Exhibit 1.2
Execution
Version
U.S. BANCORP
UNDERWRITING
AGREEMENT
STANDARD
PROVISIONS
(PREFERRED STOCK, WHICH MAY BE
REPRESENTED BY DEPOSITARY SHARES)
(October 19, 2021)
From time to time, U.S. Bancorp,
a Delaware corporation (the “Company”), may enter into one or more underwriting agreements (each such agreement,
an “Underwriting Agreement”) that provide for the sale of shares of certain shares of its Preferred Stock, par
value $1.00 per share (the “Preferred Shares”) (which may be represented by depositary shares (the
“Depositary Shares”) deposited against delivery of Depositary Receipts (the “Depositary
Receipts”) evidencing the Depositary Shares that are to be issued by the depositary specified in the applicable
Underwriting Agreement (the “Depositary”), under a deposit agreement, dated as of the date specified in such
Underwriting Agreement (the “Deposit Agreement”), among the Company, the Depositary and the holders from time to
time of the Depositary Receipts issued thereunder) (the Preferred Shares and the Depositary Shares, if any, representing the
Preferred Shares, collectively, the “Securities”), to the several underwriters (the
“Underwriters”) named therein. Each Depositary Share will represent beneficial ownership of the fraction of a
Preferred Share specified in such Underwriting Agreement.
The standard provisions hereof
may be incorporated by reference in any Underwriting Agreement. As used herein, the term “Preferred Stock” means the
series of preferred stock named in the first sentence of the Underwriting Agreement and the term “Depositary Shares”
means the depositary shares, if any, specified in the first sentence of the Underwriting Agreement. The term “Agreement”
means the Underwriting Agreement, including the provisions hereof incorporated therein by reference. Unless otherwise defined herein,
all other defined terms have the meanings ascribed thereto in the Underwriting Agreement.
I
The Company may issue from time
to time, in one or more series, Securities pursuant to the provisions of the automatic shelf registration statement on Form S-3 filed
on March 11, 2020 (Registration No. 333-237082), as thereby amended. Such Securities may be issued in amounts, at prices and other terms
to be determined in light of market conditions at the time of sale. The specific number of the Securities, title and liquidation preference
of each Security, issuance price, distribution rate or rates (or method of calculation), distribution periods, distribution payment dates,
redemption provisions, and any other specific terms of the Securities shall be set forth in a prospectus supplement. Promptly after execution
and delivery of an Underwriting Agreement, the Company will prepare and file a prospectus in accordance with the provisions of Rule 430B
under the Securities Act of 1933, as amended (the “Securities Act”), and paragraph (b) of Rule 424 under the Securities
Act. Any information included in such prospectus that was omitted from such registration statement at the time it first became effective
but that is deemed to be part of and included in such registration statement pursuant to Rule 430B(f) is referred to as the “Rule
430B Information.”
The Securities specified in Schedule
I to the Underwriting Agreement are the “Firm Securities.” If specified in such Underwriting Agreement, the Company
may grant to the Underwriters the right to purchase at their election an additional number of the Securities specified in such Underwriting
Agreement as provided in Article III hereof (the “Optional Securities”). The Firm Securities and the Optional Securities,
if any, which the Underwriters may elect to purchase pursuant to Article III hereof are herein collectively called the “Offered
Securities.”
The Company has filed with the
Securities and Exchange Commission (the “Commission”) a registration statement in respect of the Preferred Stock and
the Depositary Shares (collectively, the “Registered Securities”), including a prospectus relating to the Registered
Securities, and will file with the Commission a prospectus supplement specifically relating to the Offered Securities pursuant to Rule
424 under the Securities Act. Such registration statement, at any given time, including the amendments thereto to such time, the exhibits
and any schedules thereto at such time, the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities
Act at such time and the documents otherwise deemed to be a part thereof or included therein by the rules and regulations under the Securities
Act, is herein called the “Registration Statement.” The Registration Statement at the time it originally became effective
is herein called the “Original Registration Statement.”
The term “Basic Prospectus”
means the base prospectus relating to the Registered Securities included in the Registration Statement in the form in which it has most
recently been filed with the Commission and became effective on or prior to the date of the Underwriting Agreement.
The term “Prospectus”
means the final prospectus supplement, dated the date of the Underwriting Agreement, relating to the Offered Securities and the Basic
Prospectus, collectively, in the form first furnished to the Underwriters for use in connection with the offering of the Offered Securities,
including the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities Act at the time of the
execution of the Underwriting Agreement.
The term “Preliminary Prospectus”
means a preliminary prospectus (including the Basic Prospectus and any preliminary prospectus supplement filed with the Commission) used
in connection with the offering of the Offered Securities that omits Rule 430B Information.
As used herein, the terms “Registration
Statement,” “Basic Prospectus,” “Prospectus” and “Preliminary Prospectus”
shall include, in each case, the material, if any, incorporated by reference therein as of its effective time, in the case of the Registration
Statement and the Basic Prospectus, and as of the date of such prospectus, in the case of any Prospectus or Preliminary Prospectus. Any
reference to any amendment or supplement to the Basic Prospectus, Prospectus or preliminary prospectus shall be deemed to refer to and
include any document incorporated by reference after the date of such Basic Prospectus or any Prospectus or Preliminary Prospectus, as
the case may be. Any reference to any amendment to the Registration Statement shall be deemed to include any document incorporated by
reference after the effective time of such Registration Statement.
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, as evidenced by its being specified in Schedule II to the Underwriting Agreement.
The term “Issuer Limited
Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not an Issuer General Use Free Writing Prospectus.
All references herein to the Registration
Statement, any Preliminary Prospectus, the Prospectus or any amendment or supplement to any of the foregoing shall be deemed to include
the copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system (“EDGAR”).
As more fully described in the General
Disclosure Package (as such term is defined in paragraph (c) of Article VII hereof), the Company entered into a Share Purchase Agreement,
dated September 21, 2021 (the “Share Purchase Agreement”), among the Company, Mitsubishi UFJ Financial Group, Inc.,
a joint stock company (kabushiki kaisha) organized under the laws of Japan and MUFG Americas Holdings Corporation, a corporation
organized under the laws of the state of Delaware, pursuant to which the Company agreed to purchase all outstanding shares of common stock
of MUFG Union Bank, N.A., a national banking association (the “Acquisition”).
II
The terms of the public offering of
the Firm Securities are set forth in the General Disclosure Package (as such term is defined in paragraph (c) of Article VII hereof) and
the Prospectus.
III
The Company may specify in the
Underwriting Agreement applicable to any Securities that the Company thereby grants to the Underwriters the right (an
“Overallotment Option”) to purchase at their election up to the number of Optional Securities set forth in such
Underwriting Agreement, on the terms set forth in Article II above, for the sole purpose of covering overallotments in the sale of
the Firm Securities. Any such election to purchase Optional Securities may be exercised by written notice from each of the
Representatives (as defined in the Underwriting Agreement) to the Company, given within a period specified in the Underwriting
Agreement, setting forth the aggregate number of Optional Securities to be purchased and the date on which such Optional Securities
are to be delivered, as determined by the Representatives but in no event earlier than the first Closing Date or, unless the
Representatives and the Company otherwise agree in writing, earlier than or later than the respective number of business days after
the date of such notice set forth in such Underwriting Agreement.
The number of Optional Securities
to be added to the number of Firm Securities to be purchased by each Underwriter as set forth in Schedule I to the Underwriting Agreement
applicable to such Securities shall be, in each case, the number of Optional Securities which the Company has been advised by the Representatives
have been attributed to such Underwriter; provided, that, if the Company has not been so advised, the number of Optional Securities
to be so added shall be, in each case, that proportion of Optional Securities which the number of Firm Securities to be purchased by such
Underwriter under such Underwriting Agreement bears to the aggregate number of Firm Securities (rounded as the Representatives may determine
to the nearest 10 shares). The total number of Offered Securities to be purchased by all Underwriters pursuant to such Underwriting Agreement
shall be the aggregate number of Firm Securities set forth in Schedule I to such Underwriting Agreement plus the aggregate number of Optional
Securities which the Underwriters elect to purchase.
IV
Payment for
the Securities shall be made in federal (same day) funds at the time, date and place set forth in the Underwriting Agreement, upon delivery
to the Representatives, through the facilities of The Depository Trust Company (“DTC”), for the respective accounts
of the several Underwriters of the Securities. Each time and date of such payment and delivery of the Securities, including any payment
and delivery pursuant to the exercise of the Overallotment Option by the Underwriters, is herein referred to as a “Closing Date.”
The Company will cause the certificates representing the Securities to be made available for checking and packaging at least one day prior
to the Closing Date at the office of DTC or its designated custodian.
V
The several obligations of
the Underwriters hereunder are subject to (i) the condition that all representations and warranties and other statements of the
Company in or incorporated by reference in the Underwriting Agreement are, at and as of each Closing Date, true and correct,
(ii) the condition that the Company shall have performed
all of its respective obligations hereunder theretofore to be performed, and (iii) to the following additional conditions:
(a)
The Representatives shall have received on each Closing Date a certificate of the Chairman, Vice Chairman, President or a Vice
President of the Company, each dated such Closing Date and to the effect (i) that there has neither been a 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 (as defined
in Section 3(a)(62) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), (ii) that the representations
and warranties of the Company contained in Article VII are true and correct with the same force and effect as though expressly made at
and as of the date of such certificate, (iii) that the Company has complied with all agreements and satisfied all conditions on its part
to be performed or satisfied at or prior to the date of such certificate, and (iv) that, 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.
(b)
The Representatives shall have received on each Closing Date an opinion of Mayer Brown LLP, counsel to the Company, each dated
such Closing Date, addressed to the Underwriters, and to the effect set forth in Exhibit A.
(c)
The Representatives shall have received on each Closing Date an opinion of the General Counsel of the Company, each dated such
Closing Date, addressed to the Underwriters, and to the effect set forth in Exhibit B.
(d)
The Representatives shall have received on each Closing Date an opinion of counsel to the Underwriters specified in the applicable
Underwriting Agreement (the “Underwriters’ Counsel”), each dated such Closing Date, addressed to the Representatives,
relating to the incorporation of the Company, the validity of the Offered Securities and the Underwriting Agreement, the Registration
Statement, the Prospectus and other related matters as the Underwriters may reasonably request.
(e)
At the time of execution of the applicable Underwriting Agreement, the Representatives shall have received a letter dated such
date, in form and substance satisfactory to the Representatives, from Ernst & Young LLP, containing statements and information of
the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements
and certain financial information contained or incorporated by reference in the Registration Statement and the General Disclosure Package.
(f)
On each Closing Date, the Representatives shall have received from Ernst & Young LLP a letter, each dated such Closing Date,
to the effect that they reaffirm the statements made in the letter furnished pursuant to paragraph (e) above, except that the specified
date referred to shall be a date not more than three business days prior to the Closing Date, and such letter shall contain statements
and information with respect to certain financial information contained in the Prospectus.
(g)
On or prior to each Closing Date, the Underwriters’ Counsel shall have been furnished with such documents and opinions as
they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Offered Securities as herein contemplated
and related proceedings, or in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment
of any of the conditions contained herein or in the applicable Underwriting Agreement; and all proceedings taken by the Company in connection
with the issuance and sale of the Offered Securities as herein contemplated shall be satisfactory in form and substance to the Underwriters
and the Underwriters’ Counsel.
(h) Since
the date of the latest audited financial statements incorporated by reference in the General Disclosure Package and the Prospectus,
(i) there shall not have been any material adverse change in the condition, financial or otherwise, of the Company and its
subsidiaries considered as one enterprise, or in the earnings, affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of business, other than as set forth in the General
Disclosure Package and the Prospectus; (ii) there shall not have occurred since the date of the applicable Underwriting Agreement
any outbreak or escalation of hostilities or any material change in financial markets or other calamity or crisis the effect of
which is such as to make it, in the judgment of the Representatives, impracticable or inadvisable to proceed with the public
offering or the delivery of the Offered Securities on the terms and in the manner contemplated by the General Disclosure Package and
the Prospectus; (iii) trading in securities of the Company as of the date of the Underwriting Agreement shall not have been
suspended by the Commission or a national securities exchange, nor shall trading generally on either the 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; (iv) there shall not have been a material disruption in commercial
banking or securities settlement or clearance services in the United States; (v) the rating assigned by any nationally recognized
statistical rating organization to any debt securities of the Company as of the date of the Underwriting Agreement shall not have
been downgraded nor shall any notice have been given by any such nationally recognized statistical rating organization of any
intended or potential downgrading or any review for possible change that does not indicate the direction of the possible change in
such rating; and (vi) the General Disclosure Package and the Prospectus, at the time it was required to be delivered to a purchaser
of the Offered Securities, shall not have contained an untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the circumstances existing at such time, not misleading.
(i)
The Representatives shall have received on each Closing Date a certificate of the Depositary.
(j)
If any Depositary Shares are to be issued, the Deposit Agreement shall have been duly authorized, executed and delivered, in a
form reasonably satisfactory to the Representatives, and will conform in all material respects to the statements relating thereto in the
General Disclosure Package and the Prospectus.
VI
In further consideration of the
agreements of the Underwriters contained in the Underwriting Agreement, the Company covenants as follows:
(a)
The Company will give the Representatives notice of its intention to file any amendment to the Registration Statement or any amendment
or supplement to the Prospectus, whether by the filing of documents pursuant to the Exchange Act, the Securities Act or otherwise. The
Company will furnish the Representatives with copies of any such amendment or supplement or other documents, other than documents filed
pursuant to the Exchange Act, proposed to be filed a reasonable time in advance of filing, and will furnish the Representatives with copies
of documents filed pursuant to the Exchange Act promptly upon the filing thereof;
(b) The
Company will promptly notify the Representatives (i) of the filing and effectiveness of any amendment to the Registration Statement,
(ii) of the mailing or the delivery to the Commission for filing of any supplement to the Prospectus or any document to be filed
pursuant to the Exchange Act which will be incorporated by reference in the Prospectus, (iii) of the receipt of any comments from
the Commission with respect to the Registration Statement or the Prospectus or any amendment or supplement thereto, (iv) of any
request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for
additional information, (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration
Statement or the initiation or threat of initiation of any proceedings for that purpose, or (vi) of the suspension of qualification
of the Offered Securities for offering or sale in any jurisdiction or the initiation or threat of initiation of any proceedings for
that purpose. The 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;
(c)
If, during the period after the date of the first public offering of the Offered Securities when the Prospectus (or in lieu thereof,
a notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered, any event shall occur or condition exist
as a result of which it is necessary, in the reasonable opinion of the Underwriters’ Counsel or counsel for the Company, to further
amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time
it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend
the Registration Statement or to file a new registration statement or amend or supplement the Prospectus in order to comply with the requirements
of the Securities Act or the rules and regulations issued by the Commission thereunder, immediate notice shall be given, and confirmed
in writing, to the Representatives, and the Company will promptly prepare and file with the Commission such amendment or supplement, whether
by filing documents pursuant to the Exchange Act, the Securities Act or otherwise, or new registration statement as may be necessary to
correct such statement or omission or to comply with such requirements, and the Company will use its best efforts to have any such amendment
or new registration statement declared effective as soon as practicable (if it is not an automatic shelf registration statement with respect
to the Offered Securities); and if at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event
or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in
the Registration Statement or any other registration statement relating to the Offered Securities or included or would include an untrue
statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the
light of the circumstances prevailing at that subsequent time, not misleading, the Company will promptly notify the Representatives and
will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue
statement or omission;
(d) The
Company will make generally available to its security holders (as defined in Rule 158 under the Securities Act (“Rule
158”) as soon as practicable, but not later than 45 days after the close of each of the first three fiscal quarters of
each fiscal year and 90 days after the close of each fiscal year, earnings statements (in form complying with the provisions of Rule
158) covering a twelve month period beginning not later than the first day of the fiscal quarter next following the effective date
of the Registration Statement (as defined in Rule 158) with respect to each sale of Securities; provided, however, 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 Exchange Act;
(e)
The Company will deliver to the Representatives, without charge, as many signed and conformed copies of the Registration Statement
(as originally filed) and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents
incorporated by reference in the Prospectus) as the Representatives may reasonably request; and the copies of the Original Registration
Statement and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T; provided, however, that the
Company shall not be required to furnish any document (other than the Prospectus) to the Representatives to the extent such document is
available on EDGAR. The Company will furnish to the Representatives as many copies of the Prospectus (as amended or supplemented) as the
Representatives shall reasonably request so long as the Underwriters are required to deliver a Prospectus (or in lieu thereof, a notice
referred to in Rule 173(a) under the Securities Act) in connection with the offering or sale of the Offered Securities; and the Prospectus
and any amendments or supplements thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T;
(f)
The Company will endeavor, in cooperation with the Representatives, to qualify the Offered Securities for offering and sale under
the applicable securities laws of such states and other jurisdictions of the United States as the Representatives may designate, and will
maintain such qualifications in effect for as long as may be required for the distribution of the Offered Securities; provided,
however, that 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;
(g)
The Company, during the period when the Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities
Act) is required to be delivered under the Securities Act, will file promptly all documents required to be filed with the Commission pursuant
to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act;
(h)
The Company will use the net proceeds received by it from the sale of Offered Securities pursuant to the Underwriting Agreement,
in the manner specified in the Prospectus under the caption “Use of Proceeds,” and comply with the provisions of this Article
VI that are applicable to it;
(i)
[Reserved]
(j) The
Company will (A) prepare the Prospectus as amended and supplemented in relation to the applicable Offered Securities in a form
approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) under the Securities Act in the manner and
within the time period required by Rule 424(b) under the Securities Act (without reliance on Rule 424(b)(8)); (B) prepare a final
term sheet, containing solely a description of the Offered Securities, in a form approved by the Representatives and to file such
term sheet pursuant to Rule 433(d) within the time required by such Rule; (C) file promptly all material required to be filed by the
Company with the Commission pursuant to Rule 433(d); and (D) make no further amendment or any supplement to the Registration
Statement or Prospectus after the date of the Underwriting Agreement relating to such Offered Securities and prior to any Closing
Date for such Offered Securities which shall be disapproved by the Representatives for such Offered Securities promptly after
reasonable notice thereof; and
(k)
The Company represents and agrees that, unless it obtains the prior consent of the Representatives, and each Underwriter represents
and agrees that, unless it obtains the prior consent of the Company and the Representatives, it has not made and will not make any offer
relating to the Securities that would constitute an “issuer free writing prospectus,” as defined in Rule 433, or that would
otherwise constitute a “free writing prospectus,” as defined in Rule 405 under the Securities Act (“Rule 405”),
required to be filed with the Commission. Any such free writing prospectus consented to by the Company and the Representatives 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,” as defined in Rule 433, and has
complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing
with the Commission where required, legending and record keeping.
VII
The Company represents and warrants to each Underwriter that:
(a)
The Registration Statement has been filed with the Commission in the form heretofore delivered or to be delivered to the Representatives,
excluding exhibits to the Registration Statement, but including all documents incorporated by reference in the Basic Prospectus, and the
Registration Statement in such form has been declared effective by the Commission and no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that purpose has been initiated or threatened by the Commission, and any
request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel
to the Underwriters; no order preventing or suspending the use of any Preliminary Prospectus or any Issuer Free Writing Prospectus has
been issued by the Commission; the Company meets the requirements for use of Form S-3; and a prospectus containing the Rule 430B Information
shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) under the Securities Act without
reliance on Rule 424(b)(8) under the Securities Act (or a post-effective amendment providing such information shall have been filed and
become effective in accordance with the requirements of Rule 430B under the Securities Act);
(b) The
documents incorporated or deemed to be incorporated by reference in the Registration Statement, the General Disclosure Package 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 Exchange Act and the rules and regulations of the Commission thereunder, and when read together and
with the other information in Registration Statement, the General Disclosure Package and the Prospectus, (a) at the time the
Registration Statement became effective, (b) at the earlier of the time the Prospectus was first used and the date and time of the
first contract of sale of the Offered Securities and (c) as of each Closing Date, did not and will not contain an untrue statement
of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were or are made, not misleading, provided, however, that the representations and
warranties in this paragraph (b) shall not apply to statements in or omissions from the Registration Statement, the General
Disclosure Package and the Prospectus made in reliance upon and in conformity with written information furnished to the Company by
any Underwriter through the Representatives expressly for use therein; and the Company has given the Representatives notice of any
filings made pursuant to the Exchange Act or the rules and regulations thereunder within 48 hours prior to the Applicable Time; the
Company will give the Representatives notice of its intention to make any such filing from the Applicable Time to the Closing Date
and will furnish the Representatives with copies of any such documents a reasonable amount of time prior to such proposed filing, as
the case may be, and will not file or use any such document to which the Representatives or Underwriters’ Counsel shall
reasonably object;
(c) At
the respective times the Original Registration Statement and each post- effective amendment thereto became effective, at each deemed
effective date with respect to the Underwriters pursuant to Rule 430B(f)(2) under the Securities Act and at each Closing Date, the
Registration Statement complied and will comply in all material respects with the requirements of the Securities Act and the rules
and regulations under the Securities Act and the Trust Indenture Act of 1939, as amended (the “Trust Indenture
Act”) and the rules and regulations under the Trust Indenture Act, and did not and will not contain an untrue statement of
a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not
misleading; neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or
supplement was issued and at each Closing 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; each Preliminary Prospectus complied when filed with the Commission in all material respects with the
rules and regulations under the Securities Act and each Preliminary Prospectus and the Prospectus delivered to the Underwriters for
use in connection with this offering was identical to the electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T; and, as of the Applicable Time, neither (x) the Preliminary
Prospectus and the Issuer General Use Free Writing Prospectus(es), all considered together (collectively, the “General
Disclosure Package”), nor (y) any individual Issuer Limited Use Free Writing Prospectus, when considered together with the
General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under which they were made, not misleading; each Issuer Free
Writing Prospectus, as of its issue date and at all subsequent times through the completion of the public offer and sale of the
Securities or until any earlier date that the Company notified or notifies the Representatives, did not, does not and will not
include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement or
the Prospectus, including any document incorporated by reference therein and any preliminary or other prospectus deemed to be a part
thereof that has not been superseded or modified; provided, however, that the representations and warranties in this
paragraph (c) shall not apply to statements in or omissions from the Registration Statement, the Prospectus, the General Disclosure
Package or any Issuer Free Writing Prospectus made in reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives expressly for use therein or to that part of the Registration Statement
constituting the Statement of Eligibility and Qualification under the Trust Indenture Act (Form T-1) of any trustee;
(d)
The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of
Delaware, is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with corporate power and
authority to (A) own, lease and operate its properties and conduct its business as described in the General Disclosure Package and the
Prospectus and (B) to execute and deliver the Underwriting Agreement and, if any Depositary Shares are to be issued, and the Deposit Agreement,
and consummate the transactions herein and therein contemplated, and perform its obligations hereunder and thereunder; and 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 substantial properties or the conduct of its business requires such qualification, except where the failure to so qualify or
to be in good standing would not result in a material adverse change in the condition, financial or otherwise, of the Company and its
subsidiaries considered as one enterprise or in the earnings, business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of business (a “Material Adverse Change”);
(e)
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 General Disclosure Package and
the Prospectus; all of the issued and outstanding capital stock of such bank has been duly authorized and validly issued and is fully
paid and, except as provided in 12 U.S.C. Section 55, non-assessable; and 100% of its capital stock, other than any director’s qualifying
shares, is owned by the Company, directly or through subsidiaries, free and clear of any mortgage, pledge, lien, encumbrance, claim or
equity;
(f) 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 generally accepted accounting principles
(“GAAP”) and to maintain asset accountability; (C) access to assets is permitted only in accordance with
management’s general or specific authorization; and (D) the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with respect to any differences; the Company has established and
maintains disclosure controls and procedures (as defined in Rules 13a-14 and 15d-14 under the Exchange 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;
(g)
The authorized, issued and outstanding capital stock of the Company is as set forth in documents incorporated by reference 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 the Prospectus;
(h)
If any Depositary Shares are to be issued, the Deposit Agreement has been duly authorized and when validly executed and delivered
by the Company will constitute a legal, valid and binding agreement of the Company, enforceable in accordance with its terms, subject
to (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws affecting creditors’
rights generally from time to time in effect, and (B) general principles of equity, regardless of whether considered in a proceeding
in equity or at law and an implied covenant of good faith and fair dealing; and the Depositary Shares are entitled to the benefits of
the Deposit Agreement; and such Deposit Agreement will conform to the description thereof in the General Disclosure Package and the Prospectus;
(i)
The Preferred Shares and the Depositary Shares, if any, have been duly and validly authorized for issuance and sale, and, when
the Firm Securities and any Option Securities are issued and delivered against payment therefor pursuant to the Underwriting Agreement
with respect to such Securities, the Preferred Shares and the Depositary Shares, if any, will be duly and validly issued and fully paid
and non-assessable; and all corporate action required to be taken for the authorization, issue and sale of the Depositary Shares has been
validly and sufficiently taken and upon deposit of the Depositary Shares with the Depositary pursuant to the Deposit Agreement and the
due execution by the Depositary of the Deposit Agreement and the Depositary Receipts, in accordance with the Deposit Agreement, such Depositary
Shares will represent legal and valid interests in the Preferred Shares; the Preferred Shares and the Depositary Shares, if any, conform
to the description thereof contained in the Registration Statement and will conform to the description thereof contained in the General
Disclosure Package and the Prospectus as amended or supplemented with respect to such Securities;
(j)
The issue and sale of the Preferred Shares and the Depositary Shares, if any, and the compliance by the Company with all of the
provisions thereof and of the Underwriting Agreement, and, if any Depositary Shares are to be issued, the Deposit Agreement, and the
consummation of the transactions herein and therein contemplated, and the performance of its obligations hereunder and thereunder, will
not contravene (i) any provision of applicable law, (ii) the certificate of incorporation or bylaws of the Company or articles
of association or bylaws of U.S. Bank National Association or (iii) any agreement or other instrument binding upon the Company or U.S.
Bank National Association, except for such contravention as would not result in a Material Adverse Change, or (iv) any judgment, order
or decree of any governmental body, agency or court having jurisdiction over the Company or any subsidiary; and no consent, approval,
authorization, license or order of, or qualification, filing or registration with, any governmental or regulatory body is required for
the performance by the Company of its obligations under the Underwriting Agreement or, if any Depositary Shares are to be issued, the
Deposit Agreement, except such as have been obtained and made under the Securities Act and the Exchange Act and except such as may be
required by the securities or blue sky laws of the various states in connection with the offer and sale of the Offered Securities, and
the consummation of the transactions contemplated herein and therein;
(k)
Neither the Company nor U.S. Bank National Association is in violation of its organizational documents or in default in the performance
or observance of any obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan or credit
agreement, lease or other agreement or instrument (or similar documents) to which it is a party or by which it or any of its properties
may be bound, which default would result in a Material Adverse Change;
(l) The
statements set forth in the Basic Prospectus under the caption “Securities We May Offer” and the statements set forth in
the General Disclosure Package and the Prospectus under the captions “Summary—About U.S. Bancorp,”
“Description of Capital Stock,” “Description of Series N Preferred Stock,” “Description of Depositary
Shares,” “Certain U.S. Federal Income Tax Considerations,” “Underwriting (Conflicts of Interest)” and
such other sections as may be identified in the Underwriting Agreement, are accurate, complete and fair;
(m)
The Company is not, and after giving effect to the issuance of the Preferred Stock 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”;
(n)
The Company and the subsidiaries of the Company 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;
(o)
The Company and the subsidiaries of the Company 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 the subsidiaries of the Company has received any notice
of infringement of or conflict with asserted rights of others with respect to any trademarks, service marks or trade names that, if the
subject of an unfavorable decision, ruling or finding, would, individually or in the aggregate, result in a Material Adverse Change;
(p)
There is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, now pending,
or, to the knowledge of the Company, threatened against or affecting, the Company or any of the subsidiaries of the Company, which might
result in any Material Adverse Change, or might materially and adversely affect the properties or assets thereof or might materially and
adversely affect the consummation of this Agreement and the consummation of the transactions contemplated hereby; and there are no material
contracts or documents of the Company or any of the subsidiaries of the Company which are required to be filed as exhibits to the Registration
Statement by the Securities Act or by the rules and regulations of the Commission thereunder which have not been so filed;
(q)
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;
(r)
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 Securities Act and the rules and regulations
thereunder;
(s)
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 Securities 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 GAAP applied on a consistent
basis throughout the periods involved;
(t)
Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package or 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 Securities Act, (B) there
has been no Material Adverse Change, 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;
(u)
This Agreement has been duly authorized, executed and delivered by the Company;
(v)
Neither the Company nor any of its affiliates, as such term is defined in Rule 501(b) under the Securities Act (each, an “Affiliate”)
has taken, nor will the Company or any Affiliate 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 any security of the Company to facilitate
the sale or resale of the Offered Securities;
(w)
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;
(x)
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 (“OFAC”), the United Nations Security Council (“UNSC”), the European
Union, Her Majesty’s Treasury (“HMT”), 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;
(y)
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 (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense
relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee
from corporate funds; (iii) violated or is in violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977 or the U.K.
Bribery Act 2010; or (iv) made any unlawful bribe, rebate, payoff, influence payment, kickback or other unlawful payment;
(z)
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, including Section 402 related to loans and Sections 302
and 906 related to certifications;
(aa)
(i)(x) 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 (y) 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 Change, and (iii) the Company and its subsidiaries have implemented backup and disaster recovery technology reasonably consistent
with industry standards and practices;
(bb)
(A) At the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities
Act) made any offer relating to Offered Securities in reliance on the exemption of Rule 163 under the Securities Act and (B) at the date
hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405, including not having been and not being
an “ineligible issuer” as defined in Rule 405. The Company has not received from the Commission any notice pursuant to Rule
401(g)(2) under the Securities 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; and
(cc)
Any certificate signed by any officer of the Company and delivered to the Underwriters or its in connection with an offering of any Securities,
or the sale of Securities to the Representatives pursuant to any applicable Underwriting Agreement, shall be deemed a representation
and warranty by the Company to the Underwriters as to the matters covered thereby on the date of such certificate and at the Closing
Date(s) referred subsequent thereto relating to such offering or sale.
(dd)
The Share Purchase Agreement has been duly authorized, executed and delivered by, and constitutes a valid and binding agreement of, the
Company, enforceable against the Company in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of
creditors or by general equitable principles.
(ee)
Except as otherwise disclosed in the General Disclosure Package and the Prospectus, the Company is not aware of any fact that will prevent
the Company and its subsidiaries from consummating the Acquisition in all material respects as contemplated by the Share Purchase
Agreement.
VIII
(a)
The Company agrees to indemnify and hold harmless each Underwriter, their officers, directors and affiliates and each person, if any,
who controls such Underwriter (each an “Indemnified Person”) within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act as follows:
(i) against any and all loss, liability, claim, damage 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, including without limitation the Rule 430B Information (or
any amendment to the Registration Statement), or the omission or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement
of a material fact contained in the Prospectus (or any amendment or supplement thereto or any related preliminary prospectus or preliminary
prospectus supplement), the General Disclosure Package or in any Issuer Free Writing Prospectus 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 the Representatives expressly for use in the Registration Statement (or any amendment thereto), the Basic Prospectus,
the Preliminary Prospectus, the 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 the Representatives 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 Indemnified Person), 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 the Representatives as
aforesaid), to the extent that any such expense is not paid under (i) or (ii)
above.
(b)
Each Underwriter, severally and not jointly, agrees to indemnify and hold harmless the Company, each of its directors or trustees, 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 Securities Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in
the indemnity contained in paragraph (a) above, but only with respect to untrue statements or omissions, or alleged untrue statements
or omissions, made in the Registration Statement (or any amendment thereto), the Basic Prospectus, the Preliminary Prospectus, the 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 in reliance upon and in conformity with written information relating to such Underwriter
furnished to the Company by the Representatives expressly for use in the Registration Statement (or any amendment thereto), the Basic
Prospectus, the Preliminary Prospectus, the 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 paragraph (a), above, counsel to the indemnified
parties shall be selected by the applicable Underwriter(s) and, in the case of parties indemnified pursuant to paragraph (b), above,
counsel to the indemnified parties shall be elected 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 Underwriters is an indemnified party each such Underwriter shall be entitled to separate counsel (in addition
to any local counsel) in each such jurisdiction to the extent such Underwriter may have interests conflicting with those of the other
Underwriter or Underwriters because of the participation of one Underwriter in a transaction hereunder in which the other Underwriter
or Underwriters did not participate. No indemnifying party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party, unless such settlement (1) includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such proceeding and (2) 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.
(d)
In order to provide for just and equitable contribution in circumstances in which the indemnity agreement provided for in this Article
VIII is for any reason unavailable or insufficient to hold harmless an indemnified party under paragraph (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 Securities sold to the Underwriters in such proportions as is appropriate to reflect
the relative benefits received by the Company on the one hand and the Underwriters on the other. The relative benefits received by the
Company on the one hand and the Underwriters on the other shall be deemed to be in such proportion represented by the percentage that
the total commissions and underwriting discounts received by the Underwriters to the date of such liability bears to the total sales
price (before deducting expenses) received by the Company from the sale of the Offered Securities made to the Underwriters to the date
of such liability, 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 paragraph (c) above,
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 the Underwriters
on the other in connection with the statements or omissions which resulted in such liabilities, claims, damages and expenses, as well
as any other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or by the Representatives 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 the Underwriters agree that it would
not be just and equitable if contributions pursuant to this paragraph were determined pro rata (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred
to above in this paragraph. Notwithstanding the provisions of this paragraph, no Underwriter 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 paragraph that were
offered and sold to the public through such Underwriter exceeds the amount of any damages that such Underwriter has otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled under this paragraph to contribution from any person who
was not guilty of such fraudulent misrepresentation. For purposes of this Article VIII, each person, if any, who controls any Underwriter
within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as
such Underwriter, and each director of the 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 Securities Act or Section 20 of the Exchange 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 Underwriters, the respective obligations of such Underwriters to contribute pursuant to this paragraph are several, and
not joint, in proportion to the aggregate principal amount of Securities that each such Underwriter has agreed to purchase from the Company.
IX
The
indemnity and contribution agreements contained in Article VIII hereof and the representations and warranties of the Company in this
Agreement or in any certificate submitted pursuant hereto shall remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by any Underwriter or on behalf of any Underwriter or any person controlling any Underwriter
or by or on behalf of the Company or each of their respective directors or trustees or each of their officers or any person controlling
the Company and (iii) acceptance of any payment for any of the Offered Securities, if any.
X
If
any Underwriter shall default in its obligation to purchase the Offered Securities, which it has agreed to purchase hereunder, the Representatives
may in their discretion arrange for themselves or another party or other parties to purchase such Offered Securities on the terms contained
herein. If within thirty-six hours after such default by any Underwriter the Representatives do not arrange for the purchase of such
Offered Securities then the Company shall be entitled to a further period of thirty-six hours within which to procure another party or
other parties satisfactory to the Representatives to purchase such Offered Securities on such terms. In the event that, within the respective
prescribed period, the Representatives notify the Company that they have so arranged for the purchase of such Offered Securities or the
Company notifies the Representatives that it has so arranged for the purchase of such Offered Securities, the Representatives or the
Company shall have the right to postpone the Closing Date for a period of not more than seven days, in order to effect whatever changes
may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company
agrees to file promptly any amendments or supplements to the Registration Statement or the Prospectus which in the reasonable opinion
of the Representatives may thereby be made necessary. The term “Underwriters” as used in this Agreement shall include
any person substituted under this Article X with like effect as if such person had originally been a party to this Agreement with respect
to such Offered Securities.
If,
after giving effect to any arrangements for the purchase of the Offered Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in the immediately preceding paragraph hereof, the aggregate principal amount of such Offered
Securities which remains unpurchased does not exceed one-eleventh of the aggregate principal amount of all the Offered Securities then
the Company shall have the right to require each non-defaulting Underwriter to purchase the Offered Securities which such Underwriter
agreed to purchase hereunder and, in addition, to require each non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of Offered Securities which such Underwriter agreed to purchase hereunder) of the Offered Securities of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter
from liability for its default.
If,
after giving effect to any arrangements for the purchase of the Offered Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in the first paragraph of this Article X, the aggregate principal amount of Offered Securities
which remains unpurchased exceeds one-eleventh of the aggregate principal amount of all the Offered Securities or if the Company shall
not exercise the right described in the immediately preceding paragraph to require non-defaulting Underwriters to purchase Offered Securities
of a defaulting Underwriter or Underwriters, then this Agreement shall thereupon terminate, without liability on the part of any non-defaulting
Underwriters or the Company, except for the expenses to be borne by the Company and the Underwriters as provided in Article XI hereof
and the indemnity and contribution agreements in Article VIII hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
XI
The
Company covenants and agrees with the several Underwriters that the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company’s counsel and accountants in connection with the registration of the Securities under
the Securities Act and all other expenses in connection with the preparation, and filing of the Registration Statement, the Basic Prospectus,
any Preliminary Prospectus, any Permitted Free Writing Prospectus and the Prospectus and amendments and supplements thereto and the mailing
and delivering of copies thereof to the Underwriters and to dealers and any costs associated with electronic delivery of any of the foregoing
by the Underwriters to investors; (ii) the cost of printing this Agreement and any blue sky and legal investment memoranda; (iii) all
expenses in connection with the qualification of the Offered Securities for offering and sale under state securities laws as provided
in Article VI hereof, including the fees and disbursements of counsel in connection with such qualification and in connection with the
preparation of any blue sky memorandum or any blue sky and legal investment surveys; (iv) any fees charged by securities rating services
for rating the Securities; (v) the cost of preparing stock certificates and Depositary Receipts; (vi) the fees and expenses of the Depositary
and any agent of the Depositary and the fees and disbursements of counsel for the Depositary in connection with the Deposit Agreement
and the Depositary Shares if any Depositary Shares are to be issued; (vii) the fees and expenses incident to any Overallotment Options
which are not otherwise specifically provided for in this Article XI; (viii) the costs and expenses (including without limitation any
damages or other amounts payable in connection with legal or contractual liability) associated with the reforming of any contracts for
sale of the Offered Securities made by the Underwriters caused by a breach of the representation contained in paragraph (c) of Article
VII; (x) the filing fees incident to, and the fees and disbursements of Underwriters’ Counsel in connection with, securing any
required review by the Financial Industry Regulatory Authority of the terms of the sale of the Securities and (ix) all other costs and
expenses incident to the performance of its obligations hereunder which are not otherwise specifically provided for in this Article XI.
It is understood, however, that, except as provided in this Article XI and Articles VIII and XII hereof, the Underwriters will pay all
of their own costs and expenses, including the fees of their counsel, transfer taxes on resale of any of the Offered Securities by them
and any advertising expenses connected with any offers they may make.
XII
If
the Underwriting Agreement shall be terminated by the Underwriters or any of them, because of any failure or refusal on the part of the
Company to comply with the terms or to fulfill any of the conditions of the Underwriting Agreement, or if for any reason the Company
shall be unable to perform its obligations under the Underwriting Agreement except pursuant to Article X hereof, the Company will reimburse
the Underwriters or such Underwriters as have so terminated the Underwriting Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel) reasonably incurred by such Underwriters in connection
with the Offered Securities.
XIII
In
all dealings hereunder, the Representatives of the Underwriters of Offered Securities shall act on behalf of each of such Underwriters,
and the parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement on behalf of any Underwriter
made or given by such Representatives jointly or by such of the Representatives, if any, as may be designated for such purpose hereunder.
All
statements, requests, notices and agreements hereunder shall be in writing, and if to the Underwriters shall be sufficient in all respects
if delivered or sent by registered mail to the address of the principal offices of the Representatives and if to the Company shall be
sufficient in all respects if delivered or sent by registered mail to the address of the Company set forth in the Underwriting Agreement,
Attention: Treasurer; provided, however, that any notice to an Underwriter pursuant to Article VIII hereof shall be delivered
or sent by registered mail to such Underwriter at its address set forth in its Underwriters’ Questionnaire, which address will
be supplied to the Company by the Representatives upon request.
XIV
This
Agreement shall be binding upon, and inure solely to the benefit of, the Underwriters, the Company and, to the extent provided in Article
VIII hereof, the officers and directors of the Company, each person who controls the Company or any Underwriter, and their respective
heirs, executors, administrators, successors and assigns, and no other person shall acquire or have any right under or by virtue of this
Agreement. No purchaser of any of the Offered Securities from any Underwriter shall be deemed a successor or assign by reason merely
of such purchase.
XV
The
Company acknowledges and agrees that (i) the purchase and sale of the Offered Securities pursuant to this Agreement, including the determination
of the public offering price of the Offered Securities and any related discounts and commissions, is an arm’s-length commercial
transaction between the Company, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the
process leading to such transaction each Underwriter is and has been acting solely as a principal and not the agent or fiduciary of the
Company, (iii) no Underwriter has assumed or will assume an advisory or fiduciary responsibility in favor of the Company with respect
to the offering contemplated hereby and the process leading thereto (irrespective of whether such Underwriter has advised or is currently
advising the Company on other matters) or any other obligation to the Company except the obligations expressly set forth in this Agreement,
(iv) the Underwriters and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ
from those of the Company, and (v) the Company has consulted its own legal and financial advisors to the extent they deemed appropriate.
The Company agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect,
or owes a fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto, or the financial,
tax or other related consequences of the transaction for the Company.
XVI
Time
shall be of the essence of this Agreement.
This
Agreement and any other document to be signed in connection with this Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. Delivery of this
Agreement and any other document to be delivered in connection with this Agreement by one party to the other may be made by facsimile,
electronic mail for other transmission method as permitted by applicable law, and the parties hereto agree that any counterpart so delivered
shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. A party’s electronic signature
(complying with the New York Electronic Signatures and Records Act (N.Y. State Tech. §§ 301-309), as amended from time to time,
or other applicable law) of this Agreement or other document to be signed in connection with this Agreement shall have the same validity
and effect as a signature affixed by the party’s hand.
This
Agreement and the rights and obligations of the parties created hereby shall be governed by the laws of the State of New York.
XVII
In
the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer
from such Underwriter 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 Underwriter 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 Article XVII, 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.
Exhibit
A
Opinion
of Counsel for the Company
The
opinion or opinions of Mayer Brown LLP, counsel for the Company, to be delivered pursuant to paragraph (b) of Article V of the Agreement,
shall be to the following effect (all terms used herein which are defined in the Agreement have the meanings set forth therein):
(i)
The Company is validly existing as a corporation in good standing under the laws of the State of Delaware.
(ii)
The Company has the corporate power and authority under the General Corporation Law of the State of Delaware to (A) own, lease and operate
its material properties and conduct its business substantially as described in the General Disclosure Package and the Prospectus and
(B) execute the Underwriting Agreement and the Deposit Agreement, and to consummate the transactions contemplated therein, and perform
its obligations thereunder.
(iii)
U.S. Bank National Association 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 material properties and conduct its
business substantially as described in the General Disclosure Package and the Prospectus.
(iv)
The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
(v)
The Deposit Agreement has been duly authorized, executed and delivered by the Company and constitutes a legal, valid and binding obligation
of the Company, enforceable against the Company in accordance with its terms, except that (a) the enforceability thereof may be subject
to (i) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating
to or affecting creditors’ rights generally and (ii) general principles of equity and to the discretion of the court before which
any proceedings therefor may be brought (regardless of whether enforcement is sought in a proceeding at law or in equity) and (b) the
enforceability of provisions imposing liquidated damages, penalties or an increase in interest rate upon the occurrence of certain events
may be limited in certain circumstances.
(vi)
The Preferred Shares and the Depositary Shares have been duly and validly authorized for issuance and sale, and, when the Securities
are issued and delivered against payment therefor pursuant to the Underwriting Agreement with respect to such Securities, the Preferred
Shares and the Depositary Shares will be duly and validly issued and fully paid and non-assessable; all corporate action required to
be taken for the authorization, issuance and sale of the Depositary Shares has been validly and sufficiently taken; upon deposit of the
Preferred Shares with the Depositary pursuant to the Deposit Agreement and the due execution and delivery by the Depositary of the Deposit
Agreement and the Depositary Receipts in accordance with the Deposit Agreement, the Depositary Shares will entitle the holder thereof
to the benefits provided in the Deposit Agreement and the Depositary Receipts; and the Preferred Shares and the Depositary Shares conform
as to legal matters in all material respects to the description thereof contained in the General Disclosure Package and the Prospectus.
(vii)
The statements in the Basic Prospectus under the caption “Securities We May Offer—Preferred Stock and Depositary Shares”
and the statements set forth in the General Disclosure Package and the Prospectus under the captions “Description of Capital Stock,”
“Description of Series N Preferred Stock” and “Description of Depositary Shares,” insofar as these statements
are descriptions of contracts, agreements or other legal documents or describe federal statutes, rules and regulations, are accurate
summaries of the matters referred to therein in all material respects.
(viii)
The statements set forth in the General Disclosure Package and the Prospectus under the caption “Certain U.S. Federal Income Tax
Considerations,” insofar as they purport to constitute summaries of matters of United States federal tax law and regulations or
legal conclusions with respect thereto, constitute accurate summaries of the matters described therein in all material respects (subject
to the qualifications and assumptions set forth in such discussion).
(ix)
The Exchange Act reports incorporated by reference into the Registration Statement (other than the financial statements and supporting
schedules and other financial data included therein or omitted therefrom, as to which we express no opinion), when they were filed with
the Commission, appeared on their face to comply as to form in all material respects with the requirements of the Exchange Act and the
rules and regulations of the Commission thereunder;
(x)
The Registration Statement, including without limitation the Rule 430B Information, and the Prospectus, in each case excluding the documents
incorporated by reference therein, as of their respective effective or issue dates (including without limitation each deemed effective
date with respect to the Underwriters pursuant to Rule 430B(f)(2) under the Securities Act and other than the financial statements and
supporting schedules and other financial data included therein or omitted therefrom, as to which we express no opinion) appeared on their
face to comply as to form in all material respects with the applicable requirements of the Securities Act and the rules and regulations
of the Commission thereunder.
(xi)
The Company is not, and after giving effect to the application of proceeds from the offering of the Depositary Shares as contemplated
in the General Disclosure Package and the Prospectus, will not be, required to register as an “investment company” as such
term is defined in the Investment Company Act of 1940, as amended.
(xii)
Based upon our review of the United States federal or New York State laws, rules and regulations, in each case, which, in our opinion,
based on our experience, are normally applicable to transactions of the type contemplated by the Underwriting Agreement and the Deposit
Agreement and the General Corporation Law of the State of Delaware (“United States Applicable Laws”), no consent, approval,
authorization, license or order of, or qualification, filing or registration with, any court or governmental authority or agency is required
for the issuance or sale of the Depositary Shares or the Preferred Shares, the performance by the Company of its obligations under the
Underwriting Agreement or the Deposit Agreement, or the consummation by the Company of the transactions contemplated by the Underwriting
Agreement or the Deposit Agreement, except such as may be required under the Securities Act and the Exchange Act, all of which have been
obtained, or such as may be required under state securities or blue sky laws or the securities laws of any jurisdiction outside the United
States.
(xiii)
The issue and sale of the Preferred Shares and the Depositary Shares do not, and the compliance by the Company with all of the provisions
of the Underwriting Agreement and the Deposit Agreement, and the consummation of the transactions contemplated therein, and the performance
of the obligations thereunder, will not (a) contravene any provision of any United States Applicable Law (except for state securities
or blue sky laws or the securities laws of any jurisdictions outside the United States, as to which we express no opinion), (b) contravene
any judgment, order or decree of any United States federal or New York State court or governmental agency or body having jurisdiction
over the Company or any of its subsidiaries that the Company has identified to us as being material to the business or financial condition
of the Company and its subsidiaries, taken as a whole, or (c) result in any violation of the provisions of the Restated Certificate of
Incorporation, as amended, or Amended and Restated Bylaws of the Company.
Such
counsel shall also have furnished to the Representatives a written statement, addressed to the Underwriters and dated the Closing Date,
in form and substance satisfactory to the Representatives, to the following effect: such counsel has acted as counsel to the Company
and such counsel has participated in conferences with representatives of the Underwriters, the Underwriters’ counsel, officers
and other representatives of the Company; and representatives of the independent public accountants for the Company at which the contents
of the Registration Statement, the General Disclosure Package and the Prospectus and related matters were discussed. Such counsel has
not undertaken to verify independently any of such factual matters, and are not passing upon or assuming responsibility for, the accuracy,
completeness or fairness of the statements contained in the Registration Statement, the General Disclosure Package or the Prospectus,
except as otherwise specifically provided in paragraphs (vii) and (viii) of such counsel’s opinion. Subject to the foregoing, such
counsel confirms that, in the course of performing the services referred to above, nothing came to such counsel’s attention that
caused such counsel to believe that: (A) the Registration Statement, at the Effective Time, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (B)
the Prospectus, as of its date and as of the Closing Date, contained or contains an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they
were made, not misleading; or (C) the General Disclosure Package, as of the Applicable Time, contained an untrue statement of a material
fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading (it being understood that, in each case, such counsel does not express any belief with respect to the
financial statements or financial schedules or other financial or accounting data included or incorporated by reference therein or derived
or omitted therefrom).
Exhibit
B
Opinion
of General Counsel of the Company
The
opinion of the General Counsel of the Company, to be delivered pursuant to paragraph (c) of Article V of the Agreement, shall be to the
following effect (all terms used herein which are defined in the Agreement have the meanings set forth therein):
(i)
The Company is duly qualified to do business as a foreign corporation and is in good standing in each U.S. jurisdiction in which its
ownership or lease of substantial properties or the conduct of its business requires such qualification, except where the failure to
qualify would not have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(ii)
U.S. Bank National Association is lawfully able to transact business in each jurisdiction in which it owns or leases substantial properties
or conducts business, except for the jurisdictions in which the failure to be lawfully able to conduct business would not have a material
adverse effect on U.S. Bank National Association and its subsidiaries, taken as a whole.
(iii)
There are no pending or, to the best of the knowledge of such counsel, overtly threatened lawsuits or claims against the Company or its
subsidiaries which are required to be disclosed in the General Disclosure Package and the Prospectus that are not disclosed as required.
(iv)
The issue and sale of the Preferred Shares and the Depositary Shares do not, and the compliance by the Company with all of the provisions
of the Underwriting Agreement and the Deposit Agreement, and the consummation by it of the transactions contemplated therein, and the
performance of the obligations thereunder, will not conflict with or result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any of its subsidiaries pursuant to any contract, indenture, mortgage, deed of trust, loan
or credit agreement, note, lease or other agreement or instrument known to such counsel to which the Company or any of its subsidiaries
is a party, by which any of them may be bound or to which any of their properties or assets is subject and, in each case, that is material
to the Company and its subsidiaries, taken as a whole.
