Exhibit 1.1
Exhibit 1.1
U.S. Bancorp
(a Delaware corporation)
Medium-Term Notes, Series T (Senior)
Medium-Term Notes, Series U (Subordinated)
DISTRIBUTION AGREEMENT
April 21, 2011
U.S. Bancorp Investments, Inc.
214 N. Tryon St., 26th Floor
Charlotte, NC 28202
AND EACH OF THE OTHER AGENTS LISTED
ON SCHEDULE A HERETO
Ladies and Gentlemen:
U.S. Bancorp, a Delaware corporation (the “Company”), confirms its agreement (this
“Agreement”) with you (you and each other person executing a Distribution Agreement substantially
similar to this Agreement being hereinafter referred to as an “Agent”) with respect to the issue
and sale by the Company of Medium-Term Notes, Series T (Senior) (the “Senior Notes”) and
Medium-Term Notes, Series U (Subordinated) (the “Subordinated Notes”) due nine (9) months or more
from date of issue (the “Securities”). The Senior Notes are to be issued pursuant to an Indenture
dated as of October 1, 1991 (the “Senior Note Indenture”) between the Company and Citibank, N.A.,
as trustee (the “Senior Note Trustee”) and an Officers’ Certificate establishing the terms of the
Securities and any applicable Authentication Certificate supplemental to the Officers’ Certificate.
The Subordinated Notes are to be issued pursuant to an Indenture dated as of October 1, 1991, as
amended by a First Supplemental Indenture dated as of April 1, 1993 (as so amended, the
“Subordinated Note Indenture”) between the Company and Citibank, N.A., as trustee (the
“Subordinated Note Trustee”) and an Officers’ Certificate establishing the terms of the Securities
and any applicable Authentication Certificate supplemental to the Officers’ Certificate. The
Senior Note Indenture and the Subordinated Note Indenture, are collectively referred to herein as
the “Indentures.” It is understood that the Company may from time to time authorize the issuance
of additional Securities and that such additional Securities may be sold through or to the Agents
pursuant to the terms of this Agreement, as though the issuance of such Securities were authorized
as of the date hereof. This Agreement replaces and supersedes the Distribution Agreement dated
April 25, 2008 between the Company and the Agents (as such term is defined therein).
Subject to the terms and conditions stated herein, the Company hereby (i) appoints you as an
agent of the Company for the purpose of soliciting purchases of the Securities from the
Company by others and (ii) agrees that whenever the Company determines to sell Securities
directly to you as principal for resale to others, it will enter into a terms agreement (which
shall be substantially in the form of Exhibit A hereto and which may take the form of an oral
agreement confirmed in writing or any exchange of any standard form of written telecommunication
between you and the Company), a syndicated terms agreement (which shall be substantially in the
form of Exhibit B hereto) or other separate agreement to which you and the Company shall otherwise
agree, relating to such sale in accordance with the provisions of Section 2(b) hereof (any such
terms agreement, syndicated terms agreement or other separate agreement to which you and the
Company shall otherwise agree shall hereinafter be referred to as a “Terms Agreement.”)
SECTION 1. Representations and Warranties.
(a) The Company represents and warrants to you as of the date hereof, as of the Closing Time
(as defined below) and each Settlement Date (as defined below) hereinafter referred to, and as of
the times referred to in Sections 6(a) and 6(b) hereof (in each case the “Representation Date”), as
follows:
(i) An “automatic shelf registration statement” (as defined in Rule 405 under the Securities
Act of 1933, as amended (the “1933 Act”)) on Form S-3 in respect of the Securities (File No.
333-173636 has been prepared by the Company in conformity with the requirements of the 1933
Act, and the rules and regulations (the “1933 Act Regulations”) of the Securities and Exchange
Commission (the “Commission”) thereunder, (ii) has been filed with the Commission under the 1933
Act not earlier than the date that is three years prior to the Closing Time (as defined in Section
2 hereof) and (iii) upon its filing with the Commission, automatically became and is effective
under the 1933 Act. Copies of such registration statement and any amendment thereto (excluding
exhibits to such registration statement but including all documents incorporated by reference in
each prospectus contained therein) have been delivered by the Company to the Agents; and no other
document with respect to such registration statement or any such document incorporated by reference
therein has heretofore been filed or transmitted for filing with the Commission.
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 1933 Act at such time and the documents otherwise
deemed to be a part thereof or included therein by the rules and regulations under the 1933 Act, is
herein called the “Registration Statement.” The Registration Statement at the time it originally
became effective is herein called the “Original Registration Statement.” 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.”
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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 Agents; no order preventing or
suspending the use of the Prospectus (as defined below) or any Issuer Free Writing Prospectus (as
defined below) has been issued by the Commission; the Company meets the requirements for use of
Form S-3 and has not been notified by the Commission of any objection to the use of the automatic
shelf registration statement on Form S-3.
The Company has been, and continues to be, a “well-known seasoned issuer” (as defined in Rule
405 of the 1933 Act Regulations) and has not been, and continues not to be, an “ineligible issuer”
(as defined in Rule 405 of the 1933 Act Regulations), in each case at all times relevant under the
1933 Act in connection with the offering of the Securities. The Company has not received from the
Commission any notice pursuant to Rule 401(g)(2) under the 1933 Act objecting to use of the
automatic shelf registration statement and the Company has not otherwise ceased to be eligible to
use the automatic shelf registration statement.
For purposes of this Agreement, the following terms have the specified meanings:
The term “Applicable Time” means the time and date set forth in the Terms Agreement relating
to an issue of Securities or, when not otherwise agreed to between the Company and the applicable
Agents, the time and date when an Agent first conveys to purchasers the pricing terms of an issue
of Securities set forth in the applicable Pricing Supplement (or a Term Sheet (as defined in
Section 3(d)), if any, prepared prior to the Pricing Supplement), for such issue of Securities;
The term “Basic Prospectus” means the base prospectus relating to the Securities included in
the Registration Statement at the time it became effective.
The term “Prospectus” means the prospectus relating to the Securities, including the Basic
Prospectus and the prospectus supplement relating to the Securities heretofore filed with the
Commission (the “Prospectus Supplement”) and any pricing supplement related to any issue of
Securities (the “Pricing Supplement”), in the form first furnished to the Agents for use in
connection with the offering of the Securities, including the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act.
As used herein, the terms “Registration Statement,” “Basic Prospectus,” and “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. Any reference to any amendment or supplement to
the Basic Prospectus or Prospectus shall be deemed to refer to and include any document
incorporated by reference after the date of such Basic Prospectus or any 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.
The term “Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as
defined in Rule 433 under the 1933 Act (“Rule 433”), prepared in connection with an issue of
Securities.
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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 it being
specified in a schedule to the Terms Agreement (for offerings pursuant to Section 2(b)), including,
without limitation, any Term Sheet (as defined in Section 3(d) hereof), or as otherwise identified
by the parties hereto.
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 or 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 Data Gathering, Analysis and Retrieval system (EDGAR).
(ii) The documents incorporated or deemed to be incorporated by reference in the Registration
Statement, the General Disclosure Package (as defined below) and the Prospectus, at the time they
were or hereafter are filed with the Commission, complied or will comply in all material respects
with the requirements of the Securities and Exchange Act of 1934 (the “1934 Act”) and the rules and
regulations thereunder (the “1934 Act Regulations”), and when read together and with the other
information in Registration Statement, the General Disclosure Package and 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 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.
(iii) At the respective times the Original Registration Statement and each amendment thereto
became effective, at each deemed effective date with respect to an Agent pursuant to Rule
430B(f)(2) under the 1933 Act and at the Closing Time, the Registration Statement complied and will
comply in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations
and the Trust Indenture Act of 1939, as amended (the “1939 Act”) and the rules and regulations
thereunder, 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 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, and the Prospectus complied when filed with the Commission in all
material respects with the 1933 Act Regulations and the Prospectus delivered to the Agents 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,
with respect to any issue of Securities, as of the Applicable Time for such issue of Securities,
neither (x) the Basic Prospectus, the Prospectus Supplement, the applicable Pricing Supplement (if
no Term Sheet has been prepared for such issue of Securities) 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
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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 any such issue of Securities or until any earlier date that the Company notified or notifies the
Agents, did not, does not and will not include any information that conflicted, conflicts or will
conflict with the information contained in the Registration Statement, the General Disclosure
Package 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 Section 1(a)(iii)
shall not apply to statements in or omissions from the Registration Statement, the General
Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus made in reliance upon and
in conformity with written information furnished to the Company by any Agent expressly for use
therein or to that part of the Registration Statement constituting the Statement of Eligibility and
Qualification under the 1939 Act (Form T-1) of any trustee.
(iv) The Company and, to the best of its knowledge, its officers and directors are in
compliance with applicable provisions of the Sarbanes-Oxley Act of 2002 and the rules and
regulations promulgated in connection therewith (the “Sarbanes-Oxley Act”), including Section 402
related to loans and Sections 302 and 906 related to certifications.
(v) Ernst & Young LLP (or another nationally recognized firm of independent public
accountants), who certified the financial statements and the Company’s internal controls included
or incorporated by reference in the Registration Statement, the General Disclosure Package and the
Prospectus, is an independent registered public accounting firm as required by the 1933 Act and the
1933 Act Regulations.
(vi) The financial statements of the Company and its consolidated subsidiaries included or
incorporated by reference in the Registration Statement, the General Disclosure Package and the
Prospectus, together with the related schedules and notes, comply as to form in all material
respects with the requirements of the 1933 Act and present fairly the financial position of the
Company and its consolidated subsidiaries at the dates indicated and the statement of operations,
stockholders’ equity and cash flows of the Company and its consolidated subsidiaries for the
periods specified; said financial statements have been prepared in conformity with U.S. generally
accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods
involved.
(vii) Since the respective dates as of which information is given in the Registration
Statement, the General Disclosure Package and the Prospectus, except as otherwise stated therein or
contemplated thereby, (A) there has not been any material decrease in the capital stock or material
increase in the long-term debt to third parties of the Company or any subsidiary of the Company
that would constitute a “significant subsidiary” within the meaning of Article I of Regulation S-X
of the 1933 Act (B) there has been no Material Adverse Effect (as defined below), and (C) there
have been no material transactions entered into by the Company, or any of the subsidiaries of the
Company other than those in the ordinary course of business. “Material Adverse Effect” shall mean
a material adverse change, whether or not arising in the
ordinary course of business, in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its subsidiaries, considered as one.
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(viii) The Company (A) has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Delaware and (B) 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, the General Disclosure Package and the Prospectus. The Company is duly qualified as a
foreign corporation to transact business and is in good standing in each jurisdiction in which its
ownership or lease of properties or the conduct of its business requires such qualification, except
where the failure to be so qualified or in good standing would not, individually or in the
aggregate, result in a Material Adverse Effect.
(ix) U.S. Bank National Association, the Company’s principal subsidiary bank, has been duly
organized 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, 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 the capital stock of U.S. Bank National Association, other
than any director’s qualifying shares, is owned by the Company, directly or through subsidiaries,
free and clear of any mortgage, pledge, lien, encumbrance, claim or equity.
(x) The authorized, issued and outstanding capital stock of the Company is as set forth in the
General Disclosure Package and the Prospectus as of the date or dates specified therein and the
shares of issued and outstanding capital stock set forth therein have been duly authorized and
validly issued and are fully paid and non-assessable and conform to the descriptions thereof
contained in the General Disclosure Package and Prospectus.
(xi) Neither the Company nor any of its subsidiaries is in violation of its charter or by-laws
or in default in the performance or observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan agreement, note, lease or other
agreement or instrument to which it is a party or by which it or any of them or their properties or
assets may be bound, except for such defaults that would not result in a Material Adverse Effect;
and the execution and delivery of this Agreement, the Securities, the Indentures and each
applicable Terms Agreement, if any, and the consummation of the transactions contemplated herein
and therein have been duly authorized by all necessary corporate action and will not conflict with
or constitute a breach of, or default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any of its subsidiaries
pursuant to any contract, indenture, mortgage, deed of trust, loan agreement, note, lease or other
agreement or instrument to which the Company or any of its subsidiaries is a party or by which it
or any of them may be bound or to which any of the property or assets of the Company or any of its
subsidiaries is subject, nor will such action result in any violation of the provisions of the
charter or by-laws of the Company or any of its subsidiaries or any law, administrative regulation
or administrative or court order or decree; and no consent, approval, authorization, order or
decree of, or filing or registration with, any court or governmental agency or body is required for
the consummation by the Company of the
transactions contemplated by this Agreement, except such as may be required under the 1933
Act, the 1939 Act or the 1933 Regulations, all of which have been obtained, or such as may be
required under state securities or Blue Sky laws in connection with the purchase and distribution
of the Securities by the Agents.
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(xii) The Company is not, and after giving effect to the issuance of the offered Securities
and the application of the proceeds thereof as described in the General Disclosure Package and the
Prospectus, will not be an “investment company” that is required to be registered under the
Investment Company Act of 1940, as amended (the “1940 Act”) or controlled by an entity required to
be registered under the 1940 Act as an “investment company.”
(xiii) The Company and its subsidiaries 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.
(xiv) The Company and the subsidiaries of the Company own or possess adequate trademarks,
service marks and trade names necessary to conduct the business now operated by them, and neither
the Company nor any of the subsidiaries of the Company has received any notice of infringement of
or conflict with asserted rights of others with respect to any trademarks, service marks or trade
names which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would materially adversely affect the conduct of the business, operations, financial
condition or income of the Company and its subsidiaries considered as one enterprise.
(xv) There is no action, suit, proceeding, inquiry or investigation before or by any court or
governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Company,
threatened against or affecting, the Company or any of its subsidiaries, which may reasonably be
expected to result in a Material Adverse Effect, or which may reasonably be expected to materially
and adversely affect the properties or assets thereof or which may reasonably be expected to
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 Company
or any of its subsidiaries which are required to be filed as exhibits to the Registration Statement
by the 1933 Act or by the 1933 Act Regulations which have not been so filed.
(xvi) No labor dispute with the employees of the Company or any of its subsidiaries exists or,
to the knowledge of the Company, is imminent.
(xvii) The Securities have been duly authorized for issuance and sale pursuant to this
Agreement and, when issued, authenticated and delivered pursuant to the provisions of this
Agreement and of the Indentures against payment of the consideration therefor specified herein, the
Securities will constitute valid and legally binding obligations of the Company enforceable in
accordance with their terms, except as enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or other similar laws affecting the
enforcement of creditors’ rights generally or by general equitable principles (regardless of
whether enforcement is considered in a proceeding in equity or at law), and except further as
enforcement thereof may be limited by requirements that a claim with respect to any Securities
payable in a foreign or composite currency (or a foreign or composite currency judgment in respect
of such claim) be converted into U.S. dollars at a rate of exchange prevailing on a date determined
pursuant to applicable law or by governmental authority to limit, delay or prohibit the making of
payments outside the United States. The Securities will be substantially in a form previously
certified to the Agents and contemplated by the Indentures; and each holder of Securities will be
entitled to the benefits of the Indenture. The Securities and the Indentures conform in all
material respects to all statements relating thereto contained in the Registration Statement, the
General Disclosure Package and the Prospectus.
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(xviii) Each of this Agreement and any applicable Terms Agreement has been duly authorized,
executed and delivered by the Company.
(xix) The Indentures have been duly qualified under the 1939 Act and have been duly
authorized, executed and delivered by the Company and are the legal, valid and binding agreements
of the Company, enforceable in accordance with their terms except as the enforceability thereof may
be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other
similar laws affecting the enforcement of creditors’ rights generally or by general equitable
principles (regardless of whether enforcement is considered in a proceeding in equity or at law).
(xx) To the best knowledge of the Company, the operations of the Company are currently in
compliance with applicable financial recordkeeping and reporting requirements of the Currency and
Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all
jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations
or guidelines, issued, administered or enforced by any governmental agency (collectively, the
“Money Laundering Laws”) and any instances of non-compliance have been resolved with the applicable
governmental agency and no formal action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the Company with respect to the Money
Laundering Laws is pending or, to the best knowledge of the Company, is threatened.
(xxi) Neither the Company nor any of its subsidiaries, nor, to the knowledge of the Company,
any director, officer, agent, employee or other person associated with or acting on behalf of the
Company or any of its subsidiaries, has (i) used any corporate funds for any unlawful contribution,
gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct
or indirect unlawful payment to any foreign or domestic government official or employee from
corporate funds; (iii) violated or is in violation of any provision of the U.S. Foreign Corrupt
Practices Act of 1977; or (iv) made any bribe, rebate, payoff, influence payment, kickback or other
unlawful payment.
(xxii) Each of the Company 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 Company has established and maintains disclosure controls and
procedures (as defined in Rules 13a-15e and 15d-15e under the 1934 Act) and such controls and
procedures are effective in ensuring that material information relating to the Company, including
its subsidiaries, is made known to the principal executive officer and the principal financial
officer; and the Company has utilized such controls and procedures in preparing and evaluating the
disclosures in the Registration Statement, the General Disclosure Package and the Prospectus.
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(xxiii) None of the Company, any of its subsidiaries or, to the knowledge of the Company, any
director, officer, agent, employee or affiliates, as such term is defined in Rule 501(b) under the
1933 Act (each, an “Affiliate”) of the Company or any of its subsidiaries is currently
subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S.
Department of the Treasury (“OFAC”); and the Company will not directly or indirectly use the
proceeds of the offering of the Securities hereunder, or lend, contribute or otherwise make
available such proceeds to any subsidiary, joint venture partner or other person or entity, for the
purpose of financing the activities of any person currently subject to any U.S. sanctions
administered by OFAC.
(xxiv) The Company has not agreed to pay and the Company does not know of any outstanding
material claims in the nature of a finder’s fee, financial advisory fee, origination fee or similar
fee to be paid by them with respect to the transactions contemplated hereby except as contemplated
by this Agreement.
(xxv) There are no contracts, agreements or understandings among the Company and any person
granting such person the right to require the Company to file a registration statement under the
1933 Act with respect to any securities of the Company or who in connection with the transactions
contemplated hereby have the right to request the Company to include such securities with the
Securities registered pursuant to the Registration Statement.
(xxvi) The Company has all the necessary power and authority to execute and deliver this
Agreement, the Securities, the Indentures and each applicable Terms Agreement, if any, and the
consummation of the transactions contemplated herein and therein.
(xxvii) Each of this Agreement, the Securities, the Indentures and each applicable Terms
Agreement, if any, that are described in the General Disclosure Package and the Prospectus will
conform in all material respects to the respective statements relating thereto in the General
Disclosure Package and the Prospectus.
(xxviii) Neither the Company nor any of its Affiliates has taken, or will take, directly or
indirectly, any action which is designed to or which has constituted or which would be expected to
cause or result in stabilization or manipulation of the price of the Securities in violation of
Regulation M under the 1934 Act.
(xxix) The statements set forth in the General Disclosure Package and the Prospectus under the
captions “Description of Notes” and “Plan of Distribution (Conflicts of Interest),” insofar as such
statements purport to summarize certain provisions of the documents
referred to therein, fairly summarize such provisions in all material respects. The
statements set forth in the General Disclosure Package and the Prospectus under the captions
“Certain United States Federal Income Tax Consequences” insofar as such statements refer to
statements of law or legal conclusions, fairly summarize the matters referred to therein in all
material respects.
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(b) Any certificate signed by any officer of the Company and delivered to you or to your
counsel in connection with an offering of Securities, or the sale of Securities to you pursuant to
any applicable Terms Agreement, contemplated by this Agreement shall be deemed a representation and
warranty by the Company to you as to the matters covered thereby on the date of such certificate
and at each Representation Date referred to in Section 1(a) hereof subsequent thereto relating to
such offering or sale.
SECTION 2. Solicitations as Agent; Purchases as Principal.
(a) Solicitations as Agent. On the basis of the representations and warranties herein
contained, but subject to the terms and conditions herein set forth, you agree to use your
reasonable efforts, as agent for the Company, to solicit offers to purchase the Securities upon the
terms and conditions set forth in the General Disclosure Package and the Prospectus. You are not
authorized to appoint sub-agents with respect to Securities sold through you as agent. All
securities sold through you as agent will be sold at 100% of their principal amount, unless
otherwise agreed upon by you and the Company.
The Company reserves the right, in its sole discretion, to suspend solicitation of purchases
of the Securities commencing at any time for any period of time or permanently. Upon receipt of
instructions from the Company, you will forthwith suspend solicitation of purchases from the
Company until advised by the Company that such solicitation may be resumed.
The Company agrees to pay you a commission equal to a specified percentage, as agreed between
the Company and you, of the principal amount (or, in the case of Original Issue Discount
Securities, the principal amount payable at the stated maturity thereof) of each Security sold by
the Company, as a result of a solicitation made or offer to purchase received by you, as agent for
the Company.
You, in your capacity as agent for the Company, are authorized to solicit orders for the
Securities with terms specified to you from time to time by the Company. You shall communicate to
the Company, orally or in writing, each offer to purchase Securities received by you as agent that
in your judgment should be considered by the Company. The Company shall have the sole right to
accept offers to purchase the Securities and may reject any such offer in whole or in part. You
shall have the right to reject any offer to purchase the Securities received by you in whole or in
part, and any such rejection shall not be deemed a breach of your agreement contained herein.
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(b) Purchases as Principal. Each sale of Securities to you as principal shall be made
in accordance with the terms of this Agreement and (unless the Company and you shall otherwise
agree) a Terms Agreement which will provide for the sale of such Securities to, and
the purchase and reoffering thereof by, you. Your commitment to purchase Securities pursuant
to any Terms Agreement or otherwise shall be deemed to have been made on the basis of the
representations and warranties of the Company herein contained and shall be subject to the terms
and conditions herein set forth; provided, however, that for purposes of any Terms Agreement all
references in this Agreement to “you” or “the Agents” shall be deemed to refer only to the Agent or
Agents that are a party to such Terms Agreement. Each Terms Agreement shall specify the principal
amount of Securities to be purchased by you pursuant thereto, the price to be paid to the Company
for such Securities, the initial public offering price, if any, at which the Securities are
proposed to be reoffered, and the time of delivery of and payment for such Securities and such
other provisions as may be mutually agreed upon. Such Terms Agreement shall also specify any
requirements for officer’s certificates, opinions of counsel and letters from Ernst & Young LLP
pursuant to Sections 5 and 6 hereof. Each purchase of the Securities shall be (i) at a discount
from the principal amount of such Securities as agreed between the Company and such Agent or (ii)
as otherwise agreed between the Company and such Agent.
For each sale of Securities to an Agent as principal that is not made pursuant to a Terms
Agreement, the procedural details relating to the issue and delivery of such Securities and payment
therefor shall be as set forth in the Procedures (as defined below) unless the Company and the
relevant Agent(s) shall otherwise agree.
Subject to the provisions of any applicable Terms Agreement, securities purchased by an Agent
as principal may be resold by such Agent to one or more investors or other purchasers at fixed
offering prices or at varying prices related to prevailing market prices at the time of such
resale, as determined by such Agent. In addition, such Agent may offer the Securities it has
purchased as principal to other dealers.
If the Company and two or more Agents enter into an agreement pursuant to which such Agents
agree to purchase Securities from the Company as principal and one or more of such Agents shall
fail at the Settlement Date to purchase the Securities which it or they are obligated to purchase
(the “Defaulted Securities”), then the nondefaulting Agents shall have the right, within 24 hours
thereafter, to make arrangements for one of them or one or more other Agents or underwriters to
purchase all, but not less than all, of the Defaulted Securities in such amounts as may be agreed
upon and upon the terms herein set forth; provided, however, that if such arrangements shall not
have been completed within such 24-hour period; then:
(i) if the aggregate principal amount of Defaulted Securities does not exceed 10% of
the aggregate principal amount of Securities to be so purchased by all of such Agents on
the Settlement Date, the nondefaulting Agents shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that their respective
initial purchase obligations bear to the purchase obligations of all nondefaulting Agents;
or
(ii) if the aggregate principal amount of Defaulted Securities exceeds 10% of the
aggregate principal amount of Securities to be so purchased by all of such Agents on the
Settlement Date, such agreement shall terminate without liability on the part of any
nondefaulting Agent.
11
No action taken pursuant to this paragraph shall relieve any defaulting Agent from liability
in respect of its default. In the event of any such default which does not result in a termination
of such agreement, either the nondefaulting Agents or the Company shall have the rights to postpone
the Settlement Date for a period not exceeding seven days in order to effect any required changes
in the Registration Statement or the Prospectus or in any other documents or arrangements.
(c) Procedures; Settlement. Administrative procedures with respect to the sale of
Securities are set forth in Exhibit F of the Officers’ Certificate and Company Order, dated April
21, 2011 (the “Procedures”). You and the Company agree to perform on and after the Closing Time
the respective duties and obligations specifically provided to be performed by each of them herein
and in the Procedures. The time of delivery of and payment for Securities, whether pursuant to a
Terms Agreement or other agreement to purchase Securities as principal or pursuant to another
purchaser’s offer to purchase Securities solicited by you in your capacity as agent for the
Company, is hereinafter referred to as the “Settlement Date” for such Securities.
(d) Solicitations as Agent. You agree, with respect to any Security denominated in a
currency other than U.S. dollars, as agent, directly or indirectly, not to solicit offers to
purchase, and as principal under any Terms Agreement or otherwise, directly or indirectly, not to
offer, sell or deliver such Security in, or to residents of, the country issuing such currency (or,
if such Security is denominated in a composite currency, in any country issuing a currency
comprising a portion of such composite currency), except as permitted by applicable law.
(e) Delivery. The documents initially required to be delivered by Section 5 hereof
shall be delivered at the offices of Shearman & Sterling LLP, 599 Lexington Avenue, New York, New
York 10022-6069 on the date hereof, or at such other time as you and the Company may agree upon in
writing (the “Closing Time”).
SECTION 3. Covenants of the Company. The Company covenants with you as follows:
(a) If at any time when the Prospectus is required by the 1933 Act to be delivered in
connection with sales of the Securities, any event shall occur or condition exist as a result of
which it is necessary, in the reasonable opinion of the counsel for the Agents or counsel for the
Company, 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 1933 Act or the 1933 Act Regulations, or
if at any time following issuance of an Issuer Free Writing Prospectus, any event shall occur or
condition exist as a result of which such Issuer Free Writing Prospectus conflicted or would
conflict with the information contained in the Registration Statement or the Prospectus 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, immediate notice shall be
given, and confirmed in writing, to you to cease the solicitation of offers to purchase the
Securities in your capacity as agent for the Company and to cease sales of any Securities you may
then own as principal pursuant to a Terms Agreement or otherwise, and the Company will promptly
prepare and file with the Commission such amendment or supplement, whether by filing documents
pursuant to the 1934 Act, the 1933 Act or otherwise, as may be necessary to correct such untrue
statement, omission or conflict or to make the Registration Statement, the Prospectus or the Issuer
Free Writing Prospectus comply with such requirements.
12
(b) On the date on which there shall be released to the general public interim financial
statement information related to the Company with respect to each of the first three quarters of
any fiscal year or preliminary financial statement information with respect to any fiscal year, the
Company shall post to its website or furnish such information to you, confirmed in writing upon
request, and shall cause the Prospectus to be amended or supplemented to include or incorporate by
reference summary financial information with respect to the results of operations of the Company
for the period between the end of the preceding fiscal year and the end of such quarter or for such
fiscal year, as the case may be, and corresponding information for the comparable period of the
preceding fiscal year, as well as such other information and explanations as shall be necessary for
an understanding of such amounts or as shall be required by the 1933 Act or the 1933 Act
Regulations; provided, however, that if on the date of such release you shall have suspended
solicitation of purchases of the Securities in your capacity as agent for the Company pursuant to a
request from the Company, and shall not then hold any Securities as principal, the Company shall
not be obligated so to amend or supplement the Prospectus until such time as the Company shall
determine that solicitation of purchases of the Securities should be resumed or shall subsequently
enter into a new Terms Agreement with you.
(c) On the date on which there shall be released to the general public financial information
included in or derived from the audited financial statements of the Company for the preceding
fiscal year, the Company shall cause the Registration Statement and the Prospectus to be amended,
pursuant to the 1934 Act, the 1933 Act or otherwise, to include or incorporate by reference such
audited financial statements and the report or reports, and consent or consents to such inclusion
or incorporation by reference, of the independent accountants with respect thereto, as well as such
other information and explanations as shall be necessary for an understanding of such financial
statements or as shall be required by the 1933 Act or the 1933 Act Regulations; provided, however,
that if on the date of such release you shall have suspended solicitation of purchases of the
Securities in your capacity as agent for the Company pursuant to a request from the Company, and
shall not then hold any Securities as principal, the Company shall not be obligated so to amend or
supplement the Prospectus until such time as the Company shall determine that solicitation of
purchases of the Securities should be resumed or shall subsequently enter into a new Terms
Agreement with you.
(d) The Company will: (A) prepare the Pricing Supplement in relation to the applicable
Securities in a form approved by the Agents and to file such Pricing Supplement pursuant to Rule
424(b) under the 1933 Act in the manner and within the time period required by Rule 424(b); (B) if
agreed between the Company and the Agents, prepare a final term sheet (a “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 period specified therein;
(C) file promptly all material required to be filed by the Company 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 referred to in Section 6(a) hereof relating to such offered
Securities and prior to the applicable Settlement Date for such offered Securities which is not
consented to by the Agents after reasonable notice thereof (such consent not to be unreasonably
withheld).
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(e) The Company represents and agrees that, unless it obtains the prior consent of the Agents,
and each Agent represents and agrees that, unless it obtains the prior consent of the Company and
the other Agents, it has not made and will not make any offer relating to any issue of Securities
that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free
writing prospectus,” as defined in Rule 405 of the 1933 Act Regulations, required to be filed by
the Company with the Commission or retained by the Company under Rule 433, provided that consent
shall have been deemed to have been given with respect to a free writing prospectus containing the
information contained in the Term Sheet prepared and filed pursuant to Section 3(d) hereto. Any
such free writing prospectus consented to by the Company and the Agents is hereinafter referred to
as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees
that it will treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus 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. Notwithstanding anything to the contrary contained herein, the Company and the
Agents consent to the use by the Agents of one or more term sheets relating to the securities
containing either the information describing the preliminary terms of the securities or their
offering or the information included in the applicable Pricing Supplement (or a Term Sheet (as
defined in Section 3(d)) and other customary information that is not “issuer information,” as
defined in Rule 433, provided that such term sheet shall not be treated as an Issuer Free Writing
Prospectus.
(f) The Company will make generally available to its security holders (as defined in Rule 158)
as soon as practicable, but not later than 45 days after the close of each of the first three
fiscal quarters of each fiscal year and 90 days after the close of each fiscal year, earnings
statements (in form complying with the provisions of Rule 158 under the 1933 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.
(g) The Company will give you notice of its intention to file any amendment to the
Registration Statement or any amendment or supplement to the Prospectus, (other than a prospectus
supplement not relating to the Securities or an amendment or supplement providing solely for the
interests rates, redemption provisions, maturities or other terms of the Securities or other
information contemplated by the Prospectus or required by the 1933 Act or 1933 Act Regulations to
be filed in a Pricing Supplement or an amendment or supplement effected by the filing of a document
with the Commission pursuant to the 1934 Act). The Company will furnish you with copies of any
such amendment or supplement or other documents proposed to be filed a reasonable time in advance
of filing, will not file any such amendment or supplement or other
documents in a form to which you or your counsel shall reasonably object and, if requested,
will furnish you with copies of documents filed pursuant to the 1934 Act promptly upon request.
14
(h) The Company will notify you immediately (i) of the filing and effectiveness of any
amendment to the Registration Statement (other than a prospectus supplement not relating to the
Securities or an amendment or supplement providing solely for the interests rates, redemption
provisions, maturities or other terms of the Securities or other information contemplated by the
Prospectus or required by the 1933 Act or 1933 Act Regulations to be filed in a Pricing Supplement
or an amendment or supplement effected by the filing of a document with the commission pursuant to
the 1934 Act), (ii) of the receipt of any comments from the Commission with respect to the
Registration Statement or the Prospectus or any document filed pursuant to the 1934 Act that is
incorporated by reference in the Prospectus, (iii) 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, (iv) 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 (v) of the suspension of qualification of the Securities for
offering or sale in any jurisdiction or the initiation or threat of initiation of any proceedings
for that purpose. The Company will make every reasonable effort to prevent the issuance of any
stop order or suspension of qualification and, if any stop order or suspension of qualification is
issued, to obtain the lifting thereof at the earliest possible moment.
(i) The Company will deliver to you, in printed, electronic or such other format as may be
agreed, 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 you may reasonably request. The
Company will furnish to you as many copies of the Prospectus (as amended or supplemented), in
printed, electronic or such other format as may be agreed, as you shall reasonably request so long
as you are required to deliver a Prospectus in connection with sales or solicitations of offers to
purchase the Securities.
(j) The Company will endeavor, in cooperation with you, to qualify the Securities for offering
and sale under the applicable securities laws of such states and other jurisdictions of the United
States as the Agents may designate, and will maintain such qualifications in effect for as long as
may be required for the distribution of the Securities; provided, however, that the Company shall
not be obligated to file any general consent to service of process or to qualify as a foreign
corporation in any jurisdiction in which it is not so qualified. The Company will file such
statements and reports as may be required by the laws of each jurisdiction in which the Securities
have been qualified as above provided.
(k) The Company, during the period in which the Prospectus is required to be delivered under
the 1933 Act, will file promptly all documents required to be filed with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the 1934 Act.
15
(l) Between the date of any Terms Agreement to which you are a party and the Settlement Date
with respect to such Terms Agreement, the Company will not, without the prior consent (which will
not be unreasonably withheld) of each Agent that is a party to such Terms Agreement (or, in the
case of a syndicated issue, the book-running lead manager(s)), offer
or sell, or enter into any agreement to sell, any U.S. dollar-denominated debt securities of
the Company with terms otherwise substantially similar to those of the Securities which are the
subject of such Terms Agreement (other than such Securities), except as may otherwise be provided
in any such Terms Agreement. Between (i) the date the Company accepts an offer by any Agent to
purchase Securities as principal not pursuant to a Terms Agreement and confirms in writing its
agreement to comply with this Section 3(l) with respect to such Securities, and (ii) the Settlement
Date with respect to such Securities, the Company will not, without the prior consent (which will
not be unreasonably withheld) of such Agent, offer or sell, or enter into any agreement to sell,
any U.S. dollar-denominated debt securities of the Company with terms otherwise substantially
similar to those of the Securities purchased by such Agent as principal (other than such
Securities), except as may otherwise be provided in the Company’s written confirmation to such
Agent.
(m) The Company will suspend solicitation of purchases of the Securities, and will advise the
Agents of such suspension, upon receiving notice from a nationally recognized statistical rating
organization of the downgrading of any rating assigned to any debt securities of the Company or of
any intended or potential downgrading or any review with possible negative implications.
SECTION 4. Payment of Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Agreement (whether or not any sale of Securities is
consummated), including: (i) the preparation and filing of the Registration Statement, the General
Disclosure Package and Prospectus and all amendments and supplements thereto, (ii) the preparation,
issuance and delivery of the Securities, (iii) the fees and disbursements of the Company’s counsel
and accountants and of the Trustee and its counsel, (iv) the qualification of the Securities under
securities or Blue Sky laws in accordance with the provisions of Section 3(j), including filing
fees and the reasonable fees and disbursements of counsel in connection therewith and in connection
with the preparation of any Blue Sky Memorandum, any Blue Sky Survey and any Legal Investment
Survey, (v) the printing and delivery to you in quantities as hereinabove stated of copies of the
Registration Statement, the General Disclosure Package and the Prospectus and any amendments or
supplements thereto, (vi) the printing and delivery to you of copies of the Indentures and any Blue
Sky Memorandum, Blue Sky Survey and any Legal Investment Survey, (vii) any fees charged by rating
agencies for the rating of the Securities and (viii) the filing fees incident to, and the fees and
disbursements of counsel for the Agents in connection with, securing any required review by the
Financial Industry Regulatory Authority of the terms of the sale of the Securities. The Company
shall reimburse you for the reasonable fees and disbursements of your counsel in connection with
the establishment and maintenance of the program contemplated by this Agreement. The Company shall
also reimburse you for any advertising and other out-of-pocket expenses incurred with the prior
approval of the Company.
16
SECTION 5. Conditions of Obligation. Your obligation to solicit offers to purchase
the Securities in your capacity as agent of the Company and your obligation to purchase Securities
as principal pursuant to any Terms Agreement or otherwise and the obligations of purchasers to
purchase Securities pursuant
to purchase offers solicited by you and accepted by the Company will be subject to the
accuracy of the representations and warranties on the part of the Company herein, to the accuracy
of the statements of the Company’s officers made in any certificate furnished pursuant to the
provisions hereof, to the performance and observance by the Company of all covenants and agreements
herein contained on its part to be performed and observed (in the case of an Agent’s obligation to
solicit offers to purchase Securities, at the time of such solicitation, and, in the case of an
Agent’s or any other purchaser’s obligation to purchase Securities, at the time the Company accepts
the offer to purchase such Securities and at the applicable Settlement Date) and (in each case) to
the following additional conditions precedent:
(a) At Closing Time and at each Settlement Date with respect to any applicable Terms Agreement
to which you are a party, if called for by such Terms Agreement, you shall have received:
(1) The opinion or opinions (including the 10b-5 letter), dated as of such time, of
Squire, Sanders & Dempsey (US) LLP, counsel to the Company, in form and substance
satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own, lease and operate
its properties and conduct its business as described in the Registration Statement,
the General Disclosure Package (if applicable) and the Prospectus.
(iii) U.S. Bank National Association has been duly organized 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, the
General Disclosure Package (if applicable) and the Prospectus.
(iv) This Agreement (and, if the opinion is being given pursuant to Section
6(c) hereof on account of the Company having entered into a Terms Agreement, the
applicable Terms Agreement) has been duly authorized, executed and delivered by the
Company.
(v) Each of the Senior Note Indenture and the Subordinated Note Indenture has
been duly and validly authorized, executed and delivered by the Company and
(assuming each such Indenture has been duly authorized, executed and delivered by
the Senior Note Trustee or the Subordinated Note Trustee, as applicable) constitutes
a valid and binding agreement of the Company, enforceable in accordance with its
terms, except as enforceability thereof may be limited by bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or other similar laws affecting the
enforcement of creditors’ rights
generally or by general equitable principles (regardless of whether enforcement
is considered in a proceeding in equity or at law).
17
(vi) The Securities have been duly and validly authorized by all necessary
corporate action and, when executed, authenticated, issued and delivered as
specified in the applicable Indenture and delivered against payment of the
consideration therefore in accordance with this Agreement, will constitute valid and
binding obligations of the Company, enforceable in accordance with their terms,
except as enforceability thereof may be limited by bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or other similar laws affecting the
enforcement of creditors’ rights generally or by general equitable principles
(regardless of whether enforcement is considered in a proceeding in equity or at
law); and the Securities will be substantially in the form contemplated by the
Senior Note Indenture and the Subordinated Note Indenture, as applicable, and will
conform in all material respects to the description thereof contained in the General
Disclosure Package and the Prospectus.
(vii) The statements in the General Disclosure Package (if applicable) and the
Prospectus under the caption “Description of Debt Securities” and similar captions
in the applicable prospectus supplement, insofar as they purport to summarize
certain provisions of documents specifically referred to therein, are accurate
summaries of such provisions.
(viii) The statements in the General Disclosure Package (if applicable) and the
Prospectus with respect to the Securities under the caption “Certain United States
Federal Income Tax Consequences,” to the extent that they constitute matters of law
or legal conclusions, have been reviewed by such counsel and are correct.
(ix) To the best of such counsel’s knowledge and information, there are no
contracts, indentures, mortgages, loan agreements, notes, leases or other
instruments required to be described or referred to in the General Disclosure
Package, the Registration Statement or to be filed as exhibits thereto other than
those described or referred to therein or filed or incorporated by reference as
exhibits thereto and the descriptions thereof or references thereto are correct.
(x) The Indentures are qualified under the 1939 Act.
(xi) The Registration Statement is effective under the 1933 Act; any required
filing of each prospectus relating to the offered Securities (including the
Prospectus) pursuant to Rule 424(b) has been made in the manner and within the time
period required by Rule 424(b) (without reference to Rule 424(b)(8)); any required
filing of each Issuer Free Writing Prospectus pursuant to Rule 433 has been made in
the manner and within the time period required by Rule 433(d); and, to the best of
our knowledge, no stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or threatened
by the Commission.
18
(xii) At the time the Registration Statement, including without limitation the
Rule 430B Information, became effective or is deemed effective, and at the date
hereof, the Registration Statement and the Prospectus, and at the time they were
filed, each document incorporated by reference therein (other than the financial
statements, including the notes and schedules thereto and the audit reports thereon,
or any other financial or statistical data set forth or referred to therein or any
document incorporated by reference therein or omitted therefrom, or any exhibits
thereto, and the Statements of Eligibility of the Trustee on Form T-1 filed as an
exhibit thereto, as to which no opinion need be rendered), complied as to form in
all material respects with the requirements of the 1933 Act, the 1934 Act, the 1939
Act and the regulations under each of those Acts; and such counsel has no reason to
believe that (other than the financial statements, including the notes and schedules
thereto and the audit reports thereon, or any other financial or statistical data
set forth or referred to therein or any document incorporated by reference therein
or omitted therefrom, or any exhibits thereto, as to which no opinion need be
rendered) the Registration Statement, including without limitation the Rule 430B
Information, as of its effective date and each deemed effective date, or if an
amendment to the Registration Statement or to any document incorporated by reference
therein has been filed by the Company with the Commission subsequent to the
effectiveness of the Registration Statement, then at the time of the most recent
such filing, and at the date hereof, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Prospectus, as amended or supplemented at Closing Time or the Settlement Date, as
the case may be, as of its date, at Closing Time and the Settlement Date, contained
or contains an untrue statement of a material fact or omits 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 or that the General Disclosure Package
(if applicable) as of the Applicable Time, contained an untrue statement of a
material fact or omits 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.
(xiii) No consent, approval, authorization, license or order of, or filing or
registration with, any court or governmental authority or agency is required for the
performance by the Company of this Agreement, the Terms Agreement, the Securities,
the Senior Note Indenture or the Subordinated Note Indenture, or the consummation by
the Company of the transactions herein and therein contemplated, except such as may
be required under the 1933 Act or the 1933 Act Regulations, all of which have been
obtained, or such as may be required under state securities laws.
(xiv) The Company is not an “investment company” within the meaning of the 1940
Act, and in respect of each Settlement Date with respect to
any applicable Terms Agreement which calls for an opinion to be delivered
pursuant hereto, the Company, after giving effect to the application of proceeds
from the offering of the Securities as contemplated in the Prospectus, will not be
an “investment company” within the meaning of the 1940 Act.
(xv) The Company has all the necessary power and authority to execute, deliver
and perform this Agreement, the Terms Agreement, the Securities, the Senior Note
Indenture and the Subordinated Note Indenture and to consummate the transactions
herein and therein contemplated.
19
(2) The opinion or opinions, dated as of such time, of the General Counsel of the
Company, in form and substance satisfactory to you, to the effect that:
(i) There are no pending or, to the best of such counsel’s knowledge, overtly
threatened lawsuits or claims against the Company or any subsidiary of the Company
that are required to be disclosed in the documents incorporated by reference in the
Registration Statement that are not disclosed as required.
(ii) The execution and delivery of this Agreement (and, if the opinion is being
given pursuant to Section 6(c) hereof on account of the Company having entered into
a Terms Agreement, the applicable Terms Agreement), the Securities and the
Indentures and the consummation of the transactions contemplated herein and therein
will not (a) conflict with or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any subsidiary
pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other
instrument known to such counsel to which the Company or any of its subsidiaries is
a party or by which it or any of them may be bound or to which any of the property
or assets of the Company or any of its subsidiaries is subject and that is material
to the Company and its subsidiaries, taken as a whole, or (b) result in a violation
of any law or administrative regulation or administrative or court decree of any
court or governmental agency, authority or body or any arbitrator having
jurisdiction over the Company known to such counsel and applicable to the Company,
nor will such action result in any violation of the provisions of the charter or
by-laws of the Company.
(iii) The Company is duly qualified to do business as a foreign corporation and
is in good standing in each U.S. jurisdiction in which its ownership or lease of
substantial properties or the conduct of its business requires such qualification,
except where the failure to so qualify would not have a Material Adverse Effect on
the Company and its subsidiaries, taken as a whole.
(3) The opinion or opinions of your counsel, relating to the validity of the
Securities, the Indentures, this Agreement, such other matters as the Agent or Agents
receiving such opinion may request and the Registration Statement, the General Disclosure
Package (if applicable) and the Prospectus.
(b) At Closing Time and at each Settlement Date with respect to any Terms Agreement to which
you are a party, if called for by such Terms Agreement, you shall have received a certificate of
the Chairman, Vice Chairman, President or a Vice President of the Company, dated as of Closing Time
and, if called for by such Terms Agreement, dated as of the Settlement Date for such transaction,
in each case 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 Company’s securities by any nationally
recognized statistical rating organization since the date of the Terms Agreement (if such
certificate is called for by such Terms Agreement), (ii) that the representations and warranties of
the Company contained in Section 1 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 Company has 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.
20
(c) At Closing Time, at the date of any Terms Agreement and on the applicable Settlement Date
with respect to any such Terms Agreement to which you are a party, if called for by such Terms
Agreement, you shall have received from Ernst & Young LLP (or another nationally recognized firm of
independent public accountants), a letter, dated as of the Closing Time or the date of the Terms
Agreement, and a bring-down letter, dated as of such Settlement Date, as applicable, in form and
substance satisfactory to you, to the effect that:
(i) They are independent public accountants with respect to the Company and its
subsidiaries within the meaning of the 1933 Act and the 1933 Act Regulations.
(ii) In their opinion, the consolidated financial statements and schedules
audited by them and included in the General Disclosure Package and the Prospectus
comply as to form in all material respects with the applicable accounting
requirements of the 1933 Act, the 1934 Act and the 1933 Act Regulations.
(iii) They have made a review of any unaudited consolidated financial
statements included in the General Disclosure Package and the Prospectus in
accordance with standards established by the Public Company Accounting Oversight
Board.
(iv) On the basis of the review referred to in (iii) and a reading of the
latest available interim financial information of the Company and its consolidated
subsidiaries, inspection of the minute books of the Company and such subsidiaries
since the date of the balance sheet included in the Company’s most recent audited
financial statements, inquiries of officials of the Company responsible for
financial and accounting matters and other specified procedures, nothing came to
their attention that caused them to believe that the unaudited financial statements
included in the General Disclosure Package and the Prospectus do not comply as to
form in all material respects with applicable
accounting requirements of the 1933 Act, the 1934 Act and the 1933 Act
Regulations or that the unaudited financial statements included in the General
Disclosure Package and the Prospectus are not presented in conformity with GAAP
applied on a basis consistent in all material respects with that of the audited
financial statements included in the General Disclosure Package and the Prospectus.
21
(v) They have performed specified procedures, not constituting an audit,
including a reading of the latest available interim financial statements of the
Company and its consolidated subsidiaries, a reading of the minute books of the
Company and such subsidiaries since the date of the balance sheet included in the
Company’s most recent audited financial statements, inquiries of officials of the
Company 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 three
business days prior to the date of delivery of such letter, there was any
change in certain balance sheet items including the capital stock of the
Company and its consolidated subsidiaries, any increase in long-term debt of
the Company and its consolidated subsidiaries or any decreases in
consolidated common shareholders’ equity of the Company and its consolidated
subsidiaries, in each case as compared with amounts shown in the most recent
consolidated balance sheet included in the General Disclosure Package and
the Prospectus, except in each case for changes, increases or decreases
which the General Disclosure Package and 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 General Disclosure Package and the Prospectus to the date
not more than three business days prior to the delivery of such letter,
there were any decreases, as compared with the corresponding period in the
preceding year, in certain income statement items including consolidated net
income or consolidated net interest income, except for decreases which the
General Disclosure Package and 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 General
Disclosure Package and 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 Company and its subsidiaries subject to the internal
controls of the Company’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 materials incorporated by reference in the
General Disclosure Package and the Prospectus shall be deemed included in the General Disclosure
Package and the Prospectus for purposes of this subsection.
22
(d) At Closing Time and at each Settlement Date with respect to any Terms Agreement to which
you are a party, if called for by such Terms Agreement, the counsel for the Agents 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 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 Company in connection with the issuance and sale of the Securities as
herein contemplated shall be satisfactory in form and substance to the Agents and their counsel.
Your obligation to solicit offers to purchase the Securities in your capacity as Agent for the
Company, your obligation to purchase Securities as principal pursuant to any Terms Agreement or
otherwise and the obligations of purchasers to purchase Securities pursuant to purchase offers
solicited by you and accepted by the Company will be subject to the following further conditions:
(i) there shall not have been, since the date of such Terms Agreement or since the respective dates
as of which information is given in the Registration Statement and the Prospectus, any Material
Adverse Effect, other than as set forth in the Prospectus, as amended or supplemented at the time
of such solicitation or at the time such offer to purchase was made, and (ii) there shall not have
occurred any outbreak or escalation of hostilities or any material change in financial markets or
other calamity or crisis (including, without limitation, an act of terrorism) the effect of which
is such as to make it, in your judgment (or, in the case of a syndicated issue, in the judgment of
the book-running lead manager(s)), impracticable or inadvisable to market the Securities or enforce
contracts for the sale of the Securities, and (iii) trading in securities of the Company shall not
have been suspended by the Commission or a national securities exchange, nor shall trading
generally on either the Nasdaq Global Market 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) there shall not have
been a material disruption in commercial banking or securities settlement or clearance services in
the United States, and (v) the rating assigned by any nationally recognized statistical rating
organization to any debt securities of the Company as of the date of the applicable Terms Agreement
or the date that the applicable purchase offer was presented to the Company, as the case may be,
shall not have been
downgraded from that date to the applicable Settlement Date 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 (vi) the Prospectus, at the time it was required to be delivered
to a purchaser of the 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.
23
If any condition specified in this Section 5 shall not have been fulfilled, any Terms
Agreement to which you are a party and any agreement to purchase Securities from the Company
pursuant to a purchase offer solicited by you as Agent may be terminated insofar as it applies to
you (or, if terminated by the book-running lead manager of a syndicated issue, as it applies to all
Agents party thereto) or to a prospective purchaser, in the case of a solicited purchase offer, by
notice to the Company at any time at or prior to the Closing Time or applicable Settlement Date,
and such termination shall be without liability of any party to any other party, except that the
covenants set forth in Section 3(f) hereof, the provisions of Section 4 hereof, the indemnity and
contribution agreement set forth in Sections 7 and 8 hereof, and the provisions of Sections 10 and
13 hereof shall remain in effect.
SECTION 6. Additional Covenants of the Company. The Company covenants and agrees
that:
(a) Each acceptance by it of an offer for the purchase of Securities, and each sale of
Securities to you (whether to you as principal or through you as agent), shall be deemed to be an
affirmation that the representations and warranties of the Company contained in this Agreement and
in any certificate theretofore delivered to you pursuant hereto are true and correct at the time of
such acceptance or sale, as the case may be, and an undertaking that such representations and
warranties will be true and correct at the time of delivery to the purchaser or his agent, or you,
as the case may be, of the relevant Securities, as though made at and as of each such time (and it
is understood that such representations and warranties shall relate to the Registration Statement,
the General Disclosure Package and the Prospectus as amended and supplemented to each such time);
(b) Each time that the Registration Statement, the General Disclosure Package or the
Prospectus shall be amended or supplemented (other than by an amendment or supplement relating
solely to the terms of the Securities or a change in the principal amount of Securities remaining
to be sold or similar changes) or there is filed with the Commission any document incorporated by
reference in the General Disclosure Package or the Prospectus (other than by an amendment or
supplement relating solely to the terms of the Securities or a change in the principal amount of
the Securities remaining to be sold or similar changes) or if the Company sells Securities to you
pursuant to a Terms Agreement and such Terms Agreement so provides, the Company shall, if so
requested by you or if so required by such Terms Agreement, furnish or cause to be furnished to you
(or, if such certificate is being furnished pursuant to a Terms Agreement, to the Agent or Agents
party thereto) forthwith a certificate in form satisfactory to you (or, if such certificate is
being furnished pursuant to a Terms Agreement, to the Agent or Agents party thereto) to the effect
that the statements contained in the certificates referred to in
Section 5(b) hereof which were last furnished to you are true and correct at the time of such
amendment or supplement or filing or sale, as the case may be, as though made at and as of such
time (except that such statements shall be deemed to relate to the Registration Statement, the
General Disclosure Package and the Prospectus as amended and supplemented to such time) or, in lieu
of such certificate, certificates of the same tenor as the certificates referred to in said Section
5(b), modified as necessary to relate to the Registration Statement, the General Disclosure Package
and the Prospectus as amended and supplemented to the time of delivery of such certificates;
24
(c) If the Company sells Securities to you pursuant to a Terms Agreement and such Terms
Agreement so provides, the Company shall, if so required by such Terms Agreement, furnish or cause
to be furnished forthwith to you (or, if such certificate is being furnished pursuant to a Terms
Agreement, to the Agent or Agents party thereto) and the counsel for the Agents, written opinions
of Squire, Sanders & Dempsey (US) LLP, counsel to the Company, or other counsel satisfactory to the
Agents receiving such opinion, and the General Counsel of the Company, each dated the date of
delivery of such opinion, in form satisfactory to the Agents receiving such opinion, of the same
tenor as the opinions referred to in Sections 5(a)(1) and 5(a)(2), respectively, hereof but
modified, as necessary, to relate to the Registration Statement, the General Disclosure Package
and the Prospectus as amended and supplemented to the time of delivery of such opinions or, in lieu
of such opinions, counsel last furnishing each such opinion to the Agents shall furnish to the
Agent or Agents entitled to receive such opinion a letter to the effect that such Agent or Agents
may rely on such last opinion to the same extent as though it was dated the date of such letter
authorizing reliance (except that statements in such last opinion shall be deemed to relate to the
Registration Statement, the General Disclosure Package and the Prospectus as amended and
supplemented to the time of delivery of such letter authorizing reliance); and
(d) If the Company sells Securities to you pursuant to a Terms Agreement and such Terms
Agreement so provides, the Company shall, if so required by such Terms Agreement, cause Ernst &
Young LLP (or another nationally recognized firm of independent public accountants) forthwith to
furnish you (or, if such letter is being furnished pursuant to a Terms Agreement, to the Agent or
Agents party thereto) a letter, dated the date of filing of such amendment, supplement or document
with the Commission, or the date of such sale, as the case may be, in form satisfactory to the
Agent or Agents entitled to receive such letter, of the same tenor as the portions of the letter
referred to in clauses (i) and (ii) of Section 5(c) hereof but modified to relate to the
Registration Statement, the General Disclosure Package and Prospectus, as amended and supplemented
to the date of such letter, and of the same general tenor as the portions of the letter referred to
in clauses (iii), (iv), (v) and (vi) of said Section 5(c) with such changes as may be necessary to
reflect changes in the financial statements and other information derived from the accounting
records of the Company; provided, however, that if the Registration Statement, the General
Disclosure Package or the Prospectus is amended or supplemented solely to include financial
information as of and for a fiscal quarter, Ernst & Young LLP may limit the scope of such letter to
the unaudited financial statements included in such amendment or supplement unless any other
information included therein of an accounting, financial or statistical nature is of such a nature
that, in the reasonable judgment of the Agent or Agents entitled to receive such letter, such
letter should cover such other information.
25
SECTION 7. Indemnification.
(a) The Company agrees to indemnify and hold harmless each Agent and each person, if any, who
controls such Agent within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 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
Basic Prospectus, Prospectus Supplement, Pricing Supplement, General Disclosure Package or the
Prospectus (or any amendment or supplement thereto or any related preliminary prospectus or
preliminary prospectus supplement), any Issuer Free Writing Prospectus or any “issuer information”
filed or required to be filed pursuant to Rule 433(d) 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 furnished to the Company by such Agent
expressly for use in the Registration Statement (or any amendment thereto), Basic Prospectus,
Prospectus Supplement, Pricing Supplement, General Disclosure Package or the Prospectus (or any
amendment or supplement thereto or any related preliminary prospectus or preliminary prospectus
supplement) or any Issuer Free Writing Prospectus;
(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 furnished by such Agent as aforesaid) if such
settlement is effected with the prior written consent of the Company; and
(iii) against any and all expense whatsoever (including the fees and disbursements of counsel
chosen by such Agent), 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 furnished by such Agent as aforesaid), to the extent that any such expense is not
paid under (i) or (ii) above.
(b) Each Agent severally agrees to indemnify and hold harmless the Company, its directors,
each of its officers who signed the Registration Statement, and each person, if any, who controls
the Company within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against
any and all loss, liability, claim, damage and expense described in the indemnity contained in
subsection (a) of this Section 7, but only with respect to
untrue statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto), Basic Prospectus, Prospectus Supplement,
Pricing Supplement, General Disclosure Package or the Prospectus (or any amendment or supplement
thereto or any related preliminary prospectus or preliminary prospectus supplement), any Issuer
Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule
433(d) in reliance upon and in conformity with written information furnished to the Company by such
Agent expressly for use in the Registration Statement (or any amendment thereto), Basic Prospectus,
Prospectus Supplement, Pricing Supplement, General Disclosure Package or the Prospectus (or any
amendment or supplement thereto or any related preliminary prospectus or preliminary prospectus
supplement) or any Issuer Free Writing Prospectus.
26
(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. In the case of parties indemnified pursuant to Section 7(a)
hereof, counsel to the indemnified parties shall be selected by the applicable Agent(s) and, in the
case of parties indemnified pursuant to Section 7(b) hereof, counsel to the indemnified parties
shall be selected by the Company. An indemnifying party may participate at its own expense in the
defense of such action; provided, however, that counsel to the indemnifying party shall not (except
with the consent of the indemnified party) also be counsel to the indemnified party. 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 Agents is an
indemnified party each such Agent shall be entitled to separate counsel (in addition to any local
counsel) in each such jurisdiction to the extent such Agent may have interests conflicting with
those of the other Agent or Agents because of the participation of one Agent in a transaction
hereunder in which the other Agent or Agents 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.
SECTION 8. Contribution. In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 7 is for any reason held to
be unavailable in accordance with its terms, the Company and the applicable Agents shall contribute
to the aggregate losses, liabilities, claims, damages and expenses of the nature contemplated by
said indemnity agreement incurred by the Company and the applicable Agents with respect to the
Securities that were the subject of the claim for indemnification in such proportions as is
appropriate to reflect the relative benefits received by the Company on the one hand and the
applicable Agents on the other. The relative benefits received by the Company on the one hand and
the applicable Agents 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 applicable Agents
from such Securities bears to the total net proceeds (before deducting expenses) received
by the Company from such Securities, and the Company is responsible for the balance. If,
however, the allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the applicable Agents failed to give the notice required under Section 7(c)
hereof, then the Company and the applicable Agents 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 Company and the applicable Agents in
connection with the statements or omissions which resulted in such liabilities, claims, damages and
expenses, as well as any other relevant equitable considerations. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact relates to information
supplied by the Company or the applicable Agents and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or omission. The
Company and the applicable Agents agree that it would not be just and equitable if contributions
pursuant to this Section 8 were determined pro rata (even if the Agents were
27
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 Section 8. Notwithstanding the provisions of this
Section 8, the applicable Agents 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
Section 8 that were offered and sold to the public through the applicable Agents exceeds the amount
of any damages that the applicable Agents 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 1933 Act) shall be entitled under
this Section 8 to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person, if any, who controls the
applicable Agents within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall have the same rights to contribution as the applicable Agents, and each director of the
Company, each officer of the Company who signed the Registration Statement, and each person, if
any, who controls the Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Company. In addition, in connection
with an offering of Securities purchased from the Company by two or more Agents as principal, the
respective obligations of such Agents to contribute pursuant to this Section 8 are several, and not
joint, in proportion to the aggregate principal amount of Securities that each such Agent has
agreed to purchase from the Company.
SECTION 9. Status of the Agents. In acting under this Agreement and in connection
with the sale of any Securities by the Company (other than Securities sold to you as principal),
you are acting solely as agent of the Company and do not assume any obligation towards or
relationship of agency or trust with any purchaser of Securities. You will make reasonable efforts
to assist the Company in obtaining performance by each purchaser whose offer to purchase Securities
from the Company has been solicited by you and accepted by the Company but you shall not have any
liability to the Company in the event any such purchase is not consummated for any reason. If the
Company shall default in its obligations to deliver Securities to a purchaser whose offer it has
accepted, the Company shall hold you harmless against any loss, claim, damage or liability arising
from or as a result of such default and shall, in particular, pay to you the commission you would
have received had such sale been consummated.
SECTION 10. Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties and indemnification and contribution agreements contained in this
Agreement or any Terms Agreement or other agreement to purchase Securities as principal to which
you are a party, or contained in certificates of officers of the Company submitted pursuant hereto
or thereto, shall remain operative and in full force and effect, regardless of any termination of
this Agreement or any such Terms Agreement or any such other agreement, or any investigation made
by or on behalf of the Agents or any controlling person referred to in Section 7, or by or on
behalf of the Company or any controlling person referred to in Section 7, and shall survive each
delivery of and payment for any of the Securities.
SECTION 11. Termination. This Agreement may be terminated with respect to the
participation of any party hereto for any reason at any time by such party upon the giving of 30
days’ advance written notice of such termination to the other parties hereto. Any Terms Agreement
or other agreement to purchase securities as principal to which you are a party shall be subject to
termination pursuant to the terms set forth or incorporated by reference therein, but the
termination of this Agreement shall not automatically cause the termination of any such Terms
Agreement or such other agreement.
28
In the event of any such termination of this Agreement by any other party hereto, no other
party will have any liability to such party and such party will not have any liability to any other
party hereto, except that (i) you shall be entitled to any commissions earned in accordance with
the third paragraph of Section 2(a) hereof, (ii) if at the time of termination (A) you shall own
any of the Securities with the intention of reselling them or (B) an offer to purchase any of the
Securities has been accepted by the Company but the time of delivery to the purchaser or his agent
of the Securities or Securities relating thereto has not occurred, the covenants set forth in
Sections 3, 5 and 6 hereof shall remain in effect until such Securities are so resold or delivered,
as the case may be and (iii) the covenant set forth in Section 3(f) hereof, the provisions of
Section 4 hereof, the indemnity and contribution agreements set forth in Sections 7 and 8 hereof,
and the provisions of Sections 9, 10, 13 and 14 hereof shall remain in effect.
SECTION 12. Notices. All notices and other communications hereunder shall be in
writing and effective upon receipt and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to any or all of the Agents shall
be directed to the applicable address set forth on Schedule A attached hereto. Notices to the
Company shall be directed to it at U.S. Bancorp, 800 Nicollet Mall, BC-MN-H18T, Minneapolis,
Minnesota 55402, attention of the Assistant Treasurer.
Each Agent hereby notifies the Company that in accordance with the requirements of the USA
Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Agents are
required to obtain, verify and record information that identifies their respective clients,
including the Company, which information may include the name and address
of their respective clients, as well as other information that will allow the Agents to properly
identify their respective clients.
SECTION 13. Nature of Relationship. The Company acknowledges and agrees that (i) the
purchase and sale of the Securities pursuant to this Agreement is an arm’s-length commercial
transaction between the Company, on the one hand, and the Agent(s), on the other hand, (ii) in
connection with any offering of the Securities and the process leading to such transactions the
Agent(s) is and has been acting solely as a principal and not the agent or fiduciary of the Company
or its respective stockholders, creditors, employees or any other party, (iii) the Agent(s) has not
assumed and will not assume an advisory or fiduciary responsibility in favor of the Company with
respect to any offering of the Securities contemplated in this Agreement or the process leading
thereto (irrespective of whether the Agent(s) has advised or is currently advising the Company on
other matters) and the Agent(s) has no obligation to the Company with respect to any offering of
the Securities contemplated in this Agreement, except the obligations expressly set forth in this
Agreement, (iv) the Agent(s) and its affiliates may be engaged in a broad range of transactions
that involve interests that differ from those of the Company and (v) the Agent(s) has not provided
any legal, accounting, regulatory or tax advice with respect to any offering of the Securities
contemplated in this Agreement, and the Company has consulted its own legal, accounting, regulatory
and tax advisors to the extent it deemed appropriate.
29
SECTION 14. Parties. This Agreement and any Terms Agreement to which you are a party
shall inure to the benefit of and be binding upon you (or, in the case of a Terms Agreement, the
Agent or Agents which are a party thereto) and the Company and their respective successors and, to
the extent provided in Section 5 hereof, shall inure to the benefit of any person who has agreed to
purchase Securities from the Company pursuant to a purchase offer solicited by you. Nothing
expressed or mentioned in this Agreement or any Terms Agreement to which you are a party is
intended or shall be construed to give any person, firm or corporation, other than the parties
hereto and their respective successors and, to the extent provided in Section 5 hereof, any person
who has agreed to purchase Securities from the Company pursuant to a purchase offer solicited by
you, and the controlling persons and officers and directors referred to in Sections 7 and 8 and
their heirs and legal representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any such Terms Agreement or any provision herein or therein contained.
This Agreement and any such Terms Agreement and all conditions and provisions hereof and thereof
are intended to be for the sole and exclusive benefit of the parties hereto and their respective
successors and, to the extent provided in Section 5 hereof, any person who has agreed to purchase
Securities from the Company pursuant to a purchase offer solicited by you, and said controlling
persons and officers and directors and their heirs and legal representatives, and for the benefit
of no other person, firm or corporation. No purchaser of Securities shall be deemed to be a
successor by reason merely of such purchase.
SECTION 15. Governing Law . This Agreement and the rights and obligations of the parties created hereby shall be
governed by the laws of the State of New York.
30
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to the Company a counterpart hereof, whereupon this instrument along with all counterparts
will become a binding agreement between you and the Company in accordance with its terms.
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Very truly yours,
U.S. BANCORP
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By: |
/s/
Kenneth D. Nelson |
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Name: |
Kenneth D. Nelson |
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Title: |
Executive Vice President
and Treasurer |
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CONFIRMED AND ACCEPTED, as of the date first above written:
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U.S. BANCORP INVESTMENTS, INC.
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By: |
/s/
Stephen Philipson |
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Name: |
Stephen Philipson |
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Title: |
Managing Director |
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CONFIRMED AND ACCEPTED, as of the date first above written:
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BARCLAYS CAPITAL INC.
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By: |
/s/
Diane Rinnovatore |
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Name: |
Diane Rinnovatore |
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Title: |
Managing Director |
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CONFIRMED AND ACCEPTED, as of the date first above written:
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CITIGROUP GLOBAL MARKETS INC.
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By: |
/s/
Jack McSpadden |
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Name: |
Jack McSpadden |
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Title: |
Managing Director |
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CONFIRMED AND ACCEPTED, as of the date first above written:
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CREDIT SUISSE SECURITIES (USA) LLC
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By: |
/s/
Sharon Harrison |
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Name: |
Sharon Harrison |
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Title: |
Director |
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CONFIRMED AND ACCEPTED, as of the date first above written:
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DEUTSCHE BANK SECURITIES INC.
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By: |
/s/
Anguel Zaprianov |
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Name: |
Anguel Zaprianov |
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Title: |
Managing Director |
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By: |
/s/
Saurabh Monga |
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Name: |
Saurabh Monga |
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Title: |
Director |
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CONFIRMED AND ACCEPTED, as of the date first above written:
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GOLDMAN, SACHS & CO.
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By: |
/s/
Goldman, Sachs & Co. |
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CONFIRMED AND ACCEPTED, as of the date first above written:
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HSBC SECURITIES (USA) INC.
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By: |
/s/
Richard N. Zobkiw |
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Name: |
Richard N. Zobkiw |
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Title: |
Vice President |
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CONFIRMED AND ACCEPTED, as of the date first above written:
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J.P MORGAN SECURITIES LLC
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By: |
/s/
Stephen L. Sheiner |
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Name: |
Stephen L. Sheiner |
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Title: |
Executive Director |
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CONFIRMED AND ACCEPTED, as of the date first above written:
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KEEFE, BRUYETTE & WOODS, INC.
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By: |
/s/
Jeffrey D. Evans |
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Name: |
Jeffrey D. Evans |
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Title: |
Managing Director |
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CONFIRMED AND ACCEPTED, as of the date first above written:
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MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
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By: |
/s/
Matt Basler |
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Name: |
Matt Basler |
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Title: |
Managing Director |
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CONFIRMED AND ACCEPTED, as of the date first above written:
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MORGAN STANLEY & CO. INCORPORATED
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By: |
/s/
Yurij Slyz |
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Name: |
Yurij Slyz |
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Title: |
Executive Director |
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CONFIRMED AND ACCEPTED, as of the date first above written:
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nabSECURITIES, LLC
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By: |
/s/
Samantha Ridler |
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Name: |
Samantha Ridler |
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Title: |
Director |
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CONFIRMED AND ACCEPTED, as of the date first above written:
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RBC CAPITAL MARKETS, LLC
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By: |
/s/
Scott G. Primrose |
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Name: |
Scott G. Primrose |
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Title: |
Authorized Signatory |
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CONFIRMED AND ACCEPTED, as of the date first above written:
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RBS SECURITIES INC.
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By: |
/s/
Robert Fahrbach |
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Name: |
Robert Fahrbach |
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Title: |
Managing Director |
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CONFIRMED AND ACCEPTED, as of the date first above written:
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UBS SECURITIES LLC
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By: |
/s/ Scott Yeager |
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Name: |
Scott Yeager |
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Title: |
Managing Director |
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By: |
/s/ Anna Kawa |
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Name: |
Anna Kawa |
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Title: |
Director |
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CONFIRMED AND ACCEPTED, as of the date first above written:
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WELLS FARGO SECURITIES, LLC
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By: |
/s/
Carolyn Hurley |
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Name: |
Carolyn Hurley |
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Title: |
Director |
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SCHEDULE A
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Agent |
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Address for notices: |
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U.S. Bancorp Investments, Inc.
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U.S. Bancorp Investments, Inc.
214 N. Tryon Street, 26th Floor
Charlotte, NC 28202
Telephone: (877) 558-2607
Facsimile: (877) 732-2217
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Barclays Capital Inc.
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Barclays Capital Inc.
745 Seventh Avenue, 5th Floor
New York, New York 10019
Attn: Syndicate Registration
Facsimile: 646-834-8133 |
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Citigroup Global Markets Inc. |
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Citigroup Global Markets Inc.
388 Greenwich Street
New York, NY 10013
Attn: Transaction Execution Group, 33rd Floor
Facsimile: (636) 291-5209 |
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Credit Suisse Securities (USA) LLC
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Credit Suisse Securities (USA) LLC
Eleven Madison Avenue
New York, New York 10010
Attention: Transaction Management Group
Telephone: (212) 325-7198
Facsimile: (212) 743-5825 |
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Deutsche Bank Securities Inc.
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Deutsche Bank Securities Inc.
60 Wall Street
New York, NY 10005
Telephone: (212) 250-2500
Facsimile: (212) 797-7202
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Goldman, Sachs & Co.
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Goldman, Sachs & Co.
200 West Street
New York, New York 10282
Attention: Registration Department
Telephone: (866) 471-2526 |
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Agent
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Address for notices: |
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HSBC Securities (USA) Inc.
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HSBC Securities (USA) Inc.
452 Fifth Avenue, 3rd Floor
New York, NY 10018
Attention: Transaction Management
Telephone: (212) 525-5107
Facsimile: (212) 525-0238 |
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J. P. Morgan Securities LLC
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J.P. Morgan Securities LLC
383 Madison Avenue
New York, NY 10179
Attention: High Grade Syndicate Desk |
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Keefe, Bruyette & Woods, Inc.
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Keefe, Bruyette & Woods, Inc.
787 Seventh Avenue
4th Floor
New York, NY 10019
Telephone: (212) 887-4739
Facsimile: (212) 582-1592 |
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Merrill Lynch, Pierce, Fenner & Smith
Incorporated
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Merrill Lynch, Pierce, Fenner & Smith
Incorporated
One Bryant Park
NY1-100-18-03
New York, NY 10036
Attention: High Grade Transaction
Management/Legal
Telephone: (656) 855-5958 |
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Morgan Stanley & Co. Incorporated
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Morgan Stanley & Co. Incorporated
1585 Broadway, Floor 4
New York, NY 10036 |
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nabSecurities, LLC
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nabSecurities, LLC
245 Park Avenue, Floor 28
New York, NY 10167 |
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Agent
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Address for notices: |
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RBC Capital Markets, LLC
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RBC Capital Markets, LLC
Three World Financial Center
200 Vesey Street, 8th Floor
New York, New York 10281-8098
Telephone: (212) 618-7819
Facsimile: (213) 658-6137 |
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RBS Securities Inc.
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RBS Securities Inc.
600 Washington Boulevard
Stamford, CT 06901 |
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UBS Securities LLC
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UBS Securities LLC
677 Washington Boulevard
Stamford, Connecticut 06901
Attention: Fixed Income Syndicate
Telephone: (203) 719-1088
Facsimile: (203) 719-0495 |
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Wells Fargo Securities, LLC
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Wells Fargo Securities, LLC
301 S. College Street
Charlotte, NC 28288
Attention: Transaction Management
Facsimile: (704) 383-9165 |
EXHIBIT A
U.S. Bancorp
(A Delaware corporation)
[Medium-Term Notes, Series T (Senior)]
[Medium-Term Notes, Series U (Subordinated)]
TERMS AGREEMENT
, 20[_____]
Attention:
Re: Distribution Agreement dated April 21, 2011
The undersigned agrees to purchase the following principal amount of Securities:
$
Initial Public Offering Price:
[Initial]* Interest Rate:
[Index Maturity:]*
[Interest Rate Basis:]*
[Maximum Interest Rate:]*
[Minimum Interest Rate:]*
[Interest Determination Dates:]*
[Interest Reset Dates:]*
[Interest Payment Dates:]
[Maturity Date:]
[Spread:]*
[Spread Multiplier:]*
[Interest Period:]*
[Regular Record Date (if other than the fifteenth calendar day preceding each Interest Payment Date):]*
B-1
Purchase Price: %
Settlement Date and Time:
Redemption Provisions, if any:
[Currency of denomination:]**
[Denominations:]**
[Currency of payment:]**
[Original Issue Discount Note:]
[Other provisions:]
The provisions of Sections 1, 2(b) and 2(c), 3, 4, 5, 6, 7, 8 and 10 through 14 of the
Distribution Agreement and the related definitions are incorporated by reference herein and shall
be deemed to have the same force and effect as if set forth in full herein.
Exceptions, if any, to Section 3(l) of the Distribution Agreement:
The Applicable Time means [a.m./p.m.] (Eastern time) on .
[Documents to be delivered:
The following documents referred to in the Distribution Agreement shall be
delivered:
[(1) The certificate referred to in Sections 5(b) and 6(b);]
[(2) The opinions referred to in Sections 5(a)(1), 5(a)(2), [5(a)(3)]
and 6(c);]
[(3) The accountants’ letter referred to in Sections 5(c) and 6(d).]]
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| * |
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Applicable to Floating Rate Notes only. |
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| ** |
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Applicable to Foreign Currency Notes Only. |
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Accepted:
U.S. BANCORP
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By: |
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[Title] |
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B-2
EXHIBIT B
FORM OF SYNDICATED TERMS AGREEMENT
[Date]
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To:
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The Purchasing Agents Listed on Annex 1 Hereto |
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c/o |
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(the “Lead Agents”)
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Re:
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Distribution Agreement, dated April 21, 2011 |
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Ladies and Gentlemen:
Subject to the terms and conditions of the Distribution Agreement, dated April 21, 2011, among
U.S. Bancorp and the agents listed on Schedule A thereto concerning the sale of Securities
to be issued by the Issuer, as amended or supplemented, the agents named in Annex 1 hereto
(the “Purchasing Agents”, and together with the agents listed on Schedule A to the
Distribution Agreement, the “Agents”) agree to purchase on a syndicated basis the
Securities due of the Issuer (the “Securities”),
described in the [Pricing Supplement/Term Sheet] attached as Annex 2 hereto, on the terms
set out in such [Pricing Supplement/Term Sheet] and on the terms set out below. Unless otherwise
defined herein, all terms used herein have the meanings given to them in the Distribution
Agreement.
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1. |
|
Subject to the terms and conditions of the Distribution Agreement and this
Agreement, the Issuer hereby agrees to issue the Securities, and the Purchasing Agents
severally agree to purchase the Securities at the purchase price of per
Securities (being equal to the issue price of
_____% of the principal amount less a
management and underwriting fee of
_____% of the principal amount and a selling
concession of
_____% of the principal amount). |
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2. |
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The Applicable Time means [a.m./p.m.] (Eastern time) on . |
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3. |
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The purchase price specified above will be paid by the book-running lead
manager(s) (the “Lead Agent(s)”) on behalf of the Purchasing Agents
by wire transfer in immediately available funds to the Issuer at (
time) on , or at such other time and/or date as the Issuer and
the Lead Agent(s) on behalf of the Agents may agree (the “Settlement Time”)
against delivery of the Securities to or upon your order in the manner contemplated in
the Distribution Agreement. |
C-3
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4. |
|
The Purchasing Agents’ obligations hereunder are conditional on (a) the receipt
of: [(i) opinions of counsel described in Section 5(a) of the Distribution Agreement,
dated as of the Settlement Time,] (ii) the officer’s certificate described in Section
5(b) of the Distribution Agreement, dated as of the Settlement Time; [(iii) a “comfort
letter” described in Section 5(c) of the Distribution Agreement, dated as of the
Settlement Time,]; (b) since the date of this Agreement, there having not occurred, in
the reasonable opinion of the Agents, a change in international financial, political or
economic conditions or currency exchange rates or exchange controls as would be likely
to prejudice materially the sale by the Purchase Agents of the Securities; and (c) such
other opinions, certificates and documents as may be agreed by the Issuer and the
Agents on or prior to the date of this Agreement. |
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5. |
|
The Issuer hereby appoints each Purchasing Agent party hereto which is not a
party to the Distribution Agreement (each a “New Agent”) as an Agent under the
Distribution Agreement solely for the purposes of the issue of the Securities (the
“Issue”), pursuant to the Distribution Agreement. Each such New Agent shall be
vested, in relation to the Issue, with all authority, rights, powers, duties and
obligations of an Agent purchasing Securities pursuant to the Distribution Agreement,
as if originally named as an Agent under the Distribution Agreement. |
In consideration of the Issuer appointing each New Agent as an Agent with respect to the
Issue, each New Agent hereby undertakes for the benefit of the Issuer and each of the other
Purchasing Agents, that, in relation to the Issue it will perform and comply with all of the duties
and obligations expressed to be assumed by an Agent under the Distribution Agreement, a copy of
which it acknowledges it has received.
Each New Agent acknowledges that such appointment is limited to the Issue and is not for any
other issue of Securities of the Issuer pursuant to the Distribution Agreement and that such
appointment will terminate upon issue of the Securities comprising the Issue but without prejudice
to any rights, duties or obligations which have arisen prior to such termination.
For the purposes hereof, the notice details of each New Agent are as follows (insert name,
address, telephone, telecopy and attention):
[insert notice details]
6. The provisions of Section 2(b) of the Distribution Agreement related to Defaulted
Securities and the related definitions are incorporated by reference herein and shall be deemed to
have the same force and effect as if set forth in full herein. As used herein, the term “Agent”
includes any person substituted for or added as an Agent under this Section 6.
C-4
This Agreement is a Syndicated Terms Agreement referred to in the Distribution Agreement and
shall be governed by and construed in accordance with the law of the State of New York.
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Very truly yours,
[Purchasing Agents] [New Agents]
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By: |
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Name: |
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| |
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Title: |
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Accepted: [Date]
U.S. BANCORP
C-5
ANNEX 1
| |
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| AGENT |
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PRINCIPAL AMOUNT OF SECURITIES |
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TOTAL: |
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ANNEX 2
[ATTACH PRICING SUPPLEMENT/TERM SHEET]