U.S. BANCORP
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(CAPITAL SECURITIES)
From time to time,
U.S. Bancorp, a Delaware corporation (the “Guarantor”),
and each of USB Capital VIII (“USB VIII”), USB Capital
IX (“USB IX”), USB Capital X (“USB X”), USB
Capital XI (“USB XI”), USB Capital XII (“USB
XII”), USB Capital XIII (“USB XIII”), USB Capital
XIV (“USB XIV”), USB Capital XV (“USB XV”)
or USB Capital XVI (“USB XVI”), each a statutory 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 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.
The Guarantor and
each of USB VIII, USB IX, USB X, USB XI, USB XII, USB XIII, USB
XIV, USB XV and USB XVI, 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 March 2, 2005
Registration No. 333-124535. 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. Promptly
after execution and delivery of an Underwriting Agreement, the
Guarantor and the Trust will prepare and file a prospectus in
accordance with the provisions of Rule 430B under the
Securities Act and paragraph (b) of Rule 424 under the
Securities Act. Any information included in such prospectus that
was omitted from such registration statement at the time it became
effective but that is deemed to be part of and included in such
registration statement pursuant to Rule 430B(f) is referred to
as the “Rule 430B Information.”
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 VIII, USB IX, USB X, USB XI, USB XII, USB XIII, USB XIV, USB XV
and USB XVI 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”). Such registration statement, at any given time,
including the amendments thereto to such time, the exhibits and any
schedules thereto at such time, the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the
Securities Act at such time and the documents otherwise deemed to
be a part thereof or included therein by the rules and regulations
under the Securities Act, is herein called the “Registration
Statement.” The Registration Statement at the time it
originally became effective is herein called the “Original
Registration Statement.”
The term
“Basic Prospectus” means the base prospectus relating
to the Registered Securities included in the Registration Statement
at the time it became effective.
The term
“Statutory Prospectus” means as of any time means the
prospectus relating to the Offered Securities that is included in
the Registration Statement immediately prior to that time,
including any document incorporated by reference therein and any
preliminary or other prospectus deemed to be a part
thereof.
The term
“Prospectus” means the final prospectus supplement
dated the date of the Underwriting Agreement relating to the
Offered Securities and the final base prospectus, collectively, in
the form first furnished to the Underwriters for use in connection
with the offering of the Offered Securities, including the
documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the Securities Act at the time of
the execution of the Underwriting Agreement.
The term
“Preliminary Prospectus” means a preliminary prospectus
(including the base prospectus and any preliminary prospectus
supplement) used in connection with the offering of the Offered
Securities that omits Rule 430B Information.
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 the Basic Prospectus, and as
of the date of such prospectus, in the case of any Prospectus or
Preliminary Prospectus. Any reference to any amendment or
supplement to the 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
or any 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.
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The term
“Issuer Free Writing Prospectus” means any
“issuer free writing prospectus,” as defined in
Rule 433 under the Securities Act
(“Rule 433”), relating to the Offered Securities
that (i) is required to be filed with the Commission by the
Guarantor or the Trust, (ii) is a “road show that is a
written communication” within the meaning of
Rule 433(d)(8)(i) whether or not required to be filed with the
Commission or (iii) is exempt from filing pursuant to
Rule 433(d)(5)(i) because it contains a description of the
Offered Securities or of the offering that does not reflect the
final terms, in each case in the form filed or required to be filed
with the Commission or, if not required to be filed, in the form
retained in the records of the Guarantor and the Trust pursuant to
Rule 433(g).
The term
“Issuer General Use Free Writing Prospectus” means any
Issuer Free Writing Prospectus that is intended for general
distribution to prospective investors, as evidenced by its being
specified in Schedule II to the Underwriting
Agreement.
The term
“Issuer Limited Use Free Writing Prospectus” means any
Issuer Free Writing Prospectus that is not an Issuer General Use
Free Writing Prospectus.
All references
herein to the Registration Statement, any Preliminary Prospectus,
the Prospectus or any amendment or supplement to any of the
foregoing shall be deemed to include the copy filed with the
Commission pursuant to its Electronic Date Gathering, Analysis and
Retrieval system (EDGAR).
The
“Guarantor Agreements” shall mean, collectively, the
Guarantee, the Junior Subordinated Debentures, the Trust Agreement
and the Indenture.
The terms of the
public offering of the Firm Securities are set forth in the General
Disclosure Package (as such term is defined in Article VII(c)
hereof) and the Prospectus.
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
Securities 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
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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.
Payment for the
Securities shall be made in federal (same day) funds at the time,
date and place set forth in the Underwriting Agreement, upon
delivery to the Representatives, through the facilities of The
Depository Trust Company (“DTC”), for the respective
accounts of the several Underwriters of the Securities. Each time
and date of such payment and delivery of the Securities, including
any payment and delivery pursuant to the exercise of the
Overallotment Option by the Underwriters, is herein referred to as
a “Closing Date.” The Trust will cause the certificates
representing the Securities to be made available for checking and
packaging at least one day prior to the Closing Date at the office
of DTC or its designated custodian.
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.
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(b) The
Representatives shall have received on the Closing Date an opinion
of Squire, Sanders & Dempsey 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.
(c) The
Representatives shall have received on the Closing Date an opinion
of the General Counsel of the Guarantor, and addressed to the
Underwriters, dated the Closing Date, to the effect set forth in
Exhibit B.
(d) The
Representatives shall have received on the Closing Date an opinion
of counsel to the Underwriters specified in the applicable
Underwriting Agreement (the “Underwriters’
Counsel”), 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.
(e) The
Representatives shall have received on the Closing Date an opinion
of special tax counsel for the Trust and the Guarantor, to be
specified in the Underwriting Agreement (the “Special Tax
Counsel”), 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 Richards, Layton & 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 Ernst
& Young LLP, containing statements and information of the type
ordinarily included in accountants’ “comfort
letters” to underwriters with respect to the financial
statements and certain financial information contained or
incorporated by reference in the Registration Statement and the
General Disclosure Package.
(h) On the
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 V,
except that the specified date referred to shall be a date not more
than three business days prior to the Closing Date, and such letter
shall contain statements and information with respect to certain
financial information contained in the Prospectus.
(i) On or
prior to the Closing Date, the Underwriters’ Counsel, 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 the Underwriters’ Counsel.
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(j) Since the
date of the latest audited financial statements incorporated by
reference in the General Disclosure Package 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 General Disclosure Package and 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 General Disclosure Package and 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 General Disclosure Package and 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 Debenture, Guarantee,
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.
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:
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(a) The
Guarantor and the Trust will give the Representatives notice of
their intention to file any amendment to the Registration Statement
or any amendment or supplement to the Prospectus, whether by the
filing of documents pursuant to the Securities Exchange Act of
1934, as amended (the “Exchange Act”), the Securities
Act or otherwise. The Guarantor and the Trust will furnish the
Representatives with copies of any such amendment or supplement or
other documents, other than documents filed pursuant to the
Exchange Act, proposed to be filed a reasonable time in advance of
filing, and will furnish the Representatives with copies of
documents filed pursuant to the Exchange Act promptly upon the
filing thereof;
(b) The
Guarantor and the Trust will promptly notify the Representatives
immediately (i) of the filing and effectiveness of any
amendment to the Registration Statement, (ii) of the mailing
or the delivery to the Commission for filing of any supplement to
the Prospectus or any document to be filed pursuant to the Exchange
Act which will be incorporated by reference in the Prospectus,
(iii) of the receipt of any comments from the Commission with
respect to the Registration Statement or the Prospectus or any
amendment or supplement thereto, (iv) of any request by the
Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional
information, (v) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or
the initiation or threat of initiation of any proceedings for that
purpose, or (vi) of the suspension of qualification of the
Offered Securities for offering or sale in any jurisdiction or the
initiation or threat of initiation of any proceedings for that
purpose. The Guarantor and the Trust will make every reasonable
effort to prevent the issuance of any stop order or suspension of
qualification and, if any stop order or suspension of qualification
is issued, to obtain the lifting thereof at the earliest possible
moment;
(c) If,
during the period after the date of the first public offering of
the Offered Securities when the Prospectus (or in lieu thereof, a
notice referred to in Rule 173(a) under the Securities Act) 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 the
Registration Statement or to file a new registration statement or
amend or supplement 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, or new registration statement as may be necessary to
correct such statement or omission or to comply with such
requirements, and the Guarantor and the Trust each will use its
best efforts to have any such amendment or new registration
statement declared effective as soon as practicable (if it is not
an automatic shelf registration statement with respect to the
Offered Securities); and if at any time following issuance of an
Issuer Free Writing Prospectus there occurred or occurs an event or
development as a result of which such Issuer Free Writing
Prospectus conflicted or would conflict with the information
contained in the Registration Statement or any other registration
statement relating to the Offered
7
Securities or
included or would include an untrue statement of a material fact or
omitted or would omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
prevailing at that subsequent time, not misleading, the Guarantor
will promptly notify the Representatives and will promptly amend or
supplement, at its own expense, such Issuer Free Writing Prospectus
to eliminate or correct such conflict, untrue statement or
omission;
(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; and the
copies of the Original Registration Statement and each amendment
thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by
Regulation S-T. 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 (or
in lieu thereof, a notice referred to in Rule 173(a) under the
Securities Act) in connection with the offering or sale of the
Offered Securities; and the Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical
to the electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T;
(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 (or in lieu
thereof, the notice referred to in Rule 173(a) under the Securities
Act) 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,
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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 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) The
Guarantor and the Trust will: (A) 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);
(B) prepare a final term sheet, containing solely a
description of the Offered Securities, in a form approved by you
and to file such term sheet pursuant to Rule 433(d) within the time
required by such Rule; (C) file promptly all material required
to be filed by the Trust or the Guarantor with the Commission
pursuant to Rule 433(d); and (D) 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; and
(m) The
Guarantor and the Trust each represents and agrees that, unless it
obtains the prior consent of the Representatives, and each
Underwriter represents and agrees that, unless it obtains the prior
consent of the Guarantor and the Trust and the Representative, it
has not made and will not make any offer relating to the Securities
that would constitute an “issuer free writing
prospectus,” as defined in Rule 433, or that would
otherwise constitute a “free writing prospectus,” as
defined in Rule 405, required to be filed with the Commission.
Any such free writing prospectus consented to by The Guarantor, the
Trust and the Representative is hereinafter referred to as a
“Permitted Free Writing Prospectus.” The Guarantor and
the Trust each represents that it has treated or agrees that it
will treat each Permitted Free Writing Prospectus as an
“issuer free writing prospectus,” as defined in
Rule 433, and has complied and will comply with the
requirements of Rule 433 applicable to any Permitted Free
Writing Prospectus, including timely filing with the Commission
where required, legending and record keeping.
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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, and any request on the part of the Commission for
additional information shall have been complied with to the
reasonable satisfaction of counsel to the Underwriters; no order
preventing or suspending the use of any Preliminary Prospectus or
any Issuer Free Writing Prospectus has been issued by the
Commission; the Guarantor and the Trust each meets the requirements
for use of Form S-3; and a prospectus containing the Rule 430B
Information shall have been filed with the Commission in the manner
and within the time period required by Rule 424(b) without reliance
on Rule 424(b)(8) (or a post-effective amendment providing
such information shall have been filed and become effective in
accordance with the requirements of Rule 430B under the
Securities Act);
(b) The
documents incorporated or deemed to be 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, (a) at the time
the Registration Statement became effective, (b) at the
earlier of the time the Prospectus was first used and the date and
time of the first contract of sale of the Offered Securities and
(c) 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; and the Guarantor and the
Trust each has given the Representatives notice of any filings made
pursuant to the 1934 Act or 1934 Act Regulations within 48 hours
prior to the Applicable Time; the Guarantor and the Trust each will
give the Representatives notice of its intention to make any such
filing from the Applicable Time to the Closing Time and will
furnish the Representatives with copies of any such documents a
reasonable amount of time prior to such proposed filing, as the
case may be, and will not file or use any such document to which
the Representatives or counsel for the Underwriters shall
reasonably object;
(c) At the
respective times the Original Registration Statement and each
amendment thereto became effective, at each deemed effective date
with respect to the Underwriters pursuant to Rule 430B(f)(2) under
the Securities Act and at the Closing Time, the Registration
Statement complied and will comply in all material respects with
the requirements of the Securities Act and the rules and
regulations under the Securities Act and the 1939 Act and the rules
and regulations under the 1939 Act, and 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 not misleading; neither the Prospectus nor
any amendments or supplements thereto, at the time the Prospectus
or any such amendment or supplement was issued and at the
Closing
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Time, included
or will include an untrue statement of a material fact or omitted
or will omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading; each Preliminary Prospectus
complied when filed with the Commission in all material respects
with the rules and regulations under the Securities Act and each
Preliminary Prospectus and the Prospectus delivered to the
Underwriters for use in connection with this offering was identical
to the electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T; and, as of the Applicable Time, neither
(x) the Statutory Prospectus and the Issuer General Use Free
Writing Prospectus(es), all considered together (collectively, the
“General Disclosure Package”), nor (y) any
individual Issuer Limited Use Free Writing Prospectus, when
considered together with the General Disclosure Package, included
any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; each Issuer Free Writing Prospectus, as of its issue
date and at all subsequent times through the completion of the
public offer and sale of the Securities or until any earlier date
that the Guarantor or the Trust notified or notifies the
Representative, did not, does not and will not include any
information that conflicted, conflicts or will conflict with the
information contained in the Registration Statement or the
Prospectus, including any document incorporated by reference
therein and any preliminary or other prospectus deemed to be a part
thereof that has not been superseded or modified; provided,
however , that the representations and warranties in this
Article VII(c) shall not apply to statements in or omissions
from the Registration Statement, the Prospectus or any Issuer Free
Writing Prospectus made in reliance upon and in conformity with
written information furnished to the Guarantor or the Trust by any
Underwriter through the Representatives expressly for use therein
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 General Disclosure Package and the
Prospectus; 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, except where the failure to do so to qualify or to
be in good standing would not result in a Material Adverse Effect
(as hereinafter defined);
(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 General Disclosure Package and the Prospectus; all of the
issued and outstanding capital stock of such bank has been duly
authorized and validly issued and is fully paid and, except as
provided in 12 U.S.C. Section 55, non-assessable; and 100% of
its capital stock, other than any director’s qualifying
shares, is owned by the Guarantor, directly or through
subsidiaries, free and clear of any mortgage, pledge, lien,
encumbrance, claim or equity;
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(f) Each of
the Guarantor and its subsidiaries maintains a system of internal
accounting controls sufficient to provide reasonable assurance that
(A) the transactions are executed in accordance with
management’s general or specific authorizations;
(B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to
maintain asset accountability; (C) access to assets is
permitted only in accordance with management’s general or
specific authorization; and (D) the recorded accountability
for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences; the Guarantor has established and maintains disclosure
controls and procedures (as defined in Rules 13a-14 and 15d-14
under the Exchange Act) and such controls and procedures are
effective in ensuring that material information relating to the
Guarantor, including its subsidiaries, is made known to the
principal executive officer and the principal financial officer;
and the Guarantor has utilized such controls and procedures in
preparing and evaluating the disclosures in the General Disclosure
Package and the Prospectus;
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