Exhibit 1.2
U.S. BANCORP
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(CAPITAL SECURITIES)
(MARCH 25, 1998)
From time to time, U.S. Bancorp, a Delaware corporation (the
"Guarantor"), and each of USB Capital II ("USB II"), USB Capital III ("USB III")
USB Capital IV ("USB IV") or USB Capital V ("USB V"), each a statutory business
trust formed under the laws of the State of Delaware, may enter into one or more
underwriting agreements (each such agreement, an "Underwriting Agreement") that
provide for the sale of designated capital securities to the several
underwriters (the "Underwriters") named therein.
The standard provisions hereof may be incorporated by reference in any
Underwriting Agreement. As used herein, the term "Trust" means the statutory
business trust named in the first sentence of the Underwriting Agreement. The
term "Agreement" means the Underwriting Agreement, including the provisions
hereof incorporated therein by reference. Unless otherwise defined herein, all
other defined terms have the meanings ascribed thereto in the Underwriting
Agreement.
I
The Guarantor and each of USB II, USB III, USB IV and USB V propose
that USB II, USB III, USB IV and USB V, severally and not jointly, issue from
time to time, in one or more series, capital securities (the "Securities")
pursuant to the provisions of the registration statement on Form S-3 filed on
January 29, 1998, as amended on February 13, 1998, Registration No. 333-45211.
Such Securities may be issued in amounts, at prices and other terms to be
determined in light of market conditions at the time of sale. The specific
number of the Securities, title and liquidation preference of each Security,
issuance price, distribution rate or rates (or method of calculation),
distribution periods, distribution payment dates, redemption provisions, and any
other specific terms of the Securities shall be set forth in a prospectus
supplement.
The Securities specified in Schedule I to the Underwriting Agreement
are the "Firm Securities." If specified in such Underwriting Agreement, the
Guarantor and the Trust may grant to the Underwriters the right to purchase at
their election an additional number of the Securities specified in such
Underwriting Agreement as provided in Article III hereof (the "Optional
Securities"). The Firm Securities and the Optional Securities, if any, which the
Underwriters elect to
purchase pursuant to Article III hereof are herein collectively called the
"Offered Securities."
The Guarantor and USB II, USB III, USB IV and USB V have filed with
the Securities and Exchange Commission (the "Commission") a registration
statement in respect of the Securities, the Guarantee and the Junior
Subordinated Debentures (collectively, the "Registered Securities"), including a
prospectus relating to the Registered Securities, and will file with, the
Commission a prospectus supplement specifically relating to the Offered
Securities pursuant to Rule 424 under the Securities Act of 1933, as amended
(the "Securities Act"). The term "Registration Statement" means the
registration statement as amended to the date of the Underwriting Agreement.
The term "Basic Prospectus" means the prospectus included in the Registration
Statement. The term "Prospectus" means the Basic Prospectus together with the
prospectus supplement specifically relating to the Offered Securities (the
"Prospectus Supplement"), as filed with, the Commission pursuant to Rule 424.
The term "preliminary prospectus" means a preliminary prospectus supplement
specifically relating to the Offered Securities together with the Basic
Prospectus. As used herein, the terms "Registration Statement", "Basic
Prospectus", "Prospectus" and "preliminary prospectus" shall include in each
case the material, if any, incorporated by reference therein.
II
The terms of the public offering of the Firm Securities are set forth
in the Prospectus.
III
The Guarantor and the Trust may specify in the Underwriting Agreement
applicable to any Securities that the Guarantor and the Trust thereby grant to
the Underwriters the right (an "Overallotment Option") to purchase at their
election up to the number of Optional Shares set forth in such Underwriting
Agreement, on the terms set forth in the paragraph above, for the sole purpose
of covering over-allotments in the sale of the Firm Securities. Any such
election to purchase Optional Securities may be exercised by written notice from
each of the Representatives (as defined in the Underwriting Agreement) to the
Guarantor and the Trust, given within a period specified in the Underwriting
Agreement, setting forth the aggregate number of Optional Securities to be
purchased and the date on which such Optional Securities are to be delivered, as
determined by the Representatives but in no event earlier than the first Closing
Date or, unless the Representatives, the Guarantor and the Trust otherwise agree
in writing, earlier than or later than the respective number of business days
after the date of such notice set forth in such Underwriting Agreement.
Notwithstanding the foregoing,
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such Overallotment Option shall not be exercised without the prior consent of
the Guarantor and the Trust.
The number of Optional Securities to be added to the number of Firm
Securities to be purchased by each Underwriter as set forth in Schedule I to the
Underwriting Agreement applicable to such Securities shall be, in each case, the
number of Optional Securities which the Guarantor has been advised by the
Representatives have been attributed to such Underwriter; provided, that, if the
Guarantor and the Trust have not been so advised, the number of Optional
Securities to be so added shall be, in each case, that proportion of Optional
Securities which the number of Firm Securities to be purchased by such
Underwriter under such Underwriting Agreement bears to the aggregate number of
Firm Securities (rounded as the Representatives may determine to the nearest 10
shares). The total number of Offered Securities to be purchased by all
Underwriters pursuant to such Underwriting Agreement shall be the aggregate
number of Firm Securities set forth in Schedule I to such Underwriting Agreement
plus the aggregate number of Optional Securities which the Underwriters elect to
purchase.
IV
Payment for the Securities shall be made in federal (same day) funds
at the time, date and place set forth in the Underwriting Agreement, upon
delivery to the Representatives, through the facilities of The Depository Trust
Company ("DTC"), for the respective accounts of the several Underwriters of the
Securities. Each time and date of such payment and delivery of the Securities is
herein referred to as a "Closing Date." The Trust will cause the certificates
representing the Securities to be made available for checking and packaging at
least one day prior to the Closing Date at the office of DTC or its designated
custodian.
V
The several obligations of the Underwriters hereunder are subject to
the condition that all representations and warranties and other statements of
the Guarantor and the Trust in or incorporated by reference in the Underwriting
Agreement are, at and as of each Closing Date, true and correct, the condition
that the Guarantor and the Trust shall have performed all of their respective
obligations hereunder theretofore to be performed, and to the following
additional conditions:
(a) The Representatives shall have received on the Closing Date a
certificate of the Administrative Trustees with respect to the Trust and a
certificate of the Chairman, Vice Chairman, President or a Vice President
of the Guarantor, each dated the Closing Date and to the effect (i) that
there has been no downgrading, nor any notice given of any potential or
intended downgrading, or of a possible change that does not indicate the
direction of
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the possible change, in the rating accorded any of the Trust's securities
or the Guarantor's securities by any nationally recognized statistical
rating organization, (ii) that the representations and warranties of the
Guarantor contained in Section VII are true and correct with the same force
and effect as though expressly made at and as of the date of such
certificate, (iii) that the Trust and the Guarantor have complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the date of such certificate, and (iv) that no
stop order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been initiated or
threatened by the Commission.
(b) The Representatives shall have received on the Closing Date an
opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Guarantor and the Trust,
dated the Closing Date, and addressed to the Representatives, to the effect
set forth in Exhibit A. In rendering such opinion to the effect set forth
in Exhibit A, such counsel may rely as to matters of New York law upon the
opinion of Xxxxx Xxxx & Xxxxxxxx, counsel to the Underwriters, being
delivered pursuant to subparagraph (d).
(c) The Representatives shall have received on the Closing Date an
opinion of the General Counsel of the Guarantor, and addressed to the
Representatives, dated the Closing Date, to the effect set forth in Exhibit
B.
(d) The Representatives shall have received on the Closing Date an
opinion of Xxxxx Xxxx & Xxxxxxxx, counsel to the Underwriters, dated the
Closing Date, and addressed to the Representatives, relating to the
incorporation of the Guarantor, the validity of the Offered Securities and
the Underwriting Agreement, the Registration Statement, the Prospectus and
other related matters as the Representatives may reasonably request. In
rendering such opinion, such counsel may rely as to matters of Minnesota
law upon the opinions of Xxxxxx & Whitney LLP and the General Counsel of
the Guarantor being delivered pursuant to subsections (b) and (c),
respectively.
(e) The Representatives shall have received on the Closing Date an
opinion of Xxxxxx & Xxxxxxx LLP, special tax counsel for the Trust and the
Guarantor, dated the Closing Date and addressed to the Representatives, to
the effect set forth in ExhibitC.
(f) The Representatives shall have received on the Closing Date an
opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for
the Trust and the Guarantor, dated the Closing Date and addressed to the
Representatives, to the effect set forth in Exhibit D.
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(g) At the time of execution of the applicable Underwriting
Agreement, the Representatives shall have received a letter dated such date
in form and substance satisfactory to the Representatives, from Ernst &
Young LLP, to the effect set forth in Exhibit E.
(h) At Closing Date, the Representatives shall have received from
Ernst & Young LLP a letter, dated as of the Closing Date, to the effect
that they reaffirm the statements made in the letter furnished pursuant to
subsection (g) of this Article.
(i) On or prior to the Closing Date, Xxxxx Xxxx & Xxxxxxxx, counsel
to the Underwriters, shall have been furnished with such documents and
opinions as they may reasonably require for the purpose of enabling them to
pass upon the issuance and sale of the Offered Securities as herein
contemplated and related proceedings, or in order to evidence the accuracy
and completeness of any of the representations and warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Guarantor and the Trust in connection with the issuance and
sale of the Offered Securities as herein contemplated shall be satisfactory
in form and substance to the Underwriters and Xxxxx Xxxx & Xxxxxxxx.
(j) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there shall not have been
any material adverse change in the condition, financial or otherwise, of
the Trust or of the Guarantor and its subsidiaries considered as one
enterprise, or in the earnings, affairs or business prospects of the Trust
or of the Guarantor and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, other than as
set forth in the Prospectus as amended or supplemented to the Closing Date,
and (ii) there shall not have occurred since the date of the applicable
Underwriting Agreement any outbreak or escalation of hostilities or any
material change in financial markets or other calamity or crisis the effect
of which is such as to make it, in the judgment of the Representatives,
impracticable or inadvisable to proceed with the public offering or the
delivery of the Offered Securities on the terms and in the manner
contemplated by the Prospectus, and (iii) trading in securities of the
Guarantor as of the date of the Underwriting Agreement shall not have been
suspended by the Commission or a national securities exchange, nor shall
trading generally on either the American Stock Exchange or the New York
Stock Exchange have been suspended, or minimum or maximum prices for
trading of securities generally have been fixed, or maximum ranges for
prices for securities (other than trading limits currently in effect and
other similar trading limits) have been required, or trading otherwise
materially limited, by either of said exchanges or by order of the
Commission or any other governmental authority, nor shall a banking
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moratorium have been declared by either Federal or New York authorities nor
shall a banking moratorium have been declared by the relevant authorities
in the country or countries of origin of any foreign currency or currencies
in which the Securities are denominated or payable, and (iv) the rating
assigned by any nationally recognized statistical rating organization to
any debt securities of the Guarantor as of the date of the Underwriting
Agreement shall not have been downgraded nor shall any notice have been
given by any such nationally recognized statistical rating organization of
any intended or potential downgrading or any review for possible change
that does not indicate the direction of the possible change in such rating,
and (v) the Prospectus, at the time it was required to be delivered to a
purchaser of the Offered Securities, shall not have contained an untrue
statement of a material fact or omitted to state a material fact necessary
in order to make the statements therein, in light of the circumstances
existing at such time, not misleading.
(k) The Representatives shall have received on the Closing
Date a certificate of Wilmington Trust Company as Guarantee, Debenture,
Property and Delaware Trustee.
(l) The Trust Agreement, the Guarantee and the Indenture shall
have been duly authorized, executed and delivered, in each case in a form
reasonably satisfactory to the Representatives.
(m) The Securities to be sold by the Trust at such time of
delivery shall have been duly listed, subject to notice of issuance, on the
New York Stock Exchange.
VI
In further consideration of the agreements of the Underwriters
contained in the Underwriting Agreement, the Guarantor and the Trust, jointly
and severally, covenant as follows:
(a) The Guarantor and the Trust will give the Representatives
notice of their intention to file any amendment to the Registration
Statement or any amendment or supplement to the Prospectus, whether by the
filing of documents pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), the Securities Act or otherwise. The
Guarantor and the Trust will furnish the Representatives with copies of any
such amendment or supplement or other documents, other than documents filed
pursuant to the Exchange Act, proposed to be filed a reasonable time in
advance of filing, and will furnish the Representatives with copies of
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documents filed pursuant to the Exchange Act promptly upon the filing
thereof;
(b) The Guarantor and the Trust will promptly notify the
Representatives immediately (i) of the filing and effectiveness of any
amendment to the Registration Statement, (ii) of the mailing or the
delivery to the Commission for filing of any supplement to the Prospectus
or any document to be filed pursuant to the Exchange Act which will be
incorporated by reference in the Prospectus, (iii) of the receipt of any
comments from the Commission with respect to the Registration Statement or
the Prospectus or any amendment or supplement thereto, (iv) of any request
by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information,
(v) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation or threat of
initiation of any proceedings for that purpose, or (vi) of the suspension
of qualification of the Offered Securities for offering or sale in any
jurisdiction or the initiation or threat of initiation of any proceedings
for that purpose. The Guarantor and the Trust will make every reasonable
effort to prevent the issuance of any stop order or suspension of
qualification and, if any stop order or suspension of qualification is
issued, to obtain the lifting thereof at the earliest possible moment;
(c) If, during the period after the date of the first public
offering of the Offered Securities when the Prospectus is required by law
to be delivered, any event shall occur or condition exist as a result of
which it is necessary, in the reasonable opinion of the counsel for the
Underwriters or counsel for the Guarantor and the Trust, to further amend
or supplement the Prospectus in order that the Prospectus will not include
an untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein not misleading in the
light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the reasonable opinion of either
such counsel, at any such time to amend or supplement the Registration
Statement or the Prospectus in order to comply with the requirements of the
Securities Act or the rules and regulations issued by the Commission
thereunder immediate notice shall be given, and confirmed in writing, to
the Representatives, and the Guarantor and the Trust will promptly prepare
and file with the Commission such amendment or supplement, whether by
filing documents pursuant to the Exchange Act, the Securities Act or
otherwise, as may be necessary to correct such untrue statement or omission
or to make the Registration Statement comply with such requirements;
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(d) The Guarantor and the Trust will make generally available to
its security holders (as defined in Rule 158) as soon as practicable, but
not later than 45 days after the close of each of the first three fiscal
quarters of each fiscal year and 90 days after the close of each fiscal
year, earnings statements (in form complying with the provisions of Rule
158 under the Securities Act) covering a twelve month period beginning not
later than the first day of the fiscal quarter next following the effective
date of the Registration Statement (as defined in Rule 158) with respect to
each sale of Securities;
(e) The Guarantor and the Trust will deliver to the
Representatives, without charge, as many signed and conformed copies of the
registration statement (as originally filed) and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein
and documents incorporated by reference in the Prospectus) as the
Representatives may reasonably request. The Guarantor and the Trust will
furnish to the Representatives as many copies of the Prospectus (as amended
or supplemented) as the Representatives shall reasonably request so long as
the Underwriters are required to deliver a Prospectus in connection with
the offering or sale of the Offered Securities;
(f) The Guarantor and the Trust will endeavor, in cooperation
with the Representatives, to qualify the Offered Securities for offering
and sale under the applicable securities laws of such states and other
jurisdictions of the United States as the Representatives may designate,
and will maintain such qualifications in effect for as long as may be
required for the distribution of the Offered Securities; provided, however,
that neither the Guarantor nor the Trust shall be obligated to file any
general consent to service of process or to qualify as a foreign
corporation in any jurisdiction in which it is not so qualified. The
Guarantor and the Trust will file such statements and reports as may be
required by the laws of each jurisdiction in which the Securities have been
qualified as above provided;
(g) The Guarantor, during the period when the Prospectus is
required to be delivered under the Securities Act, will file promptly all
documents required to be filed with the Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act;
(h) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the last Closing Date for such
Offered Securities, the Guarantor and Trust will not offer, sell, contract
to sell or otherwise dispose of any Securities, any other beneficial
interest in the assets of the Trust, or any other securities of the Trust
or any other similar trust which are substantially similar to the Offered
Securities,
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including any guarantee of such securities, or any junior subordinated
debentures of the Guarantor issued to the Trust or other similar trust, or
any securities convertible into or exchangeable for or representing the
right to receive Securities, or any such substantially similar securities
of the Trust or any other similar trust, or any junior subordinated
debentures of the Guarantor issued to the Trust or other similar trust,
without the prior written consent of the Representatives;
(i) The Guarantor will issue the Guarantee and the Junior
Subordinated Debentures concurrently with the issue and sale of the Offered
Securities as contemplated herein;
(j) The Guarantor will use the net proceeds received by it from
the sale of the Junior Subordinated Debentures, and to cause the Trust to
use the net proceeds received by the Trust from the sale of Offered
Securities pursuant to the Underwriting Agreement, in the manner specified
in the Prospectus under the caption "Use of Proceeds", and to further cause
the Trust to comply with the provisions of this Article VI that are
applicable to it, including paragraph (h);
(k) The Guarantor and the Trust will use their best efforts to
list, subject to notice of issuance, the Offered Securities on the New York
Stock Exchange;
(l) To prepare the Prospectus as amended and supplemented in
relation to the applicable Offered Securities in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Securities Act in the manner and within the time period required by
Rule 424(b), and to make no further amendment or any supplement to the
Registration Statement or Prospectus as amended or supplemented after the
date of the Underwriting Agreement relating to such Offered Securities
and prior to any Closing Date for such Offered Securities which shall
be disapproved by the Representatives for such Offered Securities
promptly after reasonable notice thereof.
VII
Each of the Guarantor and the Trust jointly and severally represents
and warrants to each Underwriter that:
(a) The Registration Statement has been filed with the
Commission in the form heretofore delivered or to be delivered to the
Representatives and, excluding exhibits to the Registration Statement, but
including all documents incorporated by reference in the Basic Prospectus,
to
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the Representatives for each of the other Underwriters and the Registration
Statement in such form has been declared effective by the Commission and no
stop order suspending the effectiveness of the Registration Statement has
been issued and no proceeding for that purpose has been initiated or
threatened by the Commission;
(b) The documents incorporated by reference in the Prospectus,
at the time they were or hereafter are filed with the Commission, complied
or will comply in all material respects with the requirements of the
Exchange Act and the rules and regulations of the Commission thereunder,
and when read together and with the other information in the Prospectus, at
the time the Registration Statement became, and any amendments thereto
become, effective, and as of the Closing Date, did not and will not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were or are made, not
misleading;
(c) The Registration Statement and the Prospectus, at the time
the Registration Statement and each part thereof became or hereafter become
effective, complied and any amendments or supplements thereto will comply,
in all material respects with the requirements of the Securities Act and
the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") and
the rules and regulations of the Commission thereunder. The Registration
Statement at the time the Registration Statement and each part thereof
became effective did not and as of the Closing Date will not, contain an
untrue statement of any material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading. The Prospectus, at the time the Registration Statement
became effective did not, and as of the Closing Date will not, contain an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information relating to an Underwriter furnished in writing to the
Guarantor or the Trust by such Underwriter of Offered Securities through
the Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Offered Securities or to that part of the
Registration Statement constituting the Statement of Eligibility and
Qualification under the Trust Indenture Act (Form T-1) of the Trustee;
(d) The Guarantor has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware, is duly registered as a bank holding company under the Bank
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Holding Company Act of 1956, as amended, with corporate power and authority
to own, lease and operate its properties and conduct its business as
described in the Registration Statement; and the Guarantor is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which its ownership or lease of
substantial properties or the conduct of its business requires such
qualification;
(e) U.S. Bank National Association, the Guarantor's principal
subsidiary bank, has been duly incorporated and is validly existing as a
national banking association in good standing under the laws of the United
States and has corporate power and authority to own, lease and operate its
properties and conduct its business as described in the Registration
Statement; all of the issued and outstanding capital stock of such bank has
been duly authorized and validly issued and is fully paid and, except as
provided in 12 U.S.C. Section 55, non-assessable; and 100% of the capital
stock of U.S. Bank National Association, other than any director's
qualifying shares, is owned by the Guarantor, directly or through
subsidiaries, free and clear of any mortgage, pledge, lien, encumbrance,
claim or equity;
(f) The authorized, issued and outstanding capital stock of the
Guarantor is as set forth in the Registration Statement, and the shares of
issued and outstanding common stock set forth thereunder have been duly
authorized and validly issued and are fully paid and non-assessable;
(g) The Trust has been duly created and is validly existing as a
statutory business trust in good standing under the Trust Agreement and the
Business Trust Act of the State of Delaware and has the trust power and
authority to own its properties and conduct its business as described in
the Prospectus, and the Trust has conducted no business to date, and it
will conduct no business in the future that would be inconsistent with the
description of the Trust set forth in the Prospectus; the Trust is not a
party to or bound by any agreement or instrument other than the
Underwriting Agreement, the Trust Agreement and the agreements and
instruments contemplated by the Trust Agreement; the Trust has no
liabilities or obligations other than those arising out of the transactions
contemplated by the Underwriting Agreement and the Trust Agreement and
described in the Prospectus; based on expected operations and current law,
the Trust is not and will not be classified as an association taxable as a
corporation for United States federal income tax purposes; and the Trust is
not a party to or subject to any action, suit or proceeding of any nature.
(h) The Offered Securities have been duly authorized by the
Trust Agreement and, when issued and delivered in accordance with the terms
of the Underwriting Agreement, the Trust Agreement and the
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Prospectus, will be validly issued and, subject to the qualifications set
forth herein, fully paid and nonassessable undivided beneficial interests
in the assets of the Trust under the Trust Agreement and the Delaware
Business Trust Act and will conform to the description of the Offered
Securities contained in the Prospectus; the issuance of the Offered
Securities is not subject to any preemptive or other similar rights; the
Offered Securities will have the rights set forth in the Trust Agreement;
and the holders of Offered Securities, as beneficial owners of the Trust,
will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware, provided that the holders of
Offered Securities may be obligated, pursuant to the Trust Agreement, (a)
to provide indemnity and/or security in connection with any taxes or
governmental charges arising from transfers or exchanges of Capital
Securities Certificates (as defined in the Trust Agreement) and the
issuance of replacement Capital Securities Certificates and (b) to provide
security and indemnity in connection with requests of or directions to the
Property Trustee (as defined in the Trust Agreement) to exercise its rights
and remedies under the Trust Agreement.
(i) The Common Securities of the Trust to be sold to the
Guarantor have been duly authorized by the Trust Agreement, and, when
issued in accordance with the terms of the Trust Agreement and delivered to
the Guarantor against payment therefor as described in the Prospectus, will
represent validly issued undivided beneficial interests in the assets of
the Trust and will conform to the description thereof contained in the
Prospectus; the issuance of the Common Securities is not subject to
preemptive or other similar rights; and at the Closing Date all of the
issued and outstanding Common Securities of the Trust will be directly
owned by the Guarantor free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity.
(j) The Guarantee, the Junior Subordinated Debentures, the
Expense Agreement and the Indenture (the Guarantee, the Junior Subordinated
Debentures, the Expense Agreement, the Trust Agreement and the Indenture
being collectively referred to as the "Guarantor Agreements") have each
been duly authorized and when validly executed and delivered by the
Guarantor will constitute valid and legally binding obligations of the
Guarantor, enforceable in accordance with their respective terms, except as
the enforceability thereof may be limited by (i) bankruptcy, insolvency,
moratorium, reorganization, arrangement, liquidation, conservatorship,
readjustment of debt, fraudulent transfer and other similar laws affecting
the rights of creditors generally; and (ii) the discretion of any court of
competent jurisdiction in awarding equitable remedies, including, without
limitation, acceleration, specific performance or injunctive relief, and
the effect of
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general principles of equity embodied in Minnesota, Delaware and New York
statutes and common law. The Junior Subordinated Debentures are entitled to
the benefits of the Indenture; and the Guarantor Agreements will conform to
the descriptions thereof in the Prospectus.
(k) The Trust Agreement has been duly authorized and when
validly executed and delivered by the Guarantor and the Administrative
Trustees as of the Closing Date will constitute a valid and binding
obligation of the Guarantor and the Administrative Trustees, enforceable in
accordance with its terms, subject to the effect upon the Trust Agreement
of (i) bankruptcy, insolvency, moratorium, receivership, reorganization,
liquidation, fraudulent conveyance or transfer and other similar laws
relating to or affecting the rights and remedies of creditors generally,
(ii) principals of equity, including applicable law relating to fiduciary
duties (regardless of whether considered and applied in a proceeding in
equity or at law), and (iii) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or contribution.
(l) The execution and delivery by the Trust of, and the
performance by the Trust of its obligations under the Underwriting
Agreement and the Trust Agreement do not violate (A) the Trust Agreement or
the Certificate of Trust of the Trust, (B) any applicable Delaware law,
rule or regulation or (C) any provision of applicable law of the State of
Minnesota or the United States; will not contravene any provision of
applicable law, the Trust Agreement, the certificate of incorporation or
bylaws of the Guarantor or articles of association of bylaws of U.S. Bank
National Association or any agreement or other instrument binding upon the
Trust, the Guarantor or U.S. Bank National Association that is material to
the Trust or to the Guarantor and its subsidiaries, taken as a whole, or
any judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Trust; and no consent, approval,
authorization, order, license, certificate, permit, registration or
qualification of, or with, any governmental or regulatory body is required
for the performance by the Trust of its obligations under the Underwriting
Agreement or the Trust Agreement, except such as may be required by the
securities or Blue Sky laws of the various states in connection with the
offer and sale of the Offered Securities and Common Securities.
(m) The execution and delivery by the Guarantor of, and the
performance by the Guarantor of its obligations under the Underwriting
Agreement and the Guarantor Agreements, will not contravene any provision
of applicable law, the Trust Agreement, the certificate of incorporation or
bylaws of the Guarantor or articles of association or bylaws of U.S. Bank
National Association or any agreement or other instrument
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binding upon the Guarantor or U.S. Bank National Association that is
material to the Guarantor and its subsidiaries, taken as a whole, or any
judgment, order or decree of any governmental body, agency or court having
jurisdiction over the Guarantor or any subsidiary; and no consent,
approval, authorization or order of, or qualification with, any
governmental or regulatory body is required for the performance by the
Guarantor of its obligations under the Underwriting Agreement or the
Guarantor Agreements, except such as may be required by the securities or
Blue Sky laws of the various states in connection with the offer and sale
of the Junior Subordinated Debentures.
(n) Neither the Trust, the Guarantor nor U.S. Bank National
Association is in violation of its organizational documents or in default
in the performance or observance of any obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a party or
by which it or any of its properties may be bound, which violation or
default would be material to the Trust or to the Guarantor and its
subsidiaries taken as a whole.
(o) The statements set forth in the Prospectus under the
captions "U.S. Bancorp," "The Issuers," "Description of Junior Subordinated
Debentures," "Description of Capital Securities," "Description of
Guarantees," "Plan of Distribution," "Risk Factors--Possible Tax Law
Changes Affecting the Preferred Securities," "Issuer," "Certain Terms of
Preferred Securities," "Certain Terms of Junior Subordinated Debentures,"
"Certain Federal Income Tax Consequences," "Underwriting" and such other
sections as may be identified in the Underwriting Agreement, are accurate,
complete and fair.
(p) The Trust is not, and after giving effect to the offering
and sale of the Offered Securities and the application of the proceeds
thereof as described in the Prospectus will not be an "investment company"
that is required to be registered under the Investment Company Act of 1940,
as amended, and the Guarantor is not, and after giving effect to the
issuance of the Junior Subordinated Debentures and the application of the
proceeds thereof as described in the Prospectus will not be an "investment
company" that is required to be registered under the Investment Company Act
of 1940, as amended.
(q) Each of the Trust, the Guarantor and the subsidiaries of the
Guarantor own or possess or have obtained all material governmental
licenses, permits, consents, orders, approvals and other authorizations
necessary to lease or own, as the case may be, and to operate their
respective properties and to carry on their respective businesses as
presently conducted;
-14-
(r) Each of the Trust, the Guarantor and the subsidiaries of the
Guarantor own or possess adequate trademarks, service marks and trade names
necessary to conduct the business now operated by them, and neither the
Trust, the Guarantor nor any of the subsidiaries of the Guarantor has
received any notice of infringement of or conflict with asserted rights of
others with respect to any trademarks, service marks or trade names which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would materially adversely affect the conduct of the
business, operations, financial condition or income of the Trust or of the
Guarantor and its subsidiaries considered as one enterprise;
(s) There is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now pending, or,
to the knowledge of the Trust or the Guarantor, threatened against or
affecting, the Trust or the Guarantor or any of the subsidiaries of the
Guarantor, which might result in any material adverse change in the
condition, financial or otherwise, of the Trust or the Guarantor and the
subsidiaries of the Guarantor considered as one enterprise, or in the
business prospects of the Guarantor and the subsidiaries of the Guarantor
considered as one enterprise, or might materially and adversely affect the
properties or assets thereof or might materially and adversely affect the
consummation of this Agreement and the consummation of the transactions
contemplated hereby; and there are no material contracts or documents of
the Trust or the Guarantor or any of the subsidiaries of the Guarantor
which are required to be filed as exhibits to the Registration Statement by
the Securities Act or by the rules and regulations of the Commission
thereunder which have not been so filed;
(t) No labor dispute with the employees of the Guarantor or any
of its subsidiaries exists or, to the knowledge of the Guarantor, is
imminent;
(u) The accountants who certified the financial statements
included or incorporated by reference in the Prospectus are independent
public accountants as required by the Securities Act and the rules and
regulations issued by the Commission thereunder;
(v) The financial statements of the Guarantor and its
consolidated subsidiaries included or incorporated by reference in the
Prospectus present fairly the financial position of the Guarantor and its
consolidated subsidiaries as at the dates indicated and the results of
their operations for the periods specified; except as stated therein, said
financial statements have been prepared in conformity with generally
accepted
-15-
accounting principles applied on a consistent basis; and the pro forma
financial information, and the related notes thereto, included or
incorporated by reference to the Prospectus has been prepared in accordance
with the applicable requirements of the Securities Act and the Exchange Act
and the rules and regulations issued by the Commission thereunder;
(w) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, except as otherwise
stated therein or contemplated thereby, (A) there has been no material
adverse change in the condition, financial or otherwise, of the Trust or
the Guarantor and the subsidiaries of the Guarantor considered as one
enterprise or in the earnings, affairs or business prospects of the Trust
or the Guarantor and the subsidiaries of the Guarantor considered as one
enterprise, whether or not arising in the ordinary course of business, and
(B) there have been no material transactions entered into by the Trust or
the Guarantor, or any of the subsidiaries of the Guarantor other than those
in the ordinary course of business; and
(x) This Agreement has been duly authorized, executed and
delivered by the Guarantor and the Trust.
VIII
(a) The Guarantor and the Trust agree, jointly and severally, to indemnify
and hold harmless each Underwriter and each person, if any, who controls such
Underwriter (each an "Indemnified Person") within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or
any amendment thereto), or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Prospectus (or
any amendment or supplement thereto or any related preliminary prospectus
or preliminary prospectus supplement) or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, unless such untrue statement or omission was made in reliance
upon and in conformity with written information relating to such
Indemnified Person furnished to the Guarantor or the Trust by the
Representatives expressly for use in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement
-16-
thereto or any related preliminary prospectus or preliminary prospectus
supplement);
(ii) against any and all loss, liability, claim, damage and
expense whatsoever to the extent of the aggregate amount paid in settlement
of any litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, or of any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission (except as made in reliance upon and in conformity
with information relating to such Indemnified Person furnished by the
Representatives as aforesaid) if such settlement is effected with the
written consent of the Guarantor or the Trust; and
(iii) against any and all expense whatsoever (including the fees
and disbursements of counsel chosen by such Indemnified Person), as
incurred, reasonably incurred in investigating, preparing or defending
against any litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based upon
any such untrue statement or omission, or any such alleged untrue statement
or omission (except as made in reliance upon and in conformity with
information relating to such Indemnified Person furnished by the
Representatives as aforesaid), to the extent that any such expense is not
paid under (i) or (ii) above.
(b) Each Underwriter will indemnify and hold harmless the Guarantor and
the Trust, each of their respective directors or trustees, each of their
officers who signed the Registration Statement, and each person, if any, who
controls the Guarantor or the Trust within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
subsection (a) of this Section, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto) or the Prospectus (or any amendment or
supplement thereto or any related preliminary prospectus or preliminary
prospectus supplement) in reliance upon and in conformity with written
information relating to such Underwriter furnished to the Guarantor or the Trust
by the Representatives expressly for use in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement thereto or
any related preliminary prospectus or preliminary prospectus supplement).
(c) Each indemnified party shall give prompt notice to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder but failure to so notify an indemnifying party shall not
relieve it from any liability which it may have otherwise than on account of
this indemnity
-17-
agreement. An indemnifying party may participate at its own expense in the
defense of such action. In no event shall the indemnifying parties be liable
for the fees and expenses of more than one counsel (in addition to any local
counsel) for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances; provided, however, that when more
than one of the Underwriters is an indemnified party each such Underwriter shall
be entitled to separate counsel (in addition to any local counsel) in each such
jurisdiction to the extent such Underwriter may have interests conflicting with
those of the other Underwriter or Underwriters because of the participation of
one Underwriter in a transaction hereunder in which the other Underwriter or
Underwriters did not participate. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in this Section VIII
is for any reason held to be unavailable to the Underwriters in accordance with
its terms, the Guarantor, the Trust and the Underwriters shall contribute to the
aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by said indemnity agreement incurred by the Guarantor and the Trust
on the one hand and the Underwriters on the other with respect to Securities
sold to the Underwriters in such proportions as is appropriate to reflect the
relative benefits received by the Guarantor and the Trust on the one hand and
the Underwriters on the other. The relative benefits received by the Guarantor
and the Trust on the one hand and the Underwriters on the other shall be deemed
to be in such proportion represented by the percentage that the total
commissions and underwriting discounts received by the Underwriters to the date
of such liability bears to the total sales price (before deducting expenses)
received by the Trust from the sale of the Offered Securities made to the
Underwriters to the date of such liability, and the Guarantor and the Trust are
responsible for the balance. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
Underwriters failed to give the notice required under (c), then the Guarantor
and the Trust on the one hand and the Underwriters on the other shall contribute
to such aggregate losses, liabilities, claims, damages and expenses in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Guarantor and the Trust on the one hand and the
Underwriters on the other in connection with the statements or omissions which
resulted in such liabilities, claims, damages and expenses, as well as any other
relevant equitable considerations. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the
-18-
omission or alleged omission to state a material fact relates to information
supplied by the Guarantor and the Trust or the Representatives and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Guarantor, the Trust and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this paragraph were determined pro rata (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to in this paragraph. Notwithstanding the provisions of this paragraph, the
Underwriters shall not be required to contribute any amount in excess of the
amount by which the total price at which the Securities referred to in the
second sentence of this paragraph that were offered and sold to the public
through the Underwriters exceeds the amount of any damages that the Underwriters
have otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled under this paragraph to contribution from any person who was
not guilty of such fraudulent misrepresentation. For purposes of this Section,
each person, if any, who controls any Underwriter within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act shall have the same
rights to contribution as such Underwriter, and each director of the Guarantor,
each trustee of the Trust, each officer of the Guarantor and the Trust who
signed the Registration Statement, and each person, if any, who controls the
Guarantor or the Trust within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act shall have the same rights to contribution as the
Guarantor and the Trust.
IX
The indemnity and contribution agreements contained in Section VIII
hereof and the representations and warranties of the Guarantor and the Trust in
this Agreement or in any certificate submitted pursuant hereto shall remain
operative and in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by any Underwriter or on behalf of any
Underwriter or any person controlling any Underwriter or by or on behalf of the
Guarantor and the Trust or each of their respective directors or trustees or
each of their officers or any person controlling the Guarantor and the Trust and
(iii) acceptance of any payment for any of the Offered Securities, if any.
X
If any Underwriter shall default in its obligation to purchase the
Offered Securities, which it has agreed to purchase hereunder, the
Representatives may in their discretion arrange for themselves or another party
or other parties to purchase such Offered Securities on the terms contained
herein. If within thirty-six hours after such default by any Underwriter the
Representatives do not arrange for
-19-
the purchase of such Offered Securities then the Guarantor and the Trust shall
be entitled to a further period of thirty-six hours within which to procure
another party or other parties satisfactory to the Representatives to purchase
such Offered Securities on such terms. In the event that, within the respective
prescribed period, the Representatives notify the Guarantor and the Trust that
they have so arranged for the purchase of such Offered Securities or the
Guarantor or the Trust notify the Representatives that it has so arranged for
the purchase of such Offered Securities, the Representatives, the Guarantor or
the Trust shall have the right to postpone the Closing Date for a period of not
more than seven days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus, or in any other
documents or arrangements, and the Guarantor and the Trust agree to file
promptly any amendments or supplements to the Registration Statement or the
Prospectus which in the reasonable opinion of the Representatives may thereby be
made necessary. The term "Underwriters" as used in this Agreement shall include
any person substituted under this Section X with like effect as if such person
had originally been a party to this Agreement with respect to such Offered
Securities.
If, after giving effect to any arrangements for the purchase of the
Offered Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Guarantor and the Trust as provided in the immediately
preceding paragraph hereof, the aggregate principal amount of such Offered
Securities which remains unpurchased does not exceed one-eleventh of the
aggregate principal amount of all the Offered Securities then the Guarantor and
the Trust shall have the right to require each non-defaulting Underwriter to
purchase the Offered Securities which such Underwriter agreed to purchase
hereunder and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the principal amount of Offered Securities
which such Underwriter agreed to purchase hereunder) of the Offered Securities
of such defaulting Underwriter or Underwriters for which such arrangements have
not been made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
If, after giving effect to any arrangements for the purchase of the
Offered Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Guarantor and the Trust as provided in the first
paragraph of this Section X, the aggregate principal amount of Offered
Securities which remains unpurchased exceeds one-eleventh of the aggregate
principal amount of all the Offered Securities or if the Guarantor and the Trust
shall not exercise the right described in the immediately preceding paragraph to
require non-defaulting Underwriters to purchase Offered Securities of a
defaulting Underwriter or Underwriters, then this Agreement shall thereupon
terminate, without liability on the part of any non-defaulting Underwriters, the
Guarantor or the Trust, except for the expenses to be borne by the Guarantor,
the Trust and the Underwriters as
-20-
provided in Section XI hereof and the indemnity and contribution agreements in
Section VIII hereof; but nothing herein shall relieve a defaulting Underwriter
from liability for its default.
XI
The Guarantor covenants and agrees with the several Underwriters that
the Guarantor will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Guarantor's and the Trust's counsel and
accountants in connection with the registration of the Securities under the
Securities Act and all other expenses in connection with the preparation,
printing and filing of the Registration Statement and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and to dealers; (ii) the cost of printing this
Agreement and any Blue Sky and legal investment memoranda; (iii) all expenses in
connection with the qualification of the Offered Securities for offering and
sale under state securities laws as provided in Section VI hereof, including the
fees and disbursements of counsel in connection with such qualification and in
connection with the preparation of any Blue Sky memorandum or any Blue Sky and
legal investment surveys; (iv) any fees charged by securities rating services
for rating the Securities; (v) the cost of preparing the Securities; (vi) the
fees and expenses of the Trustee and any agent of the Trustee and the fees and
disbursements of counsel for the Trustee in connection with the Indenture, the
Trust Agreement and the Securities; (vii) the fees and expenses incident to any
Overallotment Options which are not otherwise specifically provided for in this
section; and (viii) all other costs and expenses incident to the performance of
its obligations hereunder which are not otherwise specifically provided for in
this Section XI. It is understood, however, that, except as provided in this
Section XI and Sections VIII and XII hereof, the Underwriters will pay all of
their own costs and expenses, including the fees of their counsel, transfer
taxes on resale of any of the Offered Securities by them and any advertising
expenses connected with any offers they may make.
XII
If the Underwriting Agreement shall be terminated by the Underwriters
or any of them, because of any failure or refusal on the part of the Guarantor
or the Trust to comply with the terms or to fulfill any of the conditions of the
Underwriting Agreement, or if for any reason the Guarantor or the Trust shall be
unable to perform its obligations under the Underwriting Agreement except
pursuant to Article X hereof, the Guarantor will reimburse the Underwriters
or such Underwriters as have so terminated the Underwriting Agreement with
respect to themselves, severally, for all out-of-pocket expenses (including the
fees and disbursements of their counsel) reasonably incurred by such
Underwriters in connection with the Offered Securities.
-21-
XIII
In all dealings hereunder, the Representatives of the Underwriters of
Offered Securities shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the representatives, if any, as may be
designated for such purpose hereunder.
All statements, requests, notices and agreements hereunder shall be in
writing or by telegram if promptly confirmed in writing, and if to the
Underwriters shall be sufficient in all respects if delivered or sent by
registered mail to the address of the principal offices of the Representatives
and if to the Guarantor or the Trust shall be sufficient in all respects if
delivered or sent by registered mail to the address of the Guarantor set forth
in the Registration Statement, Attention: Treasurer; provided, however, that any
notice to an Underwriter pursuant to Section VIII hereof shall be delivered or
sent by registered mail to such Underwriter at its address set forth in its
Underwriters' Questionnaire, or telex constituting such Underwriters'
Questionnaire, which address will be supplied to the Guarantor by the
Representatives upon request.
XIV
This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Guarantor, the Trust and, to the extent provided in
Section VIII hereof, the officers and directors of the Guarantor, the Trust and
each person who controls the Guarantor or the Trust or any Underwriter, and
their respective heirs, executors, administrators, successors and assigns, and
no other person shall acquire or have any right under or by virtue of this
Agreement. No purchaser of any of the Offered Securities from any Underwriter
shall be deemed a successor or assign by reason merely of such purchase.
-22-
XV
Time shall be of the essence of this Agreement.
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
This Agreement and the rights and obligations of the parties created
hereby shall be governed by the laws of the State of New York.
Exhibit A
Opinion of Counsel for the Trust and the Guarantor
--------------------------------------------------
The opinion or opinions of Xxxxxx & Xxxxxxx LLP, counsel for the Trust and
the Guarantor, to be delivered pursuant to Section V(b) of the Agreement, shall
be to the following effect (all terms used herein which are defined in the
Agreement have the meanings set forth therein):
(i) The Guarantor has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware.
(ii) The Guarantor has corporate power and authority to own, lease
and operate its properties and conduct its business as described in the
Prospectus.
(iii) U.S. Bank National Association has been duly incorporated and
is validly existing as a national banking association in good standing
under the laws of the United States, and has corporate power and authority
to own, lease and operate its properties and conducts its business as
described in the Prospectus.
(iv) The Underwriting Agreement has been duly authorized, executed
and delivered by the Guarantor.
(v) Each of the Trust Agreement, the Guarantee Agreement, the
Indenture, the Expense Agreement and the Guarantee has been duly and
validly authorized, executed and delivered by the Guarantor and (assuming
due authorization, execution and delivery thereof by the Issuer Trustees,
the Guarantee Trustee, the Debenture Trustee and the Trust, respectively)
constitutes a valid and binding agreement of the Guarantor, enforceable in
accordance with its terms, except as (i) enforceability thereof may be
limited by bankruptcy, insolvency, or other laws relating to or affecting
creditors' rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by principles of general
applicability.
(vi) The Junior Subordinated Debentures have been duly and validly
authorized by all necessary corporate action and, when authenticated by the
Debenture Trustee, issued and delivered in the manner provided in the
Indenture, will constitute valid and binding obligations of the Guarantor,
entitled to the benefits of the Indenture and enforceable in accordance
with their terms, except as (i) enforcement thereof may be limited by
bankruptcy,
-A-1-
insolvency, or other laws relating to or affecting creditors' rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability.
(vii) The statements in the Prospectus under the captions
"Description of Junior Subordinated Debentures", "Description of the
Capital Securities", "Description of Guarantee" and "Relationship Among the
Capital Securities, the Junior Subordinated Debentures and the Guarantee"
insofar as they purport to summarize certain provisions of documents
specifically referred to therein, are accurate summaries of such
provisions.
(viii) The Exchange Act reports (other than the financial statements
and related schedules therein, as to which such counsel need express no
opinion), when they were filed with the Commission, complied as to form in
all material respects with the requirements of the Exchange Act, and the
rules and regulations of the Commission thereunder; and such counsel has no
reason to believe that any of such documents, when they were so filed, as
of its date contained an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such
documents were so filed, not misleading.
(ix) Neither the Trust nor the Guarantor is, and after giving effect
to the application of proceeds from the offering of the Securities as
contemplated in the Offering Circular, will be, an "investment company"
within the meaning of the Investment Company Act of 1940, as amended.
(x) No consent, approval, license, authorization, or order of any
court or governmental authority or agency is required in connection with
the issuance or sale of the Securities, the Junior Subordinated Debentures
or the Guarantee, except such as may be required under state securities or
Blue Sky laws.
(xi) To the best of such counsel's knowledge and information, there
are no contracts, indentures, mortgages, loan agreements, notes, leases or
other instruments required to be described or referred to in the Prospectus
other than those described or referred to therein or incorporated by
reference and the description thereof or references thereto are correct.
(xii) The execution and delivery of the Underwriting Agreement, the
Trust Agreement, the Guarantee Agreement, the Indenture, the Expense
Agreement, the issuance of the Guarantee and the Junior Subordinated
Debentures, and the consummation of the transactions contemplated herein
and therein, and the performance of the obligations thereunder will not (a)
-A-2-
conflict with or result in the creation or imposition of any lien, charge
or encumbrance upon any property or assets of the Guarantor or any
subsidiary pursuant to any contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which the Guarantor or any of its
subsidiaries is a party or by which it or any of them may be bound or to
which any of the property or assets of the Guarantor or any of its
subsidiaries is subject and that is material to the Guarantor and its
subsidiaries, taken as a whole, or (b) result in a violation of any
Applicable Law nor will such action result in any violation of the
provisions of the charter or bylaws of the Guarantor.
(xiii) No consent, approval, license, authorization, or order of any
federal court or federal government authority or agency is required for the
performance by the Trust of its obligations under this Agreement or the
consummation of the transactions contemplated hereby.
(xiv) The execution and delivery of the Underwriting Agreement and
the Expense Agreement by the Trust and the performance by the Trust of its
obligations hereunder and thereunder, the issuance and sale of the
Securities and the Common Securities by the Trust and the consummation of
the other transactions contemplated hereby or thereby will not violate any
provision of Applicable Law (other than any laws of the State of Delaware)
or, to 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.
(xv) To the knowledge of such counsel, there are no legal or
governmental proceedings pending or threatened against the Trust or to
which the Trust or any of its property is subject, that are required to be
described in the Prospectus that are not described as required and there
are no agreements, contracts, indentures, leases or other instruments of
the Trust that are required to be described in the Prospectus that are not
described as required.
In addition, Xxxxxx & Whitney LLP will state that it has participated in
the preparation of the Prospectus (as amended or supplemented, if applicable)
and that nothing has come to such counsel's attention that give such counsel
reason to believe that (other than the financial statements, schedules and other
financial data included therein, as to which no statement need be rendered) the
Prospectus (as amended or supplemented, if applicable) or, any document
incorporated by reference therein, at the time such Prospectus (as amended or
supplemented, if applicable) was circulated or at the Closing Date, contained or
contains an untrue
-A-3-
statement of a material fact or omitted or omits to state a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
For purposes of the foregoing opinion, such counsel may state that
"Applicable Law" shall mean only the laws of the United States, the State of
Delaware and the State of Minnesota which, in such counsel's experience, are
normally applicable to transactions of the type contemplated by the Underwriting
Agreement (but without such counsel having made any special investigation as to
the applicability of any specific law, rule or regulation except as specified
herein).
-A-4-
Exhibit B
Opinion of General Counsel of the Guarantor
--------------------------------------------
The opinion of the General Counsel of the Guarantor, to be delivered
pursuant to Section V(c) of the Agreement, shall be to the following effect (all
terms used herein which are defined in the Agreement have the meanings set forth
therein):
(i) The Guarantor is duly qualified to do business as a foreign
corporation and is in good standing in each U.S. jurisdiction in which its
ownership or lease of substantial properties or the conduct of its business
requires such qualification, except where the failure so to qualify would
not have a material adverse effect on the Guarantor and its subsidiaries,
taken as a whole.
(ii) U.S. Bank National Association is lawfully able to transact
business in each jurisdiction in which it owns or leases substantial
properties or conducts business, except for the jurisdictions in which the
failure to be lawfully able to conduct business would not have a material
adverse effect on U.S. Bank National Association and its subsidiaries,
taken as a whole.
(iii) There are no pending or, to the best of my knowledge, overtly
threatened lawsuits or claims which are required to be disclosed in the
Prospectus that are not disclosed as required.
-B-1-
Exhibit C
Opinion of Special Tax Counsel of the Trust and the Guarantor
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The opinion or opinions of Xxxxxx & Xxxxxxx LLP, to be delivered
pursuant to Section V(e) of the Agreement, shall confirm the opinions set forth
in the Prospectus under the caption "Certain Federal Income Tax Consequences."
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Exhibit D
Opinion of Special Delaware Counsel for the Trust and the Guarantor
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The opinion or opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., special
Delaware counsel for the Trust and the Guarantor, to be delivered pursuant to
Section V(f) of the Agreement, shall be to the following effect (all terms used
herein which are defined in the Agreement have the meanings set forth therein):
(i) The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act and has
the business trust power and authority to conduct its business as presently
conducted and as described in the Prospectus.
(ii) The Underwriting Agreement has been duly authorized, executed
and delivered by the Trust.
(iii) The Expense Agreement has been duly authorized, executed and
delivered by the Trust.
(iv) The Common Securities have been duly authorized for issuance and
when issued, delivered and paid for as set forth in the Prospectus, will
represent validly issued, undivided beneficial interests in the assets of
the Trust. The issuance of the Common Securities is not subject to
preemptive or other similar rights under the Delaware Business Trust Act or
the Trust Agreement.
(v) The Securities have been duly authorized for issuance and,
subject to the qualification set forth below, when issued, executed,
delivered and paid for in accordance with the Underwriting Agreement, will
represent validly issued, fully paid and nonassessable individual
beneficial interests in the assets of the Trust; the holders of the
Securities will be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized under
the General Corporate Law of the State of Delaware. Such counsel may state,
however, that the holders of Securities may be obligated, pursuant to the
Trust Agreement, to (i) provide indemnity and/or security in connection
with and pay taxes or governmental charges arising from transfers of
Securities and the issuance of replacement Securities, and (ii) provide
security and indemnity in connection with requests of or directions to the
Property Trustee of the Trust to exercise its rights and powers under the
Trust Agreement. The issuance of the Securities
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is not subject to preemptive or other similar rights under the Delaware Act
or the Trust Agreement.
(vi) The execution and deliver of the Underwriting Agreement and the
Expense Agreement by the Trust and the performance by the Trust of its
obligations hereunder and thereunder, the issuance and sale of the
Securities and the Common Securities by the Trust and the consummation of
the other transactions contemplated hereby or thereby will not violate any
provision of Applicable Law or the Trust Agreement and no consent,
approval, license, authorization or order of any court or governmental
authority or agency of the State of Delaware is required for the
performance by the Trust of its obligations under this Agreement or the
consummation of the transactions contemplated hereby, except such as are
required pursuant to state securities or Blue Sky laws.
(vii) The Trust is not authorized to issue any securities other than
the Securities, or the Common Securities,
For purposes of the foregoing opinion, such counsel may state that
"Applicable Law" shall mean only the Delaware Business Trust Act and those other
laws of the State of Delaware which, in such counsel's experience, are normally
applicable to transactions of the type contemplated by this Agreement (but
without such counsel having made any special investigation as to the
applicability of any specific law, rule or regulation except as specified
herein).
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Exhibit E
Letter from Ernst & Young LLP
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The Letter of Ernst & Young LLP to be delivered pursuant to Section
V(g) of the Agreement shall be to the following effect (all terms used herein
which are defined in the Agreement have the meanings set forth therein):
(i) They are independent public accountants with respect to the
Guarantor and its subsidiaries within the meaning of the Securities Act and
the applicable published rules and regulations thereunder.
(ii) In their opinion, the consolidated financial statements and
schedules audited by them and included in the Prospectus comply as to form
in all material respects with the applicable accounting requirements of the
Securities Act, the Exchange Act, as applicable, and the published rules
and regulations thereunder.
(iii) They have made a review of any unaudited consolidated financial
statements included in the Prospectus in accordance with standards
established by the American Institute of Certified Public Accountants, as
indicated in their report or reports attached to such letter.
(iv) On the basis of the review referred to in (iii) and a reading of
the latest available interim financial statements of the Guarantor and its
consolidated subsidiaries, inspection of the minute books of the Guarantor
and U.S. Bank National Association since the date of the balance sheet
included in the Guarantor's most recent audited financial statements,
inquiries of officials of the Guarantor responsible for financial and
accounting matters and other procedures, nothing came to their attention
that caused them to believe that the unaudited financial statements
included in the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the Securities Act,
the Exchange Act, and the published rules and regulations thereunder or
that the unaudited financial statements are not presented in conformity
with generally accepted accounting principles applied on a basis consistent
in all material respects with that of the audited financial statements
included in the Prospectus.
(v) They have performed specified procedures, not constituting an
audit, including a reading of the latest available interim financial
statements of the Guarantor and its consolidated subsidiaries, a reading of
the minute books of the Guarantor and U.S. Bank National Association since
the date of the balance sheet included in the Guarantor's most recent
audited financial
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statements, inquiries of officials of the Guarantor responsible for
financial and accounting matters and such other inquiries and procedures as
may be specified in such letter, and on the basis of such inquiries and
procedures nothing came to their attention that caused them to believe
that:
(A) at the date of the latest available consolidated balance
sheet read by such accountants, or at a subsequent specified date not
more than five days prior to the date of delivery of such letter,
there was any change in the capital stock of the Guarantor and its
consolidated subsidiaries, any increase in long-term debt of the
Guarantor and its consolidated subsidiaries or any decreases in
allowance for credit loss or consolidated common shareholders' equity
of the Guarantor and its consolidated subsidiaries, in each case as
compared with amounts shown in the most recent consolidated balance
sheet included in the Prospectus, except in each case for changes,
increases or decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter; or
(B) for the period from the date of the latest income statement
included in the Prospectus to the closing date of the latest available
income statement read by such accountants, there were any decreases,
as compared with the corresponding period in the preceding year, in
consolidated net income, consolidated net interest income before the
provision for credit losses, consolidated net interest income after
the provision for loan losses or in the ratio of earnings to fixed
charges, except in each case for increases or decreases which the
Prospectus discloses have occurred or may occur or which are described
in such letter.
(vi) They have compared certain agreed dollar amounts (or percentages
derived from such dollar amounts) and other financial information included
in the Prospectus (in each case to the extent that such dollar amounts,
percentages and other financial information are derived from the general
accounting records of the Guarantor and its subsidiaries subject to the
internal controls of the Guarantor's accounting system or are derived
directly from such records by analysis or computation) with the results
obtained from inquiries, a reading of such general accounting records and
other procedures specified in such letter, and have found such dollar
amounts, percentages and other financial information to be in agreement
with such results, except as otherwise specified in such letter.
All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed included in the
Prospectus for purposes of this Exhibit E.
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