty is made with respect to any such statement or omission made in
reliance upon and in conformity with information furnished in writing by you to the Company
expressly for use therein. On the Expiration Date and on the Exchange Date, (i) the
Prospectus, assuming for purposes of this clause (c) that the Prospectus was dated as of the
Expiration Date, and (ii) any Rule 165 Material as supplemented or amended as of the
Expiration Date (together, the “Disclosure Package”), when taken together as a
whole, will not contain any untrue statement of a material fact or omit to state any
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 no
representation or warranty is made with respect to any such statement or omission made in
reliance upon and in conformity with information furnished in writing by you to the Company
expressly for use therein.
(c) The Rule 165 Material when filed with the Commission complied or will comply in all
material respects with the applicable requirements of the Securities Act; and no Rule 165
Material, at the time of first use, when taken together with the Preliminary Prospectus as
then amended or supplemented, contained or will contain any untrue statement of a material
fact or omitted or will 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 made, not misleading; provided, however, that no representation or warranty is made
with respect to any such statement or omission made in reliance upon and in conformity with
information furnished in writing by you to the Company expressly for use therein.
(d) At the Commencement Date, the Expiration Date and the Exchange Date, the Exchange
Materials at such date (i) complied and will comply in all material respects with all
applicable requirements of the laws of those jurisdictions in which solicitations of tenders
and consents are or will be made in the Exchange Offer pursuant to this Agreement and (ii)
did not and will not contain an untrue statement of a material fact or omit to state any
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 no
representation or warranty is made with respect to any such statement or omission made in
reliance upon and in conformity
-11-
with information furnished in writing by you to the Company
expressly for use therein.
(e) The documents incorporated or deemed to be incorporated by reference in the
Registration Statement, any Preliminary Prospectus and 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.
(f) The Company 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 Preliminary Prospectus, the Disclosure Package and the Prospectus; and the Company is
duly qualified as a foreign corporation to transact business and is in good standing in each
jurisdiction in which its ownership or lease of substantial properties or the conduct of its
business requires such qualification, except where the failure to do so to qualify or to be
in good standing would not have a material adverse effect on the condition, financial or
otherwise, or in the earnings, affairs or business prospects of the Company and its
subsidiaries considered as one enterprise (a “Material Adverse Effect”).
(g) U.S. Bank National Association, the Company’s principal subsidiary bank, has been
duly incorporated and is validly existing as a national banking association in good standing
under the laws of the United States and has corporate power and authority to own, lease and
operate its properties and conduct its business as described in the Preliminary Prospectus,
the Disclosure Package and the Prospectus; 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 Company, directly or through subsidiaries,
free and clear of any mortgage, pledge, lien, encumbrance, claim or equity.
(h) Each of the Company and its subsidiaries maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (A) transactions are executed in
accordance with management’s general or specific authorizations; (B) transactions are
recorded as necessary to permit preparation of financial statements in conformity with GAAP
and to maintain asset accountability; (C) access to assets is permitted only in accordance
with management’s general or specific authorization; and (D) the recorded accountability for
assets is compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences; the Company has established and maintains
disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the
Exchange Act) and such controls and procedures are effective in ensuring that material
information relating to the Company, including its subsidiaries, is made known to the
principal executive officer and the principal financial officer; and the Company has
utilized such controls and procedures
-12-
in preparing and evaluating the disclosures in the
Preliminary Prospectus, the Disclosure Package and the Prospectus.
(i) The authorized capitalization of the Company is as set forth in the Preliminary
Prospectus, the Disclosure Package and 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 and conform to the descriptions thereof
contained in the Preliminary Prospectus, the Disclosure Package and the Prospectus.
(j) This Agreement has been duly executed and delivered by the Company and constitutes
a legal, valid and binding obligation enforceable against the Company in accordance with its
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.
(k) The New Securities have been duly authorized by the Company and, when issued and
delivered by the Company in exchange for the Old Securities, will be duly and validly issued
and fully paid and nonassessable and will conform in all material respects to the
descriptions thereof contained in the Preliminary Prospectus, the Disclosure Package and the
Prospectus.
(l) The Preferred Stock Amendment, the proposed form of which has been furnished to the
Dealer Managers, will have been duly filed with the Secretary of State of the State of
Delaware on or before the Exchange Date.
(m) The Preferred Stock Amendment and the issuance of Preferred Stock pursuant to the
Deposit Agreement has each been duly authorized by the Company and, upon filing of the
Preferred Stock Amendment the Secretary of State of the State of Delaware on or before the
Exchange Date and when issued and delivered by the Company in exchange for the Old
Securities pursuant to the Deposit Agreement on the Exchange Date, the Preferred Stock will
be duly and validly issued and fully paid and nonassessable and will conform in all material
respects to the descriptions thereof contained in the Preliminary Prospectus, the Disclosure
Package and the Prospectus.
(n) Each of (i) the Supplemental Indenture, (ii) the Trust Agreement Amendment, (iii)
the Stock Purchase Contract Agreement Amendment, (iv) the Collateral Agreement Amendment,
and (v) the Deposit Agreement, has been duly authorized by the Company and, when executed
and delivered at or prior to the Exchange Date upon receipt of the requisite Consents to the
Proposed Amendments, each of (v) the Base Indenture as supplemented by the Supplemental
Indenture, (w) the Trust Agreement as amended by the Trust Agreement Amendment, (x) the
Stock
-13-
Purchase Contract Agreement Amendment, (y) the Collateral Agreement Amendment, and (z)
the Deposit Agreement, will have been duly executed and delivered by the Company and will
constitute a valid and legally binding instrument of the Company, enforceable in accordance
with its respective terms, except as the enforceability thereof may be limited by (A)
bankruptcy, insolvency, moratorium, reorganization,
arrangement, liquidation, conservatorship, readjustment of debt, fraudulent transfer
and other similar laws affecting the rights of creditors generally, and (B) 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.
(o) Each of the Administrative Trustees is an employee of or affiliated with the
Company and, when executed and delivered at or prior to the Exchange Date upon receipt of
the requisite Consents to the Proposed Amendments, the Trust Agreement Amendment will have
been duly executed and delivered by each Administrative Trustee and the Trust Agreement as
amended by the Trust Agreement Amendment will constitute a valid and legally binding
instrument of the Trust, enforceable in accordance with its 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.
(p) Each of the Transaction Documents that are described in the Preliminary Prospectus,
the Disclosure Package and the Prospectus will conform in all material respects to the
respective statements relating thereto in the Preliminary Prospectus, the Disclosure Package
and the Prospectus.
(q) The Company has all the necessary power and authority to conduct and consummate the
Exchange Offer and the Solicitation, issue the New Securities and the Preferred Stock in
accordance with the terms of the Exchange Offer, execute, deliver and perform this Agreement
and the Transaction Documents, and to consummate the transactions herein and therein
contemplated. The conduct and consummation of the Exchange Offer and the Solicitation, the
issuance of the New Securities and the Preferred Stock in accordance with the terms of the
Exchange Offer, the execution, delivery and performance of this Agreement and the
Transaction Documents, and the consummation of the transactions herein and therein
contemplated, will not contravene any provision of applicable law, the Trust Agreement, the
certificate of incorporation or bylaws of the Company or articles of association or bylaws
of U.S. Bank National Association or any agreement or other instrument binding upon the
Company or U.S. Bank National Association, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or any subsidiary;
and, no consent, authorization or order of, or filing or registration with, any court or
governmental agency or authority is required for the conduct and consummation of the
-14-
Exchange Offer or the Solicitation, the execution, delivery and performance by the Company
of the Transaction Documents, issuance of the New Securities and the Preferred Stock in
accordance with the terms of the Exchange Offer or the consummation of the transactions
herein and therein contemplated, except such as have been made or obtained or will be made
or obtained at or before the Exchange
Date from the Board of Governors of the Federal Reserve System or in connection with
the registration of the New Securities with the Commission pursuant to the Securities Act
and except such as may be required under applicable state securities or “blue sky” laws.
(r) Neither the Company 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.
(s) The Company and the subsidiaries of the Company 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.
(t) Each of the Company and the subsidiaries of the Company own or possess adequate
trademarks, service marks and trade names necessary to conduct the business now operated by
them, and neither the Company nor any of the subsidiaries of the Company 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 have a Material Adverse Effect on the
conduct of the business, operations, financial condition or income of the Trust or of the
Company and its subsidiaries considered as one enterprise
(u) 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 Trust or the Company or any of the subsidiaries of the
Company, which may reasonably be expected to have a Material Adverse Effect, or which may
reasonably be expected to materially and adversely affect the performance of this Agreement
or the consummation of the transactions described in the Preliminary Prospectus, the
Disclosure Package and the Prospectus; and there are no material contracts or documents of
the Trust or the Company or any of the subsidiaries of the Company which are required to be
filed as exhibits to the Registration Statement by the Act or by the rules and regulations
of the Commission thereunder which have not been so filed.
-15-
(v) No labor dispute with the employees of the Company or any of its Subsidiaries
exists, or to the knowledge of the Company, is imminent.
(w) Ernst & Young LLP, who certified the financial statements, Company management’s
assessment of internal controls and the Company’s internal controls included or incorporated
by reference in the Preliminary Prospectus, the Disclosure
Package and the Prospectus, is an independent registered public accounting firm as
required by the Act and the Exchange Act and the rules and regulations issued by the
Commission thereunder.
(x) The financial statements of the Company and its consolidated subsidiaries included
or incorporated by reference in the Preliminary Prospectus, the Disclosure Package and the
Prospectus, together with the related schedules and notes, comply as to form in all material
respects with the requirements of the Securities Act and present fairly the financial
position of the Company and its consolidated subsidiaries at the dates indicated and the
statement of operations, stockholders’ equity and cash flows of the Company and its
consolidated subsidiaries for the periods specified; said financial statements have been
prepared in conformity with generally accepted accounting principles (“GAAP”)
applied on a consistent basis throughout the periods involved.
(y) Neither the Company nor any of its affiliates, as such term is defined in Rule
501(b) under the Securities Act (each, an “Affiliate”) has taken, nor will the
Company or any Affiliate take, directly or indirectly, any action which is designed to or
which has constituted or which would be expected to cause or result in stabilization or
manipulation of the price of any security of the Trust or the Company in connection with the
Exchange Offer.
(z) To the best knowledge of the Company, the operations of the Company and its
subsidiaries are currently in compliance with applicable financial record keeping and
reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, the money laundering statutes of all jurisdictions, the rules and regulations
thereunder and any related or similar rules, regulations or guidelines, issued, administered
or enforced by any governmental agency (collectively, the “Money Laundering Laws”)
and any instances of non-compliance have been resolved with the applicable governmental
agency and no formal action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the Company or any of its subsidiaries
with respect to the Money Laundering Laws is pending or, to the best knowledge of the
Company, threatened.
(aa) Neither the Company nor any of its subsidiaries, nor, to the knowledge of the
Company, any director, officer, agent, employee or other person associated with or acting on
behalf of the Company or any of its subsidiaries, has (i) used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expense relating to political
activity; (ii) made any direct or indirect unlawful payment
-16-
to any foreign or domestic
government official or employee from corporate funds; (iii) violated or is in violation of
any provision of the U.S. Foreign Corrupt Practices Act of 1977; or (iv) made any bribe,
rebate, payoff, influence payment, kickback or other unlawful payment.
(bb) None of the Trust, the Company, any of its subsidiaries or, to the knowledge of
the Company, any director, officer, agent, employee or Affiliate of the Company or any of
its subsidiaries is currently subject to any U.S. sanctions administered by the Office of
Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”); and the
Company will not directly or indirectly use the proceeds of the offering of the Securities
hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary,
joint venture partner or other person or entity, for the purpose of financing the activities
of any person currently subject to any U.S. sanctions administered by OFAC.
(cc) The Company and, to the best of its knowledge, its officers and directors are in
compliance with applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and
regulations promulgated in connection therewith (the “Xxxxxxxx-Xxxxx Act”),
including Section 402 related to loans and Sections 302 and 906 related to certifications.
(dd) Since the respective dates as of which information is given in the Preliminary
Prospectus, the Pricing Disclosure Package or the Prospectus, except as otherwise stated
therein or contemplated thereby, (A) there has not been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries, (B) there has been no Material
Adverse Effect, whether or not arising in the ordinary course of business and (C) there have
been no material transactions entered into by the Trust or the Company, or any of the
subsidiaries of the Company other than those in the ordinary course of business.
(ee) The statements set forth in the Preliminary Prospectus, the Disclosure Package and
the Prospectus under the captions “Description of Preferred Stock,” “Description of
Depositary Shares,” “Comparison of Rights Between the Normal ITS and the Depositary Shares,”
and “The Exchange Offer and the Consent Solicitation—The Proposed Amendments,” insofar as
such statements purport to summarize certain provisions of the documents referred to
therein, fairly summarize such provisions in all material respects. The statements set
forth in the Preliminary Prospectus, the Disclosure Package and the Prospectus under the
captions “Material U.S. Federal Income Tax Consequences” and “Benefit Plan Investor
Considerations,” insofar as such statements refer to statements of law or legal conclusions,
fairly summarize the matters referred to therein in all material respects.
(ff) The Company is not, and will not be as a result of the consummation of the
Exchange Offer, an “investment company” that is required to be registered under the
Investment Company Act of 1940, as amended or controlled by an entity required to be
registered under the 1940 Act as an “investment company.”
-17-
(gg) There are no contracts, agreements or understandings among the Company and any
person granting such person the right to require the Company to file a registration
statement under the Securities Act with respect to any securities of the Company or who in
connection with the issuance, sale and delivery of the New
Securities and the execution, delivery and performance of this Agreement, have the
right to request the Company to include such securities with the New Securities registered
pursuant to the Registration Statement.
(hh) There are no stamp or other issuance or transfer taxes or duties or other similar
fees or charges required to be paid in connection with the execution and delivery of this
Agreement and the Transaction Documents, the issuance or sale by the Company of the New
Securities, the solicitation or acceptance of Consents or tenders with respect to the Old
Securities.
(ii) The Trust has been duly created and is validly existing as a statutory trust in
good standing under the Trust Agreement and the Delaware Statutory Trust Act and has the
trust power and authority to own its properties and conduct its business as described in the
Preliminary Prospectus, the Disclosure Package and the Prospectus.
(jj) Upon receipt of the requisite Consents to the Proposed Amendments, each of (x) the
Trust Agreement as amended by the Trust Agreement Amendment, (y) the Stock Purchase Contract
Agreement Amendment, and (z) the Collateral Agreement Amendment, will have been duly
authorized, executed and delivered by or on behalf of the Trust and will constitute a valid
and legally binding instrument of the Trust, enforceable in accordance with its respective
terms, except as the enforceability thereof may be limited by (A) bankruptcy, insolvency,
moratorium, reorganization, arrangement, liquidation, conservatorship, readjustment of debt,
fraudulent transfer and other similar laws affecting the rights of creditors generally, and
(B) 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.
(kk) Upon receipt of the requisite Consents to the Proposed Amendments, the Trust will
have all the necessary power and authority to execute, deliver and perform the Transaction
Documents to which it is a party and to consummate the transactions therein contemplated.
The execution, delivery and performance of the Transaction Documents and the consummation of
the transactions therein contemplated, will not result in any violation of or conflict with
(A) 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 (as amended by the Trust Agreement
Amendment), the certificate of incorporation or bylaws of the Company or articles of
association or bylaws of U.S. Bank National Association or any agreement or other instrument
binding upon the Trust, the Company or U.S. Bank National Association that is material to
the Trust or to the Company and its subsidiaries, taken as a whole,
-18-
or any judgment, order
or decree of any governmental body, agency or court having jurisdiction over the Trust; and,
no consent, authorization or order of, or filing or registration with, any court or
governmental agency or authority is required for the execution, delivery and performance by
the Trust of the Transaction Documents and to
consummate the transactions therein contemplated, except such as have been made or
obtained or will be made or obtained at or before the Exchange Date from the Board of
Governors of the Federal Reserve System or in connection with the registration of the New
Securities with the Commission pursuant to the Securities Act and except such as may be
required under applicable state securities or “blue sky” laws.
(ll) As of the Exchange Date, the provisions of the Collateral Agreement as amended by
the Collateral Agreement Amendment will continue to be effective to create in favor of the
Collateral Agent for the benefit of the Company a valid security interest under the Uniform
Commercial Code as in effect in the State of New York on the date hereof (the “UCC”)
in all “security entitlements” (as defined in Section 8-102(a)(17) of the UCC and the
Federal Book-Entry Regulations) now or hereafter carried in or to the Junior Subordinated
Notes or treasury securities included in the Pledge Account (the “Pledged Securities
Entitlements”); and the provisions of the Collateral Agreement as amended by the
Collateral Agreement Amendment will continue to be effective under the UCC and the Federal
Book-Entry Regulations to perfect the security interest of the Collateral Agent for the
benefit of the Company in the Pledged Security Entitlements. “Federal Book-Entry
Regulations” means (a) the federal regulations contained in Subpart B
(“Treasury/Reserve Automated Debt Entry System (TRADES)” governing Book-Entry
Securities consisting of U.S. Treasury bonds, notes and bills) and Subpart D
(“Additional Provisions”) of 31 C.F.R. Part 357, 31 C.F.R. Section 357.10 through
Section 357.14 and Section 357.41 through Section 357.44 (including related defined terms in
31 C.F.R. Section 357.2); and (b) to the extent substantially identical to the federal
regulations referred to in clause (a) above (as in effect from time to time), the federal
regulations governing other Book-Entry Securities.
(mm) The Company has not agreed to pay and the Company does not know of any outstanding
material claims in the nature of a finder’s fee, financial advisory fee, origination fee or
similar fee to be paid by them with respect to the transactions contemplated hereby except
as contemplated by this Agreement.
6. Conditions of the Dealer Managers’ Obligations. The obligations of the Dealer
Managers in this Agreement are subject to the accuracy of the representations and warranties
contained herein as of the Commencement Date and as of the Exchange Date, as if made on and as of
each such date (except as expressly provided therein), to the accuracy in all material respects of
the statements contained in certificates delivered by the officers of the Company pursuant to the
provisions hereof, to the performance in all material respects by the Company of its covenants and
agreements hereunder and to the following additional conditions, unless waived in writing by you:
-19-
(a) The Registration Statement shall have been declared effective by the Commission,
and no stop order suspending the effectiveness of the Registration Statement or any part
thereof shall be in effect and no proceedings for that purpose shall be pending before or
threatened by the Commission and no notice of objection of the Commission to the use of the
Registration Statement, the Preliminary Prospectus
or the Prospectus shall have been received; and no stop order suspending or preventing
the use of the Preliminary Prospectus or the Prospectus shall have been initiated or
threatened by the Commission. The Prospectus and any amendment or supplement thereto and
all Rule 165 Material shall have been timely filed with the Commission under the Securities
Act, subject to compliance with Rule 165(e) of the Securities Act, and in accordance with
Section 4(b) hereof. All requests by the Commission for additional information with respect
to the Exchange Offer and the Solicitation shall have been complied with to your reasonable
satisfaction. All other Exchange Materials required to be filed with the Commission shall
have been filed with the applicable time prescribed for such filing under the Securities
Act.
(b) There shall not have been any legal action, order, decree or other administrative
proceeding instituted or threatened against the Company or the Trust that could reasonably
be expected to result in a Material Adverse Effect, or against you relating to the Exchange
Offer and the Solicitation and your activities in connection therewith or any of the other
transactions contemplated by the Exchange Materials.
(c) On the Commencement Date and the Exchange Date, you shall have received, dated as
of each such date, (i) the opinion and negative assurance letter of Squire, Xxxxxxx &
Xxxxxxx, L.L.P., counsel for the Company, substantially in the form of Exhibits B-1 and
B-2 hereto, (ii) the opinion of Xxx X. Mitau, Executive Vice President and General
Counsel of the Company, substantially in the form of Exhibits C-1 and C-2 hereto,
and (iii) Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust,
substantially in the form of Exhibits D-1 and D-2 hereto.
(d) On the Commencement Date and the Exchange Date, you shall have received, dated as
of each such date, an opinion and 10b-5 side letter of Shearman & Sterling LLP, your
counsel, in the form and substance reasonably satisfactory to you.
(e) Subsequent to the respective dates of the most recent financial statements included
or incorporated by reference in the Preliminary Prospectus, the Disclosure Package and the
Prospectus (as amended or supplemented), there shall not have been any material adverse
change in the condition, financial or otherwise, of the Trust or of the Company and its
subsidiaries considered as one enterprise, or in the earnings, affairs or business prospects
of the Trust or of the Company and its subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business, other than as set forth in the Preliminary
Prospectus, the Disclosure Package and the Prospectus exclusive of any amendment or
supplement.
-20-
(f) None of the Exchange Offer, the Consent Solicitation or any of the other
transactions contemplated by the Exchange Materials shall be enjoined (temporarily or
permanently) and no restraining order or other injunctive order shall have been issued, or
any action, suit or proceeding shall have been commenced, with respect to the Exchange
Offer, the Solicitation, this Agreement, the issuance of the
New Securities and the Preferred Stock or any of the other transactions contemplated by
the Exchange Materials, before any court or governmental authority.
(g) On the Exchange Date, you shall have received a certificate, dated such date, of
the principal financial or accounting officer of the Company to the effect that, to the best
of his knowledge after reasonable investigation:
(i) Except for representations and warranties that speak of a particular date (which
representations and warranties shall be true and correct in all material respects as of such
date), the representations and warranties of the Company in this Agreement are true and
correct in all material respects as if made on and as of such date and the Company has
performed all covenants and agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to such date (after giving effect to the Exchange Offer,
the Solicitation and the other transactions contemplated by the Exchange Materials), in all
material respects;
(ii) Subsequent to the date as of which information is given in the Preliminary Prospectus,
the Disclosure Package and the Prospectus (as amended or supplemented), as of the date of
such certificate, there has not been any material adverse change in the condition, financial
or otherwise, of the Company and its subsidiaries considered as one enterprise, or in the
earnings, affairs or business prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business, other than as set
forth in the Preliminary Prospectus, the Disclosure Package and the Prospectus;
(iii) No stop order suspending the effectiveness of the Registration Statement or any part
thereof or suspending or preventing the use of the Prospectus or any Preliminary Prospectus
has been issued and no proceedings for that purpose have been instituted and are pending or
have been threatened as of such date; and neither the Exchange Offer, nor any of the other
transactions contemplated hereby or by the Exchange Materials has been enjoined (temporarily
or permanently) and no restraining order or other injunctive order has been issued nor, to
his knowledge, has any action, suit or proceeding been commenced with respect to the
Exchange Offer, the Solicitation, this Agreement, the issuance of the New Securities or any
of the other transactions contemplated by the Exchange Materials, before any court or
governmental authority; and
(iv) Since the Commencement Date, (A) no downgrading has occurred in the rating accorded the
Company’s unsecured debt securities or preferred stock by any “nationally recognized
statistical rating organization”, as that term is defined by the Commission for purposes of
Rule 436(g)(2) under the Act, and (B) no such
-21-
organization shall have publicly announced
that it has under surveillance or review, with possible negative implications, its rating of
any of the Company’s unsecured debt securities or preferred stock or the Old Securities.
(h) On the Exchange Date, all conditions to the consummation of the Exchange Offer set
forth in the Exchange Materials shall have been satisfied in all material respects without
waiver and all other transactions contemplated by the Exchange Materials to be consummated
simultaneously with or prior to the consummation of the Exchange Offer shall have been
consummated or shall be consummated simultaneously.
(i) On the Commencement Date and the Exchange Date, Ernst & Young LLP shall have
furnished to you customary comfort letters addressed to you and in form and substance
satisfactory to you and your counsel with respect to the financial statements of the Company
that it has audited and certain financial information contained or incorporated by reference
in the Exchange Materials.
(j) On the Exchange Date, all of the Transaction Documents shall have been executed and
delivered by each of the parties thereto and shall be in full force and effect and the
Dealer Managers shall have received fully executed copies thereof and the Company shall not
be in default in the performance, observance or fulfillment of any of the obligations,
covenants or conditions contained in any of the Transaction Documents, and no condition
shall exist that, with the giving of notice or the lapse of time, or both, would constitute
such a default, except in each case where the consequences of such default or defaults, if
any, would not reasonably be expected to result in a Material Adverse Effect.
(k) On the Exchange Date, the Company shall not have any knowledge that any party shall
have failed to perform or comply with any of the agreements contained in any of the
Transaction Documents and required to be performed or complied with by such party unless
such failure would not reasonably be expected to result in a Material Adverse Effect.
(l) On the Exchange Date, the Company shall have obtained all consents and approvals
necessary to consummate the transactions contemplated by this Agreement and the Exchange
Materials, including, without limitation, from the Board of Governors of the Federal Reserve
System.
(m) On the Exchange Date, counsel for the Dealer Managers shall have been furnished
with such documents, certificates and opinions as they reasonably may require for the
purpose of enabling them to pass upon the issuance and sale of the New Securities as herein
contemplated, or in order to evidence the accuracy of any of the representations or
warranties, or the fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Company in connection with the Exchange Offer and the Solicitation
and any other transactions contemplated by the
-22-
Exchange Materials shall be reasonably
satisfactory in form and substance to the Dealer Managers and counsel for each Dealer
Manager.
(n) Since the date of this Agreement, (A) no downgrading shall have occurred in the
rating accorded the Company’s unsecured debt securities or preferred
stock by any “nationally recognized statistical rating organization”, as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (B) no such
organization shall have publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any of the Company’s unsecured debt securities
or preferred stock or the Old Securities.
(o) Prior to the Exchange Date, the New Securities shall have been approved for listing
on the NYSE, subject to notice of issuance.
All such documents, certificates, schedules or instruments delivered pursuant to this
Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all
material respects to you and your counsel. The Company shall furnish to you such conformed copies
of such documents, certificates, schedules and instruments in such quantities as you shall
reasonably request.
In the event that any of the foregoing conditions is not met when required to be met, then you
shall be entitled to withdraw as a Dealer Manager in connection with the Exchange Offer and the
Solicitation without any liability or penalty to you or any other “indemnified party” (as defined
in Section 7) and without loss of any right to the payment of all expenses and fees hereunder that
have accrued as of the date of such withdrawal that are otherwise payable under this Agreement.
7. Indemnification. The Company agrees to indemnify and hold harmless the Dealer
Managers and each other person, if any, “controlling” a Dealer Manager within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act (each an “indemnified
party”) from and against any and all losses, actions, claims, damages or liabilities, and will
reimburse any indemnified party for all costs and expenses (including reasonable counsel fees) as
they are incurred by such indemnified party in connection with investigating, preparing to defend
or defending any such action or claim caused by or arising out of, or in connection with, the
Exchange Offer and the Solicitation (whether or not consummated), including, but not limited to,
losses, actions, claims, liabilities, damages, costs or expenses arising out of or based upon (1)
(A) any untrue statement of a material fact or alleged untrue statement of a material fact
contained in the Registration Statement or any amendment or supplement thereto, or arising out of
or are based upon the omission or alleged omission to state therein any material fact required to
be stated therein or necessary in order to make the statements therein not misleading, (B) any
untrue statement of a material fact or alleged untrue statement of a material fact contained in the
Disclosure Package, any Preliminary Prospectus, the Prospectus, any Rule 165 Material, any Exchange
Materials or any other information provided by the Company to any holder of Old Securities in
connection with the Exchange Offer and the Solicitation or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged omission to state therein a
-23-
material fact necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading, (2) any breach of any agreement or representation of the
Company contained in this Agreement or which arise out of or are based upon any failure to accept
Old Securities properly exchanged pursuant to the Exchange Offer, (3) the performance by you of the
services contemplated by this Agreement, or otherwise arising out
of, relating to or in connection with the Exchange Offer and the Solicitation; provided,
however, that the Company will not be liable to any indemnified party under clause (4) hereof to
the extent that any claims, liabilities, losses, damages, costs or expenses (a) are finally
determined by a court of competent jurisdiction to the extent resulting primarily from the gross
negligence or willful misconduct of such indemnified party; and provided further, however, that
the Company will not be liable to any indemnified party under clause (1) hereof to the extent that
any claims, liabilities, losses, damages, costs or expenses arise out of or is based upon any
untrue statement or alleged untrue statement of a material fact or any omission or alleged omission
to state in any of the Exchange Materials a material fact, if in either such case such statement or
omission was made in reliance upon and in conformity with information furnished in writing by the
Dealer Managers to the Company expressly for use therein (which for purposes of this Agreement,
shall consist of the name and address of the Dealer Managers on the front cover and the back cover
of the Prospectus and the Letter of Transmittal). The Company shall not be liable under this
Section 8 for any settlement of any claim or action effected without its prior written consent,
which shall not be unreasonably withheld or delayed.
The Company will not, without the prior written consent of the Representative, settle or
compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit
or proceeding in respect of which indemnification may be sought by an indemnified party hereunder
(when an indemnified party is or could have been a party to such claim, action, suit or
proceeding), unless such settlement, compromise or consent includes an unconditional written
release (in form and substance reasonably satisfactory to the indemnified parties) of the
indemnified parties from all liability arising out of such claim, action, suit or proceeding.
Each indemnified party shall give prompt notice to the Company of any action commenced against
it in respect of which indemnity may be sought hereunder but failure to so notify the Company shall
not relieve it from any liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. In the case of parties indemnified pursuant to this
Section 7, counsel to the indemnified party shall be selected by the Dealer Managers. The Company
may participate at its own expense in the defense of such action; provided, however, that counsel
to the Company shall not (except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the Company 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.
-24-
In circumstances in which the indemnity agreement provided for in the preceding paragraphs of
this Section 7 is unavailable or insufficient to hold harmless an indemnified party in respect of
any losses, claims, damages or liabilities (or actions in respect thereof), the Company, in order
to provide for just and equitable contribution, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to
reflect (a) the relative benefits received by the indemnifying party or parties on the one
hand and the indemnified party or parties on the other hand from the Exchange Offer and the
Solicitation or (b) if the allocation provided by the foregoing clause (a) is not permitted by
applicable law, not only such relative benefits but also the relative fault of the indemnifying
party or parties on the one hand and the indemnified party or parties on the other hand in
connection with such losses, claims, damages or liabilities (or actions in respect thereof). The
relative benefits received by the Company on the one hand and the indemnified parties on the other
hand shall be deemed to be in the same proportion as (a) the aggregate liquidation amount of Old
Securities solicited for exchange pursuant to the Exchange Offer and the Solicitation bears to (b)
the fees and expenses paid or proposed to be paid by the Company to such indemnified party under
this Agreement. The relative fault of the Company on the one hand and the Dealer Managers on the
other shall be determined by reference to, among other things, whether any such untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or by the Dealer Managers on the
other and such party’s relative intent, knowledge, access to information and opportunities to
correct or prevent such statement or omission. The indemnity, reimbursement and contribution
obligations of the Company under this Agreement shall be in addition to any rights that the Dealer
Managers or any other indemnified party may have at common law or otherwise, including any other
agreements by and among the parties hereto. The Company and the Dealer Managers agree that it
would not be equitable if the amount of such contribution were determined by pro rata or per capita
allocation (even if the Company on the one hand and the indemnified parties on the other hand were
treated as one entity for such purpose) or by any other method of allocation that does not take
into account the equitable considerations referred to in this paragraph. Notwithstanding any other
provision of this paragraph, the indemnified parties shall not be obligated to make contributions
hereunder that in the aggregate exceed the total fees received by the Dealer Managers under this
Agreement, less the aggregate amount of any damages that the indemnified parties have otherwise
been required to pay for which indemnification is provided for hereunder, and no person guilty of
fraudulent misrepresentation shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. For purposes of this paragraph, each of the Dealer Manager’s
respective affiliates, directors, officers, agents, representatives, employees and each person, if
any, who controls a Dealer Manager 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 Dealer Manager.
8. Termination.
(a) This Agreement may be terminated (i) by the Dealer Managers at any time upon notice to the
Company if (A) the Company shall mail or otherwise distribute or
-25-
propose to mail or otherwise
distribute any supplement to any Exchange Materials to which the Dealer Managers shall reasonably
object or which shall be reasonably disapproved by their counsel, (B) at any time prior to the
Exchange Date, the Exchange Offer is terminated or withdrawn for any reason (other than the failure
of the Dealer Managers to perform their obligations hereunder) or any restraining order or other
injunctive order shall have been issued or any action, suit or proceeding shall have been commenced
with respect to the
Exchange Offer, this Agreement or any of the other transactions contemplated by the Exchange
Materials, before any court or governmental authority which makes it inadvisable for the Dealer
Managers, in their reasonable discretion, to continue to act as Dealer Managers hereunder, (C) any
of the conditions specified in Section 6 shall not have been fulfilled when required thereunder to
be fulfilled or the representations and warranties under Section 4 are incorrect in any material
respect, or (D) there is a good faith disagreement between the Dealer Managers on the one hand and
the Company on the other hand with respect to a material term or condition of the Exchange Offer or
the Solicitation or the Exchange Materials, or (ii) by the Company upon notice to the Dealer
Managers, if there is a good faith disagreement between the Dealer Managers on the one hand and the
Company on the other hand with respect to a material term or condition of the Exchange Offer or the
Solicitation or the Exchange Materials.
(b) Termination of this Agreement pursuant to this Section 8 shall be without liability of any
party to any other party except as provided in Section 11 hereof.
9. Notices. Any notices required to be given in writing pursuant to any of the
provisions of this Agreement shall be delivered
(a) to the Company:
U.S. Bancorp
000 Xxxxxxxx Xxxx, XX-XX-X000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Secretary
000 Xxxxxxxx Xxxx, XX-XX-X000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Secretary
with a copy to:
Squire, Xxxxxxx & Xxxxxxx L.L.P.
000 X. 0xx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxx 00000
000 X. 0xx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxx 00000
| Attention: | Xxxxx X. Xxxxxxx, Esq. Xxxxx X. Xxxxxx, Esq. |
or (b) to the Representative:
Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
00 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
-26-
with a copy to:
Shearman & Sterling LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
| Attention: | Xxxxxxx X. Xxxxxxxxx, Esq. Xxxx Nallengara, Esq. |
Any such notice may be made by telecopier or telephone, but if so made shall be subsequently
confirmed in writing.
10. Tombstone. The Company acknowledges that you may at any time after the Exchange
Date place an announcement in such newspapers and periodicals as you may choose at your own cost
stating that you acted as a Dealer Manager to the Company in connection with the Exchange Offer and
the Solicitation, provided that you will submit a copy of any such announcements to the Company for
its prior approval, which approval shall not be unreasonably withheld or delayed.
11. Survival. The provisions of Section 2(d) and 4 hereof, the indemnity,
reimbursement and contribution agreements contained in Section 7 hereof, the representations and
warranties and agreements set forth in Section 5 hereof, Section 12 hereof and the right to any
fees under Section 8 hereof shall remain operative and in full force and effect regardless of (a)
any investigation made by or on behalf of you or any of your affiliates or any person controlling
you or any of your affiliates, (b) consummation of the Exchange Offer and the Solicitation or (c)
any termination of this Agreement or of your engagement hereunder, and shall be binding upon and
shall inure to the benefit of any successors, assigns, heirs and personal representatives of the
Company, you and the indemnified parties referred to in Section 7 hereof, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other person any right,
benefit, or remedy.
12. APPLICABLE LAW; WAIVER OF JURY TRIAL. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS PRINCIPLES
OF CONFLICTS OF LAWS. THE COMPANY AND YOU HEREBY SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF THE
FEDERAL AND NEW YORK STATE COURTS LOCATED IN THE CITY OF NEW YORK IN CONNECTION WITH ANY DISPUTE
RELATING TO THIS AGREEMENT OR ANY MATTERS CONTEMPLATED HEREBY. YOU, ON THE ONE HAND, AND THE
COMPANY (ON THEIR OWN BEHALF AND, TO THE EXTENT PERMITTED BY LAW, ON BEHALF OF THEIR STOCKHOLDERS),
ON THE OTHER HAND, WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, CLAIM, SUIT OR PROCEEDING WITH
RESPECT TO YOUR ENGAGEMENT AS A DEALER MANAGER OR YOUR ROLE IN CONNECTION HEREWITH.
-27-
13. Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original, but all of which together shall constitute one and the
same instrument.
14. Headings. The section headings in this Agreement have been inserted as a matter
of convenience of reference only and are not a part hereof.
15. Entire Agreement, Etc. This Agreement constitutes the entire agreement among the
parties hereto with respect to the subject matter hereof and supersedes all prior agreements,
understandings and arrangements, oral or written, among the parties hereto with respect to the
subject matter hereof. This Agreement may not be amended, modified or supplemented without the
prior written consent of each of the parties hereto.
-28-
If the foregoing correctly sets forth our understanding, please indicate your acceptance
thereof in the space provided below for that purpose, whereupon this letter shall constitute a
binding agreement between the Company and the Dealer Managers.
| Very truly yours, U.S. BANCORP |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Executive Vice President and Treasurer | |||
CONFIRMED AND ACCEPTED, as of the date first above written.
| DEUTSCHE BANK SECURITIES INC., As Representative of the Dealer Managers |
||||
| By: | /s/ Xxxxx Xxxxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxxxx | |||
| Title: | Managing Director | |||
| By: | /s/ Xxxxxx Xxxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxxx | |||
| Title: | Managing Director | |||
Exhibit A-1
[Form of Offering Memorandum]
Exhibit A-2
[Form of Letter of Transmittal]
Exhibit B-1
Form of Opinion of Squire, Xxxxxxx & Xxxxxxx L.L.P. to be delivered at the Commencement Date
1. The Company has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware and has corporate power and authority to own,
lease and operate its properties and conduct its business as described in the Preliminary
Prospectus.
2. 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 Preliminary Prospectus.
3. This Agreement has been duly authorized, executed and delivered by the Company and
constitutes a legal, valid and binding agreement of the Company, 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, and except that the rights of
indemnification and contribution thereunder may be limited by applicable Federal and state
securities laws.
4. The shares of Preferred Stock and the Depositary Shares have been duly and validly
authorized for issuance by the Company and, when the shares of Preferred Stock are issued and
deposited with the Depositary in accordance with the provisions of the Deposit Agreement and the
Depositary Shares are issued and delivered by the Depositary in accordance with the provisions of
the Deposit Agreement in exchange for the Old Securities in accordance with the Preliminary
Prospectus and the Letter of Transmittal, the shares of Preferred Stock and the Depositary Shares
will be duly and validly issued and fully paid and non-assessable and the Depositary Shares will
represent legal and valid interests in the Preferred Stock.
5. Each of (i) the Supplemental Indenture, (ii) the Trust Agreement Amendment, (iii) the Stock
Purchase Contract Agreement Amendment, (iv) the Collateral Agreement Amendment, and (v) the Deposit
Agreement, has been duly and validly authorized by the Company.
6. The Preliminary Prospectus, as of its date, appears on its face to comply as to form in all
material respects with the requirements of the Securities Act and the rules and regulations
promulgated thereunder.
7. The Registration Statement, as of the Commencement Date, appears on its face to comply as
to form in all material respects with the requirements of the Securities Act and the rules and
regulations promulgated thereunder.
8. If conducted in accordance with the terms and conditions set forth in the Preliminary
Prospectus and the Letter of Transmittal in respect of the Exchange Offer and the Solicitation, the
terms and provisions of the Exchange Offer will comply in all material respects with the
requirements of the Securities Act and the Exchange Act and the respective rules and regulations
promulgated thereunder.
9. The Exchange Act reports incorporated by reference into the Registration Statement or any
Preliminary Prospectus (other than the financial statements, supporting schedules and other
financial data included or incorporated by reference therein or omitted therefrom, 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.
10. The Exchange Offer, the Solicitation, the issuance of the Depositary Shares and the
Preferred Stock and all other actions by the Company contemplated in the Exchange Materials and
this Agreement have been duly and validly authorized by all necessary corporate action by the
Company and no other corporate proceedings by the Company are necessary to authorize any such
actions.
11. The Company has all the necessary power and authority to conduct and consummate the
Exchange Offer and the Solicitation, issue the Depositary Shares and the Preferred Stock in
accordance with the terms of the Exchange Offer, execute, deliver and perform this Agreement and
the Transaction Documents, and to consummate the transactions herein and therein contemplated.
12. The conduct and consummation of the Exchange Offer and the Solicitation, the issuance of
the Depositary Shares and the Preferred Stock in accordance with the terms of the Exchange Offer,
the execution, delivery and performance of this Agreement and the Transaction Documents, and the
consummation of the transactions herein and therein contemplated, 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 Company or the articles of association or bylaws of U.S. Bank National
Association.
13. The execution, delivery and performance of the Transaction Documents to which it is a
party and compliance with the provisions thereof by the Trust, and the consummation of the
transactions contemplated therein, and the performance of the obligations thereunder 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.
14. No consent, approval, license, authorization, or order of, or filing or registration with,
any court or governmental authority or agency is required in connection with the conduct and
consummation of the Exchange Offer or the Solicitation by the Company or the issuance of the
Depositary Shares and the Preferred Stock in accordance with the terms of the Exchange Offer, or
for the execution, delivery and performance by the Company of this Agreement and the Transaction
Documents to which it is a party or the consummation by the Company of the transactions herein and
therein contemplated, except such as have been made or obtained or will be made or obtained at or
before the Commencement Date from the Board of Governors of the Federal Reserve System or in
connection with the registration of the Depositary Shares and the Preferred Stock with the
Commission pursuant to the Securities Act and except such as may be required under state securities
or Blue Sky laws.
15. No consent, approval, license, authorization, or order of, or filing or registration with,
any federal court or federal government authority or agency is required for the execution, delivery
and performance by the Trust of the Transaction Documents to which it is a party or the
consummation by the Trust of the transactions herein and therein contemplated, except such as have
been made or obtained or will be made or obtained at or before the Commencement Date from the Board
of Governors of the Federal Reserve System.
16. The statements set forth in the Preliminary Prospectus under the captions “Description of
Preferred Stock,” “Description of Depositary Shares,” “Comparison of Rights Between the Normal ITS
and the Depositary Shares,” and “The Exchange Offer and the Consent Solicitation—The Proposed
Amendments,” insofar as such statements purport to summarize certain provisions of the documents
referred to therein, fairly summarize such provisions in all material respects.
17. The statements set forth in the Preliminary Prospectus under the captions “Material U.S.
Federal Income Tax Consequences” and “Benefit Plan Investor Considerations,” insofar as such
statements refer to statements of law or legal conclusions, fairly summarize the matters referred
to therein in all material respects.
18. 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
Preliminary 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.
19. The Company is not, and as a result of the consummation of the Exchange Offer as
contemplated in the Preliminary Prospectus, will not be, an “investment company” within the meaning
of the Investment Company Act of 1940, as amended.
Such counsel shall also have furnished to the Dealer Managers a written statement, addressed
to the Dealer Managers and dated the Commencement Date, in form and substance satisfactory to the
Dealer Managers, to the effect that (x) such counsel has acted as counsel to the Company in
connection with the preparation of the Registration Statement, the
Preliminary Prospectus and the documents incorporated by reference therein and any other
Exchange Materials and in the course of preparation of those documents such counsel has
participated in conferences with representatives of the Company and with representatives of Ernst &
Young LLP and (y) based upon such counsel’s examination of the Registration Statement and the
Preliminary Prospectus and the documents incorporated by reference therein and any other Exchange
Materials, such counsel’s investigations made in connection with the preparation of the
Registration Statement and the Preliminary Prospectus and the documents incorporated by reference
therein and any other Exchange Materials and such counsel’s participation in the conferences
referred to above, such counsel has no reason to believe that: (A) the Preliminary Prospectus
(other than the financial statements, supporting schedules and other financial data included or
incorporated by reference therein or omitted therefrom, as to which no statement need be rendered)
as of its date, contains any untrue statement of a material fact or omitted 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, or (B) the Exchange
Materials (other than the financial statements, supporting schedules and other financial data
included or incorporated by reference therein or omitted therefrom, as to which no statement need
be rendered) as of the Commencement Date, contains any untrue statement of a material fact or
omitted 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.
Exhibit B-2
Form of Opinion of Squire, Xxxxxxx & Xxxxxxx L.L.P. to be delivered at the Exchange Date
1. The Company has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware and has corporate power and authority to own,
lease and operate its properties and conduct its business as described in the General Disclosure
Package and the Prospectus.
2. 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 General Disclosure Package and the Prospectus.
3. This Agreement has been duly authorized, executed and delivered by the Company and
constitutes a legal, valid and binding agreement of the Company, 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, and except that the rights of
indemnification and contribution thereunder may be limited by applicable Federal and state
securities laws.
4. The shares of Preferred Stock and the Depositary Shares have been duly and validly
authorized for issuance by the Company and, when the shares of Preferred Stock are issued and
deposited with the Depositary in accordance with the provisions of the Deposit Agreement and the
Depositary Shares are issued and delivered by the Depositary in accordance with the provisions of
the Deposit Agreement in exchange for the Old Securities in accordance with the Prospectus and the
Letter of Transmittal, the shares of Preferred Stock and the Depositary Shares will be duly and
validly issued and fully paid and non-assessable and the Depositary Shares will represent legal and
valid interests in the Preferred Stock and the Preferred Stock and the Depositary Shares conform to
the descriptions thereof contained in the General Disclosure Package and the Prospectus.
5. Each of (i) the Supplemental Indenture, (ii) the Trust Agreement Amendment, (iii) the Stock
Purchase Contract Agreement Amendment, (iv) the Collateral Agreement Amendment, and (v) the Deposit
Agreement, has been duly and validly authorized, executed and delivered by the Company and the
Administrative Trustees of the Trust, to the extent they are a party thereto, and each of (w) the
Base Indenture as supplemented by the Supplemental Indenture, (x) the Stock Purchase Contract
Agreement Amendment, (y) the Collateral Agreement Amendment, and (z) the Deposit Agreement,
constitute a valid and legally binding agreement of the Company, the Trust and each Trustee, as
applicable, enforceable against the Company, the Trust and the Trustees, as applicable in
accordance with its respective 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
6. Each of the Preliminary Prospectus and the Prospectus, as of its respective date, appears
on its face to comply as to form in all material respects with the requirements of the Securities
Act and the rules and regulations promulgated thereunder.
7. The Registration Statement has been declared effective under the Securities Act; any
required filing of each prospectus relating to the Exchange Offer (including the Prospectus)
pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule
424(b) (without reference to Rule 424(b)(8)); any required filing of any Rule 165 Information has
been made in the manner and within the time period required by Rule 165; and, to the best of such
counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has
been issued under the Securities Act and no proceedings for that purpose have been instituted or
are pending or threatened by the Commission.
8. The Registration Statement, as of the Commencement Date and as of the date it was declared
effective by the Commission (the “Effective Date”), appears on its face to comply as to form in all
material respects with the requirements of the Securities Act and the rules and regulations
promulgated thereunder.
9. If conducted in accordance with the terms and conditions set forth in the Preliminary
Prospectus, the Prospectus and the Letter of Transmittal in respect of the Exchange Offer and the
Solicitation, the terms and provisions of the Exchange Offer will comply in all material respects
with the requirements of the Securities Act and the Exchange Act and the respective rules and
regulations promulgated thereunder.
10. The Exchange Act reports incorporated by reference into the Registration Statement, any
Preliminary Prospectus or the Prospectus (other than the financial statements, supporting schedules
and other financial data included or incorporated by reference therein or omitted therefrom, 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.
11. The Exchange Offer, the Solicitation, the issuance of the Depositary Shares and the
Preferred Stock and all other actions by the Company contemplated in the Exchange Materials and
this Agreement have been duly and validly authorized by all necessary corporate action by the
Company and no other corporate proceedings by the Company are necessary to authorize any such
actions.
12. The Company has all the necessary power and authority to conduct and consummate the
Exchange Offer and the Solicitation, issue the Depositary Shares and the Preferred Stock in
accordance with the terms of the Exchange Offer, execute, deliver and perform this Agreement and
the Transaction Documents, and to consummate the transactions herein and therein contemplated.
13. The conduct and consummation of the Exchange Offer and the Solicitation, the issuance of
the Depositary Shares and the Preferred Stock in accordance with the terms of the Exchange Offer,
the execution, delivery and performance of this Agreement and the Transaction Documents, and the
consummation of the transactions contemplated herein and therein, 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 Company or the articles of association or bylaws of U.S. Bank National
Association.
14. The execution, delivery and performance of the Transaction Documents to which it is a
party and compliance with the provisions thereof by the Trust, and the consummation of the
transactions contemplated therein, and the performance of the obligations thereunder 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.
15. No consent, approval, license, authorization, or order of, or filing or registration with,
any court or governmental authority or agency is required in connection with the conduct and
consummation of the Exchange Offer or the Solicitation by the Company or the issuance of the
Depositary Shares and the Preferred Stock in accordance with the terms of the Exchange Offer, or
for the execution, delivery and performance by the Company of this Agreement and the Transaction
Documents to which it is a party or the consummation by the Company of the transactions herein and
therein contemplated, except such as have been made or obtained or will be made or obtained at or
before the Commencement Date from the Board of Governors of the Federal Reserve System or in
connection with the registration of the Depositary Shares or the Preferred Stock with the
Commission pursuant to the Securities Act and except such as may be required under state securities
or Blue Sky laws.
16. No consent, approval, license, authorization, or order of, or filing or registration with,
any federal court or federal government authority or agency is required for the execution, delivery
and performance by the Trust of the Transaction Documents to which it is a party or the
consummation by the Trust of the transactions herein and therein contemplated, except such as have
been made or obtained or will be made or obtained at or before the Commencement Date from the Board
of Governors of the Federal Reserve System.
17. The statements set forth in the General Disclosure Package and the Prospectus under the
captions “Description of Preferred Stock,” “Description of Depositary Shares,”
“Comparison of Rights Between the Normal ITS and the Depositary Shares,” and “The Exchange
Offer and the Consent Solicitation—The Proposed Amendments,” insofar as such statements purport to
summarize certain provisions of the documents referred to therein, fairly summarize such provisions
in all material respects.
18. The statements set forth in the General Disclosure Package and the Prospectus under the
captions “Material U.S. Federal Income Tax Consequences” and “Benefit Plan Investor
Considerations,” insofar as such statements refer to statements of law or legal conclusions, fairly
summarize the matters referred to therein in all material respects.
19. 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
General Disclosure Package or 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.
20. The Company is not, and as a result of the consummation of the Exchange Offer as
contemplated in the Preliminary Prospectus, will not be, an “investment company” within the meaning
of the Investment Company Act of 1940, as amended.
Such counsel shall also have furnished to the Dealer Managers a written statement, addressed
to the Dealer Managers and dated the Exchange Date, in form and substance satisfactory to the
Dealer Managers, to the effect that (x) such counsel has acted as counsel to the Company in
connection with the preparation of the Registration Statement, the Preliminary Prospectus, the
Prospectus and the documents incorporated by reference therein and any other Exchange Materials and
in the course of preparation of those documents such counsel has participated in conferences with
representatives of the Company and with representatives of Ernst & Young LLP and (y) based upon
such counsel’s examination of the Registration Statement, the Preliminary Prospectus, the
Prospectus and the documents incorporated by reference therein and any other Exchange Materials,
such counsel’s investigations made in connection with the preparation of the Registration
Statement, the Preliminary Prospectus, the Prospectus and the documents incorporated by reference
therein and any other Exchange Materials and such counsel’s participation in the conferences
referred to above, such counsel has no reason to believe that: (A) the Registration Statement
(other than the financial statements, supporting schedules and other financial data included or
incorporated by reference therein or omitted therefrom), as of the Effective Date and each deemed
effective date with respect to the Dealer Managers pursuant to Rule 430B(f) under the Securities
Act, 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, (B) the
Prospectus (other than the financial statements, supporting schedules and other financial data
included or incorporated by reference therein or omitted therefrom, as to which no statement need
be rendered) as of its date or the date hereof, contained or contains any untrue statement of a
material fact or omitted 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. or (C) the Exchange Materials (other than the financial statements,
supporting schedules and other financial data included or
incorporated by reference therein or omitted therefrom, as to which no statement need be
rendered) as of the date hereof, contains any untrue statement of a material fact or omitted 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.
Exhibit C-1
Form of Opinion of the General Counsel of the Company to be delivered at the Commencement Date
1. The Company 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 to so qualify would
not have a Material Adverse Effect on the Company and its subsidiaries, taken as a whole.
2. 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 .
3. There are no pending or, to the best of such counsel’s knowledge, overtly threatened
lawsuits or claims against the Company or its subsidiaries which are required to be disclosed in
the Preliminary Prospectus that are not disclosed as required.
4. To the best of such counsel’s knowledge, 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 Preliminary Prospectus that are not described as required
and there are no agreements, contract, indentures, leases or other instruments of the Trust that
are required to be described in the Preliminary Prospectus that are not described as required.
5. To the best of such counsel’s knowledge, no restraining order, injunction or denial of an
application for approval has been issued, and no legal or governmental proceedings are pending or
threatened, by or before the Commission or any other government agency (including any court) with
respect to the conduct and consummation of the Exchange Offer and the Solicitation, the issuance of
the Depositary Shares and the Preferred Stock in accordance with the terms of the Exchange Offer,
the execution, delivery and performance of this Agreement and the Transaction Documents and the
consummation of the transactions contemplated herein and therein.
6. The conduct and consummation of the Exchange Offer and the Solicitation, the issuance of
the Depositary Shares and the Preferred Stock in accordance with the terms of the Exchange Offer,
the execution, delivery and performance of this Agreement and the Transaction Documents, and the
consummation of the transactions contemplated herein and therein, will not conflict with or result
in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any subsidiary pursuant to any contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which the Company or any of its subsidiaries is a party or by which it
or any of them may be bound or to
which any of the property or assets of the Company or any of its subsidiaries is subject and
that is material to the Company and its subsidiaries, taken as a whole.
Exhibit C-2
Form of Opinion of the General Counsel of the Company to be delivered at the Exchange Date
1. The Company 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 to so qualify would
not have a Material Adverse Effect on the Company and its subsidiaries, taken as a whole.
2. 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 .
3. There are no pending or, to the best of such counsel’s knowledge, overtly threatened
lawsuits or claims against the Company or its subsidiaries which are required to be disclosed in
the General Disclosure Package and the Prospectus that are not disclosed as required.
4. To the best of such counsel’s knowledge, 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 Preliminary Prospectus that are not described as required
and there are no agreements, contract, indentures, leases or other instruments of the Trust that
are required to be described in the General Disclosure Package and the Prospectus that are not
described as required.
5. To the best of such counsel’s knowledge, no restraining order, injunction or denial of an
application for approval has been issued, and no legal or governmental proceedings are pending or
threatened, by or before the Commission or any other government agency (including any court) with
respect to the conduct and consummation of the Exchange Offer and the Solicitation, the issuance of
the Depositary Shares and the Preferred Stock in accordance with the terms of the Exchange Offer,
the execution, delivery and performance of this Agreement and the Transaction Documents and the
consummation of the transactions contemplated herein and therein.
6. The conduct and consummation of the Exchange Offer and the Solicitation, the issuance of
the Depositary Shares and the Preferred Stock in accordance with the terms of the Exchange Offer,
the execution, delivery and performance of this Agreement and the Transaction Documents and the
consummation of the transactions contemplated herein and therein, will not conflict with or result
in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any subsidiary pursuant to any contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which the Company or any of its subsidiaries is a party or by which it
or any of them may be bound or to
which any of the property or assets of the Company or any of its subsidiaries is subject and
that is material to the Company and its subsidiaries, taken as a whole.
Exhibit D-1
Form of Opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust, to be
delivered at the Commencement Date
1. The Trust has been duly created and is validly existing in good standing as a statutory
trust under the Delaware Statutory 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 statutory trust have
been made.
2. Under the Delaware Statutory Trust Act and the Trust Agreement, the Trust has the trust
power and authority to own its property and conduct its business, all as described in the Trust
Agreement.
3. The Trust Agreement constitutes a valid and binding obligation of the Company and the
Trustees, and is enforceable against the Company and the Trustees, in accordance with its terms.
In rendering the opinions expressed above, such counsel need express no opinion concerning the
securities or tax laws of the State of Delaware
Exhibit D-2
Form of Opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel to the Trust, to be
delivered at the Exchange Date
1. The Trust has been duly created and is validly existing in good standing as a statutory
trust under the Delaware Statutory 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 statutory trust have
been made.
2. Under the Delaware Statutory Trust Act and the Trust Agreement, the Trust has the trust
power and authority to own its property and conduct its business, all as described in the Trust
Agreement.
3. Under the Delaware Statutory Trust Act and the Trust Agreement, as amended by the Trust
Agreement Amendment, the execution and delivery by the Trust of the Stock Purchase Contract
Agreement Amendment and the Collateral Agreement Amendment, 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.
4. The Trust Agreement, as amended by the Trust Agreement Amendment, constitutes a valid and
binding obligation of the Company and the Trustees, and is enforceable against the Company and the
Trustees, in accordance with its terms.
5. Each of (x) the Stock Purchase Contract Agreement Amendment and (y) the Collateral
Agreement Amendment, have been duly executed and delivered by the Trust.
6. The execution, delivery and performance of the Trust Agreement Amendment, the Stock
Purchase Contract Agreement Amendment and the Collateral Agreement Amendment, the consummation by
the Trust of the transactions contemplated thereby and compliance by the Trust with its obligations
thereunder, will not result in any violation of or conflict with (A) any of the provisions of the
Certificate of Trust of the Trust or the Trust Agreement, as amended by the Trust Agreement
Amendment or (B) any applicable Delaware law or administrative regulation thereunder which is
applicable to the Trust.
7. No authorization, approval, consent or order of any Delaware legislative, administrative or
regulatory body under the laws or administrative regulations of the State of Delaware is required
to be obtained by the Trust solely in connection with the execution, delivery and performance of
the Trust Agreement Amendment, the Stock Purchase Contract Agreement Amendment and the Collateral
Agreement Amendment, the consummation by the Trust of the transactions contemplated thereby and
compliance by the Trust with its obligations thereunder.
In rendering the opinions expressed above, such counsel need express no opinion concerning the
securities or tax laws of the State of Delaware. Such counsel may note that a consent fee was paid
in connection with the amendments of the above documents,
and that, while not free from doubt, that such payment should not adversely affect such counsel’s
opinions. Such counsel may expressly assume, among other matters, that the requisite vote of
holders of a majority in liquidation amount of the Old Securities for such amendments has been
obtained and all certificates and opinions required to be delivered pursuant to the terms of such
documents have been so delivered.
Schedule I
Transaction Documents
Trust Agreement Amendment
Supplemental Indenture, including amended form of global Junior Note
Stock Purchase Contract Agreement Amendment
Collateral Agreement Amendment
Preferred Stock Amendment
Deposit Agreement
