Exhibit 1.1
U.S. Bancorp
(a Delaware corporation)
Medium-Term Notes, Series AA (Senior)
Medium-Term Notes, Series BB (Subordinated)
DISTRIBUTION AGREEMENT
March 11, 2020
U.S. Bancorp Investments, Inc.
214 North Tryon St. - 26th Floor
Charlotte, North Carolina 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 appointed as an agent from time to time pursuant to Section 17 of this Agreement being hereinafter referred
to as an “Agent”) with respect to the issue and sale by the Company of Medium-Term Notes, Series AA (Senior)
(the “Senior Notes”) and Medium-Term Notes, Series BB (Subordinated) (the “Subordinated Notes”
and, together with the Senior Notes, the “Securities”) due nine (9) months or more from date of issue.
The Senior 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 21, 2017, (as so amended, 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 such 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, and a Second Supplemental Indenture, dated as of April 21, 2017 (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 such Officers’ Certificate. The Senior Note Indenture and the Subordinated Note Indenture, are
together 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 as of April 21, 2017, 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. 333-237082) (A) 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, (B) has
been filed with the Commission under the 1933 Act not earlier than the date that is three years prior to the Closing Time and (C) 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 and all documents that have been filed with the Commission
pursuant to EDGAR (as defined below) and incorporated by reference in each prospectus contained therein) have been delivered or
made available 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) of the 1933 Act Regulations is referred to as the “Rule 430B Information.”
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 and 1933 Act Regulations 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 form.
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 applicable 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 (as defined below) (or a Term Sheet
(as defined below), 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
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
Securities Act (“Rule 433”), relating to the Offered Securities that (i) is required to be filed with the
Commission by the Company, (ii) is a “road show that is a written communication” within the meaning of Rule 433(d)(8)(i) whether
or not required to be filed with the Commission or (iii) is exempt from filing pursuant to Rule 433(d)(5)(i) because
it contains a description of the Offered Securities or of the offering that does not reflect the final terms, in each case, in
the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the records
of the Company pursuant to Rule 433(g).
The term “Issuer
General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is intended for general distribution
to prospective investors (other than a “bona fide electronic road show,” as defined in Rule 433) 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, as amended (the “1934 Act”)
and the rules and regulations thereunder, and when read together and with the other information in the 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 Time and at each Settlement 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; provided, however, that the foregoing shall not
apply to any statements or omissions made therein in reliance upon and in conformity with information furnished in writing to the
Company by you expressly for use therein.
(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 Regulations, at the Closing Time and at
each Settlement Date, 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 and at each Settlement Date, 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
and 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 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; and 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 Regulations, (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 enterprise.
(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 authorized to transact the business of banking 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 in all material respects to the descriptions thereof
contained in the General Disclosure Package and Prospectus.
(xi) Neither
the Company nor any of its subsidiaries is (A) in violation of its organizational documents or (B) in default in the
performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed
of trust, loan or credit agreement, note, lease or other agreement or instrument (or similar documents) to which it is a party
or by which it or any of them or their properties or assets may be bound, except in the case of this clause (B) for such violations
or 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, except where such breach or default would not result
in a Material Adverse Effect, nor will such action result in any violation of the provisions of the charter or bylaws (or similar
document) 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 Act 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.
(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 its subsidiaries own or possess all material trademarks, service marks and trade names necessary to conduct the business
now operated by them, and neither the Company nor any of its subsidiaries has received any notice of infringement of or conflict
with asserted rights of others with respect to any trademarks, service marks or trade names that, if the subject of an unfavorable
decision, ruling or finding would, individually or in the aggregate, result in a Material Adverse Effect.
(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
might result in a Material Adverse Effect, or which might materially and adversely affect the properties or assets thereof or might
materially and adversely affect the consummation of this Agreement and the consummation of the transactions contemplated hereby;
and there are no material contracts or documents of the Company or any of its subsidiaries which are required to be filed as exhibits
to the Registration Statement by the 1933 Act, 1933 Act Regulations or 1934 Act, which have not been so filed.
(xvi) No
material 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.
(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) Except
as specifically disclosed in the General Disclosure Package and the Prospectus, (A) to the best knowledge of the Company,
the operations of the Company and its subsidiaries are currently in compliance with applicable financial record keeping and reporting
requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions,
the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or
enforced by any governmental agency (collectively, the “Money Laundering Laws”), (B) any instances of non-
compliance have been resolved with the applicable governmental agency and (C) no formal action, suit or proceeding by or before
any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect
to the Money Laundering Laws is pending or, to the best knowledge of the Company, threatened.
(xxi) Neither
the Company nor any of its subsidiaries, nor, to the knowledge of the Company, any director, officer, agent, employee, affiliate
or other person “associated with” (within the meaning of the U.K. Bribery Act of 2010) or acting on behalf of the Company
or any of its subsidiaries, has (A) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity; (B) made any direct or indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds; (C) violated or is in violation of any provision of the U.S. Foreign Corrupt
Practices Act of 1977 or the U.K. Bribery Act of 2010; or (D) made any unlawful 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; and 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.
(xxiii) None
of the Company, any of its subsidiaries or, to the knowledge of the Company, any director, officer, agent, employee or affiliate
of the Company or any of its subsidiaries is an individual or entity (“Person”) currently subject to any sanctions
administered or enforced by the United States Government, including, without limitation, the U.S. Department of the Treasury’s
Office of Foreign Assets Control, the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other
relevant sanctions authority (collectively, “Sanctions”), nor is the Company located, organized or resident
in a country or territory that is the subject of Sanctions; and the Company will not directly or indirectly use the proceeds of
the sale of the offered Securities, or lend, contribute or otherwise make available such proceeds to any subsidiaries, joint venture
partners or other Person, to fund any activities of or business with any Person, or in any country or territory, that, at the time
of such funding, is the subject of Sanctions or in any other manner that will result in a violation by any Person (including any
Person participating in the offering of the offered Securities, whether as underwriter, advisor, investor or otherwise) of Sanctions.
(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, the Officers’
Certificates establishing the terms of the Securities and each applicable Terms Agreement, if any, and the consummation of the
transactions contemplated herein and therein.
(xxvii) Each
of this Agreement 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.
(xxx) (i) (A) Except
as specifically disclosed in the General Disclosure Package and the Prospectus, the Company is not aware of any security breach
or other material compromise of or relating to any of the Company’s or its subsidiaries’ information technology and
computer systems, networks, hardware, software, data (including the data of their respective customers, employees, suppliers, vendors
and any third-party data maintained by or on behalf of them), equipment or technology (collectively, “IT Systems and Data”)
and (B) the Company and its subsidiaries have not been notified of, and have no knowledge of any event or condition that would
reasonably be expected to result in, any security breach or other material compromise to their IT Systems and Data, (ii) the
Company and its subsidiaries are presently in compliance with all applicable laws or statutes and all judgments, orders, rules and
regulations of any court or arbitrator or governmental or regulatory authority and internal policies relating to the privacy and
security of IT Systems and Data and to the commercially reasonable protection of such IT Systems and Data from unauthorized use,
access, misappropriation or modification, except as would not, in the case of clause (i) and (ii) above, individually
or in the aggregate, reasonably be expected to result in a Material Adverse Effect, and (iii) the Company and its subsidiaries
have implemented backup and disaster recovery technology reasonably consistent with industry standards and practices.
(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 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.
(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 contained herein and in any
applicable Terms Agreement and shall be subject to the terms and conditions set forth herein and in any such Terms Agreement; 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 (or another nationally
recognized firm of independent public accountants) 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 a Terms 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.
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 shall be set forth in an exhibit to the Officers’
Certificate and Company Orders relating to such Securities, each as delivered by the Company on the date hereof, as agreed to between
the Company and the Agents (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 herein referred to as the “Settlement Date” for such Securities.
(d) Non-U.S.
Dollar-Denominated Securities. 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 Sidley Austin LLP,
787 Seventh Avenue, New York, New York 10019 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, in the light
of the circumstances existing at the time it is delivered to a purchaser, not misleading, 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.
(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: (i) prepare the Pricing Supplement in relation to the applicable Securities in a form approved by the Agents
and 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); (ii) 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; (iii) file promptly all material required to be
filed by the Company with the Commission pursuant to Rule 433(d) under the 1933 Act; and (iv) 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).
(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 under the 1933 Act) 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 a 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 with respect to each sale of Securities, provided that the Company may make such earnings
statements generally available by filing quarterly and annual reports with the Commission as may be required by the 1934 Act.
(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 an amendment to the Registration Statement or 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; provided, however, that the Company shall not be required to furnish any document (other
than the Prospectus) to you to the extent such document is available on EDGAR.
(h) The
Company will notify you as promptly as practicable (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.
(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” (as defined in Section 3(a)(62) of the 1934
Act) of the downgrading of any rating assigned to any debt securities of the Company or upon receiving notice 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 Senior Note
Trustee and the Subordinated Note 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) hereof, 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.
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
the 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:
(i) The
opinion or opinions (including the 10b-5 letter), dated as of such time, of Mayer Brown LLP, counsel to the Company, in a form
and substance satisfactory to you, to the effect set forth in Exhibit C hereto.
(ii) The
opinion or opinions, dated as of such time, of the General Counsel of the Company, in a form and substance satisfactory to you,
to the effect set forth in Exhibit D hereto.
(iii) 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
the 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 the 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 pursuant to
this Agreement at or prior to the date of such certificate and (iv) that, to the best of the Company’s knowledge, 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.
(c) At
the 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 a form and substance satisfactory to you,
containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters
with respect to certain financial information contained in or incorporated by reference into the General Disclosure Package and
the Prospectus, and confirming that 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.
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.
(d) At
the 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 a 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, the General Disclosure Package and the Prospectus, any Material Adverse Effect, other than as set forth in the General
Disclosure Package and 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 the light of the circumstances existing
at such time, not misleading.
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 a 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.
(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 Mayer
Brown 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 a 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).
(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 a form satisfactory to the Agent or Agents entitled to receive such letter, of the same tenor
as the letters previously delivered pursuant to 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, 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 (or another nationally recognized
firm of independent public accountants) 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.
SECTION 7. Indemnification.
(a) The
Company agrees to indemnify and hold harmless each Agent, their officers, directors, affiliates 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 or expense, joint or several, 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 the 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 (which consent shall not be unreasonably withheld or delayed); and
(iii) against
any and all expense whatsoever (including the fees and disbursements of counsel chosen by such Agent), as incurred, insofar as
they are 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 and not jointly, 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.
(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
(i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of
such proceeding and (ii) does not include a statement as to an admission of fault, culpability or a failure to act by or on
behalf of any indemnified party.
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 unavailable or insufficient to hold harmless an indemnified party under Section 7(a) or (b) above
in respect of any losses, liabilities, claims, damages or expenses (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the aggregate losses, liabilities, claims, damages and expenses of the nature contemplated
by said indemnity agreement incurred by each indemnified party 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 indemnified party failed to give the notice required
under Section 7(c) hereof, then each indemnified party 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 on the one hand and each Agent on the other in connection with the statements or omissions which resulted in such
liabilities, claims, damages and expenses, as well as any other relevant equitable considerations. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to information supplied by the Company on the one hand or by the Agents on
the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement
or omission. The Company and each Agent 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 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 above in this Section 8. Notwithstanding
the provisions of this Section 8, no Agent shall 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 hereof, or by or on behalf
of the Company or any controlling person referred to in Section 7 hereof, 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.
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,
12, 13, 14 and 16 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 (A) 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, (B) 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, (C) 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, (D) 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 (E) 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.
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. Recognition
of the U.S. Special Resolution Regimes. In the event that any Agent that is a Covered Entity becomes subject to a proceeding
under a U.S. Special Resolution Regime, the transfer from such Agent of this Agreement, and any interest and obligation in or under
this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime
if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United
States.
In the event that any
Agent that is a Covered Entity or a BHC Act Affiliate of such party becomes subject to a proceeding under a U.S. Special Resolution
Regime, Default Rights under this Agreement that may be exercised against such party are permitted to be exercised to no greater
extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by
the laws of the United States or a state of the United States.
For purposes of this
Section 15, a “BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be
interpreted in accordance with, 12 U.S.C. § 1841(k). “Covered Entity” means any of the following: (i) a “covered
entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered
bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered
FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). “Default Right”
has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1,
as applicable. “U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations
promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations
promulgated thereunder.
SECTION 16. 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.
SECTION 17. Additional
Agents. The Company may from time to time appoint any institution as a new agent hereunder in respect of the offer or sale
of Securities generally or in relation to a particular tranche of Securities only; in which event, upon such institution’s
confirmation and acceptance of such appointment by delivery of an agent accession letter on the terms mutually satisfactory to
the Company and such institution, such institution shall become a party hereto, subject as provided below, with all the authority,
rights, powers, duties and obligations of an Agent as if originally named as an Agent hereunder; provided, further, that,
in the case of an institution that has become an Agent in relation to a particular tranche of Securities, following the issue of
such tranche of Securities, the relevant new Agent shall have no further authority, rights, powers, duties or obligations except
such as may have accrued or been incurred prior to, or in connection with, the issue of such tranche of Securities.
SECTION 18. Contractual
Recognition of Bail-In. Notwithstanding and to the exclusion of any other term of this Agreement or any Terms Agreement or
any other agreements, arrangements, or understanding between any of the parties thereto, each of the parties to this Agreement
acknowledges, accepts, and agrees that any BRRD Liability of a BRRD Party hereto arising under this Agreement or any Terms Agreement
may be subject to the exercise of Statutory Loss Absorption Powers by the Relevant Resolution Authority and acknowledges, accepts,
consents to and agrees to be bound by:
(a) the
effect of the exercise of any Statutory Loss Absorption Powers by the Relevant Resolution Authority in relation to any BRRD Liability
of any of the Agents to the Issuing Bank and/or any other Agent under this Agreement or any Terms Agreement, that (without limitation)
may include and result in any of the following, or a combination thereof:
(i) the
reduction of all, or a portion, of the BRRD Liability or outstanding amounts due thereon;
(ii) the
conversion of all, or a portion of, the BRRD Liability into shares, other securities or other obligations of the relevant Agent
or another person (and the issue to or conferral on the Issuing Bank of such shares, securities or obligations);
(iii) the
cancellation of the BRRD Liability; or
(iv) the
amendment or alteration of any interest, if applicable, thereon, the maturity or the dates on which any payments are due, including
by suspending payment for a temporary period; and
(b) the
variation of the terms of this Agreement or any Terms Agreement, as deemed necessary by the Relevant Resolution Authority, to give
effect to the exercise of any Statutory Loss Absorption Powers by the Relevant Resolution Authority.
For the purposes of this
Section 18:
“Bail-In Legislation”
means in relation to the United Kingdom and a member state of the European Economic Area which has implemented, or which at any
time implements, the BRRD, the relevant implementing law, regulation, rule or requirement as described in the EU Bail-In Legislation
Schedule from time to time;
“BRRD” means
Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms, as amended
or replaced from time to time;
“BRRD Liability”
has the same meaning as in such laws, regulations, rules or requirements implementing the BRRD under the applicable Bail-in
Legislation;
“BRRD Party”
means any party hereto that is subject to Statutory Loss Absorption Powers;
“EU Bail-in Legislation
Schedule” means the document described as such, then in effect, and published by the Loan Market Association (or any successor
person) from time to time at http://www.lma.eu.com/;
“Relevant Resolution
Authority” means, in relation to any BRRD Party, the resolution authority with the ability to exercise any Statutory Loss
Absorption Powers as defined in this Section 18; and
“Statutory Loss
Absorption Powers” means any write-down, conversion, transfer, modification, suspension or similar or related power existing
from time to time under, and exercised in compliance with, any applicable laws, regulations, rules or requirements pursuant
to the applicable Bail-in Legislation.
[Signature Pages Follow]
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, |
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U.S. BANCORP |
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By: |
/s/ John M. Tessmer |
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Name: |
John M. Tessmer |
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Title: |
Senior Vice President |
[Signature
Page to Distribution Agreement]
| CONFIRMED AND ACCEPTED, as of the date
first above written: |
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BARCLAYS CAPITAL INC. |
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By: |
/s/ Meghan M. Maher |
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Name: Meghan Maher |
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Title: Managing Director |
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BNP PARIBAS SECURITIES CORP. |
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By: |
/s/ William Coughlin |
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Name: William Coughlin |
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Title: Vice President |
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BOFA SECURITIES, INC. |
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By: |
/s/ Andrew Karp |
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Name: Andrew Karp |
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Title: Managing Director |
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CAPITAL ONE SECURITIES, INC. |
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By: |
/s/ Sam Baruch |
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Name: Sam Baruch |
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Title: Managing Director |
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CIBC WORLD MARKETS CORP. |
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By: |
/s/ Paul Hadlow |
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Name: Paul Hadlow |
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Title: Managing Director |
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CITIGROUP GLOBAL MARKETS INC. |
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By: |
/s/ Adam D. Bordner |
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Name: Adam D. Bordner |
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Title: Director |
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CREDIT SUISSE SECURITIES (USA) LLC |
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By: |
/s/ Brian Carlin |
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Name: Brian Carlin |
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Title: Director |
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DEUTSCHE BANK SECURITIES INC. |
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By: |
/s/ Lourdes M. Fisher |
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Name: Lourdes M. Fisher |
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Title: Managing Director |
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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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GOLDMAN SACHS & CO. LLC |
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By: |
/s/ Adam Greene |
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Name: Adam Greene |
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Title: Managing Director |
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HSBC SECURITIES (USA) INC. |
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By: |
/s/ Diane Kenna |
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Name: Diane Kenna |
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Title: Managing Director |
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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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MORGAN STANLEY & CO. LLC |
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By: |
/s/ Ian Drewe |
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Name: Ian Drewe |
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Title: ED |
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PNC CAPITAL MARKETS LLC |
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By: |
/s/ Valerie Shadeck |
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Name: Valerie Shadeck |
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Title: Director |
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RBC CAPITAL MARKETS, LLC |
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By: |
/s/ Saurabh Monga |
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Name: Saurabh Monga |
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Title: Managing Director |
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TD SECURITIES (USA) LLC |
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By: |
/s/ Luiz Lanfredi |
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Name: Luiz Lanfredi |
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Title: Director |
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UBS SECURITIES LLC |
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By: |
/s/ James Anderson |
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Name: James Anderson |
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Title: Executive Director |
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By: |
/s/ Ahmet Yetis |
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Name: Ahmet Yetis |
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Title: Executive Director |
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U.S. BANCORP INVESTMENTS, INC. |
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By: |
/s/ Kyle Stegemeyer |
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Name: Kyle Stegemeyer |
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Title: Managing Director |
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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 |
SCHEDULE A
| Agent |
Address for notices: |
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| U.S. BANCORP INVESTMENTS, INC. |
U.S. Bancorp Investments, Inc.
214 North Tryon Street – 26th Floor
Charlotte, North Carolina 28202
Attention: High Grade Syndicate
Telephone: (877) 558-2607
Facsimile: (877) 732-2219 |
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| BARCLAYS CAPITAL INC. |
Barclays Capital Inc.
745 Seventh Avenue – 5th Floor
New York, New York 10019
Attention: Syndicate Registration
Telephone: (888) 603-5847
Facsimile: (646) 834-8133 |
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BNP PARIBAS SECURITIES CORP.
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BNP Paribas Securities Corp.
787 Seventh Avenue
New York, NY 10019
Attention: Syndicate Desk
Tel: 212-841-2871
Toll Free: 1-800-854-5674
E-mail: new.york.syndicate@bnpparibas.com |
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| BOFA SECURITIES, INC. |
BofA Securities, Inc.
50 Rockefeller Plaza
NY1-050-12-02
New York, New York 10020
Facsimile: (646) 855-5958
Attention: High Grade Transaction Management/Legal |
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| CAPITAL ONE SECURITIES, INC. |
Capital One Securities, Inc.
201 Saint Charles Avenue, Suite 1830
New Orleans, Louisiana 70170
Attention: Debt Capital Markets
Telephone: (504) 528-9174
Facsimile: (646) 589-9519 |
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| CIBC WORLD MARKETS CORP. |
CIBC World Markets Corp.
300 Madison Avenue, 5th Floor
New York, New York 10017
Attention: Execution Management Group
Telephone: (212) 856-3571
Email: DLCIBCExecutionmanagement@cibc.com |
| CITIGROUP GLOBAL MARKETS INC. |
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Attention: Transaction Execution Group
Telephone: (212) 816-1135
Facsimile: (646) 291-5209 |
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|
| CREDIT SUISSE SECURITIES (USA) LLC |
Credit Suisse Securities (USA) LLC
Eleven Madison Avenue
New York, New York 10010-3629
Attention: IBCM – Legal
Facsimile: (212) 325-4296 |
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| DEUTSCHE BANK SECURITIES INC. |
Deutsche Bank Securities Inc.
60 Wall Street
New York, New York 10005
Attention: Debt Capital Markets
Syndicate, with a copy to General
Counsel, 36th Floor |
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|
| GOLDMAN SACHS & CO. LLC |
Goldman Sachs & Co. LLC
200 West Street
New York, New York 10282
Attention: Registration Department
Telephone: (866) 471-2526
Facsimile: (212) 902-9316 |
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|
| HSBC SECURITIES (USA) INC. |
HSBC Securities (USA) Inc.
452 Fifth Avenue – Tower 3
New York, New York 10018
Attention: Transaction Management Group
Telephone: (212) 525-5107
Facsimile: (212) 525-0238 |
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|
| J.P. MORGAN SECURITIES LLC |
J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
Attention: High Grade Syndicate
Telephone: (212) 834-4533
Facsimile: (212) 834-6081 |
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|
| MORGAN STANLEY & CO. LLC |
Morgan Stanley & Co. LLC
1585 Broadway, 29th Floor
New York, New York 10036
Attention: Investment Banking Division
Telephone: (212) 761-6691
Facsimile: (212) 507-8999 |
| PNC CAPITAL MARKETS LLC |
PNC Capital Markets LLC
The Tower at PNC Plaza
300 Fifth Avenue, 10th Floor
Pittsburgh, Pennsylvania 15222
Attention: Robert Thomas
Telephone: (412) 645-7828 |
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| RBC CAPITAL MARKETS, LLC |
RBC Capital Markets, LLC
Brookfield Place
200 Vesey Street, 8th Floor
New York, NY 10281
Tel: (212) 618-7706
Fax: (212) 428-6308
Attn: Transaction Management |
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| TD SECURITIES (USA) LLC |
TD Securities (USA) LLC
31 West 52nd Street
New York, New York 10019
Attention: Transaction Management Group
Telephone: (855) 495-9846
ustmg@tdsecurities.com |
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| UBS SECURITIES LLC |
UBS Securities LLC
1285 Avenue of the Americas
New York, New York 10019
Attention: Fixed Income Syndicate
Telephone: (203) 719-1088
Facsimile: (203) 719-0495 |
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|
| WELLS FARGO SECURITIES, LLC |
Wells Fargo Securities, LLC
550 South Tryon Street – 5th Floor
Charlotte, North Carolina 28202
Attention: Transaction Management
Telephone: (704) 410-4792
Facsimile: (704) 410-0326 |
EXHIBIT A
FORM OF TERMS AGREEMENT
U.S. Bancorp
(A Delaware corporation)
[Medium-Term Notes, Series AA (Senior)]
[Medium-Term Notes, Series BB (Subordinated)]
TERMS AGREEMENT
_____, 20[ ]
Attention:
Re: Distribution Agreement,
dated as of March 11, 2020
The undersigned agrees
to purchase the following principal amount of Securities:
$______
Initial Public Offering Price:
[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):]*
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 through 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).]]
| * | Applicable to Floating Rate Notes only. |
| ** | Applicable to Foreign Currency Notes Only. |
| *** | Applicable to Fixed Rate Notes only |
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[AGENT] |
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By: |
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Name: |
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Title: |
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Accepted: |
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U.S. BANCORP |
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By: |
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Name: |
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Title: |
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EXHIBIT B
FORM OF SYNDICATED TERMS AGREEMENT
[Date]
| To: |
The Purchasing Agents Listed on Annex 1 Hereto |
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| c/o |
[Agent/Address] |
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(the “Lead Agent[s]”) |
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| Re: |
Distribution Agreement, dated as of March 11, 2020 |
|
Ladies and Gentlemen:
Subject to the terms
and conditions of the Distribution Agreement, dated as of March 11, 2020, between U.S. Bancorp and the agents listed
on Schedule A thereto concerning the sale of Securities to be issued by the Company, 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, severally and not jointly,
on a syndicated basis the ___________________ Notes due ___________ of the Company (the “Securities”), described
in the [Pricing Supplement/Term Sheet] attached as Annex 2 hereto, on the terms and subject to the conditions set forth
in such [Pricing Supplement/Term Sheet], the Distribution Agreement and this Syndicated Terms Agreement. Unless otherwise defined
herein, all terms used herein have the meanings given to them in the Distribution Agreement; provided that the term “General
Disclosure Package” when used in the Distribution Agreement shall mean, collectively, the Basic Prospectus, the Prospectus
Supplement and the [Pricing Supplement/Term Sheet] attached as Annex 2 hereto.
| 1. | Subject to the terms and conditions of the Distribution Agreement and this Agreement, the Company
hereby agrees to issue the Securities, and each of the Purchasing Agents agrees, severally and not jointly, to purchase, at the
purchase price of ___ per Security (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), the number of Securities set forth
opposite the name of such Purchasing Agent in Annex 1 hereto. |
| 2. | The Applicable Time means ____ [a.m./p.m.] (Eastern time) on ____, 20__. |
| 3. | 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 Company at _____ (Eastern time) on __________, 20__ or at such other time and/or date as the Company 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. |
| 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 Purchasing
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 Purchasing Agents of the Securities; and (c) such other opinions,
certificates and documents as may be agreed by the Company and the Agents on or prior to the date of this Agreement. |
| 5. | The Company 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 Company appointing each New Agent as an Agent with respect to the Issue, each New Agent hereby undertakes for the benefit of
the Company 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 Company 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 Syndicated Terms Agreement. |
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.
[Remainder of page intentionally
left blank.]
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Very truly yours, |
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[Purchasing Agents] [New Agents] |
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By: |
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Name: |
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Title: |
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| Accepted: [Date] |
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| U.S. BANCORP |
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| By: |
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| Name: |
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| Title: |
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ANNEX 1
| AGENT |
PRINCIPAL AMOUNT OF SECURITIES |
| [ _____] |
$ |
[ _____ ] |
| [ _____] |
|
[ _____ ] |
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|
| TOTAL: |
$ |
|
ANNEX 2
[ATTACH PRICING SUPPLEMENT/TERM SHEET]
