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EXHIBIT 1.2
U.S. BANCORP
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(CAPITAL SECURITIES)
(APRIL 27, 2001)
From time to time, U.S. Bancorp, a Delaware corporation (the "Guarantor"),
and each of 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 III, USB IV and USB V propose that 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 July 23, 1999, Registration No.
333-83643. 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 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
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"Registration Statement" means the registration statement as amended to the date
of the Underwriting Agreement and includes any registration statement filed
pursuant to Rule 462(b) under the Securities Act. The term "Basic Prospectus"
means 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 as of its effective time, in the case of the
Registration Statement, and as of the date of such prospectus, in the case of
any Basic Prospectus, Prospectus or preliminary prospectus. Any reference to any
amendment or supplement to any Basic Prospectus, Prospectus or preliminary
prospectus shall be deemed to refer to and include any document incorporated by
reference after the date of such Basic Prospectus, Prospectus or preliminary
prospectus, as the case may be. Any reference to any amendment to the
Registration Statement shall be deemed to include any document incorporated by
reference after the effective time of such Registration Statement.
II
The terms of the public offering of the Firm Securities are set forth in
the Prospectus.
III
The Guarantor and the Trust may specify in the Underwriting Agreement
applicable to any Securities that the Guarantor and the Trust thereby grant to
the Underwriters the right (an "Overallotment Option") to purchase at their
election up to the number of Optional Shares set forth in such Underwriting
Agreement, on the terms set forth in the paragraph above, for the sole purpose
of covering over-allotments in the sale of the Firm Securities. Any such
election to purchase Optional Securities may be exercised by written notice from
each of the Representatives (as defined in the Underwriting Agreement) to the
Guarantor and the Trust, given within a period specified in the Underwriting
Agreement, setting forth the aggregate number of Optional Securities to be
purchased and the date on which such Optional Securities are to be delivered, as
determined by the Representatives but in no event earlier than the first Closing
Date or, unless the Representatives, the Guarantor and the Trust otherwise agree
in writing, earlier than or later than the respective number of business days
after the date of such notice set forth in such Underwriting Agreement.
The number of Optional Securities to be added to the number of Firm
Securities to be purchased by each Underwriter as set forth in Schedule I to the
Underwriting Agreement applicable to such Securities shall be, in each case, the
number of Optional Securities which the Guarantor has been advised by the
Representatives have been attributed to such Underwriter; provided, that, if the
Guarantor and the Trust have not been so advised, the number of Optional
Securities to be so added shall be, in each case, that proportion of Optional
Securities which the number of Firm Securities to be purchased by such
Underwriter under such Underwriting Agreement bears to the aggregate number of
Firm Securities (rounded as the Representatives
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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 the possible change, in the rating accorded any of the Trust's
securities or the Guarantor's securities by any nationally recognized
statistical rating organization, (ii) that the representations and
warranties of the Guarantor contained in Section VII are true and correct
with the same force and effect as though expressly made at and as of the
date of such certificate, (iii) that the Trust and the Guarantor have
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the date of such certificate, and
(iv) that no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
initiated or threatened by the Commission.
(b) The Representatives shall have received on the Closing Date an
opinion of Squire, Xxxxxxx & Xxxxxxx L.L.P., counsel to the Guarantor and
the Trust, dated the Closing Date, and addressed to the Underwriters, to
the effect set forth in Exhibit A. In rendering such opinion to the effect
set forth in Exhibit A, such counsel may rely as to matters of New York law
upon the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel to the
Underwriters, being delivered pursuant to subparagraph (d).
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(c) The Representatives shall have received on the Closing Date an
opinion of the General Counsel of the Guarantor, and addressed to the
Underwriters, dated the Closing Date, to the effect set forth in Exhibit B.
(d) The Representatives shall have received on the Closing Date an
opinion of Xxxxxxx Xxxxxxx & 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 Underwriters may reasonably request. In
rendering such opinion, such counsel may rely as to matters of Minnesota
law upon the opinion of the General Counsel of the Guarantor being
delivered pursuant to subsection (c).
(e) The Representatives shall have received on the Closing Date an
opinion of Squire, Xxxxxxx & Xxxxxxx LLP, special tax counsel for the Trust
and the Guarantor, dated the Closing Date and addressed to the
Underwriters, to the effect set forth in Exhibit C.
(f) The Representatives shall have received on the Closing Date an
opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., special Delaware counsel for
the Trust and the Guarantor, dated the Closing Date and addressed to the
Underwriters, to the effect set forth in Exhibit D.
(g) At the time of execution of the applicable Underwriting Agreement,
the Representatives shall have received a letter dated such date in form
and substance satisfactory to the Representatives, from
PricewaterhouseCoopers LLP, to the effect set forth in Exhibit E.
(h) At Closing Date, the Representatives shall have received from
Pricewaterhouse Coopers LLP a letter, dated as of the Closing Date, to the
effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (g) of this Article.
(i) On or prior to the Closing Date, Xxxxxxx Xxxxxxx & 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 Xxxxxxx Xxxxxxx & Xxxxxxxx.
(j) Since the date of the latest audited financial statements
incorporated by reference in the Prospectus, there shall not have been any
material adverse change in the condition, financial or otherwise, of the
Trust or of the Guarantor and its subsidiaries considered as one
enterprise, or in the earnings, affairs or business prospects of the Trust
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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, and (ii) there shall not have occurred since
the date of the applicable Underwriting Agreement any outbreak or
escalation of hostilities or any material change in financial markets or
other calamity or crisis the effect of which is such as to make it, in the
judgment of the Representatives, impracticable or inadvisable to proceed
with the public offering or the delivery of the Offered Securities on the
terms and in the manner contemplated by the Prospectus, and (iii) trading
in securities of the Guarantor as of the date of the Underwriting Agreement
shall not have been suspended by the Commission or a national securities
exchange, nor shall trading generally on either the American Stock Exchange
or the New York Stock Exchange have been suspended, or minimum or maximum
prices for trading of securities generally have been fixed, or maximum
ranges for prices for securities (other than trading limits currently in
effect and other similar trading limits) have been required, or trading
otherwise materially limited, by either of said exchanges or by order of
the Commission or any other governmental authority, nor shall a banking
moratorium have been declared by either Federal or New York authorities nor
shall a banking moratorium have been declared by the relevant authorities
in the country or countries of origin of any foreign currency or currencies
in which the Securities are denominated or payable, and (iv) the rating
assigned by any nationally recognized statistical rating organization to
any debt securities of the Guarantor as of the date of the Underwriting
Agreement shall not have been downgraded nor shall any notice have been
given by any such nationally recognized statistical rating organization of
any intended or potential downgrading or any review for possible change
that does not indicate the direction of the possible change in such rating,
and (v) the Prospectus, at the time it was required to be delivered to a
purchaser of the Offered Securities, shall not have contained an untrue
statement of a material fact or omitted to state a material fact necessary
in order to make the statements therein, in light of the circumstances
existing at such time, not misleading.
(k) The Representatives shall have received on the Closing Date a
certificate of 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
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supplement to the Prospectus, whether by the filing of documents pursuant
to the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
the Securities Act or otherwise. The Guarantor and the Trust will furnish
the Representatives with copies of any such amendment or supplement or
other documents, other than documents filed pursuant to the Exchange Act,
proposed to be filed a reasonable time in advance of filing, and will
furnish the Representatives with copies of documents filed pursuant to the
Exchange Act promptly upon the filing thereof;
(b) The Guarantor and the Trust will promptly notify the
Representatives immediately (i) of the filing and effectiveness of any
amendment to the Registration Statement, (ii) of the mailing or the
delivery to the Commission for filing of any supplement to the Prospectus
or any document to be filed pursuant to the Exchange Act which will be
incorporated by reference in the Prospectus, (iii) of the receipt of any
comments from the Commission with respect to the Registration Statement or
the Prospectus or any amendment or supplement thereto, (iv) of any request
by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information,
(v) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation or threat of
initiation of any proceedings for that purpose, or (vi) of the suspension
of qualification of the Offered Securities for offering or sale in any
jurisdiction or the initiation or threat of initiation of any proceedings
for that purpose. The Guarantor and the Trust will make every reasonable
effort to prevent the issuance of any stop order or suspension of
qualification and, if any stop order or suspension of qualification is
issued, to obtain the lifting thereof at the earliest possible moment;
(c) If, during the period after the date of the first public offering
of the Offered Securities when the Prospectus is required by law to be
delivered, any event shall occur or condition exist as a result of which it
is necessary, in the reasonable opinion of the counsel for the Underwriters
or counsel for the Guarantor and the Trust, to further amend or supplement
the Prospectus in order that the Prospectus will not include an untrue
statement of a material fact or omit to state any material fact necessary
in order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the reasonable opinion of either such counsel, at
any such time to amend or supplement the Registration Statement or the
Prospectus in order to comply with the requirements of the Securities Act
or the rules and regulations issued by the Commission thereunder immediate
notice shall be given, and confirmed in writing, to the Representatives,
and the Guarantor and the Trust will promptly prepare and file with the
Commission such amendment or supplement, whether by filing documents
pursuant to the Exchange Act, the Securities Act or otherwise, as may be
necessary to correct such untrue statement or omission or to make the
Registration Statement comply with such requirements;
(d) The Guarantor and the Trust will make generally available to its
security holders (as defined in Rule 158) as soon as practicable, but not
later than 45 days after the close of each of the first three fiscal
quarters of each fiscal year and 90 days after the close of each fiscal
year, earnings statements (in form complying with the provisions of Rule
158 under the Securities Act) covering a twelve month period beginning not
later
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than the first day of the fiscal quarter next following the effective date
of the Registration Statement (as defined in Rule 158) with respect to each
sale of Securities;
(e) The Guarantor and the Trust will deliver to the Representatives,
without charge, as many signed and conformed copies of the Registration
Statement (as originally filed) and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein and documents
incorporated by reference in the Prospectus) as the Representatives may
reasonably request. The Guarantor and the Trust will furnish to the
Representatives as many copies of the Prospectus (as amended or
supplemented) as the Representatives shall reasonably request so long as
the Underwriters are required to deliver a Prospectus in connection with
the offering or sale of the Offered Securities;
(f) The Guarantor and the Trust will endeavor, in cooperation with the
Representatives, to qualify the Offered Securities for offering and sale
under the applicable securities laws of such states and other jurisdictions
of the United States as the Representatives may designate, and will
maintain such qualifications in effect for as long as may be required for
the distribution of the Offered Securities; provided, however, that neither
the Guarantor nor the Trust shall be obligated to file any general consent
to service of process or to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified. The Guarantor and the Trust
will file such statements and reports as may be required by the laws of
each jurisdiction in which the Securities have been qualified as above
provided;
(g) The Guarantor, during the period when the Prospectus is required
to be delivered under the Securities Act, will file promptly all documents
required to be filed with the Commission pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act;
(h) During the period of 30 days from the date of the Underwriting
Agreement, the Guarantor and Trust will not offer, sell, contract to sell
or otherwise dispose of any Securities, any other beneficial interest in
the assets of the Trust, or any other securities of the Trust or any other
similar trust which are substantially similar to the Offered Securities,
including any guarantee of such securities, or any junior subordinated
debentures of the Guarantor issued to the Trust or other similar trust, or
any securities convertible into or exchangeable for or representing the
right to receive Securities, or any such substantially similar securities
of the Trust or any other similar trust, or any junior subordinated
debentures of the Guarantor issued to the Trust or other similar trust,
without the prior written consent of the Representatives;
(i) The Guarantor will issue the Guarantee and the Junior Subordinated
Debentures concurrently with the issue and sale of the Offered Securities
as contemplated herein;
(j) The Guarantor will use the net proceeds received by it from the
sale of the Junior Subordinated Debentures, and to cause the Trust to use
the net proceeds received by the Trust from the sale of Offered Securities
pursuant to the Underwriting Agreement, in the manner specified in the
Prospectus under the caption "Use of Proceeds", and to
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further cause the Trust to comply with the provisions of this Article VI
that are applicable to it, including paragraph (h);
(k) The Guarantor and the Trust will use their best efforts to list,
subject to notice of issuance, the Offered Securities on the New York Stock
Exchange;
(l) To prepare the Prospectus as amended and supplemented in relation
to the applicable Offered Securities in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Securities Act in the manner and within the time period required by
Rule 424(b), and to make no further amendment or any supplement to the
Registration Statement or Prospectus after the date of the Underwriting
Agreement relating to such Offered Securities and prior to any Closing Date
for such Offered Securities which shall be disapproved by the
Representatives for such Offered Securities promptly after reasonable
notice thereof.
VII
Each of the Guarantor and the Trust jointly and severally represents and
warrants to each Underwriter that:
(a) The Registration Statement has been filed with the Commission in
the form heretofore delivered or to be delivered to the Representatives
and, excluding exhibits to the Registration Statement, but including all
documents incorporated by reference in the Basic Prospectus, to the
Representatives for each of the other Underwriters and the Registration
Statement in such form has been declared effective by the Commission and no
stop order suspending the effectiveness of the Registration Statement has
been issued and no proceeding for that purpose has been initiated or
threatened by the Commission;
(b) The documents incorporated by reference in the Prospectus, at the
time they were or hereafter are filed with the Commission, complied or will
comply in all material respects with the requirements of the Exchange Act
and the rules and regulations of the Commission thereunder, and when read
together and with the other information in the Prospectus, at the time the
Registration Statement became, and any amendments thereto become,
effective, and as of the Closing Date, did not and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were or are made, not
misleading;
(c) The Registration Statement and the Prospectus, at the time the
Registration Statement and each part thereof became or hereafter become
effective, complied and any amendments or supplements thereto will comply,
in all material respects with the requirements of the Securities Act and
the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") and
the rules and regulations of the Commission thereunder. The Registration
Statement at the time the Registration Statement and each part thereof
became effective did not and as of the Closing Date will not, contain an
untrue statement of any material fact or omit to state a material fact
required to be stated
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therein or necessary to make the statements therein not misleading. The
Prospectus, as of the date it was filed with the Commission did not, and as
of the Closing Date will not, contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information relating to an Underwriter
furnished in writing to the Guarantor or the Trust by such Underwriter of
Offered Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Offered Securities
or to that part of the Registration Statement constituting the Statement of
Eligibility and Qualification under the Trust Indenture Act (Form T-1) of
the Trustee;
(d) The Guarantor has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware,
is duly registered as a bank holding company under the Bank Holding Company
Act of 1956, as amended, with corporate power and authority to own, lease
and operate its properties and conduct its business as described in the
Registration Statement; and the Guarantor is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which its ownership or lease of substantial properties or
the conduct of its business requires such qualification;
(e) Each of U.S. Bank National Association and Firstar Bank, National
Association, the Guarantor's principal subsidiary banks, 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 each 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 each of U.S.
Bank National Association and Firstar 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 capitalization of the Guarantor is as set forth in
the Prospectus, and the shares of issued and outstanding capital stock set
forth thereunder have been duly authorized and validly issued and are fully
paid and non-assessable;
(g) The Trust has been duly created and is validly existing as a
statutory business trust in good standing under the Trust Agreement and the
Business Trust Act of the State of Delaware and has the trust power and
authority to own its properties and conduct its business as described in
the Prospectus, and the Trust has conducted no business to date, and it
will conduct no business in the future that would be inconsistent with the
description of the Trust set forth in the Prospectus; the Trust is not a
party to or bound by any agreement or instrument other than the
Underwriting Agreement, the Trust Agreement and the agreements and
instruments contemplated by the Trust Agreement; the Trust has no
liabilities or obligations other than those arising out of the transactions
contemplated by the Underwriting Agreement and the Trust Agreement and
described in
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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 Prospectus, will be
validly issued and, subject to the qualifications set forth herein, fully
paid and nonassessable undivided beneficial interests in the assets of the
Trust under the Trust Agreement and the Delaware Business Trust Act and
will conform to the description of the Offered Securities contained in the
Prospectus; the issuance of the Offered Securities is not subject to any
preemptive or other similar rights; the Offered Securities will have the
rights set forth in the Trust Agreement; and the holders of Offered
Securities, as beneficial owners of the Trust, will be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the
State of Delaware, provided that the holders of Offered Securities may be
obligated, pursuant to the Trust Agreement, (a) to provide indemnity and/or
security in connection with any taxes or governmental charges arising from
transfers or exchanges of Capital Securities Certificates (as defined in
the Trust Agreement) and the issuance of replacement Capital Securities
Certificates and (b) to provide security and indemnity in connection with
requests of or directions to the Property Trustee (as defined in the Trust
Agreement) to exercise its rights and remedies under the Trust Agreement.
(i) The Common Securities of the Trust to be sold to the Guarantor
have been duly authorized by the Trust Agreement, and, when issued in
accordance with the terms of the Trust Agreement and delivered to the
Guarantor against payment therefor as described in the Prospectus, will
represent validly issued undivided beneficial interests in the assets of
the Trust and will conform to the description thereof contained in the
Prospectus; the issuance of the Common Securities is not subject to
preemptive or other similar rights; and at the Closing Date all of the
issued and outstanding Common Securities of the Trust will be directly
owned by the Guarantor free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity.
(j) The Guarantee, the Junior Subordinated Debentures and the
Indenture (the Guarantee, the Junior Subordinated Debentures, the Trust
Agreement and the Indenture being collectively referred to as the
"Guarantor Agreements") have each been duly authorized and when validly
executed and delivered by the Guarantor will constitute valid and legally
binding obligations of the Guarantor, enforceable in accordance with their
respective terms, except as the enforceability thereof may be limited by
(i) bankruptcy, insolvency, moratorium, reorganization, arrangement,
liquidation, conservatorship, readjustment of debt, fraudulent transfer and
other similar laws affecting the rights of creditors generally; and (ii)
the discretion of any court of competent jurisdiction in awarding equitable
remedies, including, without limitation, acceleration, specific performance
or injunctive relief, and the effect of general principles of equity
embodied in Minnesota, Delaware and New York statutes and common law. The
Junior
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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) principles of equity, including applicable law relating to fiduciary
duties (regardless of whether considered and applied in a proceeding in
equity or at law), and (iii) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or contribution.
(l) The execution and delivery by the Trust of, and the performance by
the Trust of its obligations under, the Underwriting Agreement and the
Trust Agreement do not violate (A) the Trust Agreement or the Certificate
of Trust of the Trust, (B) any applicable Delaware law, rule or regulation
or (C) any provision of applicable law of the 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 Firstar Bank, National Association or any agreement or other
instrument binding upon the Trust, the Guarantor, U.S. Bank National
Association or Firstar 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 Firstar Bank, National Association or any agreement
or other instrument binding upon the Guarantor, U.S. Bank National
Association or Firstar 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.
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(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
"About U.S. Bancorp," "About the Trusts," "Description of Junior
Subordinated Debentures," "Description of Capital Securities," "Description
of the Guarantee," "Plan of Distribution," "U.S. Bancorp," "USB Capital
III," "Certain Terms of Capital Securities," "Certain Terms of Junior
Subordinated Debentures," "Relationship Among the Capital Securities, the
Junior Subordinated Debentures and the Guarantee," "United States Federal
Income Tax Consequences," "Underwriting" and such other sections as may be
identified in the Underwriting Agreement, are accurate, complete and fair.
(p) The Trust is not, and after giving effect to the offering and sale
of the Offered Securities and the application of the proceeds thereof as
described in the Prospectus will not be, an "investment company" that is
required to be registered under the Investment Company Act of 1940, as
amended, and the Guarantor is not, and after giving effect to the issuance
of the Junior Subordinated Debentures and the application of the proceeds
thereof as described in the Prospectus will not be an "investment company"
that is required to be registered under the Investment Company Act of 1940,
as amended.
(q) Each of the Trust, the Guarantor and the subsidiaries of the
Guarantor own or possess or have obtained all material governmental
licenses, permits, consents, orders, approvals and other authorizations
necessary to lease or own, as the case may be, and to operate their
respective properties and to carry on their respective businesses as
presently conducted;
(r) Each of the Trust, the Guarantor and the subsidiaries of the
Guarantor own or possess adequate trademarks, service marks and trade names
necessary to conduct the business now operated by them, and neither the
Trust, the Guarantor nor any of the subsidiaries of the Guarantor has
received any notice of infringement of or conflict with asserted rights of
others with respect to any trademarks, service marks or trade names which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would materially adversely affect the conduct of the
business, operations, financial condition or income of the Trust or of the
Guarantor and its subsidiaries considered as one enterprise;
(s) There is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending, or, to the
knowledge of the Trust or the Guarantor, threatened against or affecting,
the Trust or the Guarantor or any of the subsidiaries of the Guarantor,
which might result in any material adverse change in the condition,
financial or otherwise, of the Trust or the Guarantor and the subsidiaries
of the Guarantor considered as one enterprise, or in the business prospects
of
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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
accounting principles applied on a consistent basis; and the pro forma
financial information, and the related notes thereto, included or
incorporated by reference to the Prospectus has been prepared in accordance
with the applicable requirements of the Securities Act and the Exchange Act
and the rules and regulations issued by the Commission thereunder;
(w) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as otherwise stated
therein or contemplated thereby, (A) there has been no material adverse
change in the condition, financial or otherwise, of the Trust or the
Guarantor and the subsidiaries of the Guarantor considered as one
enterprise or in the earnings, affairs or business prospects of the Trust
or the Guarantor and the subsidiaries of the Guarantor considered as one
enterprise, whether or not arising in the ordinary course of business, and
(B) there have been no material transactions entered into by the Trust or
the Guarantor, or any of the subsidiaries of the Guarantor other than those
in the ordinary course of business; and
(x) This Agreement has been duly authorized, executed and delivered by
the Guarantor and the Trust.
(y) Immediately prior to the closing of the transactions contemplated
hereby on each Closing Date, the Guarantor will have good and valid title
to the Offered Securities to be sold by it hereunder, free and clear of all
liens, encumbrances, equities or claims; and upon delivery of the Offered
Securities and payment therefor pursuant hereto, good and valid title to
the Offered Securities, free and clear of all liens, encumbrances, equities
or claims, will pass to the several Underwriters.
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VIII
(a) The Guarantor and the Trust agree, jointly and severally, to
indemnify and hold harmless each Underwriter and each person, if any, who
controls such Underwriter (each an "Indemnified Person") within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act as
follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out
of any untrue statement or alleged untrue statement of a material fact
contained in the Prospectus (or any amendment or supplement thereto or
any related preliminary prospectus or preliminary prospectus
supplement) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading,
unless such untrue statement or omission was made in reliance upon and
in conformity with written information relating to such Indemnified
Person furnished to the Guarantor or the Trust by the Representatives
expressly for use in the Registration Statement (or any amendment
thereto) or the Prospectus (or any amendment or supplement thereto or
any related preliminary prospectus or preliminary prospectus
supplement);
(ii) against any and all loss, liability, claim, damage and
expense whatsoever to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission (except as made in reliance
upon and in conformity with information relating to such Indemnified
Person furnished by the Representatives as aforesaid) if such
settlement is effected with the written consent of the Guarantor or
the Trust (which consent shall not be unreasonably withheld or
delayed); and
(iii) against any and all expense whatsoever (including the fees
and disbursements of counsel chosen by such Indemnified Person), as
incurred, reasonably incurred in investigating, preparing or defending
against any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission (except as made in reliance
upon and in conformity with information relating to such Indemnified
Person furnished by the Representatives as aforesaid), to the extent
that any such expense is not paid under (i) or (ii) above.
(b) Each Underwriter, severally and not jointly, will indemnify and
hold harmless the Guarantor and the Trust, each of their respective
directors or trustees, each of their officers who signed the Registration
Statement, and each person, if any, who controls the Guarantor or the Trust
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, but
only with respect to untrue statements or
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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 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
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and expenses, as well as any other relevant equitable considerations. The
relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Guarantor and the Trust or the Representatives
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Guarantor, the Trust and the Underwriters agree that it would not be just
and equitable if contributions pursuant to this paragraph were determined
pro rata (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to in this paragraph.
Notwithstanding the provisions of this paragraph, the Underwriters shall
not be required to contribute any amount in excess of the amount by which
the total price at which the Securities referred to in the second sentence
of this paragraph that were offered and sold to the public through the
Underwriters exceeds the amount of any damages that the Underwriters have
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled under this paragraph to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes of
this Section, each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act shall have the same rights to contribution as such Underwriter, and
each director of the Guarantor, each trustee of the Trust, each officer of
the Guarantor and the Trust who signed the Registration Statement, and each
person, if any, who controls the Guarantor or the Trust within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act shall
have the same rights to contribution as the Guarantor and the Trust.
IX
The indemnity and contribution agreements contained in Section VIII hereof
and the representations and warranties of the Guarantor and the Trust in this
Agreement or in any certificate submitted pursuant hereto shall remain operative
and in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by any Underwriter or on behalf of any
Underwriter or any person controlling any Underwriter or by or on behalf of the
Guarantor and the Trust or each of their respective directors or trustees or
each of their officers or any person controlling the Guarantor and the Trust and
(iii) acceptance of any payment for any of the Offered Securities, if any.
X
If any Underwriter shall default in its obligation to purchase the Offered
Securities, which it has agreed to purchase hereunder, the Representatives may
in their discretion arrange for themselves or another party or other parties to
purchase such Offered Securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the Representatives do
not arrange for the purchase of such Offered Securities then the Guarantor and
the Trust shall be entitled to a further period of thirty-six hours within which
to procure another party or other parties satisfactory to the Representatives to
purchase such Offered Securities on such terms. In the event that, within the
respective prescribed period, the Representatives notify the Guarantor and the
Trust that they have so arranged for the purchase of
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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 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
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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.
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.
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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.
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.
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EXHIBIT A
Opinion of Counsel for the Trust and the Guarantor
The opinion or opinions of Squire, Xxxxxxx & Xxxxxxx L.L.P., counsel for
the Trust and the Guarantor, to be delivered pursuant to Section V(b) of the
Agreement, shall be to the following effect (all terms used herein which are
defined in the Agreement have the meanings set forth therein):
(i) The Guarantor has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware.
(ii) The Guarantor has corporate power and authority to own, lease and
operate its properties and conduct its business as described in the
Prospectus.
(iii) Each of U.S. Bank National Association and Firstar Bank,
National Association has been duly incorporated and is validly existing as
a national banking association in good standing under the laws of the
United States, and has corporate power and authority to own, lease and
operate its properties and conduct its business as described in the
Prospectus.
(iv) The Underwriting Agreement has been duly authorized, executed and
delivered by the Guarantor and the Trust.
(v) Each of the Trust Agreement, the Indenture, and the Guarantee has
been duly and validly authorized, executed and delivered by the Guarantor
and constitutes a valid and binding agreement of the Guarantor, enforceable
in accordance with its terms, subject to (A) applicable bankruptcy,
insolvency reorganization, moratorium, fraudulent transfer and other
similar laws affecting creditors' rights generally from time to time in
effect, and (B) general principles of equity, regardless of whether
considered in a proceeding in equity or at law and an implied covenant of
good faith and fair dealing. Each of the Trust Agreement, the Guarantee and
the Indenture has been duly qualified under the Trust Indenture Act.
(vi) The Junior Subordinated Debentures have been duly and validly
authorized by all necessary corporate action and, when authenticated by the
Debenture Trustee, executed, issued and delivered in the manner provided in
the Indenture, will constitute valid and binding obligations of the
Guarantor, entitled to the benefits of the Indenture and enforceable
against the Guarantor in accordance with their terms, subject to (A)
applicable bankruptcy, insolvency reorganization, moratorium, fraudulent
transfer and other similar laws affecting creditors' rights generally from
time to time in effect, and (B) general principles of equity, regardless of
whether considered in a proceeding in equity or at law and an implied
covenant of good faith and fair dealing.
(vii) The statements in the Prospectus under the captions "Description
of Junior Subordinated Debentures", "Description of the Capital
Securities", "Description of Guarantee", "Relationship Among the Capital
Securities, the Junior Subordinated Debentures and the Guarantee" (in each
of the Prospectus and the Prospectus
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Supplement), "Certain Terms of the Capital Securities", "Certain Terms of
the Junior Subordinated Debentures", insofar as these statements are
descriptions of contracts, agreements or other legal documents or describe
federal statutes, rules and regulations, are in all material respects
accurate summaries of the matters referred to therein.
(viii) The Exchange Act reports incorporated by reference into the
Registration Statement (other than the financial statements and related
schedules therein, as to which such counsel need express no opinion), when
they were filed with the Commission, complied as to form in all material
respects with the requirements of the Exchange Act, and the rules and
regulations of the Commission thereunder; and such counsel has no reason to
believe that any of such documents, when they were so filed, as of its date
contained an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such documents
were so filed, not misleading.
(ix) The Registration Statement, as of its effective date, and the
Prospectus, as of its issue date (other than financial statements and
related schedules therein, as to which such counsel need express no
opinion), complied as to form in all material respects with the
requirements of the Securities Act and the rules and regulations of the
Commission thereunder.
(x) Neither the Trust nor the Guarantor is, and after giving effect to
the application of proceeds from the offering of the Securities as
contemplated in the Prospectus, will be, an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
(xi) No consent, approval, license, authorization, or order of any
court or governmental authority or agency is required in connection with
the issuance or sale of the Securities, the Junior Subordinated Debentures
or the Guarantee, except such as may be required under state securities or
Blue Sky laws.
(xii) No consent, approval, license, authorization, or order of any
federal or Delaware court or federal or Delaware government authority or
agency is required for the performance by the Trust and the Guarantor of
their obligations under this Agreement or the consummation of the
transactions contemplated hereby.
(xiii) To the best of such counsel's knowledge, there are no
contracts, indentures, mortgages, loan agreements, notes, leases or other
instruments required to be described or referred to in the Prospectus or
filed as exhibits to the Registration Statement other than those described
or referred to therein or incorporated by reference and the description
thereof or references thereto are correct.
(xiv) The execution and delivery of the Underwriting Agreement, the
Trust Agreement, the Guarantee, the Indenture, the issuance of the
Guarantee and the Junior Subordinated Debentures, and the consummation of
the transactions contemplated herein and therein, and the performance of
the obligations hereunder and thereunder will not
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result in a violation of any federal or state law nor will such action
result in any violation of the provisions of the charter or bylaws of the
Guarantor.
(xv) The execution and delivery of the Underwriting Agreement by the
Trust and the performance by the Trust of its obligations hereunder, the
issuance and sale of the Securities and the Common Securities by the Trust
and the consummation of the other transactions contemplated hereby will not
violate any provision of federal law or, to the best knowledge of such
counsel, any agreement or instrument binding upon the Trust or any
judgment, order or decree of any governmental body, agency or court having
jurisdiction over the Trust, except such contravention as would not,
individually or in the aggregate, have a material adverse effect on the
condition (financial or other), business, properties, net worth or results
of operations of the Trust.
(xvi) Upon payment for, and delivery of, the Securities to be sold by
the Guarantor under the Underwriting Agreement in accordance with the terms
hereof, the Underwriters will acquire all of the rights of the Guarantor in
the Securities and will also acquire the interest of the Guarantor in the
Securities free of any adverse claim (within the meaning of the Uniform
Commercial Code), assuming that the Underwriters have no notice of any such
adverse claim.
Such counsel shall also have furnished to the Representatives a written
statement, addressed to the Underwriters and dated the Closing Date, in form and
substance satisfactory to the Representatives, to the effect that (x) such
counsel has acted as counsel to the Guarantor in connection with the preparation
of the Registration Statement, the Prospectus and the documents incorporated by
reference therein, and in the course of preparation of those documents such
counsel has participated in conferences with representatives of the Guarantor
and with representatives of PricewaterhouseCoopers LLP and (y) based upon such
counsel's examination of the Registration Statement, the Prospectus and the
documents incorporated by reference therein, such counsel's investigations made
in connection with the preparation of the Registration Statement, the Prospectus
and the documents incorporated by reference therein and such counsel's
participation in the conferences referred to above, such counsel has no reason
to believe that (other than the financial statements, schedules and other
financial data included therein as to which no statement need be rendered) the
Registration Statement, as of its effective date and as of the date of the
Annual Report on Form 10-K of the Guarantor for the fiscal year ended December
31, 2000 (including such documents incorporated by reference), contained any
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading, or that the Prospectus (including such documents incorporated by
reference) contains any untrue statement of a material fact or omits to state
any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
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EXHIBIT B
Opinion of General Counsel of the Guarantor
The opinion of the General Counsel of the Guarantor, to be delivered
pursuant to Section V(c) of the Agreement, shall be to the following effect (all
terms used herein which are defined in the Agreement have the meanings set forth
therein):
(i) The Guarantor is duly qualified to do business as a foreign
corporation and is in good standing in each U.S. jurisdiction in which its
ownership or lease of substantial properties or the conduct of its business
requires such qualification, except where the failure so to qualify would
not have a material adverse effect on the Guarantor and its subsidiaries,
taken as a whole.
(ii) Each of U.S. Bank National Association and Firstar 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 or Firstar Bank, National Association and their respective
subsidiaries, taken as a whole.
(iii) There are no pending or, to the best of the knowledge of such
counsel, overtly threatened lawsuits or claims against the Guarantor or its
subsidiaries which are required to be disclosed in the Prospectus that are
not disclosed as required.
(iv) To the best of the knowledge of such counsel, there are no legal
or governmental proceedings pending or threatened against the Trust or to
which the Trust or any of its property is subject, that are required to be
described in the Prospectus that are not described as required and there
are no agreements, contracts, indentures, leases or other instruments of
the Trust that are required to be described in the Prospectus that are not
described as required.
(v) The execution and delivery of the Underwriting Agreement, the
Trust Agreement, the Guarantee, the Indenture, the issuance of the
Guarantee and the Junior Subordinated Debentures, and the consummation of
the transactions contemplated herein and therein, and the performance of
the obligations thereunder will not conflict with or result in the creation
or imposition of any lien, charge or encumbrance upon any property or
assets of the Guarantor or any subsidiary pursuant to any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to
which the Guarantor or any of its subsidiaries is a party or by which it or
any of them may be bound or to which any of the property or assets of the
Guarantor or any of its subsidiaries is subject and that is material to the
Guarantor and its subsidiaries, taken as a whole.
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EXHIBIT C
Opinion of Special Tax Counsel of the Trust and the Guarantor
The statements set forth in the Prospectus under the caption "United States
Federal Income Tax Consequences," insofar as they purport to constitute
summaries of matters of United States federal tax law and regulations or legal
conclusions with respect thereto, constitute accurate summaries of the matters
described therein in all material respects. In addition, the opinion or opinions
of Squire, Xxxxxxx & 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 "United States Federal Income Tax Consequences."
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EXHIBIT D
Opinion of Special Delaware Counsel for the Trust and the Guarantor
The opinion or opinions of 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 all
filings required under the laws of the State of Delaware with respect to
the creation and valid existence of the Trust as a business trust have been
made.
(ii) Under the Delaware Business Trust Act and the Trust Agreement,
the Trust has the trust power and authority (A) to execute and deliver, and
to perform its obligations under, the Underwriting Agreement, (B) to issue
and perform its obligations under the Securities and the Common Securities
and (C) to own its property and conduct its business, all as described in
the Prospectus.
(iii) Under the Delaware Business Trust Act and the Trust Agreement,
(A) the execution and delivery by the Trust of the Underwriting Agreement
and the performance by the Trust of its obligations thereunder, have been
duly authorized by all necessary trust action on the part of the Trust and
(B) the Guarantor is authorized to execute and deliver the Underwriting
Agreement on behalf of the Trust.
(iv) The Trust Agreement constitutes a valid and binding obligation of
the Guarantor and each trustee of the Trust, and is enforceable against the
Guarantor and each trustee of the Trust, in accordance with its terms.
(v) The Common Securities have been duly authorized by the Trust
Agreement and, when issued and delivered by the Trust to the Guarantor in
exchange for the Junior Subordinated Debentures as described in the
Prospectus, will be duly and validly issued and, subject to the
qualifications set forth in this paragraph (v), will be fully paid
undivided beneficial interests in the assets of the Trust. We note that the
holder of the Common Securities may be obligated, pursuant to the Trust
Agreement, (A) to provide indemnity and/or security in connection with and
pay taxes or governmental charges arising from transfers or exchanges of
the certificates representing the Common Securities and the issuance of
replacement certificates representing the Common Securities, (B) to provide
security or indemnity in connection with requests of or directions to the
Property Trustee to exercise its rights and powers under the Trust
Agreement and (C) will be liable for the debts and obligations of the Trust
to the extent provided in Section 9.1 of the Trust Agreement.
(vi) The Securities have been duly authorized by the Trust Agreement
and, when issued and delivered by the Trust to the Guarantor in exchange
for the Junior Subordinated Debentures as described in the Prospectus, will
be duly and validly issued and, subject to the qualifications set forth in
this paragraph (vi), will be fully paid and
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nonassessable undivided beneficial interests in the assets of the Trust and
will be entitled to the benefits of the Trust Agreement. The holders of the
Securities, as beneficial owners of the Trust, will be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the
State of Delaware. We note that such holders may be obligated, pursuant to
the Trust Agreement, (A) to provide indemnity and/or security in connection
with and pay taxes or governmental charges arising from transfers or
exchanges of the certificates representing the Securities and the issuance
of replacement certificates representing the Securities, and (B) to provide
security or indemnity in connection with requests of or directions to the
Property Trustee to exercise its rights and powers under the Trust
Agreement.
(vii) Under the Delaware Business Trust Act and the Trust Agreement,
(A) the issuance of the Securities and the Common Securities is not subject
to preemptive or other similar rights and (B) the Trust is not authorized
to issue any securities other than the Securities and the Common
Securities.
(viii) The issuance and sale by the Trust of the Securities and the
Common Securities, the execution, delivery and performance by the Trust of
the Underwriting Agreement, the consummation by the Trust of the
transactions contemplated thereby and compliance by the Trust with its
obligations thereunder, (A) do not violate (I) any of the provisions of the
Certificate of Trust of the Trust or the Trust Agreement or (II) any
applicable Delaware law or administrative regulation thereunder which is
applicable to the Trust, and (B) do not require any consent, approval,
license, authorization or validation of, or filing or registration with,
any Delaware legislative, administrative or regulatory body under the laws
or administrative regulations of the State of Delaware.
(ix) Assuming that the Trust is treated as a grantor trust under the
Internal Revenue Code of 1986, as amended, the holders of the Securities
(other than those holders of Securities who reside or are domiciled in the
State of Delaware) will have no liability for income taxes imposed by the
State of Delaware solely as a result of their participation in the Trust,
and the Trust will not be liable for any income tax imposed by the State of
Delaware.
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EXHIBIT E
Letter from PricewaterhouseCoopers
The Letter of PricewaterhouseCoopers to be delivered pursuant to Section
V(g) of the Agreement shall be to the following effect (all terms used herein
which are defined in the Agreement have the meanings set forth therein):
(i) They are independent public accountants with respect to the
Guarantor and its subsidiaries within the meaning of the Securities Act and
the applicable published rules and regulations thereunder.
(ii) In their opinion, the consolidated financial statements and
schedules audited by them and included in the Prospectus comply as to form
in all material respects with the applicable accounting requirements of the
Securities Act, the Exchange Act, as applicable, and the published rules
and regulations thereunder.
(iii) They have made a review of any unaudited consolidated financial
statements included in the Prospectus in accordance with standards
established by the American Institute of Certified Public Accountants, as
indicated in their report or reports attached to such letter.
(iv) On the basis of the review referred to in (iii) and a reading of
the latest available interim financial statements of the Guarantor and its
consolidated subsidiaries, inspection of the minute books of the Guarantor
and U.S. Bank National Association and Firstar 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 and
Firstar Bank, National Association since the date of the balance sheet
included in the Guarantor's most recent audited financial statements,
inquiries of officials of the Guarantor responsible for financial and
accounting matters and such other inquiries and procedures as may be
specified in such letter, and on the basis of such inquiries and procedures
nothing came to their attention that caused them to believe that:
(A) at the date of the latest available consolidated balance
sheet read by such accountants, or at a subsequent specified date not
more than five days prior
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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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